The opinion of the court was delivered by
Brewer, J.:
statement of the case. In September 1873, the plaintiff in error, George Jansen, commenced his action against the city of Atchison and A. G. Otis to recover damages in the sum of ten thousand dollars, by reason of personal injuries received plaintiff on August 10th 1873, through defects in a sidewalk of one of the public streets of the city of Atchison. Jansen alleged that said injuries were *379occasioned by defendants’ negligently constructing a sidewalk on Commercial street, and by the said defendants negligently permitting the said defects in said sidewalk to continue; and also, from the defendants negligently permitting an old, defective and dangerous sidewalk to .remain and exist. The plaintiff also stated in his petition that the defendant Otis was the owner and possessor of the lot and premises on said Commercial street, in front of which the said defective sidewalk existed at the date of the injuries complained of. The city of Atchison filed its answer, admitting that such city was a city of the second class, and a body corporate and politic, as stated in the petition, but denying the other allegations, statements and averments contained in said petition; and said answer alleged that the damages sustained by the plaintiff were caused by the negligence of the plaintiff and others, for whose carelessness and negligence the city of Atchison was not liable. Otis filed an answer, admitting the ownership of the lot, and alleging that the said premises were at the date of the alleged injury, and for several years prior thereto had been, demised and leased to plaintiff’s mother, who, in connection with the plaintiff, at the time of the accident and for a long . time prior thereto had been in the occupancy and use thereof as tenants of said Otis, having the personal care, supervision, and entire control of said premises, the buildings thereon, and the appurtenances thereto; that under and by the terms of said lease, said tenants were to keep said premises in good repair at said tenants’ expense, and that they received said premises in good repair; and further averring that he (Otis) had no knowledge or information that said sidewalk was unsafe or insecure, and that it was the duty of his codefendant, the city of Atchison, under its corporate powers, to maintain said sidewalk, and that there existed no liability on his part to said plaintiff, and no liability over to said city of Atchison; and that said accident was caused by want of care on the part of the plaintiff, and by negligence and failure of duty on the part of the said city of Atchison. To these answers replies were duly filed, and the case came on for trial. No question *380was raised as to the joinder of the parties defendant. Indeed, such joinder seems to have been desired by all, that the one action might dispose of all questions growing out of the injury. After the plaintiff had introduced his testimony each defendant filed a demurrer to the evidence, which was sustained by the court, and judgment rendered in their favor and against the plaintiff for- costs.
It is manifest that to sustain this ruling it must appear, either that there was absolutely no liability on the part of the defendants for the injuries sustained by plaintiff — for of the fact of his sustaining injuries there is no question — or, that there was a total failure of proof as to some matter essential to such liability. For if the defendants might under any circumstances be liable for such injuries, and there was testimony tending fairly to establish each fact essential to fix a liability, the party was entitled to a finding as to those facts by the jury, and could not be deprived thereof by an order of the court. The case stands in a different attitude before us from that it would occupy if the jury had passed upon the testimony. Then every conflict in the evidence would be resolved in favor of the result below; now against it.
1. Powers and duties of cities respecting bridges, streets and sidewalks,Liability of city for negligence. casesocited and rule followed. Counsel for the city has filed an elaborate brief in support of the rulings of the district court, in which he contends — first, that the control and care which a city of the second class in this state exercises over the streets and sidewalks of the city, are by virtue of a power of a governmental character, and that it is not liable to the . private action of an individual for neglecting to exercise such power, or for its imperfect execution, and therefore that the city cannot be liable in this action; second, that the facts of this. particular case do not warrant a recovery in favor of the plaintiff; and third,'that if the plaintiff is entitled to recover, such recovery should not be against the city, but against the defendant Otis. The first proposition is one very sweeping in its reach, and if true gives to cities an immunity from responsibility which to most would seem not only novel, but dangerous. To the support of that proposi*381tion counsel devotes the major portion of his brief. He reviews the reasons given by courts and writers for imputing liability to cities in cases of this nature, and claims that none of these reasons are sound, and concludes therefrom that a doctrine has become engrafted upon American law which has no foundation in correct legal principles, and should therefore be repudiated. He concedes that this’ court has hitherto seemed to follow the line of adverse decisions, but contends that as no rule of property is involved, but only the construction of powers and liabilities granted and fixed by statute, the doctrine of stare deeisis should not outweigh reason, and that the question should be reexamined and decided in accordance with correct principles. It may be well to see how far this question has been before this court, and the various rullugs thereon. In the case of the City of Topeka v. Tuttle, 5 Kas. 311, the petition alleged that the city negligently left one of its streets out of repair, whereby the plaintiff suffered injury; and on an objection that the petition was insufficient, this court held that it was sufficient. True, no specific objection was pointed out, but the court decided that a petition stating such and such facts, and presenting the very question in issue here, was good. In the case of the City of Atchison v. King, 9 Kas. 550, the question was fairly presented,'and the court held that a city was liable for injuries resulting from negligently-constructed sidewalks, and also from defects subsequently arising and negligently permitted to continue. The same doctrine was recognized in City of Ottawa v. Washabaugh, 11 Kas. 124. In the case of the City of Wyandotte v. White, 13 Kas. 191, a judgment against the city for injuries sustained through a defect in a bridge, a part of the public highway, negligently permitted to continue, was affirmed. In Smith v. City of Leavenworth, 15 Kas. 81, the city was held responsible for injuries resulting from negligence in leaving open and unprotected an area and cellar-way in the sidewalk. See also the case of the City of Leavenworth v. Casey, McCahon’s Rep. 122, decided by the territorial supreme court, in which the city *382was held responsible for injuries resulting from a negligent construction of a sewer. And in these decisions the court was announcing no new doctrine, but following the almost uniform line of decisions elsewhere. In Dillon on Municipal Corporations, § 789, the law is summed up in these words:
“It may be fairly deduced from the many cases upon the subject, referred to in the notes, that in the absence of an express statute imposing the duty and declaring the liability, municipal corporations proper, having the powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injuries resulting from neglect to perform this duty.”
2 Stare decisis Settled rules should not be overturned. Among the many cases supporting this proposition may be named, Weightman v. City of Washington, 1 Black, 39; West v. Brookport, 16 N. Y. 161; Davenport v. Ruckman, 37 N. Y. 568; Norristown v. Moyer, 67 Penn. St. 355; R. & W. H. Township v. Moore, 68 Penn. St. 404. There are many others, but it is unnecessary to burden the records with citations. The supreme court of Michigan by a divided court has ruled °^er way. Detroit v. Blakeby, 21 Mich. 84. We do not care to follow counsel in his discussion oí the reasons given by the various courts in support of this doctrine. It may be that those reasons are not altogether satisfactory. Perhaps if it was a new question, we should be .compelled to hold them insufficient. But we find a doctrine generally recognized in the courts of other states, generally approved by eminent jurists, hitherto followed by this court, and as it seems to us eminently wise and just; and we are unwilling to abandon it because the reasons given for it may not be wholly satisfactory. We concur in the views expressed by Mr. Justice Cooley in his dissenting opinion in Detroit v. Blakeby, from which we quote: “The decisions which are in point are numerous; they have been made in many different jurisdictions, and by many able jurists — and there has been a general concurrence in declaring the law to be in fact what we have already said in point of *383sound policy it ought to be. We are asked nevertheless to disregard these decisions, and to establish for this state a rule of law different from that which prevails elsewhere, and different from that which, I think, has been understood and accepted as sound law in this state prior to the present litigation. The reason pressed upon us for such a decision is, not that the decisions referred to are vicious in their results, but that the reasons assigned for them are insufficient, so that, logically, the courts ought to have come to a different conclusion. I doubt if it is a sufficient reason for overturning an established doctrine in the law, when its results are not mischievous, that strict logical reasoning should have led the courts to a different conclusion in the beginning. If it is, we may be called upon to examine the foundation of many rules of the common law which have always passed unquestioned.” We adhere then to the rulings heretofore made in this court, as to the liability of a city for injuries resulting from negligence in the care of its sidewalks and streets.
3. Question of fact. Province of jury.Notice of defects.4. Notice to city of defect in sidewalk. We pass then to the second proposition of the learned counsel for the city; and here he contends that the defect in the sidewalk was a latent defect, and that the city had no notice of its existence or of facts sufficient to put it upon inquiry. If this be true, doubtless the city .g pggpougjb]^ and jf ¿he testimony leaves no question as to its truth there was no error in sustaining the demurrer. This compels some notice of the testimony. The injury happened in this wise: Plaintiff stepped out of the door of a building onto the sidewalk, and as he stepped onto it, it gave way, and he fell through into an area beneath. There was testimony tending to show that this sidewalk was made of cottonwood, and had been built several years; that cottonwood in such a position is liable to decay in a less period than the time this walk had been there; that some of the joists underneath were decayed, and through their rottenness the walk gave way; that shortly before this injury an accident had happened on the walk in front of a near building, and that plaintiff had spoken to the street commis*384sioner of the city about this walk, and requested him to repair it. It was by ordinance made the duty of the street commissioner “to thoroughly examine from time to time all walks, sidewalks, and to see that they are kept in good repair.” Now it seems to us, that here was testimony which ought to have gone to the jury, and that the court erred in taking the question from them. We do not mean to intimate that a jury ought to find from this testimony that sufficient notice existed to charge negligence upon the city, but simply that here was a question of fact which it was for them, and not the court, to pass upon. And in order to guard against any misconception, we desire to emphasize the „ J ' , J; , 1 fact, that berore the jury may find negligence they must be satisfied that the city had notice of the defect, or had knowledge of facts sufficient to put it upon 'inquiry long enough before the injury to have repaired the walk. Negligence implies some omission of duty. The city must have been in fault. And if it had no knowledge of any defect, or of any facts from which it might reasonably have presumed that there was a defect, it is not to blame, and cannot be said to have been guilty of negligence. On the other hand, though the rottenness of the stringers was not apparent, the circumstances might have been such that a man of ordinary prudence would have expected to find decay, and ought to have made examination. In R. & W. H. Township v. Moore, 68 Penn. St. 404, the defect was in a bridge whose timbers had decayed. The decay was not apparent to a mere outside inspection, but inasmuch as the timbers had stood for such a length of time under such surroundings as would ordinarily produce decay, the court properly held that a failure to make a critical examination was some evidence of negligence. See also, Weisenberg v. City of Appleton, 26 Wis. 56; City of Ripon v. Rittle, 30 Wis. 614; Mersey Docks v. Gibbs, 11 H. L. Cases, 687. In this last case the House of Lords held, “that having the means of knowledge, and negligently remaining ignorant, is equivalent in creating a liability to actual knowledge.”
*3855.Lot-owner; ñaMe?llyil0t7. Area under sidewalk; presumption, 8. Negligence of city. *384As .to the third proposition of counsel, it seems to us that *385the city is liable, whether it have a cause of action over against its eodefendant, or not. The fee of the street is not in the lot-owner, but in the county. Comm’rs Franklin Co. v. Lathrop, 9 Kas. 453; A. & N. Rld. Co. v. Garside, 10 Kas. 552. The control of the street is in the city. The lot-owner has no right to occupy the sidewalk with any improvement, nor to excavate beneath it for any area, or passage-way. (Smith v. City of Leavenworth, 15 Kas. 81.) If the city permits a lot-owner to occupy the sidewalk, or obstruct the free passage over it, or endanger its safety by excavations beneath it, it does not thereby relieve itself from responsibility. It is, as to third parties, the same as though it had done these things itself. In other words, it cannot transfer to private citizens that responsibility which, for wise purposes of public policy, the law casts upon it, in reference to the care and safety of its streets and walks. Was the demurre.r of the defendant Otis properly sustained ? We think it was. The only allegation in the petition pointing toward him was, that he was the owner of the lot and building in front of which the injury occurred. There was no allegation or intimation that the defect in the sidewalk resulted from any negligence or omission on his part. Negligence was charged upon the city, not upon him. So that, unless a lot-owner is responsible for all injuries resulting from a defective sidewalk in front of his lot, the petition stated no cause of action against him. Nor is there anything in the answer of the city of Atchison which discloses a cause of action against him. That simply admits that the city of Atchison is a city of the second class, denies all other allegations of the petition, and alleges that the injury complained of was caused by the negligence of plaintiff and others for whose negligence the city was not responsible. The answer of Otis does not make good the omissions of the other pleadings, nor state any facts tending to show a liability on his part. But passing beyond the pleadings, we do not think the testimony disclosed any liability on his part. It appears that the sidewalk, at the *386place of accident, was some twelve-and-a-half feet in width; that four or five feet from the building was an area wall. A part of the walk reaching from the curbstone to this wall rested on the ground. The balance on stringers let into the house on the one end, and resting at the other on the wall. This walk over the area was the part that broke. The area was partially filled with dirt, shavings, etc., and (according to the only testimony given thereon) was not and indeed could not be used for any purpose in connection with the building. It did not, according to the plaintiff himself, furnish air to the basement or cellar. Whether it furnished light or not, is not stated; and whether the front of the cellar or basement was walled or boarded up tight, does not appear. There is no testimony tending to show when this wall was built; by whom, or for what purpose. For aught that the testimony discloses, it may have been built there by the city to protect the dirt of the street from washing away, or as a support to the sidewalk, or for any other conceivable purpose. Now, ordinarily an area is supposed to be for the benefit of the adjoining building, for light, air, approach, or storing; and there may be a presumption that it was constructed by the owner, or at his instance, or for his benefit. But when, as in this case, the testimony shows that it was not for the benefit of the building, that it was not for air, approach, or storing, was not and could not be used for any purpose in connection with the building, it does away with any presumption that it was constructed by the owner, or that he is responsible for injuries resulting from it. He has not the fee of the street or sidewalk. He is not to be presumed to be trespassing upon the property of the public. The city has the possession and control of street and walk. Any work done above or below the surface, is presumptively done by it; and for any injury resulting from any obstruction or excavation, it is responsible;'and it has a claim over against an individual only when it appears that such obstruction or excavation was made by the individual, or at his instance, or for his benefit. The liability of the individ*387ual is no greater because the injury took place on the sidewalk, than if it happened in the middle of the street, or from falling into a sewer rather than into an area. The only principle upon which- the individual can be held responsible is, that the individual caused the injury — not that he owns a lot in front of which the injury was done. So far as the mere fact of a defect in the sidewalk is concerned, neither statute nor ordinance attempted to cast upon the lot-owner the duty of making or repairing sidewalks. An ordinance had been in force requiring lot-owners to keep the sidewalks in front of their lots in repair, but this had been repealed some two months prior to the injury. The only provisions in force authorized the city to make or repair, and to collect the cost thereof from the lots. There is, outside of positive law, no natural obligation on the part of a lot-owner to keep the street or sidewalk in front of his lot in good repair, and no liability for injuries resulting from a failure to do so. Hence, when the city has assumed the entire control of the matter, a failure to repair the sidewalk may be negligence on its part, but is not on the part of the lot-owner who has been ousted from all control. We think therefore, upon the testimony in this case, the demurrer of the defendant Otis was properly sustained. It is unnecessary to inquire what effect the fact that the step-mother of plaintiff, whose clerk and business manager he was, was the lessee of the building with a covenant in the lease to keep the premises in repair, would have upon the liability of Mr. Otis, if it appeared that he had constructed the area, or that it had been done at his instance or for his benefit.
The case therefore will be sent back with instructions to reverse the judgment in favor of the city, and grant a new trial; but the judgment in favor of defendant Otis will be affirmed. The costs in this court will be divided between the plaintiff in error and the city of Atchison.
All the Justices concurring.