a great preponderance of authority that a municipality is liable for damages resulting from its neglect to properly discharge its ministerial duty to exercise reasonable care in the construction and maintenance of its sewers.144 Even the New England States, and others, denying municipal liability for defective streets, generally recognize and enforce this rule with regard to sewers.145 The courts do not concur as to the ground of this distinction between sewers and streets; nor is there here space to set them forth. They are more interesting than important, and the curious are referred to the able opinion of Judge Holmes in a leading Massachusetts case.146 The tru ground of responsibility for negligence in the care of sewers seems to be the same as in the care of highways, namely, the corporation has neglected its municipal duty to exercise rea

of the sewers, though they may be for injuries resulting from negligence in their construction. Cooper v. Scranton City, 21 Pa. Super. Ct. 17. Mere omission of the municipality to provide adequate means for carrying off the water which accumulates will not sustain an action. Id. See Stevens v. Muskegon, 111 Mich. 72, 69 N. W. 227, 36 L. R. A. 777.

But a city is not an insurer of the condition of its sewers, though it is bound to use reasonable care in keeping them in repair. Weidman v. New York, 84 App. Div. 321, 82 N. Y. Supp. 771.

144 Chalkley v. Richmond, 88 Va. 402, 14 S. E. 339, 29 Am. St. Rep. 730. And the question of liability of the city is not affected by the fact that the sewer was originally built by the state. Id. See Donahoe v. Kansas City, 136 Mo. 657, 38 S. W. 571; Clay v. St. Albans, 43 W. Va. 539, 27 S. E. 368, 64 Am. St. Rep. 883; City of Baltimore v. Schnitker, 84 Md. 34, 34 Atl. 1132; Flori v. St. Louis, 69 Mo. 341, 33 Am. Rep. 504; Stock v. Boston, 149 Mass. 410, 21 N. E. 871, 14 Am. St. Rep. 430; Rochester White Lead Co. v. Rochester, 3 N. Y. 463, 53 Am. Dec. 316; Kranz v. Baltimore, 64 Md. 491, 2 Atl. 908; City of Detroit v. Corey, 9 Mich. 165, 80 Am. Dec. 78; City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Semple v. Vicksburg, 62 Miss. 63, 52 Am. Rep. 181.

145 Gilman v. Laconia, 55 N. H. 130, 20 Am. Rep. 175; Bates v. Westborough, 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156; Judge v. Meriden, 38 Conn. 90.

146 Bates v. Westborough, supra.

sonable diligence in the care and management of property under its control.147 Municipal ownership is not essential to liability; municipal control will be sufficient.148 On the contrary, municipal ownership of the land over which the drain or sewer runs is not sufficient to cause liability; 149 municipal control is essential. And it has been held that when a sewer runs partly through private and partly through municipal property the corporation is liable for the entire damage done by overflow at its outlet. 150 In one of the two states 151 least inclined to the doctrine of municipal liability for neglect to repair sewers, the Supreme Court, after elaborate consideration, expressed this conclusion: "The defendant is not responsible for the consequences of a break in the sewer in question per se, even though it be the result of the carelessness of its own agents, for the public is not responsible for such misfeasances. of its officers; but when such break has occurred, occasioning a private nuisance exclusively, and the public authorities have been notified of the accident, we think that then they owe a duty to the individual to put the sewer in a proper condition, and that for the nonperformance of such duty an action will lie." 152 It has been held that a municipality is liable for damages sustained by individual owners from the flooding of their premises by drains or sewers; 158 and from the depositing

147 Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289.
148 Taylor v. Austin, 32 Minn. 247, 20 N. W. 157.
149 Kosmak v. New York, 117 N. Y. 361, 22 N. E. 945.

150 Stoddard v. Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030.
A municipal corporation having power to construct sewers in
its streets is liable for improperly locating and constructing the out-
let of a sewer, which is principally located along the streets, so as
to discharge the sewage on plaintiff's premises, though the lower
part of the sewer, including the outlet, is located on private grounds.
Id. See Beach v. Elmira, 58 Hun, 606, 11 N. Y. Supp. 913.
151 California and New Jersey.

152 Jersey City v. Kiernan, 50 N. J. Law, 246, 13 Atl. 170. Cf. Spangler v. San Francisco, 84 Cal. 12, 23 Pac. 1091, 18 Am. St. Rep. 158.

153 McCartney v. Philadelphia, 22 Pa. Super. Ct. 257; Semple v. ING.CORP.-28

of sewage upon their lands, though this be a necessary result of the plan adopted. 154 So, also, damages may be recovered by private action for the pollution of a stream by sewage so as to render the water unfit for use by the riparian owner or occupier; 155 and in some cases the municipality has been enjoined from emptying its sewage into a running stream, whereby a public nuisance was created. 15

Vicksburg, 62 Miss. 63, 52 Am. Rep. 181; Imler v. Springfield, 55 Mo. 119, 17 Am. Rep. 645; Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552; Stanchfield v. Newton, 142 Mass. 110, 7 N. E. 703.

A city is not liable because surface water flows from a street upon an adjoining lot. Jordan v. Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859; Sievers v. San Francisco, 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153. Cf. City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705; Smith v. New York, 66 N. Y. 295, 23 Am. Rep. 53.

154 Bennett v. Marion, 119 Iowa, 473, 93 N. W. 558; McBride v. Akron, 12 Ohio Cir. Ct. R. 610, 6 O. C. D. 739; Owens v. Lancaster, 182 Pa. 257, 37 Atl. 858; Bacon v. Boston, 154 Mass. 100, 28 N. E. 9; Magee v. Brooklyn, 18 App. Div. 22, 45 N. Y. Supp. 473; Boston Belting Co. v. Boston, 149 Mass. 44, 20 N. E. 320; City of Ft. Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743, 57 Am. Rep. 82; Attwood v. Bangor, 83 Me. 582, 22 Atl. 466; City of Nashville v. Comar, 88 Tenn. 415, 12 S. W. 1027; Stoddard v. Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030.

155 Pettigrew v. Evansville, 25 Wis. 223, 3 Am. Rep. 50; Gould v. Rochester, 105 N. Y. 46, 12 N. E. 275; Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520.

The pollution of a flowing stream by emptying into it the sewage of a city, contaminating and poisoning its waters, and rendering it unfit for use by persons through whose premises it flows, is a public nuisance. Mayor, etc., of Birmingham v. Land, 137 Ala. 538. 34 South. 613; City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. $6, 58 L. R. A. 628; Owens v. Lancaster, supra.

It has been held that a city has the right to construct drains to conduct the surface water from its streets into a ditch or drain which is a natural water course, so long as reasonable care and skill are exercised in doing the work. Miller & Meyers v. Newport News, 101 Va. 432, 44 S. E. 712.

156 Haskell v. New Bedford, 108 Mass. 208; Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557; People v. San Luis Obispo, 116 Cal. 617, 48 Pac. 723.

RESPONDEAT SUPERIOR.

145. The liability of municipal corporations in most cases of tort rests upon the general doctrine of the common law that the master is liable for the wrongs done by the servant when acting within the scope of his employment.

The difficulties encountered in the application of this doctrine to private corporations, as shown in the multitude of adjudged. cases upon the subject, are enhanced in its attempted application to municipalities. What officers are agents, and what acts of theirs may render the municipality liable for tort, are questions of inherent difficulty, because of the dual nature of the corporation. Obviously, there can be no liability for tort unless there has been a violation of some municipal duty; nor can a corporation be held liable for the acts of officers whom it does not control. But the corporation may be liable for the conduct of officers not appointed by it, but by the state for it.157 In a leading case in New York the following test of liability has been declared: "To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is complained of is a part of the machinery for carrying on the municipal government, and whether it was at the time engaged in the discharge of a duty, or charged with a duty primarily resting upon the municipality." 158 An able author on the subject has thus stated the rule governing liability in such cases: "For the acts of an independent officer, whose duties are fixed and prescribed by law, the city cannot be held chargeable upon the principle of respondeat superior, for the relation of master and servant does not exist. Such officers are quasi civil officers of

157 BAILEY v. MAYOR, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472.

158 Pettengill v. Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 Am. St. Rep. 442.

the government, even though appointed by the corporation. But an exception to this rule exists when the corporation is under an absolute duty to perform the acts which are devolved upon such officers, or when the corporation, as such, derives an immediate profit and advantage therefrom." 159 The application of these fundamental rules to the facts of any case will usually determine the question of municipal liability for the misfeasance or nonfeasance of its officers.

Independent Contractors.

The general rule that a corporation is not liable for injuries resulting from the acts of an independent contractor is applicable to municipal as well as private corporations; but this rule does not excuse a municipality from liability for damages caused by its failure to perform an absolute duty owing to the public.160 It has been held, therefore, that a municipal corporation will be liable for the negligence of independent contractors in the building of sewers and cisterns,161 or in grading or repairing streets; 162 since in these matters it owes the absolute duty of reasonable care. The defense of negligence of a fellow servant in the same department of public works has been sustained in some states; 163 but this defense is not

159 Wood, Mast. & Serv. § 463. See Sievers v. San Francisco. 115 Cal. 648, 47 Pac. 687, 56 Am. St. Rep. 153.

160 City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432; City of Louisville v. Shanahan (Ky.) 56 S. W. 808; 2 Dill. Mun. Corp. §§ 1028, 1029.

161 Mayor, etc., of City of Nashville v. Brown, 9 Heisk. (Tenn.) 1, 24 Am. Rep. 289.

162 City of Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 37 Am. St. Rep. 432.

The duty of caring for and supervising the condition of its public streets is one which rests upon a municipality as such, and the doctrine of respondeat superior applies. Hall v. Austin, 73 Minn. 134. 75 N. W. 1121.

163 McDermott v. Boston, 133 Mass. 349; Dube v. Lewiston, 83 Me. 211, 22 Atl. 112.