The opinion of the court was delivered, May 5th 1870, by
Thompson, C. J.
The plaintiff below claimed that what is known as the “ Slabtown Dam” injured his grist and saw mills, situate on the Bennett’s Branch of the Sinnemahoning, by setting the water back on his mill-wheels, and thus retarding their motion. This occurs when splash-floods are resorted to to carry logs and timber down the stream, and at no other times.
The dam is a portion of the works of the “ Bennett’s Branch [259]*259Improvement Company.” The testimony is abundant and uncontradicted, that the company has had the control of the dam as part of their works since 1864, the year in which it was incorporated, and that the plaintiff knew all about it. It is idle to entertain the thought for a moment, that the plaintiff did not know that the dam was kept up and managed in raising splashes for floating logs by the company. It was within a mile of his mills, and he himself testified that Woodward had the charge of the splashes from 1864 to 18671 Notwithstanding this knowledge he brought suit to recover for the injuries alleged to have been done him, in consequence of the dam of the company, against men acting as agents or servants of the company, and not against the company itself, their superior and principal.
The testimony and the charge of the learned judge, show very clearly, that the defendants below defended on the ground of being the servants of the company. This they could unquestionably do if it was a public corporation, and they mere servants, and if they did nothing outside of the duties of their employment. We need not cite very numerous authorities for this. But see 2 Greenleaf’s Ev. 54; 1 Bl. Com. 429; 12 Mod. 489; 17 Mass. R. 508; Paley on Agency, by Daniels 298; 11 Denio 118; 2 Comst. 129; 7 John. R. 471; Telegraph Co. v. Dryburg, 11 Casey 298; Painter v. The City of Pittsburg, 10 Wright 213; Joyce v. Sims, 2 Dal. 223; Same Case, 1 Yeates 409; Passmore v. Mott, 2 Binn. 201. These authorities, and many more might be added, present the rule on this subject much as it was presented by Sir William Blackstone, who says: “ If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect, but the damage must be done while he is actually employed in his master’s service.”
If this be^eo, where there is a wrong done, he can certainly justify doing anything as a servant which his master had a right to do. He cannot be disconnected from his employer and held answerable for want of original authority in himself if his master had it, and he acted by and within the scope of his master’s authority.
The Bennett’s Branch Improvement Company was incorporated by Act of Assembly of 20th April 1864 and the several supplements thereto, and was authorized to clear out, improve and use all and every part of Bennett’s Branch of the Sinnemahoning,between Stephen Bundy’s and its mouth, with the right to use dams then erected by members of the corporation, and to erect new ones in such manner and at such points as they may deem proper, and shall and may use all and each of said dams, and the waters of said stream, for floating logs down the same, and generally shall and may have the right to straighten, deepen, crib, and widen the channel of the stream aforesaid, in such manner as they shall see fit for the purposes aforesaid. Provided, that no injury shall [260]*260thereby be done to private property outside the limits of the stream aforesaid.
In the opinion just filed in Winslow & Crowell’s Appeal (antea, p. 242), and the several appeals therein mentioned, we held that the incorporation of the Improvement Company, was in its use a public corporation and highway, subject to be used by all persons, on the condition of paying tolls according to the rates therein mentioned and established.
The defendants claimed in their defence, that they were the servants of the corporation, and exempt from liability for the consequences of the company’s acts. It was not shown, or pretended, that they acted wilfully or maliciously, or outside of what the company was authorized to do. The company accepted the act incorporating it on the terms on which it was granted: viz., that it would do no injury to private property outside the stream, the correlative of which would be, that if it did, it would compensate the injury. The idea of holding its employees to a like accountability, would be as novel as it would be unjust, and this the citation of the authorities referred to prove. There was, neither by law nor contract, any privity between the plaintiff and them. If damages could be rendered against such parties, such improvements could never be made, as no one would be willing to take upon himself to assume the acts of the corporation over which he had no control. Nor would he have any recourse to the company to reimburse himself, if damage's were recovered against him. The defendants justified as servants of the company. . But the right to do so was entirely ignored by the learned judge. This appears throughout the charge, but culminates in the portion assigned for error by the counsel for the plaintiff in error, as follows:—
“We therefore say to you, that neither .the defendants nor those under or with whom they were acting, acquired any right, by virtue of the act referred to, to disregard the plaintiff, and flood his mill-wheels to his detriment.”
If any thought lingered in the learned judge’s mind that damages such as these, being entirely consequential, are to be prepaid before the dam could be erected and used, all the authorities in Pennsylvania on the point are against him, a majority of which have been referred to in the paper-book of the plaintiff in error, and will not be repeated. The point is too clear to need it. Consequential damages are never recoverable from á corporation of this nature, excepting when expressly given, and on the terms on which they are allowed. Here, by the act of incorporation, it is not to be doubted that consequential damages may be recovered in the common-law courts and forms of action. Of course, those who suffer must move, for non constat the corporation is apprised of any injury having been done. A common-law procedure in form is the remedy in this case, and in case of non-payment of [261]*261damages found, the bond of the company approved and filed in the county of Clearfield, stands as an indemnity. The suit is first to be against the company. That is, to ascertain the amount of damages- to be paid, which if not paid, recourse may be had to the bond. I would suppose that no one would think of suing the bond in the first place.
We think the learned judge was clearly wrong in the instruction referred to; it in fact disposed of every question in the case but the amount of the damages. The company had most unlimited authority in the stream itself, on the condition of paying for damage done outside of it.
It was not in default in not having paid them, until demanded ; nor then, if the demand was unreasonable. This being the case, the charge was error, if the company alone had been sued, but it was most unquestionable error, to allow a recovery against the defendants, unless for a wilful trespass, which was not pretended. The action was case, and not trespass for acting without authority in raising the water on the plaintiff, before paying for the right. This was not required. There might have been plausibility in this, although it would want soundness.
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The opinion of the court was delivered, May 5th 1870, by
Thompson, C. J.
The plaintiff below claimed that what is known as the “ Slabtown Dam” injured his grist and saw mills, situate on the Bennett’s Branch of the Sinnemahoning, by setting the water back on his mill-wheels, and thus retarding their motion. This occurs when splash-floods are resorted to to carry logs and timber down the stream, and at no other times.
The dam is a portion of the works of the “ Bennett’s Branch [259]*259Improvement Company.” The testimony is abundant and uncontradicted, that the company has had the control of the dam as part of their works since 1864, the year in which it was incorporated, and that the plaintiff knew all about it. It is idle to entertain the thought for a moment, that the plaintiff did not know that the dam was kept up and managed in raising splashes for floating logs by the company. It was within a mile of his mills, and he himself testified that Woodward had the charge of the splashes from 1864 to 18671 Notwithstanding this knowledge he brought suit to recover for the injuries alleged to have been done him, in consequence of the dam of the company, against men acting as agents or servants of the company, and not against the company itself, their superior and principal.
The testimony and the charge of the learned judge, show very clearly, that the defendants below defended on the ground of being the servants of the company. This they could unquestionably do if it was a public corporation, and they mere servants, and if they did nothing outside of the duties of their employment. We need not cite very numerous authorities for this. But see 2 Greenleaf’s Ev. 54; 1 Bl. Com. 429; 12 Mod. 489; 17 Mass. R. 508; Paley on Agency, by Daniels 298; 11 Denio 118; 2 Comst. 129; 7 John. R. 471; Telegraph Co. v. Dryburg, 11 Casey 298; Painter v. The City of Pittsburg, 10 Wright 213; Joyce v. Sims, 2 Dal. 223; Same Case, 1 Yeates 409; Passmore v. Mott, 2 Binn. 201. These authorities, and many more might be added, present the rule on this subject much as it was presented by Sir William Blackstone, who says: “ If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect, but the damage must be done while he is actually employed in his master’s service.”
If this be^eo, where there is a wrong done, he can certainly justify doing anything as a servant which his master had a right to do. He cannot be disconnected from his employer and held answerable for want of original authority in himself if his master had it, and he acted by and within the scope of his master’s authority.
The Bennett’s Branch Improvement Company was incorporated by Act of Assembly of 20th April 1864 and the several supplements thereto, and was authorized to clear out, improve and use all and every part of Bennett’s Branch of the Sinnemahoning,between Stephen Bundy’s and its mouth, with the right to use dams then erected by members of the corporation, and to erect new ones in such manner and at such points as they may deem proper, and shall and may use all and each of said dams, and the waters of said stream, for floating logs down the same, and generally shall and may have the right to straighten, deepen, crib, and widen the channel of the stream aforesaid, in such manner as they shall see fit for the purposes aforesaid. Provided, that no injury shall [260]*260thereby be done to private property outside the limits of the stream aforesaid.
In the opinion just filed in Winslow & Crowell’s Appeal (antea, p. 242), and the several appeals therein mentioned, we held that the incorporation of the Improvement Company, was in its use a public corporation and highway, subject to be used by all persons, on the condition of paying tolls according to the rates therein mentioned and established.
The defendants claimed in their defence, that they were the servants of the corporation, and exempt from liability for the consequences of the company’s acts. It was not shown, or pretended, that they acted wilfully or maliciously, or outside of what the company was authorized to do. The company accepted the act incorporating it on the terms on which it was granted: viz., that it would do no injury to private property outside the stream, the correlative of which would be, that if it did, it would compensate the injury. The idea of holding its employees to a like accountability, would be as novel as it would be unjust, and this the citation of the authorities referred to prove. There was, neither by law nor contract, any privity between the plaintiff and them. If damages could be rendered against such parties, such improvements could never be made, as no one would be willing to take upon himself to assume the acts of the corporation over which he had no control. Nor would he have any recourse to the company to reimburse himself, if damage's were recovered against him. The defendants justified as servants of the company. . But the right to do so was entirely ignored by the learned judge. This appears throughout the charge, but culminates in the portion assigned for error by the counsel for the plaintiff in error, as follows:—
“We therefore say to you, that neither .the defendants nor those under or with whom they were acting, acquired any right, by virtue of the act referred to, to disregard the plaintiff, and flood his mill-wheels to his detriment.”
If any thought lingered in the learned judge’s mind that damages such as these, being entirely consequential, are to be prepaid before the dam could be erected and used, all the authorities in Pennsylvania on the point are against him, a majority of which have been referred to in the paper-book of the plaintiff in error, and will not be repeated. The point is too clear to need it. Consequential damages are never recoverable from á corporation of this nature, excepting when expressly given, and on the terms on which they are allowed. Here, by the act of incorporation, it is not to be doubted that consequential damages may be recovered in the common-law courts and forms of action. Of course, those who suffer must move, for non constat the corporation is apprised of any injury having been done. A common-law procedure in form is the remedy in this case, and in case of non-payment of [261]*261damages found, the bond of the company approved and filed in the county of Clearfield, stands as an indemnity. The suit is first to be against the company. That is, to ascertain the amount of damages- to be paid, which if not paid, recourse may be had to the bond. I would suppose that no one would think of suing the bond in the first place.
We think the learned judge was clearly wrong in the instruction referred to; it in fact disposed of every question in the case but the amount of the damages. The company had most unlimited authority in the stream itself, on the condition of paying for damage done outside of it.
It was not in default in not having paid them, until demanded ; nor then, if the demand was unreasonable. This being the case, the charge was error, if the company alone had been sued, but it was most unquestionable error, to allow a recovery against the defendants, unless for a wilful trespass, which was not pretended. The action was case, and not trespass for acting without authority in raising the water on the plaintiff, before paying for the right. This was not required. There might have been plausibility in this, although it would want soundness.
It was strenuously argued, that- this branch of the Sinnemahoning having been declared' a public highway before the plaintiff erected his mills,' his right, under the Act of 1803, so to erect, was but a license as between the Commonwealth and him, which, if revoked or destroyed by authority of the ¡state, no damage could be demanded. This is true, on the authority of Young v. The Railroad Co., 9 Casey 180; Canal Co. v. Wright, 9 W. & S. 9, and other cases. But if the Commonwealth require damage done to such property to be paid for by a company, it must be done. That is what it seems to me was done here. The company accepted its charter on the condition of paying for any injury it might do outside the bed or body of the Sinnemahoning creek. The point insisted on does not therefore arise.
There was no error on the part of the learned judge in denying the estoppel as complained of. It mattered not how much the plaintiff might have aided the company in building the dam. It was not on his property, and even if it had been, he could do nothing except by contract, to weaken his right to be compensated by the company for' injuries such as the law required to be compensated. He could give no notice which would avail to affect the company in building the dam. This was authorized by the state. It is not the kind of case to which the doctrine of equitable estoppel applies.
The charge on 'the measure of ;damages was indefinite, but I am not willing to say there was absolute error in it, I incline to think that the damage to be recovered in an action against the company, is not sustainable on the ground of being a nuisance. [262]*262The company being authorized, in the course of the construction of their works, to do as was done here, raise the water, on paying the damage done, it could not be chargeable as for a nuisance any more than could the state from which it derives its power. The claim, whenever asserted, we think should cover the damage to the property as mills, past and future. In fixing this, it should be done, in our opinion, on the estimate of the value of the property, and then the deterioration it has suffered. This would be the damage done. What portion that would be of the unit of value would be a safe standard, we think.
With this in view the business and demands of the neighborhood would necessarily have something to do. These crude and ill-digested acts of the legislature, must be moulded to suit what was designed by the legislature, or either the public or the company will in the end suffer.
These views -are suggested rather than decided, for consideration of court or counsel in any other trial of this or other cases of the kind on the Sinnemahoning. As we think the doctrine of respondeat superior ought to have protected the defendant below, we will reverse the case, without awarding a venire de novo at present, leaving that to be applied for by counsel on showing cause.
Judgment reversed.