Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/159

 PART II.] ACTS WITHIN THE CORPORATE POWERS. [§ 168. § 168. The manner in which a corporation may be compelled to discharge the duties it owes the public is discussed in Chapter VIII. 1 If a corporation is chartered to fraSLs subserve a public convenience, and receives special questioned privileges and powers to be used by it in fulfilling collaterally. the purposes of its incorporation, it would seem but logical that those powers and privileges should cease to constitute a protec- tion to the corporation as soon as the corporation itself ceases to fulfill its purposes. Such would undoubtedly be the law, were it not for the rule that the franchises of a corporation cannot be questioned collaterally. 2 Consequently, franchises system, and by such use of electric- ity impeded the electrical currents of certain telephone lines, was not liable to the telephone company for damages, it appearing that the rail- way company had the power so to use electricity and did use it properly in the exercise of its franchise for the benefit of the public. See Booth v. Rome, etc., R. R. Co., 140 N. Y. 267; Gilbert o. Savannah, etc., R. R., 69 Ga. 396. " Whenever the exercise of a right, conferred by law for the benefit of the public, is attended with temporary inconvenience to private parties, in common with the public in genei-al, they are not enti- tled to any damages therefor." Ham- ilton v. Vicksburg, etc., R. R. Co., 119 U. S. 280, 285. Opinion of the court, per Field, J. Compare Cogswell v. New York, N. H. & H. R. R. Co., 103 N. Y. 10. Thus a telegraph company, which has the right to place its line in the streets of a city, is not liable for a personal injury resulting from the breaking of atelegraph pole, save upon proof of culpable negligence on its part. The company is bound to use reasonable care in the construc- tion and maintenance of its line, but is not bound so to erect and manage its line as to guard against storms, which, on account of their extraor- dinary severity, could not reasonably have been anticipated. The company is no insurer of travelers against in- juries from its poles lawfully placed in the streets. Ward v. Atlantic and Pac. Tel. Co., 71 N. Y. 81. See Bor- chardt v. Wausau Boom Co., 54 Wis. 107: Sumner v. Richardson Lake Dam Co., 71 Me. 106; City of Georgetown v. Alexandria Canal Co., 12 Pet. 91. Compare Smith v. Corporation of Washington, 20 How. loo. By making a negligent or improper use of its franchises, a corporation may become a public nuisance. Thus it is an indictable public nuisance for a railroad company to run its trains across a turnpike at the rate of fif- teen or twenty miles an hour, with- out giving sufficient warnings. Lou., Cin., and Lex. R. R. Co. v. Common- monwealth, 80 Ky. 143. Likewise it constitutes a public nuisance for a railroad company to raise its tracks so high at a public crossing that it is dangerous to drive over them. Paducah, etc., R. R. Co. v. Common- wealth, ib. 147. A corporation may be indicted for a nuisance. State ». Western, etc., R. R. Co., 95 N. C. 602. 1 §§ 454 et seq. Newell v. Minneapolis, etc., Ry. Co., 35 Minn. 112. 139
 * See ante, §§ 145-157. Compare