RECENT legal decisions hold that municipalities cannot be held liable for defective water works and fire departments. A number of towns and villages in the West and South have, within the past two years, constructed waterworks systems, and frequent and cisastrous fires have occurred notwithstanding. A number of suits have been brought by citizens, corporations, and insurance companies (as assignees) to recover losses incurred by reason of thc defective condition or failure of the water works to furnish water according to contract, etc. Herewith is a synopsis of the decisions of courts on that subject. The key decision is that of the New York court of Appeals in the case of the ” Springfield Eire and Marine Insurance Company v. the Village of Keesville.” In the lower court it was held that the village was liable, and the announcement last year attracted much attention. On December 19, 1895, the Supreme court reversed the decision. The contentions in the suit were so broad that the decision summarizes the principles of municipal liability for political and governmental defectiveness.

In the Keesville suit the complaint alleged that the plaintiff carried on thc business of fire insurance within the limits of the defendant village, and for the privilege of so doing and of having the protection of the water works and fire department and appliances of defendant, had paid an annual tax to the defendant: that the defendant had a system of waterworks and fire, appliances which were maintained by taxes levied upon all its taxable inhabitants, including plaintiff and other insurance companies. The complaint set forth the insurance by plaintiff of property for a percentage less than for like property situated outside the limits of the water and fire protection, and thc destruction thereof by fire, in consequence whereof the plaintiff had paid under its contract of insurance $4,500. The insured assigned to plaintiff all claims and damages against the defendant, and alleged that “at the time of the aforesaid fire, the defendant had wrongfully and negligently allowed and caused its water works, pipes, pumps, and fire appliances to become and remain out of repair and unfit for use to such an extent that water could not put upon said buildings to extinguish the fire therein ; that in reliance thereon said assignor had paid taxes to defendant for said purposes and insured property at reduced rates; that said loss to the company was caused solely by thc negligent and wrongful and unlawful acts of defendant in failing to keep its water works and fire appliances in proper working order, and in failing to employ competent men to manage and care for the same. From a general term judgment on demurrer in favor of the plaintiff, the defendant appealed.” The following is a synopsis of the decision in the appeal:


Gray. J. “This case is based upon the assumption that the negligence charged against the defendant in the complaint related entirely to its water works system. The reason which led the general term to the conclusion that there was a municipal liability upon an admission of the facts set forth in the complaint rests upon two theories: First, it is held that by the voluntary assumption on the part of the defendant of the power conferred by statute to construct and maintain water w orks it became responsible for the proper exercise of such power, and that such responsibility is necessarily demanded in the interest of an efficient public service, and that tax contributors have a right to hold the defendant to the exercise of reasonable care and diligence, and to a liability for a failure to do so. Second, the defendant having agreed to erect and take charge of the public work and enterprise for the public within its boundaries, if there is a failure to exercise reasonable care and diligence in maintaining it, there has been a breach of an implied contract, for which, if injury results, an action will lie. The proposition that such a liability rests upon a municipal corporation is not only startling, but a misapprehension of the nature of the responsibility which devolved upon the defendant in connection with the maintenance of a water works system. While the efficiency of the public service might be promoted by holding municipal corporations to the exercise of reasonable care and diligence in the performance of municipal duties and to a liability for injury resulting from a failure in such exercise, the application of that doctrine to such a case as this might, and probably would be highly disastrous to municipal governments. A little reflection will show that a multitude of actions would be encouraged by fire insurance companies and by individuals,and that cases have arisen, and may still rise, when an extensive conflagration might bankrupt the municipality, if it could be rendered liable for the damages or losses sustained. The distinction between the public and private powers conferred upon municipal corporations, although the line of demarkation at times may be difficult to ascertain, is generally clear enough. When it is found that the power conferred has relation to public purposes and is for the public good, it is to be classified as governmental in its nature, and it appertains to the corporation in its political character. But, when it relates to the accomplishment of private corporate purposes, in which the public is only indirectly concerned, it is private in its nature, and the municipal corporation, in respect to its exercise, is regarded as a legal individual. In the former case the corporation is exempt from all liability, whether for non-user or misuser; while in the latter case it may be held to that degree of responsibility which would attach to an ordinary private corporation. A legislature may invest and confer powers and enjoin their performance Upon the corporation as a duty; or it may create new powers to be exercised of governmental adjuncts, and make their assumption optional with the corporation. Where a duty specifically enjoined upon the corporation, as such, has been wholly neglected by its agents, and an injury to an individual arises in conseouence of the neglect, the corporation will be held responsible. “Mayor, etc. v. Furze,” 3 Hill, 612, 619. In “McCarty v. City, etc.,” 16 N. Y., 194, it was held that, where a duty of a ministerial character is imposed by law upon the corporation, a negligent omission to perform that duty creates a liability for damages sustained. Such responsibility, however, would not attach to the corporation where it has voluntarily assumed powers authorized by the legislature tunder some general provision respecting municipalities:throughout the State, and permissive in their nature; and the assumption by the municipal corporation is of a further function of self, or local, government, and such a power is discretionary n its exercise and carries with it no consequent liability for non-user or misuser. The act under which the defendant was authorized to construct and maintain a system of water works constitutes a gene al law, applicable to all incorporated villages in the State. They impose no duty, and, when availed of, the task undertaken is discretionary in its character. The grant of powers must be regarded as exclusive for public purposes and as belonging to the municipal corporation, when assumed, in its public, political, or municipal character. The power conferred upon incorporated towns to establish and maintain systems of waterworks is of a public and governmental nature, though water rents are paid by the people, and hence such municipalities are not liable for loss of property by fire owing to the defective condition of the waterworks. Order and judgment reversed.

The question of insufficient water or defective system has frequently been the subject of judicial discussion. The New Hampshire Supreme court (“ Edgerly v. Concord,” 62 N. II. 8) early decided that for injuries arising from the corporation’s failure to exercise its public legislative and police powers, and for the manner of executing those powers, there is no remedy against the municipality. In “Taniter v. City,” 123 Mass., 311; it was held that the protection of all buildings in a city or town from destruction by fire is for the benefit of ail the inhabitants and for their relief from a common danger; but the city did not, by accepting authority under the statute to build waterworks, enter into any contract with,or assume any liability to the owners of property to furnish means or water for the extinguishment of fires upon which an action can be maintained.

A company organized, to supply the inhabitants of a city with water contracted with the municipal authorities to supply their hydrants, but, failing to do so, the fire department was unable to extinguish a fire in the city. Held: In the case of ” Nickerson v. Hydraulic Co., 46 Conn., 24, that the company was not liable in damages to the owners of the property destroyed. The most that can be said in such case is, that a water company is under obligations to a city to supply its hydrants with water. The city owes a public duty to property-owners to extinguish their fires. If the hydrants are not supplied with water, a city will be unable to perform its duty. Yet it is clear, in the case cited, that no contract, relation of duty existed between the water company and a property-holder, upon which to base a legal claim for damages on account of fire.

The Tennessee Supreme court (“Foster v. Water Compony,” 3 Lea, 42), said: “ The stipulation is to furnish water. The company has not stipulated to extinguish fires. It is not averred that the plaintiff had the means of using the water for the extinguishment of fires. Hence, whatever benefit the plaintiff would have derived from the water would have come from the city through the fire department.”

“ To hold a water company liable as undertakers would establish beforehand what it had to meet as the consequence of its neglect, and place it under such definite penalties as to virually make a water company a gratuitous insurer of the safety from fire so far as water is capable of producing that safety, of all the houses within the district over which their powers were extended.”

Cities are not liable for the negligence of their fire departments in permitting their property to burn. “ Robinson v. City,” 29 Ind., 334; neither are cities liable for property destroyed by fire, because they do not exercise the powers conferred by law in regard to providing protection from fire. “ Brinkmeyer v. City,” 29 Ind., 187.

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