#### W. AND J. HOGG v. THE ZANESVILLE MANUFACTURING COMPANY.

Nusanee — Muskingum'river-^Zañesville canal dam — evidence—corporators.

v Conversations had with individual stockholders of a corporation, not agents or officers of the corporation, is not evidence against the corporation.

Where a dam has been erected across a navigable river, it is prima facie a nusance, and may be proven as a fact, the law authorizing the erection, and the fact of the erection in conformity. with it is matter to rebut such proof.

The defendant in a suit for the losé of a boat in crossing a dam, may object to evidence from the plaintiff showing injury from a bridge.

Case to recover damages ¿gainst the defendants for erecting a dam across the Muskingum river, compelling the plaintiffs to pass over the dam with a boat and cargo, which thereby received a direction against the pier of a bridge below, and was sunk. Plea not guilty and issue.

It was agreed that the defendants were an incorporated company,' and authorized by law to erect a dam and lock at the place where the dam and lock complained of was erected, and that the lock at the time of. the arrival of this boat, was not opened, and could not he opened, by reason of the drift collected by a fresh in the river.

The following legislative acts were- relied upon:

1. The ordinance of 1787, the fourth article of which declared the navigable waters leading into the Mississippi and the St. Lawrence, common highways, to be forever *free,*& c.

2. The act of the 21s,t February, 1812, authorizing McIntyre and others to build a dam; 10 *O. L.*173, 178.

*1403. The act incorporating the Zanesville manufacturing company, and authorizing them to build the dam, passed the 24th February, 1816; 14 *O.L.*293.

4. The act of the 27th February, 1823, authorizing the company to raise the dam six feet six inches, and providing that in case of any delay, in passing the lock by reason of drift, or the lock not being attended to, the company shall forfeit not over ten dollars per day, for every day’s delay.

*Rogers,*a witness for the plaintiff,

was asked to detail what *took*place between him and two members of the company as to the passing of the boat through the lock, before it arrived.

*Stillwell,*

objected. The acts inquired about are those of individuals who held the conversation, who are liable for them, if any body is. The corporation can only act in the way pointed out by the law of its creation; by a board of directors, and its proceedings are evidence by its minutes: he cited 2 Pet. *R.*57, 60; 4 *Day. R.*198, 204.

5. W. *Culbertson,*contra.

*Goddard,*for the defendant,

objected. The declaration is for a nusance. This dam was authorized by law, and so ceases to be a nusance. These laws are public acts.

*Goddard,*

objected. The breach in the second count, under which all this evidence is offered, is, that by means of passing over the dam, the boat and cargo was wrecked and lost. If the dam was the remote, and the bridge the immediate cause of the injury, the évidence is inadmissible, and so are the authorities; 2 *Taunt. R.*314; 5 *Taunt. R.*534.

£. *W. Culbertson,*contra.

By the Court.

The evidence is inadmissible. If these individuals were agents of the corporation, you must show that fact, and their acts will bind the corporation; but until that be shown, they act as individuals.

The plaintiff then proffered to prove by Rogers, that he came to Zanesville with the boat, and there found an obstruction in the river, erected by the defendant, by which the boat was lost.

By the Court, The evidence appears to us *competent,*but how far it will make out the plaintiff’s case, we are not now to decide. Admitted.

The witness then described the manner of passing the dam, by which the boat received a misdirection, struck the bridge below, and sunk. He was then asked as to the injury by the *bridge.*

*141*Culbertson,*for the plaintiff,

contended before the jury, that by the ordinance of 1787, and the acts of congress, the navigation of the Muskingum was reserved to, and remained in the general government. The United States have never sold the soil, and therefore, the act of Ohio authorizing the dam, canal, &c. was void. He instanced the national road, and asked if Ohio would incorporate a company to change its location, or obstruct it under pretence of improving it; or obstruct the road in any other way,in the exercise of its sovereign power? He contended, also, that the neglect of the defendants to provide a slope for the passage of boats, made the dam without it, a nusance. He cited 6 *John. R.*90; 10 *John. R.*236; 1 *Bin. R.*463.

At the close of his argument, upon the suggestion of the Court, it was agreed that the jury should assess the damages, subject to the opinion of the Court^upon the law, and jf on the law the Court should be of opinion that the plaintiffs had not made out their right to recover, then the verdict should be entered for the defendants.

By the Court. The case in '2 *Taunton,*314, was against a person who had placed rubbish in the road, at which the plaintiff’s horse took fright, and run on to other rubbish, and thereby broke the shaft of the chaise, without necessity. It was held, that the defendant was not liable, because the proximate cause of the injury was the unskilfulness of the driver. In the case in 5 *Taunt.*534, it was decided, that in a case for nusance, the *immediate*cause of the injury must be stated; and that under an averment of the remote cause, and an allegation, that by means of the premises, &c. it was not competent to give evidence of the immediate cause, and therefore, that the averment, that a party had placed rubbish in a water course, &c. was not sustained by proof, that it was not the rubbish placed there by the defendant, but afterwards trod in by cattle that did the injury. These two cases are not exactly in point, but they present very nice questions, which it is not necessary for us now to examine. The objection to the evidence is from the defendant; if it be for the interest of'either party to show that the injury resulted from collision with the bridge, and not the dam, it must be that of the defendant, while we hold the question open, we for the present therefore sustain the objection pro forma.

In the progress of the trial, several other objections were made to evidence, which were decided pro forma at the time, and reserved for future examination.

*142The jury assessed the damages at $2136 77, including interest.

The questions reserved were adjourned to the Court in Bank; *see*5 O. *R.*410, where the whole subject was examined, and judgment given upon the verdict for the plaintiffs.