
    Jeffrey Bliss, an infant, by his next friend, vs. Stephen R. Hosmer.
    A canal contractor may justify the entry upon land for the purpose of procuring necessary materials for liis work, under the order of the engineer in their employ, without proving specific directions -of the Board of Public Works.
    The act of the engineer in their employ in such cases, is the act of the Board.
    The law confers authority to take materials when necessary, from places most convenient and least expensive to the State and the contractor.
    A specification in the contract that materials are to be procured at the cost of the contractor, does not limit the authority conferred by law upon the Board of Public Works to enter upon private lands and appropriate materials when necessary.
    This is a Writ of Error to the Supremo Court of Morgan County.
    The original action was trespass quarfc clausum fregit, brought to recover the value of timber cut upon the land of the plaintiff, and used in constructing a dam and lock at' McConnclsville, on section seven of the Muskingum Improvement.
    
      In Bank.
    Dec. Term,1846.
    The defendant plead, first, that he was in the employment and service of the Board of Public Works : which Board com- , mandad them to go into the wood-lands adjacent to said section seven, (being the dam and lock at McConnelsville,) and cut the necessary timber; that plaintiff’s land was wood-land adjacent to said section seven; and they entered it and took timber, &c., doing no unnecessary damage.
    The second plea differs from the first in omitting the allegation that, the land was adjacent to the section, and also in stating that the command of the Board of Public Works to the defendant as their " agent, was communicated through S. R, Curtis, an engineer and agent of the B.oard.
    Replication to these two pleas, son injuria.
    The issue was tried at McConnelsville in November, 1843, and á verdict taken for defendant upon the second plea.
    A bill of exceptions shows that upon the trial of this cause, the defendant proved that the, defendant and said Harlow Chapin and Joseph Sharp, in the year 1836, entered into a written . contract with the Board of Public Works of the State of Ohio, for and on behalf of the said State by William Wall, acting commissioner, the material parts óf which contract are — that said Hosmer, Chapin and Sharp agreed to construct section number seven of the the Muskingum Improvement, consisting of a dam of timber, a lock and a canal; and which contract, after stating the prices to be paid to said Hosmer, Chapin and Sharp, contained this clause —
    “ It is understood that the foregoing prices are to cover the cost or value of the materials used.”
    The "defendant also proved that,- at and before said contract was entered into, a printed pamphlet entitled, “ Notice to bidders,” was delivered by the said William Wall to said Hosmer, one clause of which was as follows":
    “ All materials must be furnished by the contractor at his ‘ own expense, but when the owners of such materials refuse ' to deliver, or let them be taken, except at exorbitant prices, * the acting commissioner, or engineer, will give an order to the £ contractor to'take .the necessary materials for the construction £ of the canal, the' contractors being liable to pay the damage £ assessed under the provision of the canal law, if any should. £ be assessed.” ' '
    The defendant also proved that large quantities of timber were necessary for the convenience of the construction of said works; and he further proved that on the 2d day of May, 1837, and for some years afterwards, Samuel R. Curtis was the resident engineer upon said portion of the public works of the State, and that he delivered to defendant on said 2d day of May, 1837, a paper, of which the following is a copy : .
    “ McConneesville, 2d May, 1837.
    44 Messrs. Hosmer, Chwpin Sharp:
    
    44 Gents : In behalf of the Board of Public Works of this State, you are 4 hereby authorized to go on to the wood-lands in the vieinity of this place and 4 select, cut and furnish yourselves with the requisite quality and size of tim4 ber for the construction of locks, dams, and other wooden structures as may 4 be required in tho publicámprovement of slackwater navigation of the JVlus4 kingum river. Provided, however, that nothing herein contained shall re-4 lease you from any liability to damages which may be assessed by the State 4 in. consequence of damages to private property, or to authorize you to cut any 4 timber which may not be necessary and proper for the public works at this ‘place, section number seven. SAML. R. CURTIS, Res’t JGng’r.”
    The admission of this paper in evidence was objected to by plaintiffs No proof, other than is above set forth, was given of the defendent being in tho employment or service of the Board of Public Works ; nor any other proof than is above set forth, that ihe Board of Public Works, any member thereof, or any agent thereof, authorized or commanded the plaintiff’s land to be entered, or his timber taken by tho defendant.
    Evidence was given by the plaintiff, tending to show that tho plaintiff’s land was two or two and a half miles from said section seven, and that the necessary timber could have been obtained from land lying nearer to said section, and the plaintiff’s counsel claimed in argument that such fact had been fully established.
    It was in evidence that the defendant owned timber-lands adjoining the plaintiff’s land, from which he had taken timber for section seven, and proof tending to show that he had exhausted his own timber before he resorted to the timber of the plaintiff. There was proof on the part of the defendant ing to show that the quantity and quality necessary for section seven could not be obtained,.so conveniently, nearer than the plaintiff’s and defendant’s lands; and claimed this fact to be established before the jury.
    The Court charged the jury that the material parts of the defendant’s second plea, were : Was the defendant a contractor on section seven ; was he authorized by the resident engineer to enter upon the plaintiff’s land and take the timber which he had taken; and did he, in exercising that authority, do any unnecessary damage ? That it was not necessary to be shown that any application had been made to the owner of the land for timber, &c., or that the owner had refused, or had asked an exorbitant price therefor. That the ' defendant was not obliged to resort -to timber which was nearer the section, but would be equally justified in obtaining it within five miles or one mile — that he might exercise a reasonable discretion as to the placo where to obtain it.
    To the opinions of the Court in admitting the said-paper in evidence, and in the charge to the jury, the plaintiff excepts, &c.
    C. B. Goddard, for Plaintiff.
    On behalf of the plaintiff in error, I claim that this judgment (must be reversed, for the following reasons:
    First: The evidence shows, that the only authority ever given by the Board of Public Works to the defendant, to enter upon the plaintiff’s land, required a previous application to the plaintiff, and a refusal, or a demand of an exorbitant price.
    The plea alledges that the defendant was the agent of the Board of Public Works, and was commanded by the Board, through Mr. Curtis, the engineer, to enter upon the plaintiff’s land and take his timber, &c. The proof wholly fails to sustain this allegation. The Board of Public Works did agree to S*ve SUC^ authority,1 but upon one contingency, which was, when the contractor could not obtain materials except at exorbitant prices. This is the only case in which it is necessary for the Board to interfere for the benefit of the contractor.
    The case of Bloodgood v. The Mohawk and Hudson Railroad Company, 18 Wend. Rep. 9, is much in point: The Legislature of New York authorized the Railroad Company to enter upon land for their road ; but in case of a disagreement as to price, the governor was to appoint three commissioners to determine the damages, &c. Held by the Court, that the company could enter upon no land without the consent of the owner, until the damages were assessed and paid.
    Second: The paper signed by Mr. Curtis was inadmissible in evidence, or, if admissible, could not confer the power assumed for it by the learned Judge who tried the cause,— inasmuch as no evidence was given that the Board, or any member thereof, authorized the order, and because it is general in its terms, specifying no land, but leaving the whole of this tremendous discretionary power, which the Legislature has devolved upon the members of the Board of Public Works, or Canal Commissioners, to be exercised by a contractor as capriciously as he pleases.
    The statute under which the defendant justifies, is found in Swan’s Collated Statutes, chap. 93, sec. 5. It authorizes the “Canal Commissioners” — whose duties at the time of the alledged trespass were performed by the Board of Public Works —“ and each of them, by themselves, and by any and every c superintendent, agent and engineer employed by them, to ‘ enter upon,” &c. It is admitted that the proof established the fact that Mr. Curtis was an engineer. He belonged to the class who might be empowered by the Board to enter land, &c. But there was no proof this power ever had been conferred upon him, and if it had been, he could not confer it upon another.
    
      I know of no case which has sanctioned the delegation of this power. The leading New York cases which establish the constitutionality of their canal laws-. — from which.ours are borrowed— are Jerome v. Ross, 7 Johns. Chan. Rep. 315, and Rogers v. Bradshaw, 20 Johns. Rep. 735. In both these, the acts complained of were done by the State officers; and in the last named case, Chancellor Kent, in delivering the unanimous opinion of the Court of Errors, lays stress upon the fact, that the chief engineer approved of the road as staked out, and that it was staked out by his direction. Pie says also, page 739, “ the commissioners were made the judges as to what lands were necessary for the prosecution of the improvements.”— And again: “ Here was, then, the exercise of a sound discretion in the execution of the trust.” Again, page 740: “ What £ was proper to be done, and what damages were unavoidable, £ were questions left entirely to the judgment of the commis- ‘ sioners.”
    Third: The charge of the Court assumes, that proof that the defendant was a contractor established the second plea, which had carefully omitted to style him a contractor, and called him the agent of the Board.
    The truth is, there was no proof that the defendant was an agent of the Board of Public Works, except so far as proof that he was a contractor made him so. Nor was there any proof that the Board commanded the defendant to enter the plaintiff’s land, except as that proof may be found in the letter of Mr. Curtis, authorizing him to enter upon any body’s land. And it is worthy of remark, that the original plea in this case, in which the defendant justified, on the ground that he was a ££ contractor,” was adjudged bad on demurrer.
    
      C. C. Covey, for Defendant.
    The reasoning of the counsel for the plaintiff, fails to convince nie that he is correct in his first position, which is, that private property cannot be appropriated to public use, before application to the plaintiff, and a refusal, or demand of an exorbitant price. Equally at fault is the counsel in his reference to the case from IS Wendall, for this reason: The Mohawk and Hudson ’ Railroad Company is a private corporation ; the road is made for individual gain, and is not a public highway. True, the Legislature of New York authorized the company to enter upon land for the construction of the road, but in the same clausé provided, that in case of a disagreement as to price the governor should appoint three commissioners, &c.
    The Court there held that, as between these private individuals, ■ before the property of one could be converted to the use and benefit of another, that other should receive pay in full. The Court in that case very wisely refused to recognize the doctrine, that the owner of private property should depend for a repayment of its value upon the solvency of a private corporation, where that property ■ has been seized for individual benefit.
    This doctrine has been fully sustained by this Court, in Bates v. Cooper, 5 Ohio Rep. 120. The Court in that case, remarking upon cases similar to that .cited from 18 Wendall, remark : “ Whatever construction we might feel constrained ‘ to put upon authority given to individuals to appropriate the ‘ property of others to their private advantage, we cannot be- ‘ lieve the cases to have any very material bearing on agents * and officers exclusively public, engaged in the construction of a great public improvement, for the sole.benefit of the State.” In this same case also, of Bates v. Cooper, the doctrine of the learned counsel, that an application must be first made to the owner, a refusal made, or an exorbitant price demanded before the Board can exorcise its authority, of entering upon lands and for the purpose of taking materials, is expressly controverted in the following language^ page 118: “But we are not advised 1 that the Court has ever held, that compensation must be actu- ‘ ally assessed, and paid over to the owner, before a public c work can progress, whether he desires it or not. The Constic tulion must receive a construction that will leave it possessed ‘ of practical utility. The public interest is to- be promoted, ‘ while private rights are secured. But can it be for a moment ‘ supposed, that a road or canal of general importance to £ community, should be interrupted or suspended, at the capri1 cious will of an' individual ?”
    I contend further, that the engineer, Mr. Curtis, was clothed with ample power to enter upon lands to procure the necessary materials; that he could rightfully delegate this power to tlié defendant, as he did, and that the defendant was authorized to exercise a sound discretion in making his selection of the land, from which he would procure the materials.
    Admitting that the agent, in exercising this discretion, erred; that the materials might, by possibility, have beén procured nearer his work; yet, if it appears that there was no error in intention, no disposition manifested to exercise the authoriiy given him by the State, to the injury of one, and in a spirit of favoritism towards another, the Court'will not hold him responsible as a trespasser.
    In the case of Lyon v. Jerome, 15 Wend. 569, the Court say: “ It is stated that the stone could not have been procured £ so conveniently any where else; but this fact is not noticed ‘ by the Chief Justice, in delivering his opinion.' No such £ qualifications of the powers given to the commissioners and £their agents, is found in the act; and although it is highly £ proper that it should enter into their consideration, in deter- £ mining upon the appropriation of the private property of indi- ‘ vidu'als, an error in judgment in respect to it ought not to £ subject them -to be- treated as trespassers.” They further add: '“It may be added that it appears in this case also, that the £ stone from the quarry of the plaintiff was the most convenient £ for building the locks. I conclude then, that, though the au- £ thority to enter upon the plaintiff’s land and use his quarry, £ must be derived from the Canal Commissioners, no express £ and specific directions need be given.” The statute of New York, then under consideration by Chief Justice Nelson, was in almost the identical words of the statute of Ohio. What, then, can be plainer than this position, that the agents of .the commissioners may, without any express authority from them, eater upon lands, -and use the timber and other materials necessary in the construction of the public works ?
    In Rogers and Magee v. Bradshaw, 20 John. 735, the action was trespass, brought against contractors, for entering upon land and cutting timber to make a road, iii place of one which had been appropriated for a canal. The plaintiffs in error had entered into a contract with Samuel Young, one of the Canal Commissioners, for making this road, and, in doing so, cut the .timber necessary for its coiist'ruction. ' The Chancellor delivered the unanimous opinion of the' Court of Errors, in favor of the plaintiffs in error, and they hold the entering of the contractor to be, in fact, the entering of the commissioners. See also, in this case, Wheelock v. Young and Pratts, 4 Wend. 647; Calking v.. Baldwin, Ibid. 667. In the last' case the Judge, in delivering the opinion of the Court, says: “ The Legislature have prescribed the mode in which damages ‘ for the plaintiffs shall be ascertained, and in that mode only ‘ can they properly seek compensation.”
    Unless, then, there is something in this case to distinguish it from cases of a similar nature, - so often decided by the courts of New York and Ohio; unless, in fact, the agents of the State have, in the exercise of the power given them by the Slate, been influenced by improper motives, and caused unnecessary damage to result to the plaintiff, the decision of the Court below must be sustained.
   Birchard, J.

■ Two errors are assigned:—

First: The- admission of the order of the engineer; second : The instructions given to the jury. Of these in their order.

It is objected to the order, that, before i.t issued, there should have been a previous application to the plaintiff .for leave to enter the land, and a refusal, or the demand-of an exorbitant price. In reply to this objection, it is sufficient to observe, that the law imposed no such limitation of power upon the Board of Public Works; and had Curtis, the engineer, been joined in this suit with these defendants,- as he well might have been, if they were trespassers, his justification would have depended" in no sense whatever upon any Such fact. Most certainly, whatever would have sustained him in entering the promises, would also sustain those who entered in virtue of his directions; they were but his agents and assistants in executing the work of the Muskingum Improvement. Much reliance is placed upon certain clauses in the contract, and .in the notice to bidders.— These provisions were inserted for the benefit of the contractors-, not' to embarrass them — to insure to them the means of securing the necessary materials, for the structure of their dam and locks, at reasonable prices. Hence the Board contracted, binding themselves, and giving to the defendants the right to compel them to exercise, in their behalf, the extraordinary powers conferred by statute, in case the stipulated contingency should-happen. The insertion of this .provision of the contract, was no limitation of the power conferred upon .the Board of Public Works, or the engineer, by the statute; that was still left to be exercised, or hot, at their discretion, under the responsibilities of their several stations, as duty and propriety might dictate. But the record shows that plaintiff was a minor — a person who could . not act — one with whom no contract could be made by these defendants. The fact was alledged in the plaintiff’s pleading, and needed no proof; and had it been material, was sufficient, so far as plaintiff’s land or timber was concerned, to have justified the order of Curtis under the clauses in the contract and notice. A minor could give no permission that would be obligatory upon him, not having the capacity to make an obligatory contract; and if that state of facts did not make a case that would justify the engineer in giving a proper-order, it is difficult to say what would.

The order, however, is said to be void because it is too general in its terms, &c.

I take it, that is not the true-test of its validity. The question is, was it broad enough to authorize the specific acts done under it, and were those acts authorized by law ? It may have been very improvident on the part of Curtis, the engineer,. to so general a direction; most certainly would it have sub-jected him to serious .personal responsibility, had that been done under it which the law would not sanction. If a man of ordinary prudence, he would not have given such, a general, permit without the most implicit confidence in the good faith and intelligence of the contractors. Whatever- may have been his motives, the true question was, not whether the direction was too general and improvident, but whether it was, in fact, given; and if so, was it ample and sufficiently-descriptive to authorize an entry upon the land of plaintiff? “You are here- by authorized to go on to the wood-lands, in the vicinity of c this place, and select, cut, and furnish yourselves with the requisite quality and size of timber, for .the construction of locks, dams and other wooden structures, as may be required,” &c. It is equivalent to— you may seek your materials from any wood-land about this place; go where you can find it of the requisite quality and size in this vicinity, and cut what is necessary. Surely this was ample; and the proof tended strongly to show that suitable timber, at reasonable prices, could not well be procured nearer than from plaintiff’s land. The object of the Legislature in granting the power to enter, seize, and make use of the necessary materials, is manifest. They were unwilling to subject the State to the hazard of having its great public works impeded at the caprice of every or any individual, and equally unwilling to permit the cupidity of any person to interpose any obstacle whatever to their completion, at a fair price. It was never contemplated that the officers and agents of the State should be restricted, in their right to appropriate materials, to such as were nearest to the place of use ; such a restriction would have doubled the expense of the State. On the contrary, the plain intent was to confer ample power to take these materials wherever they could be procured at the least expense, in order that the public works might be completed at a fair cost. This, we must presume, was the understanding of the Board of Public Works, and of the contractors, at the time the contract in question was entered into. Consequently the stipulation of the Board to authorize seizures, must be understood in reference to this view of their powers, and the objects of the law. With what propriety, then, could the Board refuse to permit the contractors to take materials from the places least expensive to them ? Admitting that ample graves were to be found in the village of McConnelsville, were the contractors bound to take it thence, and pay the enhanced value which the peculiar locality gave tq it, when, by going a short distance from town, better materials, at half the price, could be procured ? Must they strip the reserved'groves in the village, when, by going a few miles, better material was worth but little more than the expense of cutting, and to take it would aid the owner in clearing the forest, instead of injuring him ? Surely no prudent person would so conduct his private affairs. It is as certain, that the State néver designed their agents to conduct the public business of canal making less providently than a fair man of business would manage his objects of individual enterprise. This question is not a new one in Ohio. For more than twenty years the provision of the statute has been in force and acted upon in Ohio. Resident engineers in some parts of the State, during all that time, under the direction of the Canal Commissioners and Board of Public Works, have been permitted to direct the taking of ma*terial, from such places as were least expensive to the contractor and State, without specific instructions from the Canal Commissioners ; and their right to do so, whether in writing or by parol, though often questioned, has ever been sustained. In disposing of the second assignment of error, this subject' will be necessarily again remarked upon.

We come, then, to the objection taken to the charge of the Court.

The law under which this defence was made, is the 8th section of the act of 1825, (Swan’s Stat. 747 and 748,) which provides thus: “ That it shall and may be lawful for the said ‘ Canal Commissioners, and each of them, by themselves, and f ^ any an<^ every superintendent, agent and engineer employed by them, to enter upon, and take possession of,< and use all and singular any lands, waters, streams and materials, £ necessary for the prosecution of the improvements,” &c., ££ doing no unnecessary damage.” A subsequent statute conferred this same power of the Canal Commissioners upon the Board of Public Works. That part of the act which I have quoted, is copied in the very words of the law of New York, of 1817. Under this law, the Courts of New York have held, that an engineer, employed by the Canal Commissioners, to whom was given the superintendence in constructing a portion of the canal, was authorized to enter upon the lands of individuals, and take materials for the furtherance of the work, without any express orders or direction of the commissioners. Lyon v. Jerome, 15 Wend. 569. Wheelock v. Young and Platts, 4 Wend. 647.

The reasoning of the Court in those cases, is applicable to this. As is said there, so say we here, that a construction o.f the law that would require every act done by the resident engineer and superintendent to be especially authorized by the Board, or one of its members, could not have been within the contemplation of the Legislature: it would have embarrassed the work, and was not practicable. True, the act of entering lands to take materials necessary for the work,"by statute, is to be done by the Board, or one of its members; but how to be done ? The law says, by one of their number in person, ££ and £ by any and every superintendent, agent and engineer em- £ ployed by them.” When done'by an engineer duly employed by them, the act is the act of the Board, and the engineer or agent must justify it as such. The fault of the pleas first filed in this case, consisted in a neglect to a.ver an entry under the authority of the Board. The amended plea, upon which the verdict was taken, is liable to no such objection.

We now come to the instruction complained of. Take it altogether, and we are still satisfied with it. The jury were told, in substance, to inquire whether defendants were contractors; whether they were authorized by the resident en-J _ ‘ . j ■ gineer to enter on the plaintiff’s land and take the which had been taken, and whether, in so doing, they did no unnecessary damage; and if so, they should find them justified of the alledged trespass. Had Curtis, the engineer, been joined with these defendants, and justified under the Board of Public Works, and the contractors justified, as they have, this case would not be distinguishable from the case cited from 4 Wendell. Young, in that case, was the engineer, and justified as such; the others acted under his directions, without any specific directions of the Canal Commissioners of New York, and it was held they were not liable in trespass. This case, then, and the justification, is like that, with this difference : here the engineer is not sued, and there both he and the contractors were joined. The article there taken was stone; and it is to be gathered from Young’s case, as well as the case in 15 Wendell, that, whether the' materials could have been had more conveniently some where else, was a matter of no momenta— This brings us to the last clause in the charge of the Court.

The objection docs not seem to be much relied upon by counsel, yet it is worthy of a remark. The object and intention of the Legislature has already been stated, in disposing of the main objections of plaintiff, to the ruling of the Court below. The engineer’s direction was, to go upon the wood-lands in the vicinity. Counsel had urged to the jury, that the form of expression required the defendant to cut the necessary timber from the lands nearest to the lock and dam, that is, nearest to the town. The substance of the charge was, that Curtis meant no such thing; that he intended the contractors might do what the State was authorized to do, go to such land in the.’ neighborhood as was most convenient — such as would subject the State to the least sum in damages, and consequently subject the contractors to the least loss. We believe still, that the charge of the Court placed the correct construction upon the letter of the resident engineer; because the words -will bear .that construction, and because, as á faithful agent of the State, bound to deal fairly with the-contractors, under, the lavv and in virtue o.f the contract; he was under obligation to1 permit the contractors to go where-they '.could 'procure materials to .the best advantage. And he was bound so to act as to secure to the contractors the benefits-;of their own-skill and' capacity-as- business men. .He had'no right, to" lessen the profits of their contract', -by forcing' 'them,'to procure timber where, :if' could 'only be had at- an extr.a '.price. - Such .a; course .would 'have, violated the spirit of the;.contract, and been highly injurious .to.the contractors. It would have accomplished . what was-.not lighter what was .of no advantage :to the State, Of any -one.elser— what -the.. law .never-contemplated, and what, both parties to-.the'contract intended should, not happen. . . ' . ' ' - . '

Judgment Affirmed.. '■  