Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/163

 PART II.] ACTS WITHIN THE CORPORATE POWERS. [§ 171. or where the company itself is the real cause of the injuries occasioned by the acts or omissions of the contractor. 1 § 171. If the acts of a corporation within the scope Corpora- ° . y tion always of its powers amount to a taking of private property, liable when then that the corporation is acting within its powers amount to has the effect of preventing its action from amount- p.^atepro- ing to a public or private nuisance, 2 but does not ex- P ert y- empt it from the duty to compensate the owner for his property. 3 In the first place, regarding the force of the word private. If a railroad company, or other corporation with public duties, is authorized to use or take property belonging to the public, that is, property which is vested in some political body or de- partment, the question whether compensation is to be made de- pends on the terms of the authority ; it is merely a question of legislative intention. 4 It is always competent for the legislature to change property from one public use to another without com- pensating any public (e. g., municipal) body. 5 It has even been held that authority from the state to a corporation or an indi- vidual to build roads or bridges upon public property, implies the right to proceed without compensation, since the function to be performed is that of the sovereign, though delegated to a Wall. 649. In Chattanooga, etc., R. R. Co. v. Liddell, 85 Ga. 4S2, the railroad company was held liable for injuries sustained on its road while operated by the construction com- pany. But see St. Louis, etc., R. R. Co. v. Willis, 38 Kan. 330. 1 See Philadelphia, etc., R. R. Co., v. Phila., etc., Towboat Co., 23 How. 209. 2 See City of Georgetown v. Alex- andria Canal Co., 12 Pet. 91; Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62. Compare the Clinton Bridge, 10 Wall. 454; State of Penn- sylvania v. Wheeling, etc., Bridge Co., 18 How. 421; Danville, etc., R. R. Co. v. Commonwealth, 73 Pa. St. 29; Ingram v. C. D. & M. R. R. Co., 38 Iowa, 669. Watson v. FairmountRy. Co., 49 W. Va. 528. 3 " This power to take private prop- erty reaches back of all constitutional provisions ; and it seems to have been considered a settled principle of uni- versal law, that the right to compen- sation is an incident to the exercise of that power; that the one is so in- separably connected with the other, that they may be said to exist, not as separate aud distinct principles, but as parts of one and the same prin- ciple." Sinnickson v. Johnson, 17 N. J. Law (2 Harrison), 129, 145. See § 473. 4 Commonwealth v. Boston & M. Railroad, 3 Cush. (Mass.) 25. 5 People v. Kerr, 27 N. Y. 188. 143