Plaintiff sues to recover damages for tbe death of his intestate, caused by typhoid fever communicated by the condition of Reed Branch, a small stream emptying into the French Broad River, and which ran near the house where'said intestate resided. The defendant, under its charter, maintained a free public sewerage system, the mouth of which emptied into Reed Branch, a short distance beyond the city limits, above the house where intestate resided.
It is admitted that, with full knowledge of the conditions necessarily caused by the constant discharge of the sewerage of the city into the branch, the intestate rented the house and moved into it; in'February, 1905, and died, in August following, of typhoid fever, although his wife and children did not take it. There is evidence tending to show that the fever was caused by the sewerage in the branch. It is contended that the sewer system should have emptied into the French Broad River, and- that emptying it into Reed Branch created a nuisаnce, for which defendant is liable.
Whatever may have been held by some other courts, it is plain that under the previous decisions of this Court the opinion of his Honor is well founded. The princiрle upon which our decisions have been based is clearly stated by the present
Chief Justice,
speaking for a unanimous Court, in
McIlhenny v. Wilmington,
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Tbe same principles are recognized, and set forth in án elаborate opinion by
Mr. Justice Walker, in Hull v. Roxboro,
Recognizing this 'well-defined distinction in the liability of municipal corporations, it is held that where by statute it is made the duty of the city to remove garbage, it is a governmental function and the city is not liable for the manner of its discharge.
Davidson v. Mayor,
etc., 54 N. Y., sec. 51. So a city is held not to be liable for permitting its hydrants to become clogged, since the neglect is in thе discharge of a public governmental function.
Miller v. Minneapolis,
The reason of this distinction in regard to property seems to lie in the fact of ownership, vested rights, which, no one can invade, not even the government, unless for public purposеs, and then only by paying the owner for it. Where, in the discharge of its governmental functions and police powers, the officers of a municipality invade property rights, the doctrine of respondeat superior applies and the corporation is liable for their acts.
Thе identical question presented on this appeal was decided by the Court of Appeals of New York, ih Hughes v. Auburn, 46 L. R. A., 636, where it is held: “(1) A city is not liable in damages for disease suffered by an individual in consequеnce of the neglect of the city authorities to observe proper sanitary precautions in the construction and maintenance of a sewer system. * * * (3), statutory right of action fоr damages by reason of- death caused by wrongful act, neglect or default, does not extend to an action against a city by the representatives of one who dies from diseasе superinduced by the neglect of sanitary precautions on the part of the public authorities in the construction or maintenance of a sewer system.”
So it was held by the Massachusetts Court that where a private party sued a city for personal damages arising from the creation of a nuisance by the city upon his premises in constructing a sewer system with so narrow an outlet that the sewage was set back into plaintiff’s cellar through a drain which he had constructed, by permission of the city, to connect with
*752
tbe public sewer, tbe action could not be maintained.
Buckley v. New Bedford,
Tbe village 'of Eleesville, as authorized by statute, maintained, by a public charge in tbe nature of taxation, a waterworks system which it used for tbe purpose of extinguishing fires. Tbe Court of Appeals of New York held that tbe corporation was not liable for damages arising from tbe negligence of its agents in operating tbe waterworks at a fire. Tbe court bolds that it was an exercise of tbe police power of tbе village for tbe public benefit for tbe purpose of extinguishing fires, and remarks that “Oases have arisen, and may still arise, where an extensive conflagration might bankrupt tbe municipality, if it could bе rendered liable for tbe damages or losses sustained.”
Insurance Co. v. Keesville,
Tbe distinction between tbe exercise of municipal corporate functions for tbe public benefit and those undertaken by such corporations for pecuniary profit is clearly recognized by
Mr. Justice Connor,
in
Fisher v. New Bern,
It must be admitted that tbe city of Asheville was exercising its police jjower when it established a free рublic sewer system, for tbe use of which no charge is made, for tbe benefit of its citizens. Certainly, nothing is more necessary to tbe health of a city than that its filth should be removed and its area well drained.
That tbe establishment of a public sewer system is 'an exercise of a governmental function is recognized by all tbe authorities I have quoted.
*753 The serious consequences of holding а municipality liable for disease arising from nuisances of this kind is portrayed by the Court of Appeals of New York in an opinion of marked ability, in the case of Hughes v. Auburn, supra: “The right of the plaintiff to maintain this action depends upon the right of the deceased herself to maintain it had she survived the sickness resulting in her death, and this suggests the inquiry whether an individual who has suffered from disease superinduced by the' neglect of the authorities of a city or village to observe sanitary laws in the construction or maintenance of a system of sewerage, can recover damages for the injury frоm the municipality. If one member of a family can, so can every member; and if one family may, so may every family, and every person who can give proof enough to carry the case to the jury. It matters' not what the disease may be or the cause, so long as it may be traced by proof to some act or neglect on the part of the municipal authorities. Thеre are few communities where places* or conditions may not be found that generate disease, and, if the municipality may be charged with the results traceable to these conditions, it is indeed subject to a liability more serious and far-reaching than has heretofore been recognized.”
The judgment of the Superior Court is
Affirmed.