
    
      Court of Common Pleas, Dauphin County,
    
    
      December 15th, 1851.
    Nisley v. The Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad.
    A contractor or laborer has no power to bind a railroad company for materials furnished for the construction of the road. A railroad company, having only a right of way over land, has no right to take stone, or other materials upon the line of its track, to aid in the construction of the road.
   By the Court.

Several of the exceptions in this case, if supported by evidence, would be fatal to the verdict of the inquest. If the jury refused to hear evidence, that the stone used in the work of the company was obtained from the petitioner by contract on the part of Leader, who did the work, they fell into gross error, fatal to their verdict. It was most essential testimony. If a contract was made for the sale of the stone to Leader, the company is not liable. No evidence is adduced to establish the exception : so far as Leader speaks on the subject in his deposition, he contradicts it. The company is not liable in any case for materials used, except 'when taken under the direction of the president, some of the managers, or other known officers or agents; among whom should be classed engineers employed by it, having charge of the construction of the work. The law creating this corporation never conferred on a mere contractor or laborer the power to enter on the property of citizens residing along the line of the road, and take their materials. The person so entering would be a trespasser. Nor did it subject the company to a claim for damages on account of a trespass not authorized by it, though the act of its officers or admitted agents. If a bargain was made to sell the stone to the contractor, Mr. Nisley should pursue him, and not the company. The exceptor is equally at fault in regard to the third and fourth exceptions. They would both be good, if true; but there is no proof on the subject. The fifth exception has not one word of proof to sustain it. No one proves what was allowed or disallowed by the jury, or on what evidence their verdict was founded. We are by no means prepared to say, that the jury could not allow the owner compensation for the materials taken from the bed of the road, provided, on the whole, he was injured thereby. Unless the company purchased and own the land over which the road was laid, they do not own the materials excavated from its bed. It has an undoubted right, under its charter, to level and fill up the track of the road, so as to give it the proper grade; but when materials are excavated, they belong to the owner of the land. The company has only the right of way. It can take the necessary timber, stones, gravel, etc., either on or off the track of the road, by paying for it. The question does not fairly arise here, as it is to be presumed, until the contrary is proved, that the jury had sufficient evidence before it, that the petitioner’s materials were taken under the order of the company, and acted on that evidence. So far as Leader states anything, it is that he took the stone from certain points of hills to straighten tire road, by order of the engineer. Whether on or off the track he does not know; it does not appear that even that proof was made at the inquest. Everything is desired, nothing admitted by the petitioner. We must act alone on the evidence before us. As the exceptions are not supported by any proof, they are overruled, and the verdict of the jury of inquiry is affirmed.

Alricks and Kwilcel, for plaintiff.

Parlce and Fox, for defendant.

Affirmed by the Supreme Court, May 20th, 1852. •Not reported.  