The opinion of the court was delivered by
Redfield, Ch. J.The important question in these cases respects the authority of the corporation under their charter. It does not seem to be questioned, that such a corporation is liable for torts even, when committed by their agents, within the apparent scope of their authority, or in the pursuit of the general purpose of the eharter. In other words, when the departure from the charter powers is not such, as to be notice to all, that the agent is departing from the proper work of the corporation, they are liable for sueh acts of their agent.
To apply this reasoning to the present cases, if this transaction is fairly to be regarded as the building of a mill-dam, or reservoir, for the convenience of the water power, there in use, and the laying the track of the railroad upon the erection, as something incidental merely, to the general purpose of the erection, then, undoubtedly, the corporation is not liable.
*402But if the erection is primarily for the purpose of making a track for the railroad, and the advantage to mill owners, by means of reserving the water for future use, a mere incident, and dependent only upon slight, and not expensive, departures from the ordinary mode of constructing such erections for the benefit of the railroad merely, we think the defendants are liable. It would seem, from the report of the referees, that the expense was not thereby increased to the company, so that no question arises on that ground. It appears to have been a necessary erection for the building of the road, so that no one, who might have deemed himself thereby endangered, could have hindered the defendants in making the erection; or probably have obtained any legal process of stay, by means of injunction; so that the erection would seem prima facie within the charter powers given to the defendants. It does not then occur to us how the defendants can escape liability, unless it be either upon the ground of the motive, or the mode of making the structure.
1. As to the mode of making their road bed, it must be considered, we think, that railroads, in this state, certainly, have a very great and almost unlimited latitude. The restrictions upon them, either in their charters, or by the general laws of the state, are very few, and very general. It would seem, therefore, that this latitude of authority, as to the mode of making erections and excavations for their road-bed, should carry a corresponding extension of obligation. And if so, there is no doubt the mode of construction is one which comes within the fair and reasonable extent of the powers of the corporation, and one which they had the right to adopt, and that they are liable for the manner of completing the structure.
In regard to all the plaintiffs' but Welling, they had no privity whatever in the transaction, and no implied assent can be claimed on their, part. If this embankment had been constructed with a culvert, too small ,or insufficiently built, and the damage had resulted from such faulty construction, there could be no doubt of the right of the plaintiffs to recover, upon general principles. And it seems to us, it can make no difference, that the agents of the corporation deemed it expedient and safe, to build it, with a waste weir, instead of a culvert. No one, we suppose, would come to *403any such conclusion, had it not been for the motive and purpose of the departure from the ordinary mode of construction.
2. And the motive, purpose, or object of this mode of building the embankment, so far as it proposed merely to restore the then existing reservoir to its former usefulness, and not to improve it, so as thereby to gain an advantage to defendants by lessening land damages, in a mode not pointed out in the charter or general statutes, no one would contend, was not strictly allowable. Indeed to that extent it was one of the prescribed duties of the corporation, in passing streams, and equally in passing ponds, or reservoirs, as we judge. The difficulty, then, seems to arise, from the attempt to unite the embankment with the reservoir, so as thereby to produce a positive improvement to the water power.
And it must be confessed, that this part of the case is one which requires to be reviewed with some caution. But it seems to us a question chiefly between the stockholders and the corporation. So far as the agents, for constructing the road-bed, departed from the main object in hand, they were, of course, assuming responsibilities not imposed by the charter, and not necessary to the accomplishment of the purpose of its creation, and such departure is always liable to enhance the losses, in a ratio altogether beyond the profits thereby arising, and so to prove a source of ultimate loss to the corporators. Upon this ground very probably, the corporation might have interfered, by way of injunction.
But where the departure is slight and incidental merely, and not such as to give notice to those interested, that such agents are departing from the appropriate business of the corporation, it is just and reasonable, that the corporation should be held liable, at all events to strangers, and so equally in a more essential departure, unless they take steps to arrest the work in limine. And this is chiefly upon the ground that the corporators have acquiesced in such construction of the charter powers, and that they should, therefore, be bound by it. But in regard to strangers, who have neither the means of knowing, or the right to interfere in every case of departure from the strict charier powers, the case is different. In such case the corporation is liable, unless the departure is marked and obvious, and sufficient to justify'resistance to the progress of the work, in some way, even on the part of strangers.
*404This does not seem to have, been such a departure, and we think the defendants liable for the defects in the work, and the consequent damages to the plaintiffs.
And it does not seem to us that the case of Welling is to be distinguished, in principle, from the others. It might have been true, that had he refused to part with his land the corporation could not have taken it for tins purpose, (or they might,) but he, in no sense, became responsible for the mode in which this embankment was built. His consenting to suffer his land to be flowed, no more binds him to the defective mode of construction, than if he had refused all leave whatever. In such case the defendants might have flowed the land and would have been liable therefor, and possibly thereby made the embankment a nuisance if it seriously affected the health, or deprived, as it would, the land owners of the use of their property; but waiving this claim would not, we think, amount to any implied waiver of his claim for damages for the misconstruction of the work. Judgments affirmed.