distinction between a country highway and a street. The former is established by law for the public, the owner usually being paid value for a mere easement in his land, though there may be gratuitous dedication. Title to the streets of a city or town. is acquired by grant with the implied right of ingress and egress in the abutting lot owner, the grantor or the party making the dedication of the city or town saying to him, "This right of ingress and egress you shall have": Bradbury v. Walton, 94 Ky. 163, 21 S. W. 869. By accepting the street, the obligation to keep it open and afford the dedicator or his grantees, near or remote, access to abutting lots is clearly implied; and though, under the plenary powers of the legislature over all streets and highways, it may be vacated, the damages occasioned thereby cannot be said to be those shared with the public generally, as in the case of a country road, but are in large part peculiar to himself: Anderson v. Turbeville, 6 Cold. 150; Seldon v. City of Jacksonville, 28 Fla. 558, 29 Am. St. Rep. 278, 10 South. 457; Moose v. Carson, 104 N. C. 431, 17 Am. St. Rep. 681, 10 S. E. 689; Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761, and cases previously cited; People v. Marin Co., 103 Cal. 223, 37 Pac. 203, 26 L. R. A. 659, and note in which decisions are collected. Damages incident to the occupation of the street by a railroad are denied in the absence of statute, because the inconvenience occasioned thereby is shared in by the citizens generally. Nor do courts look favorably on claims based on the mere 273 inconvenience arising from the closing of streets, when another approach remains: Kings County etc. Ins. Co. v. Stevens, 101 N. Y. 411, 5 N. E. 353; Fearing v. Irwin, 55 N. Y. 486; Dantzer v. Indianapolis etc. Ry. Co., 141 Ind. 604, 50 Am. St. Rep. 343, 39 N. E. 223. And no consideration will be given the claims of owners of land not abutting thereon: Smith v. City of Boston, 7 Cush. 254; City of East St. Louis v. O'Flynn, 119 Ill. 200, 59 Am. Rep. 795, 10 N. E. 395; Heller v. Atchison etc. R. R. Co., 28 Kan. 625.

The point involved was touched in Barr v. City of Oskaloosa, 45 Iowa, 275. The ruling there affirmed sustained a demurrer to a petition that, while alleging the vacation of the street, also asserted that access to the dwelling-house was greatly obstructed, not cut off. It was held that the city had the power to vacate, and that damages could not be recovered for the partial use thereof by the railroad; but in the course of the opinion, after referring to the statute, the court said: "This section clearly confers upon the city the power exercised in this case, and for

an exercise of this right the city cannot be made to respond in damages." But the case has not been treated in subsequent decisions as disposing of the question. Thus, in Stubenrauch v. Nevenesch, 54 Iowa, 567, 7 N. W. 1, it was mentioned and treated as open, but a decision of it expressly disclaimed, Barr v. City of Oskaloosa, 45 Iowa, 275, being cited. In Williams v. Carey, 73 Iowa, 194, 34 N. W. 813, the court said that the use of the street in Barr's case had not been diverted, but was "still devoted to a public use, different, possibly, from the one intended by the proprietor who laid out the town." The writer of the opinion had spoken for the court in Cook v. City of Burlington, 30 Iowa, 94, 6 Am. Rep. 649, and quoted with approval language from an Ohio case which so clearly expresses our conclusion that it will bear repetition: "The lot owners have a peculiar interest in the street, 274 which neither the local or general public can pretend to claim; a private right in the nature of an incorporeal hereditament legally attached to the contiguous grounds and the erections thereon; an incidental title to certain facilities and franchises assured to them by contract and by law, and without which their property would be comparatively of little value. This easement appendant to the lots, unlike any right of one lot owner in the lot of another, is as much property as the lot itself."

Having determined all necessary to a decision of this case, the question of liability for damages ought to be deferred until directly involved. It follows that, as plaintiff had an interest in the street apart and distinct from that enjoyed by citizens generally, the adjudication against the city of Perry was not binding on him, and the demurrer was rightly sustained: Hine v. Keokuk etc. R. R. Co., 42 Iowa, 636.

Affirmed.

An Abutting Owner, in addition to his right with the public to the use of the street from end to end for passage, has an individual property right in the part of the street necessary to free and convenient egress and ingress to his premises: O'Brien v. Central Iron etc. Co., 158 Ind. 218, 92 Am. St. Rep. 305, 63 N. E. 302; Heinrich v. St. Louis, 125 Mo. 424, 46 Am. St. Rep. 490, 28 S. W. 626.

MCFADDEN v. TOWN OF JEWELL.

[119 Iowa, 321, 93 N. W. 302.]

MUNICIPAL CORPORATION—Negligence of Employé.-If a city, in the exercise of its police power, employs a person to cut the weeds and grass in an alley, it is not answerable for his negligence in operating the mower whereby a child is injured. (p. 323.)

Action by an infant by his next friend. A demurrer to the petition was sustained. The plaintiff electing to stand on his petition, and refusing to plead over, judgment for costs was rendered against him, and he appeals.

Wesley Martin, for the appellant.

Hyatt & Hyatt and J. M. Blake, for the appellee.

321 BISHOP, C. J. The allegations of the petition are substantially as follows: That prior to July 15, 1899, a public alley within the limits of the defendant town had been allowed to become obstructed and grown up with weeds and grass; that on said day the defendant employed one Foster to mow and cut down such weeds and grass, and that said Foster, pursuant to his employment, and under the direction of defendant as to the means and manner of said employment, proceeded with the work for which he was employed, using therefor a mower drawn by a team of 322 horses; that the operation of the mower attracted to the alley a number of children from the homes near to and adjoining the same; that plaintiff, then about two years old, and residing with his parents near said alley, was attracted by the operation of the mower and by the voices of other children. in the alley; that, as said Foster was driving south through said alley with his team and mower at work, the plaintiff entered the alley, and proceeded to walk north, so that the child and team were approaching each other from opposite directions; that from the time plaintiff entered the alley until he was injured, said Foster could have seen him by the exercise of ordinary care, and thus prevented the accident; that the children in the rear of the team and mower saw plaintiff, and one of them called loudly to Foster to attract attention, and that, while he heard the call, and asked the cause thereof, he paid no further attention thereto, and did not stop his team; that he, said Foster, negligently and carelessly drove said mower upon and against plaintiff, causing an injury, which is set forth and de

Am. St. Rep., Vol. 97-21

scribed. It is then said that defendant was guilty of negligence in employing said Foster to mow said alley by the use of a team and mower, as plaintiff and other children were in the habit of playing therein, which fact, and of the danger to such children incident thereto, was well known at all times to defendant and ɛaid Foster. The demurrer in terms puts in issue the sufficiency of the petition as stating a case of actionable negligence on the part of the defendant.

Conceding, for the purpose of this opinion, that the petition states a cause of action as against Foster, we proceed to the inquiry whether a case of actionable negligence is stated as against the defendant town. It does not appear by whom-that is, by what official board or officer of the town-Foster was employed. Nor is it stated what were the terms of his employment, save that it is said he was under the direction of the defendant as to the means and manner of his 323 employment. The defendant being a municipal corporation, it follows of necessity that the contract of employment with him must have been entered into by some official board, committee, or officer. Now, whether it was the town council, or a committee thereof on public health or streets and alleys, or the street commissioner of the town, is immaterial, in our view. Certain it is that in the matter of its control over the streets and alleys within the incorporate limits-and, to make the reference direct, in the matter of clearing the alley in question of weeds-the town was in the exercise of police powers possessed by it as an incident to its existence as a municipal corporation.

It is well settled that where an act done by an officer or employé of a municipal corporation is essentially in the line of the performance of an official duty, public in character, the municipality cannot be made liable for a tort committed or wrong done by such officer or employé while engaged as such in the performance of the duty in question. That acts done in the execution of police powers and in the enforcement of police regulations are in the nature of the performance of a service for the benefit of the general public cannot well be questioned. In this connection it has been held that: "The grounds of exemption from liability are that the corporation is engaged in the performance of a public service, in which it has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community; that the members of

324

the fire department, although appointed by the city corporation, are not, when acting in the discharge of their duties, servants or agents in the employment of the city, for whose conduct the city can be held liable, but they act rather as public officers, or officers of the city charged with a public service, for whose negligence or misconduct in the discharge of official duty no action will lie against the city, unless expressly given; and hence the doctrine of respondeat superior has no application": Hayes v. City of Oskosh, 33 Wis. 314, 14 Am. Rep. 760. And in Condict v. Jersey City, 46 N. J. L. 157, it was held that, where a person was employed by the board of public works of a municipality to drive a horse and cart owned by such municipality, and used in carting refuse to the dumping-ground, and by the negligence of such driver in making a dump from such cart the plaintiff's intestate was killed, it was held the doctrine of respondeat superior had no application. And a city cannot be made liable for the negligence of a teamster employed in transporting stone to repair a highway, the employment being by the superintendent of streets, who is charged with the duty of keeping the streets in repair: Barney v. City of Lowell, 98 Mass. 570. An employé of the committee of public charity, an adjunct of the city government, charged with the duty of driving an ambulance wagon, and through whose negligent driving a person was struck and killed, has been held to be engaged in a public service, and hence the municipality could not be made liable under the doctrine of respondeat superior: Maxmilian v. City of New York, 62 N. Y. 160, 20 Am. Rep. 468.

So it has been held that a city cannot be made liable for the personal torts or wrongs committed by its police officers (Calwell v. City of Boone, 51 Iowa, 687, 33 Am. Rep. 154, 2 N. W. 614); or its sanitary officers (Ogg v. City of Lansing, 35 Iowa, 495, 14 Am. Rep. 499); or its firemen (Wilcox v. City of Chicago, 107 Ill. 334, 47 Am. Rep. 434; Grube v. City of St. Paul, 34 Minn. 402, 26 N. W. 228). The general doctrine is that, unless the charter of the city, or some general statute of the state, impose a liability upon the city for the torts or wrongs of its officers and agents engaged in the execution of police powers or regulations, then no such liability exists: Hafford v. City of New Bedford, 16 Gray, 297; Fisher v. City of Boston, 104 Mass. 87, 6 Am. Rep. 196; Dillon on Municipal 325 Corporations, 4th ed., secs. 967, 974. Accepting such to be the rule, it follows that the court below committed no error in holding that the de