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the commissioners who had charge of the work were appointed by the governor and senate of the state. The duties, said the court in substance, are corporate and local; not state and governmental. The power to carry on the enterprise was granted for the local advantage of the inhabitants of the city.

§ 56. Same: Effect of deriving revenue therefrom. In many cases emphasis is laid by the courts in their opinions on the fact that the city derives a revenue from the public work in question. For example, in Aldrich v. Tripp (39), in which a city street was rendered unsafe by a stream of water thrown across it from a city hydrant, the city was held liable for resulting injuries, stress being laid upon the fact that the city derived a revenue from the water rentals. That it is not the revenue feature which determines the liability, however, seems clear when we examine the cases relating to the negligent construction or management of sewer systems, from which the city derives no revenue. In Murphy v. Lowell (40) the injury to the plaintiff was caused by the negligent manner in which a blast was fired by workmen constructing a sewer. The city was held liable. The rule may well be that, in the case of property primarily used for state or governmental purposes, the city is liable if it derives a revenue from the same, otherwise not; but in the case of property used primarily for private and municipal purposes, it seems the city is liable whether revenue is derived from the same or not. In a few jurisdictions, however, the same distinction is taken in dealing with

(39) 11 R. I. 141.

these cases that we have noticed elsewhere, viz., liability is made to turn very largely upon the question of control and whether the municipality voluntarily undertook the work in question. For example, in a recent Massachusetts case (41) the state law required the city of Worcester to build a certain sewer, and the court held the city exempt from liability for negligence in connection with the same.

§ 57. Negligence in management of municipal property. Closely connected with the questions discussed in the preceding paragraph, indeed inseparable from them, is the question of the liability of the public corporation for negligent management of its property. At the outset we must draw a distinction between injuries which occur because of the negligence of the municipality in failing to keep its property in a safe condition, and injuries which arise from what may be called, for want of a better term, the active negligence of the corporation or its agents in using the property. A failure to observe the distinction has led some courts astray, as we shall see. The distinction suggested is based upon the ordinary law of torts, which exacts from the owner or occupier of property a duty to use reasonable skill and care to keep his premises in a reasonably safe condition; if he does not and a person who is on the premises is injured because of the unsafe condition, he may recover from the owner or occupier. This right is limited, however, to persons described in the law of torts as "invited persons" as distinguished from trespassers or mere licensees. The real question for us is: Does this rule apply to public

corporations? We have already seen that it does not apply to quasi-municipal corporations which are using the property for public purposes simply, such as county courthouses, jails, etc. According to the weight of authority, also, as we have also seen, the same rule of exemption applies to a municipal corporation in dealing with property devoted to public, governmental purposes.

§ 58. Same: Effect of deriving revenue therefrom. In both cases, however, if the public corporation derives a revenue from the property, it has ceased to use it for purely governmental purposes and becomes liable for injuries resulting from the unsafe condition of the premises. In Worden v. New Bedford (42) the city had let the city hall for a rental to be used for a private exhibition, and was held liable for injuries which plaintiff received by falling through a trap door which had been negligently left in an unsafe condition. In this class of cases, it seems that it is immaterial who created the unsafe condition; the question is, did the owner or occupier use reasonable skill and care to keep the premises in safe condition? If reasonable care would have prevented the accident, the city is liable even though someone not connected with the city created originally the unsafe condition. The rule of non-liability of the city if the property be devoted to a public purpose and no revenue be derived from the same was enforced in Hill v. Boston (43), in which a child attending one of the Boston public schools was injured because of the unsafe condition of the stair case of the school building.

(42) 131 Mass. 23.

§ 59. Same: Attempt to create more extended liability. In some recent cases the attempt has been made to extend to municipal corporations the ordinary tort rule and to make the city liable for all injuries to invited persons which result from a negligent failure to keep municipal property of any kind in a safe condition. For example, in Bowden v. Kansas City (44) the plaintiff, an employee of the fire department, was injured because of the negligence of the city authorities in failing to keep the fire station in reasonably safe condition, and was permitted to recover. A similar result was reached in the Wisconsin case of Mulcairns v. Janesville (45) in which a cistern which was being constructed for the use of the fire department of the city was negligently allowed to remain in an unsafe condition and the plaintiff was injured in consequence thereof. A recovery was allowed. So also in Galvin v. Mayor of New York (46) a recovery was permitted for injuries due to the unsafe condition of the county courthouse. It is not possible to reconcile such cases with other cases, often in the same jurisdiction, denying a recovery. For example, in Wisconsin the court denied that any liability existed on the part of a city for injuries arising from the unsafe condition of a school building, on the usual ground that in maintaining a school the city was acting in a purely public governmental capacity and as an agent of the state (47).

(44) 69 Kansas 587.

(45) 67 Wis. 24.

(46) 112 N. Y. 223.

§ 60. Same: Comment and criticism. On the whole, it seems that only a few courts have adopted the rule which makes cities liable irrespective of the purposes for which the property is used, and that in most jurisdictions it is still true that if it be used for purely governmental purposes and no revenue be derived from the same, the city is not liable. The whole question is reviewed and discussed in the recent case of Mains v. Fort Fairfield (48) in which the municipality was exempted from suit for injuries resulting from the unhealthful condition of the jail. Even if the rule of the more extended liability be adopted, the decision of the supreme court of Washington in the case of Cunningham v. Seattle (49) cannot be supported. Here the city was held liable for the trespass on the plaintiff's land of a horse which was negligently allowed to escape from the fire station. The injury was not due in any way to any unsafe condition of city property, but only to the active trespass of the horse. In other words, the court failed to notice the distinction above pointed out, between active torts and the failure to exercise care to keep property in one's control in reasonably safe condition. The wider rule of liability was intended to cover only the latter case.

§ 61. Liability for physical invasion of another's property. A number of cases which have been supposed to adopt the wider rule of liability for the negligent management of city property discussed above, really are to be referred to another principle. It is fundamental in our constitutional system that private property is not to be

(48) 99 Maine 177.

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