
    Sayre v. The Northwestern Turnpike Road.
    July, 1839,
    Lewisburg.
    (Absent Brooke, J.)
    Corporations — Northwestern Turnpike Road — Liability to Action, — An action will not lie against the president and directors of the northwestern turnpike road; the company being composed exclusively of officers of the government, having no personal Interest in it, or in its concerns, and only acting as the organ of the commonwealth in effecting a great public improvement.
    The declaration in this case was in these words:
    Squire Sayre complains of the president and directors of the northwestern turnpike road, in custody &c. of a plea of trespass cm the case. For that heretofore, to wit, on the 19th day of March 1831, by an act passed by the legislature of Virginia, entitled “an act to provide for the construction of a turnpike road from *Winchester to some point on the Ohio river,” the said defendants were incorporated by the name of “the president and directors of the northwestern turnpike road” as aforesaid, with power, among other things, to sue and be sued, and to cause to be constructed a road from 'Winchester in the county of Frederick to some point on the Ohio river, to be selected by the principal engineer, and to erect bridges across streams oí water, at such sites as the said principal engineer should indicate; as by the said act will more fully appear. And the plaintiff further saith, that after the passage of the said act, to wit, on the-day of--■ — ■ 1834, the principal en-gineér, under and by virtue of said act, and in pursuance of the orders -and directions of the said defendants, located said road from Winchester aforesaid to Parkersburg in the county of Wood, on the Ohio river, and in making his said location the said engineer designated a site for a bridge across Middle Island creek, near Eewisport in Harrison county. And the plaintiff further saith, that afterwards, to wit, on the -day of- 1837, the said defendants, by'their agents and servants, erected and caused to be constructed at the said site, a bridge across said Middle Island creek; and the plaintiff then and there owned and possessed a certain water grist and saw mill and milldam, near to and below said bridge, which said water grist and ■ saw mill and milldam the plaintiff had, for - a long time before the erection of said bridge, used and possessed for grinding and sawing, and was of great value, to wit, of the value of 2000 dollars. Yet the said defendants, well knowing the premises, so negligently, defectively and -unskilfully plained and constructed their said bridge, that by reason thereof, afterwards, to wit, on the —— day of November 1837, the water running and flowing down said creek, then and there removed and washed said bridge away from said site where it had been constructed as aforesaid, against *the said grist and saw mill and milldam of the plaintiff, and then and there destroyed said mill and milldam, the plaintiff being then and there the owner and possessor of said grist and saw mill and mill-dam. By reason whereof, the -plaintiff saith he has sustained damage to the amount of 2000 dollars. Therefore he sues &c.
    The defendants demurred generally to the declaration, and the plaintiff joined in the demurrer.
    The circuit court of Harrison sustained the demurrer, and rendered judgment for the defendants; and on the petition of the plaintiff, a supersedeas was awarded.
    William A. Harrison for the plaintiff in error.
    George H. Lee for the defendants in error.
    
      
      Northwestern Turnpike Road — Liability to Action.— In the case of Sayre v. Northwestern Turnpike Road, 10 Leigh 454. which was an action of trespass on the case to recover damages for the washing away of the plaintiff’s saw and grist mills and milldam, caused by the alleged negligent planning and construction of a bridge by the defendant corporation oyer the stream upon which they were built, it was held that the action would not lie because the defendant corporation was composed, in the language of President Tucker, who delivered the unanimous opinion of the court, exclusively of officers' of the government, having no personal interest in it, or in its concerns, and only acting as the organ of the commonwealth in effecting a great public improvement. This conclusion is fully sustained, we think, by the weight of authority. Buchanan, J., delivering the opinion of the court in Maia v. Eastern State Hospital, 97 Va. 511, 34 S. E. Rep. 617.
      Dunningtons v. Northwestern Turnpike Road. 6 Gratt. 160, was an action of assumpsit against the president and directors of the northwestern turnpike road for work and labor done and materials furnished; and it was held that the action would lie. Judge Au.kn, delivering the opinion ol the court, in distinguishing the case at bar from the principal case, said: “The question really is not whether any action will lie against this company, pntwhether, having regard to the objects of the corporation, the action will lie for the particular grievance complained of. It was not decided in the case of Sayre v. The N. W. Turnpike Road, 10 Leigh 454, that no action will lie against this corporation; all that the case decided, was that the action would not lie against this company for the inj ury there complained pf. The suit was brought to recover damages for a remote and consequential injury to the property of the plaintiff. The declaration averred, that owing to the defective construction of abridge by the company, it fell, and was carried by the stream against the mill and dam of the plaintiff, whereby they were destroyed. The reasons which governed the court, in holding that an action for such an injury could not be maintained against this company, are not given. The case was probably considered as falling under the influence of the case of the Governor and Co. of the British Cast Plate Manufacturers v. Meredith, 4 T. R. 794; Boulton v. Crowther, 9 Eng. C. L. R. 227, and Lansing v. Smith, 8 Cow. R. 146; in which it was held that commissioners or trustees, acting under the authority of law, to effect a public improvement for public purposes, in which they have no direct private interest, and who do not exceed their jurisdiction, are not liable to an action for a consequential injury resulting from an act they are authorized to do. The present case is, not of that character; it is founded upon contract, such as the company was necessarily authorized to mate for the purpose of preserving the work committed to its charge; and there is nothing in the words or spirit of the law which exempts the company from such an action.”
      See the principal case also distinguished in James River, etc., Co. v. Early, 13 Gratt. 553, 555.
      In Tompkins v. Kanawha Board, 19 W. Va. 260, 261, 264, President Johnson, after setting forth the facts and decisions in the principal case, Dunningtons v. Northwestern Turnpike Road, 6 Gratt. 160, and James River, etc., Co. v. Early, 13 Gratt. 541, and quoting at some length from each of these cases, said: "As we understand the ground, upon which the decree in Sayre v. Northwestern Turnpike Road, 10 Leigh, supra, was placed, that case was virtually overruled by the case in 6 Gratt. (Dunningtons v. Northwestern Turnpike Co.)" But see Maia v. Eastern Hospital, 97 Va. 513, 34 S. E. Rep. 617, where it is said that Dunningtons v. Northwestern Turnpike Co., 6 Gratt. 160, distinguishes the case at bar from the principal case. In this same case (Maia v. Eastern Hospital), it is said that no conflict exists between the principal case and Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163.
      Corporations — Liability—How Question Raised. — If the cause of action stated in the declaration is one for which the corporation is not liable, a demurrer is the proper and usual way to raise the question. Duncan v. City of Lynchburg, 2 Va. Dec. 706, citing principal case; Noble v. City of Richmond, 31 Gratt. 271; Orme v. City of Richmond, 79 Va. 86; Powell v. Town of Wytheville, 95 Va. 73, 27 S. E. Rep. 805; Maia v. Eastern Hospital, 97 Va. 507, 34 S. E. Rep. 617.
    
   TUCKER, P.

The court, not deciding the other questions argued in this case at the bar, are unanimously of opinion that the action does not lie in this case against the northwestern turnpike company, composed as it is exclusively of officers of the government, having no personal interest in it, or in its concerns, and only acting as the organ of the commonwealth in effecting a great public improvement.

Therefore it is considered that the judgment be affirmed, and that the appellees recover of the appellant their costs by them about their defence in this behalf expended.  