sances is doubtless a governmental function the duty of a citizen to prevent his property from becoming a nuisance is private, and it is none the less private because the city undertakes to do it for him; and accordingly a city is liable for the negligence of its employees engaged in performing this duty, as well as for the condition in which the dumping ground is kept,1 and in any event, a city maintaining a dumping ground for its garbage in such a way as injuriously to affect neighboring property, is liable as for a nuisance.

407. Parks and Playgrounds.-There is, as has already been shown, a considerable difference of opinion upon the question whether parks and other property acquired by a municipality for public recreation and amusement are held by it in its governmental and public or in its private and proprietary capacity with respect to the limits of legislative control over such property. In some states it is considered that in supplying parks and making other provision for the recreation and amusement of the people within its limits, a city or town is not acting solely for the benefit of its own inhabitants, but that the public generally are freely permitted to enjoy and make use of what is offered. Since the city or town derives no pecuniary return from its efforts in such cases, it is held that it is not liable for injuries resulting from the defective condition or the negligent management of its parks and playgrounds, or the collapse of structures maintained as bathhouses,5 or from the carelessness of its employees in discharging fireworks in the celebration of a public holiday, or in caring for shade trees upon a public way. In other states,

1. Denver v. Davis, 37 Colo. 370, 86 Pac. 1027, 119 A. S. R. 293 and note, 11 Ann. Cas. 187 and note, 6 L.R.A. (N.S.)_1013 and note; Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 39 L.R.A. (N.S.) 649 and note.

2. Louisville v. Hehemann, 161 Ky. 523, 171 S. W. 165, L.R.A.1915C 747 and note; Hines v. Rocky Mount, 162 N. C. 409, 78 S. E. 510, Ann. Cas. 1915A 132 and note, L.R.A.1915C 751; Fort Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 A. S. R. 840 and note. Note: 43 L.R.A. (N.S.) 1038, 1039. And see Lane v. Concord, 70 N. H. 485, 49 Atl. 687, 85 A. S. R. 643 and note, in which the principle stated in the text was recognized, although it was held that the mere unsightly appearance of a vacant lot caused by its being used as a dumping ground for refuse material does not constitute it a nuisance.

3. See supra, par. 68.

4. Harper v. Topeka, 92 Kan. 11, 139 Pac. 1018, 51 L.R.A.(N.S.) 1032; Lincoln v. Boston, 148 Mass. 578, 20 N. E. 329, 12 A. S. R. 601 and note, 3 L.R.A. 257 and note; Bisbing v. Asbury Park, 80 N. J. L. 416, 78 Atl. 196, 33 L.R.A. (N.S.) 523 and note; Nashville v. Burns, 131 Tenn. 281, 174 S. W. 1111, L.R.A.1915D 1108; Russell v. Tacoma, 8 Wash. 156, 35 Pac. 605, 40 A. S. R. 895 and note; Bernstein v. Milwaukee, 158 Wis. 576, 149 N. W. 382, L.R.A.1915C 435 and note.

5. Bolster v. Lawrence, 225 Mass. 387, 114 N. E. 722, L.R.A.1917D 1285.

6. Pope v. New Haven, 91 Conn. 79, 99 Atl. 51, L.R.A.1917B 1239; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Kerr v. Brookline, 208 Mass. 190, 94 N. E. 257, 34 L.R.A. (N.S.) 464 and note.

7. Donahue v. Newburyport, 211

however, the parks are looked upon as the private property of the city, and it is held responsible for their management to the same extent as a private proprietor, and in some states municipalities have been held liable for merely permitting a display of fireworks which resulted in injury to members of the public. In the states in which it is held that parks are maintained by a city in its private capacity that the city charter created a park commission, to be appointed by the mayor and to have charge of the city's parks, does not make the meniers state officers, for whose acts the city will not be responsible.1 In any event, however, a city or town is liable in such cases only upon proof of negligence; mere evidence of the happening of an accident is not sufficient.11

func

as a

408. Fublic Water Supply.-A characteristic example of a tion undertaken by cities and towns in their private or proprietary capacity is the distribution of water to their inhabitants for domestic purposes. Such a function is one that is often performed by private water companies, and when assumed by a municipal corporation it is a purely commercial transaction between the municipality dealer and the citizen as a customer. While an ample supply of pure water doubtless enhances the public health, this result is merely incidental, and the priniary object of a city or town in securing a water supply is to increase the comfort and convenience of its own inhabitants. It is accordingly well settled that a municipal corpora tion is liable for the negligence of its employees in connection its water department to the same extent as a private company.12

Mass. 561, 98 N. E. 1081, Ann. Cas.

1913B 742.

8. Denver v. Spencer, 34 Colo. 270, 82 Pac. 590, 114 A. S. R. 158 and note, 7 Ann. Cas. 1042 and note, 2 L.R.A. (N.S.) 147 and note; Burridge v. Detroit, 117 Mich. 557, 76 N. W. 84, 72 A. S. R. 582 and note, 42 L.R.A. 684; Carey v. Kansas City, 187 Mo. 715, 86 S. W. 438, 70 L.R.A. 65; Capp v. St. Louis, 251 Mo. 345, 158 S. W. 616, Ann. Cas. 1915C 245, 46 L.R.A. (N.S.) 731.

9. Speir v. Brooklyn, 139 N. Y. 6, 34 N. E. 727, 36 A. S. R. 664 and note, 21 L.R.A. 641; Landau v. New York, 180 N. Y. 48, 72 N. E. 631, 105 A. S. R. 709 and note. See generally, PARKS

AND SQUARES.

with The

84, 72 A. S. R. 582 and note, 42

L.R.A. 684.

note, 2 (fall of Colum405, 25

11. Denver v. Spencer, 34 Colo. 270, 82 Pac. 590, 114 A. S. R. 158 and note, 7 Ann. Cas. 1042 and L.R.A. (N.S.) 147 and noté stand); McGraw v. District of bia, 3 App. Cas. (D. C.) L.R.A. 691 (bathing beach; water of uneven depth); Kendall v. Boston, 118 Mass. 234, 19 Am. Rep. 446 (fall of bust at municipal concert); Carey. Kansas City, 187 Mo. 715,'86 S. W. 438, 70 L.R.A. 65 (child drowned in a reservoir in a park surrounded by a fence); Melker v. New York, Y. 481, 83 N. E. 565, 13 Ann. Cas. 544, 16 L.R.A. (N.S.) 621 and note (fireworks).

190 N.

10. Denver v. Spencer, 34 Colo. 270, 12. Winona v. Botzet, 169 Fed. 321. 82 Pac. 590, 114 A. S. R. 158 and 94 C. C. A. 563, 23 L.R.A. (N.S.). 204 note, 7 Ann. Cas. 1042 and note, 2 and note (horse frightened by whistle L.R.A.(N.S.) 147 and note; Burridge of waterworks); Judson v. Winsted, v. Detroit, 117 Mich. 557, 76 N. W. 80 Conn. 384, 68 Atl. 999, 15 L.R.A.

mere fact that a municipal corporation uses its waterworks system for the extinguishment of fires as well as for the distribution of water for domestic purposes does not exonerate it from liability for an injury arising from negligence in the management of its waterworks not directly connected with the extinguishment of fires, 18 nor does a restriction upon the rate which a city may charge customers for water, contained in its charter, affect the question of liability in tort.14 The fact that the water department is under the control of water commissioners whose office was created and duties defined by statute does not exempt the municipality from liability for the negligence of persons in their employ, since the nature of their functions renders them

19 R. C. L agents of the municipality rather than public officers, 15 but when the legislature creates a separate corporation or independent board for managing the municipal waterworks a case may arise in which only the negligent individuals can be held civilly liable.16 In any event, a city or town is not an insurer of the safety of its waterworks and it cannot be held responsible for an injury not due to the negligence of itself or its employees.17 Negligence may, however, be inferred from the bursting of a water main, unexplained, when the pressure is not greater than a sound and properly constructed pipe would have withstood.18 Damages from the bursting of a main are limited to the injury to person or property, and an owner cannot recover for the loss of a water supply in the interval which elapsed before the pipe was repaired, even if he lost his tenants on account of the lack of water. 19 Nor is a municipal corporation liable for the inconvenience suffered by householders of a certain section by reason of the inadequacy of the mains. 20

409. Municipal Lighting Plant.-A municipal corporation, in maintaining a plant for the manufacture or distribution of artificial light, whether gas or electricity, which it transmits to its inhabitants for domestic use, for compensation, acts in its private and not governmental capacity, and is liable for injuries resulting from the defective condition of its works, or the negligence of its employees, to the same extent as a private corporation, and the same rules as

in its

15. Rhobidas v. Concord, 70 N. H. v. Parkersburg, 74 W. Va. 25, 81 S. 90, 47 Atl. 82, 85 A. S. R. 604 and E. 554, 52 L.R.A. (N.S.) 465 and note. note, 51 L.R.A. 381; Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. St. 38, 22 Am. Rep. 731. 19. Smith v. Philadelphia, 81 Pa. 669 and note; Pettengill v. Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 A. S. R. 442 and note; Esberg Cigar Co. v. Portland, 34 Ore. 282, 55 Pac. 961, 75 A. S. R. 651 and note, 43 L.R.A. 435; Aldrich v. Tripp, 11 R. I. 141, 23 Am. Rep. 434.

A. S. R. 586 and note.

Note: 61 L.R.A. 61.

205, 81 S. E. 26, 51 L.R.A.(N.S.) 984. 20. Stansbury v. Richmond, 116 Va. See also supra, par. 382, 412.

Cas.

84 Pac. 760, 9 Ann. Cas. 847, 5 L.R.A. 1. Davoust v. Alameda, 149 Cal. 69, (N.S.) 536 and note; Eaton v. Weiser, 16. O'Leary v. Marquette, 79 Mich. R. 225 and note; Hinze v. Iola, 92 12 Idaho 544, 86 Pac. 541, 118 A. S. 281, 44 N. W. 608, 19 A. S. R. 169 Kan. 779, 142 Pac. 947, Ann. and note, 7 L.R.A. 170; Grose v. Ports- 1916B 281; Hodgins v. Bay City, 156 mouth, 68 N. H. 266, 33 Atl. 256, 73 Mich. 687, 121 N. W. 274, 132 A. S. R. 546 and note; Johnson v. Bay City, Cas. 1912B 866; Brantman v. 164 Mich. 251, 129 N. W. 29, 119 Minn. 396, 138 N. W. 671, 43 L.R.A. (N.S.) 862 and note; Riley V Independence, 258 Mo. 671, 167 S. W 1022, Ann. Cas. 1915D 748 and note; 18. Esberg Cigar Co. v. Portland, 53 S. E. 342, 111 A. S. R. 857 and Fisher v. New Bern, 140 N. C. 506, 34 Ore. 282, 55 Pac. 961, 75 A. S. R. note, 5 L.R.A. (N.S.) 542; Western 651 and note, 43 L.R.A. 435; Wigal Sav. Fund Soc. v. Philadelphia, 31 Pa

17. Danaher v. Brooklyn, 119 N. Y. 241, 23 N. E. 745, 7 L.R.A. 592; Oakes Mfg. Co. v. New York, 206 N. Y. 221, 99 N. E. 540, 42 L.R.A. (N.S.)

286 and note.

Note: 61 L.R.A. 59, 60.

1132

Ann. Canby,

3

to the degree of care required to avoid liability apply. A city is not, however, liable for injury to a policeman who, without the knowledge of the owner, climbs upon a roof at night to look for gambling in the next building, and while there is burned by a defectively insulated municipal electric light wire; and neither his official character, nor the fact that the mayor assents to his plan, will aid him, since the latter does not act for the city as owner of the light plant, and the officer is at best a mere licensee. So also a city is not liable for injuries caused by the bursting of one of its gas pipes when no negligence on the part of the city or any of its employees was shown.* A municipal corporation cannot escape liability for negligent injury on the ground that the control of its electric light plant was placed by the legislature in the hands of a designated board of officers, since the members of such a board, unless it is expressly freed from the control of the corporation, are from the nature of their duties the agents of the municipality for the conduct of a private business, rather than public officers. It has been held that a municipal corporation, in furnishing light for public buildings within its control which are used for governmental purposes, such as schoolhouses, police stations, fire engine houses, or its city hall, is acting in its governmental capacity and is not liable for the negligence of its employees," and according to some authorities the same principle will apply in the case of. a municipality engaged in lighting its streets since the original and primary purpose of street lights is the prevention of crime, a purely public function. A different view has, however, been taken by some courts, which hold that the pecuniary benefit which a municipality derives from lighting its streets in having travelers see and avoid defects, which might otherwise cause injuries for

St. 175, 72 Am. Dec. 730 (semble); Baily v. Philadelphia, 184 Pa. St. 594, 39 Atl. 494, 63 A. S. R. 812, 39 L.R.A. 837 (semble); Giuricevic v. Tacoma, 57 Wash. 329, 106 Pac. 908, 28 L.R.A. (N.S.) 533 and note; Abrams v. Seattle, 60 Wash. 356, 111 Pac. 168, 140 A. S. R. 916; Young v. Gravenhurst, 24 Ont. L. Rep. 467, Ann. Cas. 1912B 812. Contra, Irvine v. Greenwood, 89 S. C. 511, 72 S. E. 228, 36 L.R.A.(N.S.) 363.

Notes: 108 A. S. R. 168; 1 Brit. Rul. Cas. 809, 810.

And see ELECTRICITY, vol. 9, pp. 1196, 1232; GAS, vol. 12, pp. 889, 905. 2. See ELECTRICITY, vol. 9, p. 1199 et seq.; Gas, vol. 12, p. 905 et seq.

3. Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 132 A. S. R. 843, 14 L.R.A.(N.S.) 979. Generally as to the

liability of electric companies for injuries to trespassers and licensees, see ELECTRICITY, vol. 9, p. 1207 et seq. 4. Note: 43 L.R.A.(N.S.) 865.

5. Davoust v. Alameda, 149 Cal. 69, 84 Pac. 760, 9 Ann. Cas. 847 and note, 5 L.R.A. (N.S.) 536 and note; Fisher v. New Bern, 140 N. C. 506, 53 S. E. 342, 111 A. S. R. 857 and note, 5 L.R.A. (N.S.) 542; Young v. Gravenhurst, 24 Ont. L. Rep. 467, Ann. Cas. 1912B 812.

Note: 43 L.R.A. (N.S.) 866.

6. Hodgins v. Bay City, 156 Mich. 687, 121 N. W. 274, 132 A. S. R. 546 and note.

7. Palestine . Siler, 225 Ill. 630, 80 N. E. 345, 8 L.R.A. (N.S.) 205; Hodgins v. Bay City, 156 Mich. 687, 121 N. W. 274, 132 A. S. R. 546 and note.