Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/170

 § 176. J THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. street, but had only an easement based on a covenant made by the city with the plaintiff's grantor, whose deed was from the city, that the street should forever "continue and be for the free and common passage of, and as a public street and way for, the inhabitants of the said city, and all others passing through or by the same, in like manner as other streets of the same city now are or lawfully ought to be ; " and, on this assumption, the court held that the building of an elevated railroad, which obscured to some extent the light of the plaintiff's abutting premises, and to some extent impaired their general usefulness and depreciated their value, deprived the plaintiff of rights for which he was entitled to compensation. The legislature might regulate the uses of a street as a street, but had no power to authorize a corporation to build thereon, without compensating the plaintiff, a structure subversive of and repugnant to the uses of the street as an open public street. Their decision would have been the same, the court said, if the fee of the street had been conveyed by the deed from the city to the plaintiff's grantor; for then the plaintiff would have possessed a private easement of a right of way in the street, with an express covenant that the entire street should be forever kept as a public street; though under such construction the covenant referred to would have been the covenant, not of the city, but of the city's grantee. No matter who was the covenantor, the plaintiff could not without compensation be deprived of his easement derived from the covenant. And even if the city held the fee to the street, the street was, nevertheless, held in trust to be used only as a public street. 1 § 177. In some cases a distinction is drawn between the lia- bility of a private corporation, organized with a view to the gain of the stockholders, to compensate for the inconvenience and damage it mav cause individuals while acting Distinction between within the scope of its powers ; and the liability of pubnlfcor- a public corporation or officer to persons damaged porations. through acts done bj r him or it in the performance of a purely public trust or office. 2 This distinction, whether x See Railroad Co. v. Schurmeir, 7 I G. Ave. Ry. Co. v. Cumniinsville, 14 Wall. 272, 289; Yates v. Milwaukee, Ohio St. 523, 546. 10 Wall. 497, 504; Cincinnati & S. I 2 Tinsmant>. Belvidere Delaware R. 150