#### John Danaher, Adm’r, App’lt, *v.*The City of Brooklyn, Resp’t.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Municipal corporations—Negligence—Liability as to city wells and PUMPS.

Although a city must use reasonable diligence to keep city wells and pumps in repair, and to guard against any dilapidation or danger resulting from their use, it is not bound to make a chemical examination of the waters of such wells for the purpose of ascertaining whether they are pure, and wholesome.

2. Same.

The city is not liable for damages sustained by a citizen through using the water of a public well, apparently pure and wholesome, agreeable to the taste and in common use by the public without complaint.

Appeal from a judgment of the supreme court, general term, second department, affirming judgment entered in favor of defendant dismissing plaintiff’s complaint.

*Franklin M. Danaher,*for app’lt; *Almet F. Jenks,*for resp’t.

1

 Affirming 22 N. Y. State Rep., 641.

Earl, J.

We entertain no doubt that this well in DeKalb avenue was a public well belonging to the defendant and under its control, and that the water of the well was, in August, 1882, unwholesome and dangerous to the health of such persons as should drink thereof; and we will assume (although we would hold so with some hesitation), that the death of plaintiff’s intestate was caused by drinking of the water, and yet we think the plaintiff was properly nonsuited at the trial

There is no claim that the well or pump was improperly constructed, or out of repair, or that the water became unwholesome from any defect in the well or pump, or from any external exposure which could, by any reasonable care, have been avoided. It does not appear that the city, or any of its officers, or in fact that any person did anything to render the water impure. Uor does it appear that anything could have been done to purify it or prevent its impurity. The theory of the plaintiff, as developed upon the trial, was that this well was supplied by water which fell upon the surface of the surrounding earth, and by percolation through the soil reached the bottom of the well, and that the water, upon *392the earth, or in passing through the earth, came in contact with the unclean and deleterious substances which rendered it impure and unwholesome. The water was limpid, cold and agreeable to the taste. Its impurity could not be detected by drinking it, and its dangerous character could only be discerned by a careful chemical analysis.

This water was not furnished for a compensation paid for its use, and so there was no contract relation between the city and those who used it. The well was for public gratuitous use, and hence nothing that was said or intimated in *Milnes*v. *The Mayor of*Huddersfield, L. R., 10 Q. B. D., 124, and 12 id., 443, has any pertinency here.

The city was not an insurer of the quality of the water, and bound under all circumstances to keep it pure and wholesome. This is not claimed. It owned this well as it owned its other property kept for public use, such as streets, parks and public buildings; and owed the duty of reasonable diligence to care for it, as it was bound to care for such other property. Its liability for unwholesome water in any of its public wells must rest upon negligence, and hence we are brought to the question, was there :any proof of negligence imputable to the city ? It is not claimed "that the city had any notice of the unwholesome character of this water prior to the death of plaintiff’s intestate, but the claim is that by reasonable diligence it could have had notice, and hence that notice must be imputed to it. This well had existed for many years, and its water had been extensively used by persons in the neighborhood, and there is no proof whatever that prior to the month of August, 1882, it had caused injury to any one, or that there was the least suspicion by any one that it was unwholesome.

Several persons were called as witnesses by the plaintiff, who testified that they became sick from drinking the water of this well in the early part of August, 1882. It is inferable from the evidence that the same persons drank the water previously with impunity. The plaintiff had four sons. Three of them drank the water in the early part of August, and became very sick, two of them dying. They had previously for years drunk it without injury. The fourth son drank it down to about the 1st of August, and then, in consequence of his absence from the city, he ceased to drink it, and he did not become sick. The inference, therefore, is, so far as there is any proof upon which to base it, that the water was wholesome, at least not dangerous, and not so impure as to cause sickness down to the 1st of August. In view of these facts it certainly cannot be said that there is any proof that the water was dangerous before the time it is shown to have caused any injury. The plaintiff claiming that the water of this well had for a long time been impure and dangerous, should have given some proof to maintain his claim, and if it were well founded it cannot be doubted that the proof would have been readily obtainable, as many persons must have used the water for many years.

So, while there is no proof that during any considerable time *393prior to the drinking of this water by the plaintiff’s intestate it had been impure, unwholesome or dangerous, there is no proof that any reasonable diligence on the part of the defendant would have discovered its impure or dangerous quality if it existed. The plain inference is that there was some cause of contamination which had not long existed. There must have been some unobserved deposit of deleterious matter at some distance from the well upon or under the surface of the soil, or some new vein opened in the soil through which impure water for the first time percolated into the well in the early part of August There is no proof or claim that any improper or poisonous substance had been thrown into the well or that the well was unclean or needed cleaning out. Assuming that the defendant was bound to make a chemical analysis of the water of its wells from time to time, how often should such analysis be made ? It appears that there were 296 wells within the city limits belonging to the city. To analyze the waters of all these wells would take a long time. . If the defendant were required to do it even once a quarter it would probably take the whole time of a single chemist. But if the chemical analysis of the water of this well had been made in June or even early in July there is no proof, and there can be no legal inference, that it would have been found unwholesome; and how then can it be said that at the precise time the deceased drank of this water in August the city Was bound to have discovered and known that it was unwholesome and dangerous? For aught that appears in the case the city may from time to time, during previous months or years, have examined and tested the waters of these wells. It appears that the department of public health about the 1st of June, 1882, ordered the chemist of that department to make an examination of the waters of the wells of the city, and he proceeded with such examination but did not reach the water of the well in question until the last of August.

Here there was a well in perfect order, clean, free from filth and debris, the water of which had been used with impunity and satisfaction by those living in the neighborhood for many years, and no complaint had been made of it, and no suspicion had been raised that it was in any way unwholesome or dangerous. Under such circumstances what was there to suggest to the city the duty of analyzing and testing this water prior to the 1st day of August, 1882 ? We find nothing.

We have thus far assumed that the city was bound, from time to time, to make a chemical examination of the waters of the public wells for the purpose of ascertaining whether they were pure and wholesome.

But we are of opinion that such assumption is not well founded, and that no such burden rests upon the city. The city has its public water supply by running water in addition to these wells. The wells are furnished and kept for public use by the city. It was undoubtedly the duty of the city to keep the wells and pumps, in good order, and to keep the wells properly cleaned out, so they would not become contaminated by anything that might be thrown*394into them. But these wells were to be supplied by water percolating through the earth; and was the city bound to anticipate that such water would become impure and dangerous in the wells ? There was no proof that it was the necessary or even the natural consequence that water in city wells, however they may be located, will become poisonous and deleterious. On the contrary, the proof showed that the waters of such wells have been used for years with impunity. These wells were furnished for the accommodation of the public. They were not obliged to use them, and most people have sufficient knowledge to know that their waters may not be as pure as water brought from pure streams far away from the city limits and from exposure to contamination. The Sublic may use them, and when they are found unwholesome or eleterious and the city has notice thereof, it is bound to protect the public health by purifying the waters or filling up the wells. The burden upon the city is sufficient if it is held to the responsibility of keeping the wells and pumps in order and clean, and if it is made liable for any injury resulting from the use of impure water from the wells after it has had notice of their dangerous qualities and an opportunity to remove the danger. The higher degree of diligence as to water apparently pure and wholesome, agreeable to the taste and in common use by the public without complaint, would be unreasonable.

These views are not in conflict with any of the authorities to which our attention has been called. In *McCarthy*v. *City of Syracuse,*46 N. Y., 194, it was held that when the duty was imposed by law upon a public officer or municipal corporation, of keeping a structure in repair, it involves the exercise of a reasonable degree of watchfulness in ascertaining the condition of such structure from time to time; and that where this is omitted, such officer or corporation is liable for damages resulting from a dilapidation of the structure which is an ordinary result of its use, and which would have been disclosed by an examination, and that no notice of the defect is necessary in such a case to fix the liability. There the damage complained of resulted from a defective sewer, and the city was under obligation to use reasonable diligence to keep it in repair, and it could not escape responsibility simply because it had no notice that the sewer was out of repair. Here it was the duty of the city to use reasonable diligence to keep this well and pump in repair, and to guard against any dilapidation or danger resulting from the use of the well But as we have shown, there was no evidence which would justify a finding of culpable negligence as to the well on the part of the city.

In *Hunt*v. *The Mayor,*109 N. Y., 134; 15 N. Y. State Rep., 62, the plaintiff was injured by an explosion at one of the manholes of a steam heating company in one of the streets of the city of New York. He was defeated in his action for damages. Andrews, J., writing the opinion in this court, said: *“*The language of the cases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been.frequently reiterated in this court that there is no absolute guaranty *395or undertaking on the part of a municipal corporation that its streets or other constructions shall, at all times and under all circumstances, be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. There must be willful misconduct or culpable neglect to create liability.”

Here there was no willful misconduct or culpable neglect on the part of the city as to this well. Trees, bridges and other wooden structures will necessarily decay and become unsafe, and where they may thus become dangerous to human life the duty devolves.upon the municipality to make tests and examinations, using reasonable diligence to ascertain whether they are safe or not. *Vosper*v. *The*Mayor, 49 Supr. Ct., 296; *Howard Co.*v. *Legg,*11 N. E., 614; *Jones*v. *New*Haven, 34 Conn., 13; *Norristown*v. *Moyer,*67 Pa. St., 355. But this case is not analogous to those. Here there is no proof justifying the inference that the water of this well was constantly and inevitably exposed to impurities which would render it dangerous to human life. On the contrary the evidence shows that up to about the first of August its waters were wholesome and free from dangerous impurities. This is. not like the cases where a city creates or permits a nuisance, or turns a stream of mud or water upon the premises of private individuals. In such cases it is held responsible for the nuisance which it creates or permits, and for its wrongful acts. *People*v. *Albany,*11 Wend., 539; *Nevins*v. *City of Peoria,*41 Ill., 502; *Shawneetown*v. *Mason,*82 id., 337.

There was no proof in this case that the city in any way polluted or poisoned the water of this well or permitted others to do so, and hence the cases of *Rex*v. *Medley,*6 C. & P., 292; Goldsmid *v. Tunbridge Wells Com.,*L. R., 1 Eq., 161; *Charles*v. *Finchley Local Board,*48 L. T., N. S., 569; *Brown Bros.*v. *Illius,*27 Conn., 84; *Ballard*v. *Tomlinson,*L. R., 29 Ch. Div., 115, are not in point.

Without commenting upon or referring to other authorities found in the interesting and learned brief submitted on behalf of the appellant, it is sufficient to say that we have examined and considered all of them and that we are not able to bring ourselves to the conclusion that there is any principle of law which, upon the facts appealing in this case, imposes any liability upon the defendant for the damages claimed.

The judgment of the general term should, therefore, be affirmed, with costs.

All concur.