The questions involved in this appeal arise-upon the defendant’s demurrer to the plaintiff’s complaint. The complaint alleges, in substance, that the defendant is a city of the third class; that plaintiff and certain other persons were the owners of certain merchandise, kept by them for storage and sale in the basements of the buildings situated at the intersection of Main and Seventh streets, in the city of
Learned counsel for the city contends that, in turning the stream of water into the sewer to remove the obstruction, the city was performing a governmental function of such nature that it was not liable for the injuriеs alleged to have resulted
In Abbott, Municipal Corporations, § 959, it is stated:
“The determination to construct a system of drains or sewers is regarded as a discretionary act and the adoption of a location or a plan of work or a comprehensive scheme and plan for drainage, unless palpably bad, partakes of the same nature. Any injuries which may result, therefore, from defects in a reasonable plan or scheme as a whole or in part, can creatе no liability. The operation of this rule, however, will not prevent a recovery for injuries suffered by a failure to provide a suitable outlet for such а system, or for the construction of drains or sewers lacking in capacity to carry off the natural drainage or sewage from the territory designed.”
If this wаs the sole ground of recovery here, the city might be able to escape liability, upon failure of respondent to prove there was negligence on its part in allowing the sewer to become obstructed, but that would not relieve the city upon the
“It is very manifest from this reference to authorities, that they recognize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct injury accomplished by a corporate act which is in the nature of a trespass upon him. The right of an individuаl to the occupation and enj oyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has а private individual. If the corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable, and no more an actionable wrong, than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction. A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner’s possession. His property right is appropriated in the one case as much as in the other.”
The decisions of the courts relating to damage caused by cities in mаintaining sewers and drains, especially where the damage is the result of a positive direct act of the city, seem to be quite uniform in holding that the city is liаble for such damage, and that it cannot escape upon the plea that it was the result of the performing of a purely governmental aсt. City
We are of the opinion that, if the allegations of the complaint are true, the city is liable the same as if the alleged damage had beеn caused by a private corporation or person. It follows that the complaint states a cause of action. The judgment is reversed, with instructions to overrule the demurrer.
Rudkin, C. J., Mount, Fullerton, and Gose, JJ., concur.