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Bliss v. Hosmer.

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:

"Messrs. Hosmer, Chapin & Sharp:

"MCCONNELSVILLE, 2d May, 1837.

"GENTS: In behalf of the Board of Public Works of this State, you are 'hereby authorized to go on to the wood-lands in the vicinity of 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 in the public improvement of slackwater navigation of the Muskingum river. Provided, however, that nothing herein contained shall release you from any liability to damages which may be assessed by the State in consequence of damages to private property, or to authorize you to cut any timber which may not be necessary and proper for the public works at this 'place, section number seven. SAML. R. CURTIS, Res't Eng'r."

The admission of this paper in evidence was objected to by plaintiff. No proof, other than is above set forth, was given of the defendent being in the employment or service of the Board of Public Works; nor any other proof than is above set forth, that the 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 the defendant.

Evidence was given by the plaintiff, tending to show that the 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

Bliss v. Hosmer.

1846.

for section seven, and proof tending to show that he had ex- IN BANK. hausted his own timber before he resorted to the timber of the Dec. Term, plaintiff. There was proof on the part of the defendant tending 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 place 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 sus

Bliss v. Hosmer..

IN BANK. tain this allegation. The Board of Public Works did agree to Dec. Term, give such authority, but upon one contingency, which was,

1846.

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 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.

Bliss v. Hosmer.

1846.

I know of no case which has sanctioned the delegation of IN BANK. this power. The leading New York cases which establish the Dec. Term, 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. He 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 me that he is correct in his first position, which is, that private property cannot be appropriated to public use, before

Bliss v. Hosmer.

Dec. Term,

1846.

IN BANK. 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 18 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 clause 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 believe 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 exercise 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 that the Court has ever held, that compensation must be actually assessed, and paid over to the owner, before a public 'work can progress, whether he desires it or not. The Constitution must receive a construction that will leave it possessed