etc. R. R. Co. v. Hatch. 79 Ill. 137; Stubley v. London etc. Railw. Co. 4 Hurl. & N. 83; Law R. 1 Ex. 13.

15 Massoth v. Del. etc. Canal Co. 64 N. Y. 524; and see Artz v. Railroal Co. 44 Iowa, 24. But compare Warner v. N. Y. etc. R. R. Co. 44 N. Y. 465; Mahier v. Atlantic etc. R. R. Co. 64 Mo. 267; Zeigler v. Railroad Co. 5 So. Car. 221; Sharrod v. London etc. Railw. Co. Ex. 550.

16 Massoth v. Del. etc. Canal Co. 64 N. Y. 524. Compare Eaton v. Eric Railw, Co. 51 N. Y. 545; Robinson v. Western Pacif. K. R. Co. 48 Cal. 409.

17 See Klein v. Jewett, 26 N. J. Eq. 474.

18 Klein v. Jewett, 26 N. J. Eq. 474.

19 Gear v. Railw. Co. 43 Iowa, 83; Worster v. Forty-second St. etc. R. R. Co. 50 N. Y. 203; Gale v. N. Y. Cent. etc. R. R. Co. 76 id. 594.

20 Kellinger v. Forty-second St. etc. R. R. Co. 50 N. Y. 206; Gear v. Railway Co. 43 Iowa, 83; and see Tobin v. Portland etc. R. R. Co. 59 Me. 183; Balt. etc. R. R. Co. v. Boteler, 33 Md. 568.

21 People v. Dutchess etc. R. R. Co. 58 N. Y. 152.

§ 255. Liability for injuries in constructing road. -As a general rule, a railway company incurs no liability for consequential damages sustained by a neighboring landowner from the construction of its road, if built in a skillful and proper manner, and within the exercise of the power granted; but for injuries sustained from the negligent and improper construction of its road, the company may be held liable. If a railway company rightfully and properly diverts a natural stream or watercourse, securing its banks in a reasonable manner, it cannot afterward be held liable for the future action of the water. But it may be held liable in damages for obstructing the natural flow of the surface water, by any artificial means, thereby forcing it, in an increased quantity, upon the lands of another, to his injury. So the company is liable if, without necessity, it discharges water from springs opened by it in the construction of its road upon land of another outside of its location.5 So where a bridge-pier was built in a way to turn the current in time of freshets upon one's grass land, causing gullies and silt deposits, and it appeared that at an additional expense the bridge could have been erected without causing such injury, the company was held liable. And a railway company may be held liable for obstructing the free flow of water from a mill, by the

erection of a bridge or other necessary structure below the mill. And the duty of a railway company to restore a stream of water, crossed in the line of its road, to its former state, or such state as not to impair its usefulness, applies to unnavigable as well as to navigable streams. Property owners, on a street through which a railroad extends, must suffer many inconveniences, such as detention by trains, annoyance from noise, the frightening of horses, danger to persons crossing the track, etc., for which they cannot recover in a suit for damages. Nor is a railway company liable for injuries occasioned by its buildings being blown down by storms, if it has used such care and skill in their structure and maintenance as men of ordinary prudence and skill usually employ.10 The prospective diminution in value of a mill near the line of a proposed railroad, by making it unsafe to drive horses to the mill, and dangerous for persons to reach it, entitles the mill owner to damages. 11 And where a railway company erected works not required for the construction of its line on part of its land close to the plaintiff's place of business, who complained of the injury and annoyance from the noise and vibration, an injunction was granted accordingly.12 The measure of damages in an action against a railway company, for unlawfully excavating and removing soil for the construction of its road, is the amount of the diminution in the value of the property so injured.18 But the taking of soil for such purpose will not be presumed to be tortious, if the circumstances can be construed to import the owner's consent thereto.14

1 Mazetti v. N. Y. etc. R. R. Co. 3 Smith, E. D. 98; Aldrich v. Cheshire R. R. Co. 21 N. H. 359; Mason v. Kennebec etc. R. R. Co. 31 Me. 215; Slatten v. Des Moines Valley R. R. Co. 2 Iowa, 154; 4 Am. R. 205; Hoser v. Kansas City etc. R. R. Co. 60 Mo. 329; Koelmel v. New Orleans etc. R. R. Co. 27 La. An. 442. But compare Brown v. Cayuga etc. R. R. Co. 12 N. Y. 486; Balt. etc. R. R. Co. v. Reaney, 42 Md. 117; Lawrence v. Great North. Railw. Co. 16 Ad. & E. N. S. 643.

2 Southside R. R. Co. v. Daniel, 20 Gratt. 344; Perley v. Railroad Co. 57 N. H. 212; Delaplaine v. Chicago etc. Railw. Co. 42 Wis. 214; Fowle v. New Haven etc. R. R. Co. 112 Mass. 334; 17 Am. R. 106.

3 Norris v. Vt. etc. R. R. Co. 28 Vt. 99; and compare Henry v. Vt. etc. R. R. Co. 30 id. 638; Fowle v. New Haven etc. R. R. Co. 112 Mass. 334; 17 Am. R. 106.

4 Toledo etc Railw. Co. v. Morrison, 71 I. 616; Raleigh etc. R. R. Co. v. Wicker, 74 No. Car. 220; Parrot v. Cin. etc. R. R. Co. 10 Ohio St. 624; Louisville etc. R. R. Co. r. Hodge, 6 Bush, 141. Compare Munkers . Kansas City etc. R. R. Co. 60 Mo. 334; Houston etc. R. R. Co. v. Parker, 50 Tex. 330; Short v. Balt. etc. Railw. Co. 50 Md. 73; 33 Am. R. 298.

5 Curtis v. Eastern R. R. Co. 98 Mass. 428.

6 Spencer v. Hartford etc. R. R. Co. 10 R. I. 14.

7 Blood v. Nashua etc. R. R. Co. 2 Gray, 137; Henry v. Vt. etc. R. R. Co. 30 Vt. 638. Compare Robinson v. N. Y. etc. R. R. Co. 27 Barb. 512.

8 Chicago etc. R. R. Co. v. Moffit, 75 Ill. 524; and see Miss. etc. R. R. Co. v. Mason, 51 Miss. 234; Freeland v. Penn'à R. R. Co. 66 Pa. St. 91.

9 Crosby v. Owenboro etc. R. R. Co. 10 Bush, 288; Stone v. Fairburg etc. R. R. Co. 63 Ill. 394; 18 Am. R. 556; Thompson v. Milwaukee etc. R. R. Co. 27 Wis. 93; Colorado Cent. R. R. Co. v. Moilandin, 4 Colo. 154; Struthers v. Dunkirk etc. R. R. Co. 87 Pa. St. 282.

10 Pittsburg etc. R. R. Co. v. Bingham, 29 Ohio St. 364; S. C. 23 Am. R. 751.

11 Western Penn'a R. R. Co. v. Hill, 56 Pa. St. 460.

12 Fenwick v. East London Railw. Co. Law R. 20 Eq. 544.

13 Karst v. St. Paul etc. R. R. Co. 22 Minn. 118.

14 Sweetser v. Boston etc. R. R. Co. 66 Me. 583.

§ 256. Liability for acts of officers and agents.— A railway company necessarily acts through the instrumentality of its officers and agents, and is liable for all their acts within the range of its charter powers.1 It is even liable for the willful torts of its agents committed within the general scope of their employment.2 And where its servants, while in the discharge of their duties, pervert the appliances of the company to wanton and malicious purposes to the injury of others, the company is liable therefor; 8 and the fact that the act from which the injury resulted was not authorized by the charter is no defense, if the company explicitly recognized the act as done in its business. The general superintendent is the immediate representative of the company,5 and the company is liable for an injury resulting from his negligence in giving an improper order, the same as if such order had emanated directly from an act of the company in its corporate capacity.6 So it is held to be within the

general powers of the superintendent to bind the com pany to pay for medical attendance bestowed at his request on a servant of the company injured in the discharge of his duty upon the road. But a station agent or conductor is not presumed to be authorized to so bind the company; though slight evidence will be sufficient to show such authority.9 And station agents are presumed to have authority to contract in behalf of their companies for the transportation of freight. 10 Services rendered by the superintendent, at the request of the company, though not strictly within the sphere of his duties, will be presumed to have been rendered in his capacity as superintendent. And so of services rendered under like cir cumstances by the president.12 In respect to contracts and dealings involving property in which the company is interested, a director stands upon the same footing as an ordinary trustee. 18 He is bound to act as the representative and for the benefit of the company.14 He cannot, therefore, be individually interested in a contract for the construction of the road,15 nor acquire for himself property which it is his duty to acquire for the company; 16 and if he makes a contract on behalf of the company in which he reserves a private interest, or in which he subsequently becomes interested, the company may declare the contract void.17 A railway company was held to be affected by the illegal conduct of its president, in procuring, by an oppressive exercise of his powers, donations of property to him in trust for the company; 18 the effect of which was, that he held the property in trust for the donors, and not the company.19 A railway company is not liable for the acts or negligence of another, unless the relation of master and servant, or principal and agent, exist between them.20 Thus, if the company lets by contract the entire construction of its road, reserving no control over those employed in the work, it cannot be held liable for injuries to third persons occasioned by the negligent acts of the workmen; such, for instance, as

blasting in such a careless way as to throw rocks upon the lands of another.21 Nor is the company liable for damages resulting from negligence in the management of one of its trains, while being used and controlled by contractors in the construction of a portion of its road, under a contract with the company.22 And a special receiver or assignee of the property of a railway company, appointed in involuntary bankruptcy proceedings, is not an agent or servant of the company, so as to render the company liable for damages occasioned by his negligence while operating the road.23

1 Washburn v. Nashville etc. R. R. Co. 3 Head, 638; Lackawanna etc. R. R. Co. v. Chenewith, 52 Pa. St. 382; Noyes v. Rutland etc. R. R. Co. 27 Vt. 110; Sherman v. Rochester etc. R. R. Co. 15 Barb. 574; Hays r. Houston etc. R. R. Co. 46 Tex. 272; Baltimore etc. R. R. Co. v. Biocher, 27 Md. 277; Harper v. Indianapolis etc. R. R. Co. 47 Mo. 567; 4 Am. R. 353; Ackerson v. Erie Railw. Co. 32 N. J. L. 254; Hobbit v. London etc. Railw. 4 Ex. 255; Queen v. Birmingham etc. Railw. 3 Ad. & E. N. S. 223; and see Beattie v. Lord Ebury, Law R. 7 Ch. App. 777.

2 Indianapolis etc. Railw. Co. v. Anthony, 43 Ind. 183; and see Terre Haute etc. R. R. Co. v. Graham, 46 id. 239; Rounds r. Del. etc. R. R. Co. 64 N. Y. 129; 21 Am. R. 557; Peebles v. Patapsco Guano Co. 77 No. Car. 233. Compare De Camp v. Miss. etc R. R. 12 Iowa, 348; New Orleans etc. R. R. Co. v. Burke, 53 Miss. 201.

3 Peck v. N. Y. etc. R. R. Co. 8 Hun, 286; Chicago etc. R. R. Co. v. Dickson, 63 Ill. 151; 14 Am. R. 114.

4 Hutchinson v. Western etc. R. R. Co. 6 Heisk. 634.

5 See Toledo etc. R. R. Co. v. Rodrigues, 47 Ill. 188; Conn. River R. R. Co. r. Williston, 16 Gray, 64; People v. Stockton etc. R. R. Co. 49 Cal. 415; Cook v. Hannibal etc. R. R. Co. 63 Mo. 397.

6 Washburn v. Nashville etc. R. R. Co. 3 Head, 638.

7 Toledo etc. R. R. Co. v. Rodrigues, 47 Ill. 188; Walker v. Great Western R. R. Co. Law R. 2 Ex. 228; and see Atlantic etc. R. R. Co. v. Reisner, 18 Kan. 458; Toledo etc. R. K. Co. v. Prince, 50 Ill. 26. But compare Marquette etc. R. R. Co. v. Taft, 28 Mich. 289; Shriver v. Stevens, 12 Pa. St. 258.

8 Tucker v. St. Louis etc. Railw. Co. 54 Mo. 177; Cox r. Midland Counties Railw. 3 Ex. 268; and see Ohio etc. R. R. Co. v. Hatton, 60

lnd. 12.

9 Cairo v. Mahoney, 82 Ill. 173.

10 Deming v. Grand Trunk R. R. Co. 48 N. H. 455; Pruitt v. Hannibal etc. R. R. Co. 62 Mo. 527; and see Armour v. Mich. Cent. R. R. Co. 65 N. Y. 111. But comparé Baltimore etc. R. R. Co. v. Wilkens, 44 Md. 11. 11 Bee v. San Francisco etc. R. R. Co. 46 Cal. 248.

12 Cheeney v. Lafayette etc. R. R. Co. 68 Ill. 570; Levisee v. Shreve port City R. R. Co. 27 La. An. 641.

13 Blake v. Buffalo Creek R. R. Co. 56 N. Y. 485; and see Cumber. land Coal etc. Co. v. Parish, 42 Md. 598; Comin'rs of Tippecanoe v. Reynolds, 44 Ind. 509.

14 Blake v. Buffalo Creek R. R. Co. 56 N. Y. 485.