entrance, found the bar again misplaced, and replaced it, but did not fasten it, nor have it fastened. There is no evidence, however, that Marcus Brown, the deceased, or any of the boys who testified at the trial, was ever driven from the conduit or warned by an employee of the city, or any one in its behalf, to keep out of it. During the early part of September, 1904, after the fall term of the school had opened, Marcus Brown, the son of the plaintiff, without her knowledge or consent, entered and played in the conduit with quite a number of other boys. On the evening of the 21st day of that month he was last seen in the conduit about 6 or half past 6 o'clock. He could not be found that night, but the next morning his body was found at the west gate of the conduit. The water from the Jordan Canal entered the conduit in large volume, and with considerable force, and, while it could not be seen in the conduit, it, on account of the loud noise from rushing into the conduit, could be heard for some little distance. before reaching it. The inference is that Marcus Brown either went into the water, or in some way fell into it and met death. Marcus was a bright boy, and above the average in intelligence and physical development for boys of his age. It developed at the trial that the boys had a lantern which they used in playing in the conduit, and by means of the light obtained from it they would go down to where the water rushed in from the Jordan Canal; that they had been doing this for a period of about three years; and that the bar was in its displaced condition for about a year before the accident occurred. The plaintiff had moved into the neighborhood about four months before the accident, and did not know anything about the conduit. During the spring or high water season the conduit required the constant attention of one man to remove the floating debris in the stream, which, if not removed, would cause the entrance to be clogged, and the water to back up in the stream. During the dry season it required no special guarding nor attention. We have stated the foregoing facts in detail, so that all questions raised by counsel, and discussed in the opinion, may be better understood. Upon substantially the foregoing facts the court submitted the

case to a jury. A verdict was returned in favor of plaintiff. From the judgment entered upon the verdict, this appeal is taken.

The defendant requested the court to direct a verdict in its favor, which the court refused to do. While numerous errors are assigned, all that are important may be considered upon the alleged error based upon the refusal of the court to direct a verdict. The reasons argued by counsel why a verdict should have been directed in this case may be stated as follows: (1) That the plaintiff at no time, nor in any manner presented a claim to the city council as required by the statutes of this state; (2) that the city conducted its system of waterworks, of which the conduit was a part, in a governmental capacity; (3) that if it be held that the city conducted its system of waterworks in its corporate capacity merely, then, under the undisputed facts, the city is not shown to have been guilty of any negligence to warrant a recovery as matter of law; (4) that if such negligence existed on the part of the city, then both the boy and his mother were guilty of contributory negligence as matter of law; and, further, that the boy was a trespasser, and as to such a person the city was not liable for mere passive negligence.

Referring to the first reason stated, the record discloses that the plaintiff neither alleged nor proved the presentation of a claim to the city council. Counsel for the city assert that she was required to allege and prove such presentation as a condition precedent to her right of recovery. The statute in force at the time of the accident, so far as material, provides as follows:

"All claims against a city or town for damages or injury alleged to have arisen from the defective, unsafe, dangerous, or obstructed condition of any street, alley, cross-walk, sidewalk, culvert or bridge of any city or town, or through the negligence of the city or town authorities in respect to any such street, alley, cross-walk, sidewalk, culvert or bridge shall within ninety days after the happening of such injury or damage be presented to the city council, . . . in writing, signed by the claimant or by some authorized person, properly veri fied, describing the time, place, cause and extent of the damage or injury; and no action shall be maintained against any city

for.

injury to person or property, unless it appears that the claim for which the action was brought was presented to the council as aforesaid, and that the council I did not, within ninety days thereafter, audit and allow the same. Every other claim against the city be presented to the city council

last item of the account or claim accrued."

must

within one year after the (Italics ours.)

The section following provides, in substance, that it should be a sufficient bar to any action against a city that any claim mentioned in the preceding section had not been presented to the city council in the manner and within the time specified. Under these provisions it is asserted that the claim upon which this action is based should have been presented to the city council, and as no allegaton nor proof of such presentation was made there is no right of action. Is this contention sound? It has been frequently held, that, under statutes similar to the foregoing, the presentation of claims falling within the provisions of such statutes is a condition precedent, and unless presented no recovery can be had. We have no disposition to modify the rule so announced, or depart from it. Does the claim in question here come within the provisions of the section above quoted? We think not. It will be observed the claims that require presentation are of two kinds: (1) Claims arising out of defective or obstructed streets, alleys, cross-walks, sidewalks, culverts or bridges, or for negligence of the city authorities with respect thereto; (2) claims consisting of various items of account or otherwise that may arise out of transactions with the city, and not arising in tort. This seems manifest from the language used with respect to the character of the claims that must be presented to the city council under the second class mentioned in the statute. It seems reasonably clear to us that, in view of the case of Dawes v. City of Great Falls, 31 Mont. 9, 77 Pac. 309, the claim in this case does not belong to the class last above noticed. Does it come within the first class? It is not a claim which arose out of any matters specially enumerated in the first class. Those are limited to defects in, or the obstructed condition of, streets, alleys, cross-walks, sidewalks, culverts or bridges. All these pertain to places and things which the city is bound by law to maintain in a reason

ably safe condition, and the statute makes it liable for a neglect of duty with respect thereto. The claim in question does not come within this class. It is one which arose out of the defective condition of the city's property, which is owned and maintained in its corporate capacity merely, and over which it had dominion the same as any property owner. Moreover, the language of the statute does not cover such a claim. A claim included within the statute is one pertaining to a personal injury or damage to property, and must be presented "within ninety days after the happening of such injury or damage." In an action to recover damages for negligently causing the death of one a presentation of a claim is not required, for the right of action does not arise until the injury results in death. While the injury may be said to be the cause of death, the injury without death would not give a right of action such as we are now considering. If we should assume a case where the injury did not result in death until the ninety-first day after the injury, or thereafter, no claim could be presented at all, for the reason that the time runs from the date of injury, and not from the time the full consequences resulting therefrom are known. The words "or damage" relate to the damages that arise immediately out of the injury to the party or to his property, and not to such as may be sustained by a third person as a secondary result, although caused by the original injury. The statute must receive a reasonable construction, and such as will make it possible to present a claim. If, therefore, a claim may not arise until the time has elapsed in which it must be presented, the statute should not be held to apply, unless the language used therein permits of no other construction. We are firmly of the opinion that it was not the intention of the Legislature to include within the statute secondary claims or damages arising out of death, which are suffered by third parties by reason of such death. This view, we think, is amply sustained by the authorities. (McKeigue v. Janesville, 68 Wis. 50, 31 N. W. 291; Pye v. Mankato, 38 Minn. 536, 38 N. W. 621; Moran v. City of St. Paul, 54 Minn. 279, 56 N. W. 80; Dawes v. City of Great Falls, 31 Mont. 9, 77 Pac. 309; May

lone v. Ctiy of St. Paul 40 Minn. 406, 42 N. W. 88.) The cases cited by counsel for the city to the contrary are all based upon statutes, the terms of which are much broader than our own. In many states all claims must be presented before action can be maintained; in other states, like Utah, claims need be presented only in specified instances. An examination of the authorities will disclose that, where specific matters are mentioned in a statute for which a claim must be presented as a condition precedent to a right of action, claims arising out of matters not so mentioned are excluded and require no presentation before an action may be maintained. The claim in the case at bar falls clearly within the latter class, and therefore the court did not err in refusing to direct the jury as requested upon this ground.

Recurring now to the second reason advanced by counsel for the city, namely, that the city owned and conducted its waterworks in a governmental capacity, and for that reason is not liable, we think, under the authorities, it is likewise untenable. It may be conceded, for the purposes of this discussion, that, in so far as the city provides apparatus and water for fire protection, it acts in a governmental capacity. The city, however, was not required to assume the duty of furnishing its inhabitants water for all uses and purposes. When it acquired property, and constructed the system of waterworks for that purpose, however, it did so voluntarily, and with a view of deriving revenue therefrom. It, therefore, acquired, owned, and conducted its water system and the property connected therewith, except as stated above, as any other private corporation or owner would, and is liable in like manner and to the same extent as such owners would be. Mr. Thompson, in his Commentaries on the Law of Negligence, vol. 5, sec. 5788, clearly shows that it is optional with a municipal corporation whether it will assume certain duties or exercise certain powers or not, and that it cannot be called to account in any way for not assuming or exercising them. After stating the law in this regard, the author proceeds to state the rule in case the duties are in fact assumed, and the power is exercised, as follows: