#### Interstate Sash & Door Co., Appellant, *v.*City of Cleveland, Appellee.

(No. 20429

Decided February 3, 1947.)

*Messrs. Oviatt <& Oviatt,*for appellant.

*Mr.-Lee C. Howley,*director of law, and *Mr. C. L. Mollison,*for appellee.

Hurd, J.

Plaintiff, appellant herein, filed its petition in the Court of Common Pleas, setting up two causes of action against the city of Cleveland, defendant and appellee herein. The first cause of action is based on the theory of trespass and the second cause of action is based on the theory of negligence with five separate specifications thereof and an allegation of notice.

The defendant filed a demurrer to the first cause of action and an answer to the second cause of action. The trial court sustained the demurrer. Plaintiff not desiring to plead further, judgment was rendered' against it on the first ca'use of action, and this appeal was taken on questions of law.

A summation of the allegations of the first cause *128of action construed most favorably to the plaintiff is as follows:

The plaintiff was the lessee and in possession of a tract of land, improved with á large warehouse, located on Riverbed avenue. This land extends up a hillside from Riverbed avenue to West 24th street. In other words, Riverbed avenue is in the “Flats,” so-called, and West 24th street is on the upper level with a steep hill leading from one to the other.

Plaintiff alleges that the city of Cleveland, some fifty-odd years ago, installed a water pipe line on West 24th street; that West 24th street,'at the point in question, terminates against the Superior high level bridge near its western approach; that some time ago the city of Cleveland filled in with a large quantity of dirt and stones a portion of West 24th street in question, which portion of the street is unused; that the dirt and stones piled on the street at this point and over the old water pipe line were, several feet in thickness; and that West 24th street at this point was on the brink of the steep hill leading down to plaintiff’s warehouse.

On January 31, 1945, the water pipe line on West 24th street, at the point where the large pile of *earth*and stones was located, broke loose and precipitated a large quantity of boulders and stones down the hillside and against the warehouse occupied by the plaintiff. The large stones broke through the brick walls and permitted water, stones and mud to flow into plaintiff’s warehouse which was filled with kilned-dried sashes and doors and finishing material. The warehouse in question is over 300 feet in length and contained a valuable stock of merchandise. The mud, stones and debris flowed the entire length of the warehouse and caused damage alleged to amount to about $35,000.

*129It is the claim of the plaintiff in this first cause of action that there was an invasion of its property constituting a trespass, and that the city of Cleveland by maintaining this old pipe line on the brink of the hill and by piling a large quantity of dirt and stones thereon- created a situation that rendered the city of Cleveland liable for the damage sustained, without proof of negligence.

It should be understood that a consideration of the ruling of the trial court on this first cause of action does not in any way affect the rights or claims of the plaintiff in respect to the second cause of action based on negligence, to which an answer has been filed by the defendant.

The single question presented is whether the Common Pleas Court erred in sustaining the demurrer to the first causé of action predicated on the theory of trespass.

The plaintiff relies on the cases of *City of Barberton*v. *Miksch,*128 Ohio St., 169, 190 N. E., 387; *Mansfield*v. *Balliett,*65 Ohio St., 451, 63 N. E., 86, 58 L. R. A., 628; and *Fletcher*v. *Rylands*(1866), L. R. 1 Exchr., 265, 4 H. *&*C., 263, 35 L. J. Exchr., 154, 14 L. T., 523, 30 J. P., 436, affirmed, *Rylands*v. *Fletcher*(1868), L. R. 3 H. L., 330.

The pertinent paragraphs of the syllabus of *City of Barberton*v. *Miksch axe*as follows:

*“2.*In the construction and maintenance of a system for supplying water to its inhabitants, a municipality acts in a proprietary capacity.

“3. Casting water upon the land of another by seepage or percolation resulting from the construction and maintenance of a reservoir by a municipality as a part of its system for supplying water to its inhabitants, constitutes a trespass.

*“4.*Liability for damage proximately resulting *130from such trespass is not dependent upon negligence.”

In a supplemental brief, counsel for plaintiff state that the doctrine announced in *City of Barberton*v. *Miksch, supra,*is merely a statement of the principle announced in *Rylands*v. *Fletcher, supra,*wherein it wras held that a party maintaining a reservoir «of water which injures another by breaking away in consequence of original defects of which the maintainer was ignorant is responsible for the injury, though ■chargeable with no negligence. Counsel then quote from the opinion of Mr. Justice Blackburn in *Fletcher*v. *Rylands, supra,*as follows:

“We think that the true rule of law is, that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do ■mischief if it.escapes, must keep it in at his peril, and, if he does not do so, is *prima facie*answerable for all the damage which is a natural consequence of its escape. * * * The person whose grass or corn is eaten down by the escaped cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or whose habitation is made unhealthy by the fumes and noisesome vapors of his neighbor’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his néighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for,his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for *131the natural and anticipated consequences. And upon authority this we think is established to be the law, whether the things so brought be beasts or water, or filth or stenches.”

According to the great weight of authority in this country and in England, the rule set forth in the *Rylands case*and similar cases is not applicable to underground pipes supplying water to inhabitants of a municipality. On the contrary, liability in the latter instances is dependent on negligence, not trespass, as instance the following:

“Water in an underground pipe is not such a dangerous instrumentality as to require a person so conveying it to confine it at his peril, and no recovery can be had for an injury to property caused by the leakage or bursting of an underground water pipe unless negligence in the construction or - maintenance of thd pipe is shown. *Blyth*v. *Birmingham Waterworks,*11 Exch. (Eng.), 781, 2 Jur. N. S., 333; *Green*v. *Chelsea Waterworks,*70 L. T. N. S. (Eng.), 547; *Mann v. Henderson,*154 Ky., 154, 156 S. W., 1063; *Littlefield*v. *Newport Water Co.,*110 Me., 129, 85 Atl., 482; *McCord Rubber Co.*v. *St. Joseph Water Co.,*181 Mo., 678, 81 S. W., 189; *Terry*v. *New York, 8*Bosw. (N. Y.), 504; *Cincinnati*v. *Renner,*33 Ohio C. C., 189; *Esberg Cigar Co.*v. *Portland,*34 Ore., 282, 55 Pac., 961, 75 Am. St. Rep., 651, 43 L. R. A., 435; *Morgan v. Duquesne,*29 Pa. Sup. Ct., 100; *Paris*v. *Tucker*(Tex.), 93 S. W., 233. See also *Cattle*v. *Stockton Waterworks Co.,*L. R. 10 Q. B. (Eng.), 453; *Rice*v. *St. Louis,*165 Mo., 636, 65 S. W., 1002.” Ann. Cas. 1916C, 1050.

In *McCord Rubber Co.*v. *St. Joseph Water Co., supra,*it is said in part:

“The plaintiff contends, however, that the defendants are liable regardless of whether they were guilty *132of any negligence directly causing the accident. * * *

“That contention rests for its authority on the decision in *Rylands*v. *Fletcher,*L. R. 3 H. L., 330. * # * There is a wide difference between a great volume of water collected in a reservoir in dangerous proximity to the premises of another and water brought into a house through pipes in the manner usual in all cities, for the ordinary use of the occupants of the house. Whilst water so brought into a house cannot literally be said to have come in in the course of what might be called * * natural user’ * * * yet. it is brought in by the method universally in use in cities and is not to be treated as an unnatural gathering, of a dangerous agent.”

To the same effect see annotation, 14 A. L. R., 555, and cases therein cited. See, also, *Simon*v. *City of New York,*82 Misc. Rep., 454, 143 N. Y. Supp., 1097, wherein the court said, in part:

“A municipality is not an insurer of its water or sewer system, any more than of its streets. It is required only to use reasonable care in establishing and .maintaining such a system.”

See, also, *A. J. Brown & Son, Inc.,*v. *City of Grand Rapids,*265 Mich., 465, 251 N. W., 561, decided December 1933, the fourth paragraph of the syllabus of which is as follows:

“Municipality is not insurer of its water system but is required to use reasonable care in establishment and maintenance of system.”

The case of *City of Cincinnati*v. *Renner,*23 C. D., 189, 13 C. C. (N. S.), 407, decided by the Circuit Court of the First Circuit and affirmed by - our Supreme Court without opinion in. 86 Ohio St., 342, 99 N. E., 1132, holds as follows:

“A municipal corporation is not controlled by the principle that one who collects and keeps anything *133likely to do mischief if it escapes, does so at his peril, where it is acting under legislative authority and without any showing of negligence * *

In that case there was an escape of water by reason of a broken water pipe. It was held that the principle of *Rylands*v. *Fletcher*was not applicable, and that the liability of the city, if any, must be founded on negligence. The court there said, at page 191:

“The Legislature authorized the city of Cincinnati to construct and maintain water pipes1 in the streets of the city, and it can only be answerable in damages for their construction and maintenance by reason of some negligent act committed or omitted.”

In the comparatively recent case of *Taylor*v. *City of Cincinnati,*143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44, later approved and followed in the case of *Metzger*v. *Pennsylvania, Ohio & Detroit Rd. Co.,*146 Ohio St., 406, 66 N. E. (2d), 203, the court distinguishes between an absolute nuisance for which strict liability or liability without fault is imposed by law and a qualified nuisance or nuisance dependent upon negligence which consists of anything lawfully but s.o negligently or carelessly done or permitted as to create a potential and unreasonable risk which in due course results in injury to another.

In this connection it is interesting to note the following excerpt from the opinion of Hart, J., in the *Taylor case*at pages 435 and 436, as indicating the trend of modern judicial thought concerning the doctrine in the case of *Rylands*v. *Fletcher:*

“A person who, for his own purposes, brings on his lands and keeps there anything likely to do mischief, if it escapes, must keep it at his peril; and if he does not confine it he is *prima facie*answerable for all the damage which is the natural consequence of its escape. Street, in his Foundations of Legal Liability, Volume *1341, Chapter 5, designates such acts as ‘agents of harm’ and says that these are cases where one may be held liable for harm not directly done by himself, but by some creature of his for which he is answerable. This is the doctrine of the early case of *Rylands*v. *Fletcher*(1868), L. R. 3 H. L., 330, 37 L. J. Ex., 161, 19 L. T. Rep., 220, 33 J. P., 70, which, with modifications, has been adopted as the common-law rule in many jurisdictions of this country. The rule in question, which is being gradually narrowed in scope, has been considered and, in proper cases, applied to situations involving the maintenance of artificial reservoirs for the collection of water as distinguished from mill dams across flowing streams; the storing or use of dangerous combustibles, such as dynamite, nitroglycerin, gun powder, etc.; blasting operations- on one’s own land adjacent to the premises of another; and trespasses due to the escape of wild animals, as distinguished from domestic animals.

‘ ‘ This rule was recognized and applied by this court to the handling of explosives, in *Bradford Glycerine Co.*v. *St. Marys Woolen Mfg. Co.,*60 Ohio St., 560, 54 N. E., 528, 71 Am. St. Rep., 740, 45 L. R. A., 658; to the explosion of an unguarded, unexploded bomb in a public park, in *City of Cleveland*v. *Ferrando, a Minor,*114 Ohio St., 207, 150 N. E., 747; to blasting operations, in *City of Tiffin*v. *McCormack,*34 Ohio St., 638, 32 Am. Rep., 408, and in *Louden*v. *City of Cincinnati,*90 Ohio St., 144, 106 N. E., 970, L. R. A. 1915E, 356, Ann. Cas. 19160, 1171. See, also, *Harris, Admx.,*v. *City of Findlay,*59 Ohio App., 375, 18 N. E. (2d), 413.”

Upon analysis of the authorities cited and quoted in the foregoing discussion and applying the principles thereof to the issues of law raised on this appeal, we conclude that, on the authority of *City of Barberton**135v. *Miksch, supra,*the city of Cleveland in furnishing water to its inhabitants is acting in a proprietary capacity.

We further conclude that in all other respects we must distinguish between the allegations of fact in the instant case and the facts and circumstances in the cases of *City of Barberton*v. *Miksch, City of Mansfield*v. *Balliett*and *Rylands*v. *Fletcher.*

The wide difference between the impounding of a great body of water in a large reservoir by a municipality from which reservoir there was a continual and permanent flow of water upon lands of another by seepage and percolation over a period of years *[City of Barberton*v. *Miksch)*and the use of underground pipes in city streets for the purpose of supplying water to the inhabitants of á metropolitan area, such as the city of Cleveland, under statutory authority is so obvious and so marked as to require no extended comment.

Likewise, the case of *City of Mansfield*v. *Balliett*must be distinguished in that in that case there was a taking of land due to pollution of a stream by casting sewage therein.

Finally, the instant case is not one, as we view it, which comes within the principle of *Rylands*v. *Fletcher,*of bringing on to a person’s land and collecting there anything likely to do mischief if it escapes so that the person who does so must keep it inxat his peril and if he does not do so is *prima facie*answerable for all the damages which are a natural consequence of its escape.

In other words, it seems to us that to apply the doctrine of the escape from one’s land of something that is inherently dangerous, whether animate or inanimate, to a system of pipe lines conducting water *136underground on city streets, is carrying the ancient doctrine beyond all reasonable limits.

We agree with the trial court in this case in the conclusion that the facts alleged in the first cause of action do not constitute an absolute nuisance. We think that the most that can be claimed under the allegations of the first cause of action is a qualified nuisance where negligence must be alleged to create liability.

From these views, it follows that the- judgment of the Court of Common Pleas, sustaining the demurrer to the first cause of action, must be affirmed.

*Judgment affirmed.*

Skeel, P. J., and Morgan, J., concur.