Town of Douglas v. York
445 P.2d 760
Wyo.
1968
Check Treatment

*2 any at hand is different from The case Before HARNSBERGER, J.,C. and court, in that previously dealt with our GRAY, McINTYRE and PARKER, JJ. charges residents Douglas the Town of disposal Mr. McINTYRE delivered all refuse and opinion authority the court. ample garbage. and We find municipality proposition that when a re- sought Mr. Mrs. Donald L. York compensation for charges a fee receives covery against disposal of refuse collection Douglas for loss sustained to land grazing exercising it func- bage, dump when a fire from the town’s for dis- posal refuse garbage started a

range fire. The fire was the one involved impact In order to avoid the of this au- Nielsen, Douglas Wyo., Town of thority, it suggested has been the fee P.2d 240. charged by Douglas is for collection of coverage adequate

Insurance pay charged refuse and that no fee is dis- the judgment obtained in the Nielsen case posing it after it is collected. It is hard question governmental immunity believe such distinction would be was not involved. There was seriously insurance upon. relied Common sense plants devoted the value of portion of refuse collects if a town tell us would taxable. to be purpose was said it. get rid of have to it would Boston, 304 Baumgardner v. In say a it may, suffice it that as beBut the court 100, N.E.2d Mass. reading of and reasonable fair negligence in liable for is not said a abundantly makes ordinance garbage functions, strictly public the conduct the “remov- charged for residents clear profit or advan- it receives no from which garbage. refuse and disposal” of al and *3 Then it said: tage. entitled is XII of ordinance Section “* * * hand, city a or the other On shall town specifies the It REMOVAL. in the con- negligence for is liable the “removal “supervision” of have direct enterprises voluntari- duct of commercial garbage. and refuse disposal” all and of its profit or to benefit ly undertaken for the for prescribes fees Section XIV interests, public although a corporate of removal and inspection, supervision ”* ultimately subserved. need is herein.” “as defined bage and refuse City Sloper v. of .same effect is To the apply the Regardless whether of 14, 17; 20, Quincy, Mass. 16 N.E.2d 301 “supervision” herein” “as defined words City Mich. Lansing, 237 and Foss v. of “removal,” includes the definition or to 953, 952, 633, 52 A.L.R. 185. 212 N.W. of Also, the title disposal.” “removal and Michigan in is case said the rule The Foss that it has to expressly states the ordinance gov- in municipality engaged if is a collection, the regulating do with profit, incidental work with an ernmental refuse. disposal garbage and of and private corpora- as a it is liable the same meaning the of disregard if But even we be. tion would garbage ordinance words used in relied Michigan Court between collect- say there is a distinction upon holding to the effect partly a former deal disposing, we still have to ing lia- municipality discharged that a from is stronger there is a argument with electric for bility furnishing in service liability impose for inclination courts to of streets, public public places and lighting its negligence fire or resulting from yet in buildings; negligence is liable for City refuse. of disposing of collected electricity to its inhabitants for furnishing Porter, 126 F. 8 Cir. (1903), Denver v. holding- quite remuneration —a similar to 288, 293-294; City Chicago, Schmidt v. of holding in Town of Pine of our court 570, 234, Ill.App. 1 N.E.2d 235-239. 284 Equalization, Bluffs v. State Board of su- pra. impressed with what Chief We Jus- Pine Bluffs v. tice Blume said Town of McQuillin, Municipal Corporations In 18 262, Equalization, Wyo. State 79 Board 53.29, (3rd p. 192, it said Revised) Ed. is § 700, P.2d 333 710-712. test, underlying distinguishing gov- for functions, corporate ernmental is city protested In that case the the assess- the act is good whether for common municipally-owned ment and valuation of special corporate all without the element of plants. electric Blume drew a dis- Justice benefit, pecuniary profit. is, or If there furnishing tinction and said of electric- liability; if not, liability. it is there is no streets, ity purpose lighting di- for Martin, recting providing lights for The case of Hutton traffic of- Wash. 581, occupied by city fices a gov- 2d P.2d an ac- offices involved function, municipal- ernmental tion for wrongful and hence death aris- ly-owned plants exempt electric ing negligence were out of they city garbage city taxation insofar were these driver of truck. The hand, purposes. charg- On other the furnish- was held to be liable because it was ing ratepayers ing sale to for its services. The electricity for court wheth- function, city actually profit held be and that er made a im- Porter, utility City In Denver v. 8 Cir. public operating a It was material. 288, 293-294, it was stated (1903), F. torts. liable for its be held should proper disposition sewage of a keeping with holding is This upon has even more direct influence case. In the Pine logic in Blume’s Bluffs disposi- health inhibitants than does the not whether words, question is other Therefore, garbage. refuse and activity, but profit on its makes the town it is generally since held that in mainte- rendered the services were whether nance of its sewers a acts ministerial- It no gratuitously. makes compensation or ly, the court in case the Denver held the whether difference burning of trash was ministerial. loss, ahead, takes some comes out made, charge Even no there would opera- disposal garbage even on breaks good authority saying maintenance city dump (like of a maintenance of streets of Chardkoff Co. v. The case Junk sewers) proprietary. We need not 457, 459, Tampa, 102 Fla. 135 So. go far, however. It is sufficient to *4 dealing kind case are was the same we say the added consideration of a charge here, an with where fire resulted from in being made makes it certain the defend- city dispose being by used to cinerator ant-town should be held liable negli- for its held of refuse. The was liable in gence maintaining dump. damages. city’s The court referred to the event, In any and whatever the “purely distinguished relations” as business holdings may elsewhere, jurisdic this governmental. from those that are The is reasonably committed to the rule court said the performing a func that, when a municipality engaged in a private corpora tion often committed to municipal activity for which a charge is persons, tions may with whom it come made, it is liable the private same aas cor competition. poration would be. Douglas, In Lore Wyo., v. Town of 355 Inasmuch as this court pre has 367, 370, P.2d argued that, it was since the viously held the govern maintenance of a town separate charge made no to its in- mental facility for which a charge is made service, habitants for sewer the mainte- is proprietary and governmental, not we nance would be a governmental function. are say to constrained the Town of Doug Parker, speaking for this court Justice las performing function however, held sewer pro- maintenance ais disposed when it of garbage. The district prietary function. court therefore correctly denied its immun theory The seems to be the same as it is ity from tort liability. with streets. The establishment con- questioned The defendant-town has govern- and sewers is streets struction of damages by amount of the district allowed accept mental, generally but However, court. no evidence was offered pro- streets “maintenance” of sewers by defendant testimony to contradict the Laramie, City prietary. Chavez v. See plaintiffs. judgment appears to be in 23, Wyo., 389 P.2d 25-26. harmony undisputed with evidence case, concerned, as far and streets is of sewers

If maintenance no reversible respect error is with the establishment noted proprietary, while damages. govern- facilities are construction such mental, that mainte- then it follow would Affirmed. dump burn- nance of an incinerator or Parker, Mr. concurring in the re- proprietary, even ing refuse would be sult. gov- facility is the establishment of such ernmental, Although if the collection of or even am accept unable to as tena- ble bage governmental. given and refuse is the reasons for the controlling porations opinion, judgment the trial court’s for nuisance proper generally recognized basis seems to be where should be affirmed on property injured constituted a has situation disclosed been pleadings plaintiff nuisance and the case, present In the it cannot well be properly were amended conform controverted that the manner in which the proof. dump was maintained prior Douglas to the time of the fire in It is well settled that the doctrine of question constituted a nuisance. The trial governmental immunity municipalities court held this obvious from the facts re inapplicable in situations wherein a nui by Judge cited Harnsberger in Town of sance City exists. Grover v. of Manhat Neilsen, 240, v. Wyo., 409 P.2d tan, 307, 256, 260; 198 Kan. 424 P.2d Stei 241, companion grow cas e -the damage fer v. City, 794, Kansas 175 Kan. 267 P.2d ing out 6, 1963, same December fire 474, 478; McQuillin, Municipal Corpo —wherein opinion stated, alia, inter rations (3d Annotation, 53.49 ed.rev.); § 30, that on July 1963, fire the dump 156 A.L.R. recognized 718. We escaped had probably and burned off fact in Ramirez Cheyenne, acres range land depart before the fire Wyo. 710, 713, 241 P. 42 A.L.R. ment control; got it under observing that: there were prairie other ignited fires “It is city, often though even dump; complaint when pre had been acting in a governmental capacity, can- viously mayor made danger escape not liability creating or main- ous fire dump, at his re condifion ** * *5 taining a nuisance. This should sponse was that if there any damage not, perhaps, be exception classed as an the town responsible would be —other to the rule exempting from liabili- making officials response; similar ty for negligence, for negli- common-law dump was located high ground exposed gence does not enter into cases true to more wind than the ground. lower Ac nuisance. The liability municipal cor- cordingly, concur in the result.