"But if it [the city] undertakes to open, improve, or grade the highway, street, or sidewalk, dig the sewer or drain, build the bridge, construct the culvert, open the park, plant the shade trees, light the street or bridge, erect the public building, or waterworks, or wharf, or pier, or dock, and its officers and agents do the work negligently or unskillfully, or negligently suffer it to get out of repair, and in consequence of such negligence or unskillfulness and not in consequence of the mere fact that the work was done, damage accrues to a private person, he may maintain an action against the city therefor."

The rule with regard to the liability of municipal corporations is stated in conformity with the foregoing quotation in 20 Am. & Eng. Ency. Law (2d Ed.), 1205. The distinction with respect to the liability of the municipal corporation to provide water and apparatus for fire protection and in the ownership and control of waterworks for general purposes is clearly pointed out by the Supreme Court of Minnesota in the case of Miller v. Minneapolis, 75 Minn. 132, 77 N. W. 788. The following well-considered cases clearly demonstrate that the waterworks system of the city and the property connected therewith are not owned, maintained, nor operated in a governmental capacity, and the text as quoted from Thompson, supra, is illustrated and applied therein: Lynch v. Springfield, 174 Mass. 430, 54 N. E. 871; Galveston v. Posnainsky, 62 Tex. 127, 50 Am. Rep. 517; Wilkins v. Rutland, 61 Vt. 336, 17 Atl. 735; Lloyd v. Mayor, 5 N. Y. 374, 55 Am. Dec. 347; City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Briegel v. Philadelphia, 135 Pa. 451, 19 Atl. 1038, 20 Am. St. Rep. 885; Wagner v. Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519; Ogden City v. Waterworks & Irrigation Co., 28 Utah 25, 76 Pac. 1069. Nor does it make any difference that the conduit in which the accident occurred was not a part of the waterworks system which was used in the distribution of water to the inhabitants for pay. It was still a part of the system, and a necessary part thereof. That the water flowing through the conduit was used for irrigation without charge to the user makes no difference. When the city assumed the right of conducting the water and of distributing it, it was required to ex

ercise the same degree of care with respect to the mainten ance and use of property devoted to that purpose as any private owner would have been. (City v. Babbitt, 8 Tex. Civ. App. 432, 28 S. W. 702; 2 Dillon on Mun. Corps. (4th Ed.), sec. 980. We are of the opinion that the court committed no error in refusing to direct a verdict for the city upon this ground.

The third ground upon which the city based its request for a directed verdict in its favor is one that is not entirely free from difficulty with respect to the law, nor is it free from doubt with regard to the sufficiency of the facts to sustain the verdict. The trial court submitted the case to the jury upon the doctrine announced in what are termed the "turntable" cases. Railroad Co. v. Stout, 17 Wall. (U. S.) 657, 21 L. Ed. 745, Keffe v. Milwaukee, St. P. Ry., 21 Minn. 207, 18 Am. Rep. 393, and Barrett v. So. Pac. Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186, may be classed as some of the leading cases upon that subject, and as presenting a fair illustration of the principles upon which the doctrine of the turntable cases rests. Since the first of the foregoing cases was decided, a large number of states have followed the doctrine therein announced, and it has become so generally known and recognized by both bench and bar that it is not deemed necessary to cite or refer to the numerous cases wherein the doctrine is illustrated and discussed. In some states, however, namely, Massachusetts, New Hampshire, New York, and, perhaps, a few others, the doctrine has not been adopted by the courts. In some states where the doctrine prevails the courts have sought to limit its application to open and dangerous machinery and appliances. Of this class Sullivan v. Huidekoper, 27 App. D. C. 154, 5 L. R. A. (N. S.), 263, Overholt v. Veiths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557, Richards v. Connell, 45 Neb. 467, 63 N. W. 915, and Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597, are fair examples. The more recent adjudications, however, seem to apply the doctrine of the turnable cases to artificial structures and things other than manchinery, when such structures and things are in themselves dangerous

and are alluring or attractive to children of immature judg ment and discretion. This class is well illustrated by the following, among other, cases: City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114; Brinkley Car Works & Mfg. Co. v. Cooper, 60 Ark. 545, 31 S. W. 154, 46 Am. St. Rep. 216. A large number of cases of each class might be cited in which the various grounds upon which the courts rest their decisions are stated, but the foregoing cases are deemed sufficient as illustrative of each class. In this connection, however, we desire to present a quotation from the opinion of Chief Justice Beatty, found in the case of Peters v. Bowman, 115 Cal. at page 356, 47 Pac. at page 599, 56 Am. St. Rep. 106, which briefly and clearly states the grounds upon which the cases last above referred to are based. He says:

"The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon, to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature. it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different."

If the doctrine of the turnable cases is to be adopted in this jurisdiction and we think it should be-it seems to us that it should be applied in accordance with the principles laid down by Chief Justice Beatty. We are not unmindful of, nor do we under-estimate, the difficulty that may arise in the application of the doctrine to all kinds of cases and under all circumstances. Neither are we willing to relax the general rule of law which permits owners of property to use it in accordance with their own judgment and to place upon the surface, or otherwise, structures, machinery, and appliances in such manner and to such extent as to them may seem proper

and necessary, or convenient in the conduct of their own affairs. So long as such use, whatever it may be, does not interfere with nor injure another's property, or in some way interfere with his personal or property rights, the law does not, and cannot, interfere. As against mere intruders or licensees, the owner need not maintain his premises in a reasonably safe condition; but as to those who come upon them by invitation, express or implied, he owes the duty of reasonable care for their safety. That is the general rule, and to depart from it in favor of adult persons would cast a burden upon the ownership and dominion of private property which would be intolerable. But is this right of dominion and use really invaded when an exception is made in favor of children of immature judgment and discretion? We have already pointed out that, as to adults or children who may come upon another's premises either by express or implied invitation, the law imposes the duty upon the owner to exercise reasonable care for their safety. If, therefore, the owner places something upon his premises which is easily accessible to children, and which is alluring and attractive to their childish propensities, and excites their curiosity and desire for play, it, in effect, amounts to an implied invitation to them to come upon the premises. If in connection with the attractiveness the thing is inherently dangerous to a child of immature judgment, it may well be that the owner of premises may, under particular circumstances, be held liable for his neglect of duty to the child going thereon by reason of such allurement. It is true that a child has no greater legal right to intrude upon another's premises than has an adult; but duties may, and, under particular conditions, do, arise, even in favor of adults who are exposed to danger at places where they have no legal right to be. While a child may know that it ought not to go on another's land, it cannot resist the childish instincts that lead it to inspect and play with what is attractive. It is wholly unmindful of the danger, and has little, if any, real appreciation of the consequences that may come from its acts. These propensities and instincts are known to all, and hence must be guarded against by all. It is no answer to say to a

child: "This property is mine. I can do with it as I please so long as I do not interfere with another's personal or property rights. You are a mere intruder. I have not infringed upon your rights. Therefore you have no claim upon me." The question in such a case is has the owner made his property so attractive as to allure children? Did he leave the attractive thing so that it was easily accessible to them? And did it expose them to uncommon and peculiar dangers? These as a general rule are questions of fact for a jury to pass on. We are aware that there are some courts that severely criticise the doctrine when applied in this class of cases.

It is urged that the rights of property cannot be burdened or curtailed in this way. Moreover, it is said by some courts that to follow the doctrine to its logical conclusion leads to absurdity; that if it is applied to one instrumentality, it should be applied to all; and that this would lead to holding owners of property liable, if a child were attracted by a wheelbarrow, a plow, a fruit tree, and many other common implements and objects. But this does not follow. All of these things are common. Neither are they specially attractive nor dangerous. That some may attract and be of some danger it is true. But it is not an uncommon danger, and not such as must be guarded against. As to all such and like things no court would permit a recovery as matter of law. This is well illustrated in the case of Harris v. Cowles, 38 Wash. 331, 80 Pac. 537, 107 Am. St. Rep. 847, where the Supreme Court of Washington refused to permit a child to recover for an injury received by it while playing with a revolving door. But it is otherwise with respect to unusual dangers and specially attractive things such as are artificial and uncommon-such as are pointed out by Chief Justice Beatty in the case quoted from. Indeed that case is a practical illustration of the extent of the rule. A recovery was denied in that case upon the ground that, while the pond or pool of water in question was artificially produced, and while it was alluring and attractive, it was no more so than a natural pond would have been, and because it was not practical to guard against bodies or streams of water. It is, however, pointed out that, if the thing is artificial, uncom