#### Piper and others, Appellants, vs. City of Madisow, Respondent.

*September 17*

October *5, 1909.*

*Municipal corporations: Operation of waterworks: Liability for negligence of employees.*

1. In selling and distributing water to its citizens by means of a system of waterworks a city is acting not in its governmental but in its private or proprietary capacity, and is liable in damages for negligence of its agents and servants in the conduct of such business.

*2.*The fact that the city may also use the waterworks for protection against fire does not relieve it from liability for negligent acts of its servants or agents in the conduct of the business, except for such acts as are performed by them in the actual work incident to extinguishing fires.

*312Appeal from a judgment of the circuit court for Dane county: E. Eat Stevens, Circuit Judge.

*Reversed.*

The city of *Madison,*being authorized to maintain and operate a system of waterworks, built its system in 1885. About 1890 a water tower was constructed on Washington avenue. It is claimed that this tower was chiefly constructed to equalize the pressure. As originally planned, the connection between the pipes of the waterworks system and the tank in the water tower was controlled by a valve located inside the base of the tower. In time the dampness and the dripping water rusted the bearings and it became impossible to operate the valve. Attempts to remedy the matter were unsuccessful, and in 1891, upon the advice of an expert hydraulic engineer, the valve at the base of the tower was discontinued and a new valve to control the water supply to the tank in the tower was placed at the junction of the supply pipe for the tank and the main pipe line at the junction of Pinckney street and Washington avenue about a block from the tower. Plaintiffs conducted a grocery on Washington avenue in a building located between the valve at the junction of Washington avenue and Pinckney street, and the water tower, and stored part of their stock of groceries in the basement of this building. About 7 :30 in the morning of January 17, 1907, plaintiffs observed that water was flowing into the basement, presumably from a broken water pipe. The officials of the waterworks department were notified:, and as rapidly as possible employees cut off the supply of water from the pipes in that section of-the city. The valve at the junction of Pinckney' street and Washington avenue, controlling the supply of water to the tank in the water tower, was also closed. This work took more than two hours and did not stop the flow of water into plaintiffs’ basement. A small drain pipe from the tower tank was then opened and with the disappearance of the water from the tank the flow of water into plaintiffs’ basement ceased. Considerable damage was done *313to plaintiffs’ stock of groceries by tbe water and tbey bring this action to recover for tbe damage suffered. Subsequent investigation showed tbat the ten-inch pipe supplying tbe tank in tbe water tower bad broken. On the trial in the circuit court of the action for tbe recovery of tbe damages suffered, tbe jury were instructed as to tbe law of negligence, and were informed tbat if city authorities in charge of tbe water department acted upon the advice of men skilled in tbe work in question, and if tbe city officials in good faith and in reliance upon tbe advice of such experts in waterworks construction bad constructed a waterworks system according to their best judgment, then defects in tbe construction became mere errors in judgment and tbe city would be relieved from liability f&r any damages resulting therefrom. Under tbe instructions of tbe court tbe jury found tbat tbe defendant was not guilty of any want of ordinary care in failing to keep the valve in tbe base of tbe water tower in such condition tbat it could be used to shut off tbe water from tbe tower. Tbe jury also found tbe amount of tbe damages sustained by tbe plaintiffs. Tbe court awarded judgment in favor of tbe defendant for its costs. This is an appeal from such judgment.

Eor tbe appellants there were briefs by *Gilbert, Jackson & Ela,*and oral argument by *Emerson Ela.*

Eor tbe respondent there was a brief by *John A. Aylward,*city attorney, and *Aylward, Davies & Olbrich,*of counsel, and oral argument by *J. E. Davies.*

Siebeckee, T.

Under legislative authority tbe city has voluntarily constructed a system of waterworks for public and private use. Tbe revenue derived from sales of water for private use is applied to the cost of construction, operation, and. maintenance of tbe waterworks. Tbe business is in charge of a board of commissioners, who employ a superintendent and such other agents and servants as are required for tbe conduct of this part of the municipal business. Tbe plaint*314iffs bring this action to_ recover damages to tbeir property which they allege were caused by tbe negligence of tbe city through its agents and servants employed by tbe city in conducting tbe business of tbe waterworks department. Under tbe alleged facts tbe employees in charge of this municipal department represent tbe city and act for it. Tbe errors assigned involve an inquiry as to the extent to wbicb the city is responsible for tbe acts of its agents' and servants in the' conduct of this municipal enterprise.

In bis treatise on tbe Law of Municipal Corporations Mr. Dillon states:

> “Municipal corporations . . . possess a double character: tbe one governmental, *legislative,*or *public;*tbe other, in a sense, *proprietary*or *private. ... In its governmental or public character*tbe corporation is made, by tbe state, one of its instruments, or tbe local depositary of certain limited and prescribed political powers, to be exercised for tbe public good on behalf of the state rather than for itself. . . . But *in its proprietary or private character*tbe theory is that tbe powers are supposed not to be conferred, primarily or chiefly, from considerations connected with tbe government of the' state at large, but for tbe private advantage of tbe compact community which is incorporated as a distinct *legal personality*or *corporate individual;*and as to such powers, and to property acquired thereunder, and contracts made with reference thereto, tbe corporation is to be regarded *quoad hoc*as a private corporation, or at least not public in tbe sense that tbe power of tbe legislature over it or tbe rights represented by it is omnipotent.” 1 Dill. Mun. Corp. § 66 (39). *Hayes v.*Oshkosh, 33 Wis. 314; *Mulcairns v. Janesville,*67 Wis. 24, 29 N. W. 565; *Folk v.*Milwaukee, 108 Wis. 359, 84 N. W. 420.

Tbe function of a city in selling and distributing water to its citizens is of a private nature, voluntarily assumed by it for tbe advantage of tbe people of tbe city. Responsibility for tbe acts of persons representing it in such a business falls upon tbe city through the relation of master and servant, and *315the maxim of *respondeat superior*applies. Whenever this relation is established the city is liable in damages for the negligence of its agents and servants in the conduct of such business. The following adjudications uphold this liability upon the ground'that the city in conducting such a business is acting in its proprietary capacity: *Lynch v. Springfield,*174 Mass. 430, 54 N. E. 871; *Hourigan v. Norwich,*77 Conn. 358, 59 Atl. 487; *Chicago v. Selz, Schwab & Co.*202 Ill. 545, 67 N. E 386; *Bullmaster v. St. Joseph,*70 Mo. App. 60; *Philadelphia v. Gilmartin,*71 Pa. St. 140.

The fact that the city may also use the waterworks for protection against fire does not relieve it from liability for negligent acts of its servants or agents in the conduct of this-business, except for such acts as are performed by them in the actual work incident to extinguishing fires. *Chicago v. Selz, Schwab & Co., supra.*

In submitting this case to the jury the court held that in conducting the business of distributing and selling water the-city is exercising a public function, and its officers and agents in conducting the business are in the exercise of gwisi-judicial authority, and if they exercise their judgment and discretion in good faith the city is not liable for damages resulting from their negligent acts. This was error, because the city in this case was acting in its private or proprietary capacity, and it is therefore liable for the negligent acts of its servants or agents. A new trial must be awarded.

*By the Court.*— Judgment reversed, and the cause remanded to the trial court for a new trial.