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of the defendant village is held to be a Board of Assessors, 111 N. Y. 505, 2 L.R.A. public use upon the ground that the mak- 148, 19 N. E. 90, is not in conflict. It was ing of such a provision, while not strictly a there held that a landing place situated in municipal duty, is protective of the public Brooklyn, for a ferry owned by the city health, and therefore a public use within of New York for the public purpose of servthe meaning of the laws relating to taxa ing the inhabitants of both cities, was not tion. But this reasoning fails when the taxable by the city of Brooklyn. The landfurnishing of water to the village of West ing was deemed an inseparable incident, and Derby is in question. We see no ground any hardship imposed on Brooklyn in the upon which the West Derby branch of this maintenance of police supervision over it system can be held to be devoted to a as a part of its territory was treated as an public use, either as regards fire protection immaterial circumstance. It is thus seen or domestic needs. The village of Newport that the property in question served the owes no municipal duty to the village of public of the owning city. West Derby or its inhabitants, and has no In an opinion handed down on September municipal interest there. Its sale of water 26, 1914, the supreme court of Nebraska, in to that village and its inhabitants is for the case of Omaha v. Douglas County, 96 the revenue obtainable thereby, independent Neb. 865, 148 N. W. 938, held that the of any connection with municipal duty or property of the municipality of Omaha, used interest.

to supply with water the inhabitants of "Here, the village of Newport has built that city and its adjacent suburban towns, and installed a branch outside its corporate including a municipality, the city of Florlimits, which is devoted wholly to the needs ence, was not subject to taxation by the of another village, and can never be made county of Douglas or the city of Florence. available for its own municipal service; That decision was placed, and well based, and the question is whether the property on the provisions of the Nebraska Constiso created and circumstanced shall be treat. tution and statute, which are broader than ed as serving an incidental, and therefore a

The court said: public, use. It might not be easy to frame “The county of Douglas, school district a safe and acceptable definition of an inci. No. 5, and the city of Florence severally dental use, but we think it may safely be excepted, and each filed a motion for a said that the supplying of the municipal new trial and appealed from the judgment and domestic needs of another municipality, and order made. through a complete system of distributing “It will be seen that the question prepipes and hydrants created for that purpose, sented is whether property which is municiis not such a use. The plaintiff has as- pally owned should be exempt from taxasessed the hydrants located in Derby, and tion. Section 2, art. 9, of the Constitution, we hold that they are taxable.”

in part reads: The case of West Hartford v. Water “ 'The property of the state, counties and Comrs. 44 Conn. 360, 367, is much relied municipal corporations, both real and perupon by appellee city. In that case sonal shall be exempt from taxation, and there was no effort on the part of West such other property as may be used excluHartford to tax water pipes and hydrants sively for agricultural and horticultural of the city of Hartford lying within the societies, for schools, religious, cemetery, territory of the former, as in the pending and charitable purposes, may be exempted

The effort was to tax 327 acres of from taxation, but such exemption shall land held by Hartford in the limits of West be only by general law.' Hartford for storage of water, to be car

* Section 6301, Rev. Stat. 1913, in part ried thence to Hartford for the use of its provides :' inhabitants. Only a part of that acreage 'The following property shall be exempt was necessary for that purpose; and this from taxes: First—all property of the portion was held not be taxable by West state, counties and municipal corporations.' Hartford, but 140 acres thereof not needed “The foregoing provisions were in force in and not purchased for such use, but only to the state before the property in question get the required quantity, were held liable was sought to be assessed. to taxation. We see nothing in this hold- "It is contended by the appellants that ing that is out of harmony with the prin- the case must turn on the construction of ciples upon which we here proceed, but the clause in the Constitution concerning rather the contrary. We think it clear exemption; that at common law property that a reservoir within the boundaries of of a state, county, or city used for public Park City, owned and operated by Knox- purposes was exempt from taxation, and ville for its own water supply, would not be that the part of our Constitution above subject to taxation by Park City.

quoted was merely declaratory of the comThe case of People ex rel. New York v. mon law.

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"The brief of appellants contains a long TENNESSEE SUPREME COURT. argument calculated to show that under the present system the city of Omaha can

MAYOR AND CITY COUNCIL OF NASH

VILLE keep up the interest, pay off the debt, and soon have a net profit amounting to a large sum of money.

That is not the question. JOHN PENNINGTON BURNS, by Next Whether Omaha can make money by selling

Friend, Piff. in Certiorari. water does not reach the constitutional pro

SAME vision; neither does it reach the statute.

MICHAEL BURNS, Plff. in Certiorari. “The statute seems to be as broad as the Constitution, and both Constitution and the (131 Tenn. 281, 174 S. W. 1111.) statute would seem to be plain enough, so that there should be no great doubt as Municipal corporation injury to what was the purpose intended. The park playground liability. framers of the constitutional provision must

A municipal corporation is not liable for have intended to exempt all classes of mu

injury to a child by negligent use by other

children of a swing on a park playground nicipally owned property. That would seem

which it maintains for the public welfare, to be the only fair interpretation which can and for the maintenance of order in which be placed upon the language used in the it assigns policemen, although lack of care Constitution and the statute.”

on the part of municipal employees may We see nothing in this holding that mili- have contributed to the injury. tates against what we rule in the pending That court cites Smith v. Nashville,

(March 24, 1915.) , , on the proposition that a municipality's C Ppeals to review a judgment dismissing, property outside its borders may be exempt from taxation. That case involved upon appeal by defendant from a refusal the question

by the Circuit Court for Davidson County privilege taxes, and it was said that a city did not become liable for to grant peremptory instructions, consoli. the payment of such a tax "by reason of dated actions brought to recover damages the fact that it furnished water to persons for personal injuries to the minor plaintiff, outside its own corporate limits, for com

alleged to have been caused by defendant's pensation, who are not shown to have been

negligence. Affirmed.

The facts are stated in the opinion. residents of any city, taxing district, or

Messrs. Pitts & McConnico and M. S. town falling within the provisions of said act,"—the act imposing privilege taxes, By Ross for plaintiffs in certiorari. this language there was, as we conceive,

Messrs. A. G. Ewing, Jr., F. M. Garsafeguarded the principle we adopt in the ard, and M. T. Bryan, for defendant in determination of the instant case.

certiorari: We hold that the physical properties of

Defendant maintains its playgrounds for the complainant city within the boundaries the benefit of the public, and not as a source of Park City are not exempt from taxation of profit or municipal benefit, and is not so far as they serve the municipal purposes liable. of the latter municipality.

Foster v. Lookout Water Co. 3 Lea, 42; We, of course, are not dealing with the Gorman v. Chattanooga, 2 Tenn. C. C. A. power of Park City to tax a pipe line of 551; Irvine v. Chattanooga, 101 Tenn. 291, the other municipality laid through its ter- 47 S. W. 419; Richmond v. Long, 17 Gratt. ritory to serve the public and corporate | 375, 94 Am. Dec. 461; Wixon v. Newport, purposes of the city of Knoxville. Nor are | 13 R. I. 454, 43 Am. Rep. 35; Maxmilian v. we dealing with a power of Knoxville to sell i New York, 62 X. Y. 160, 20 Am. Rep. 468; water, or surplus water, to another munici- Burrill v. Augusta, 78 Me. 118, 57 Am. Rep. pality to be delivered for distribution by 788, 3 Atl. 177; Mead v. New Haven, 40 the latter through its own plant.

Conn. 72, 16 Am. Rep. 14; Edgerly y. ConWe also determine that Park City is en-i cord, 62 N. H. 8, 13 Am. St. Rep. 533; Contitled to collect a privilege tax, at the ap- elly v. Nashville, 100 Tenn. 262, 46 S. W. plicable statutory rate, from the city of Knoxville,

Note. As to liability of municipal corThe Court of Civil Appeals, affirming the poration for injuries through unsafe condiChancellor, held that the city of Knoxville tions in parks or other public grounds was not liable to pay either ad valorem or Asbury Park, 33 L.R.A. (N.S.) 523, and

other than streets, see notes to Bisbing v. privilege taxes. Reversed, with remand for Bernstein v. Milwaukee, L.R.A.1915C, 435, further proceedings in accord with what is and see also case of Ackeret v. Minneapolis, hierein ruled.

post, 1111.

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565; East Tennessee University v. Knox- | likewise sued for damages accruing to him ville, 6 Baxt. 173; Shoemaker v. United by reason of the injury inflicted on his son, States, 147 U. S. 282, 37 L. ed. 170, 13 Sup. and made a recovery of $200. The two Ct. Rep. 361; Higginson v. Nahant, 11 Allen, cases were tried together. There was 530; Park Comrs. v. Prinz, 127 Ky. 460, 105 motion for peremptory instructions in the S. W. 948; Clark v. Waltham, 128 Mass. trial court, which was there overruled, but, 567; Blair v. Granger, 24 R. I. 17, 51 Atl. on appeal to the court of civil appeals, the 1042; Bisbing v. Asbury Park, 80 N. J. L. motion was sustained, and the suits were 416, 33 L.R.A.(N.S.) 523, 78 Atl. 196; Kerr dismissed. The cases then came here on v. Brookline, 208 Mass. 190, 34 L.R.A.(N.S.) the writ of certiorari. 464, 94 N. E. 257; Tindley v. Salem, 137 We are of the opinion that the court of Mass. 171, 50 Am. Rep. 289; Russell v. civil appeals reached the correct conclusion. Tacoma, 8 Wash. 156, 40 Am. St. Rep. 895, The city of Nashville owns and operates 35 Pac. 605; McGraw v. District of Colum. for the benefit of the public, 18 parks and bia, 3 App. D. C. 405, 25 L.R.A. 691. playgrounds without compensation. These

The act of a third party in toppling the parks are under the charge of a park comswing over on the plaintiff was the proxi- mission, and policemen are assigned to them mate cause of the injury, and not the city's for the protection of visitors, and, generally, failure to secure the swing frame to the to insure good order. ground; hence, the city is not liable.

The injury complained of occạrred in a Loftus v. DeHail, 133 Cal. 214, 65 Pac. little park in East Nashville. It had been 379.

but recently opened. Among other means Where th“ act of the child alone, without provided for the comfort of the people were the concurrence of any negligence on the certain swings. One of these was known part of the defendant, causes injury, the as a baby swing. It was designed only for child cannot recover, irrespective of whether small children of from five to seven years he can be held responsible for contributory old; but, on the occasion in question, three negligence or not.

larger boys, perhaps of twelve or fourteen Lee v. Jones, 181 Mo. 291, 103 Am. St. years, while using the swing, turned it over Rep. 596, 79 S. W. 927; Thomp. Neg. $8 in trying to swing too high. Appellee, who 308, 309; Burckell v. Memphis Street R. Co. was standing near the swing, was struck 2 Tenn. C. C. A. 575; Van Natta v. Peo- by it as it fell to the ground, and was ple's Street R. Electric Light & P. Co. 133 seriously injured. At the time this accident Mo. 13, 34 S. W. 505; Central R. & Bkg. happened lights had not yet been installed Co. v. Golden, 93 Ga. 501, 21 S. E. 68; Chi- in the little park, and children were not cago City R. Co. v. Wilcox, 138 Ill. 370, 21 expected to play there after dark. When L.R.A. 76, 27 N. E. 899, 11 Am. Neg. Cas. the injury occurred, the seats had been 402; Reed v. Madison, 83 Wis. 171, 17 taken from the swings and placed in a L.R.A. 733, 53 N. W. 547; Tucker v. New house near by, the attendant had left, and York C. & H. R. R. Co. 124 N. Y. 308, 21 the park was considered closed. The boys, Am. St. Rep. 670, 26 N. E. 916; Schmidt v. however, either remained in the park, or Cook, 1 Misc. 227, 20 N. Y. Supp. 889; came in afterwards, and removed the swing Knox v. Hall Steam Power Co. 69 Hun, 231, in question from the place where it had 23 N. Y. Supp. 490.

been stationed, procured the seats, it havIf the swings were removed after the ing three, and began to use it, with the rehour of closing and the baby baskets were sult stated, without the knowledge of the gotten out of the caretaker's keeping sur- officers or agents of the city. reptitiously by the wrongful intervention of The principal negligence urged against the third persons, the city could not be held city was the permission given by the policeliable.

man in charge to large boys from time to 5 Thomp. Neg. $ 6071; Welsh v. Lansing, time to use the baby swing, from which it 111 Mich. 589, 70 N. W. 129, 1 Am. Neg. is insisted they felt justified in using it on Rep. 268; McFeeters v. New York, 102 App. the occasion in hand. Div. 32, 92 N. Y. Supp. 79; Jackson v. Kan

We believe that a peremptory instruction sas City, 106 Mo. App. 52, 79 S. W. 1174.

might well have been based on the absence Neil, Ch. J., delivered the opinion of the of any negligence of the city, even assuming court:

that it was liable for the negligence of its Appellee, a minor sued by next friend to agents in the management of parks. The recover damages for injuries alleged to have learned court of civil appeals, however, conbeen inflicted on him by the negligence of sidered the question whether any liability the city's agents in not sufficiently guarding existed at all against municipalities for inthe use of a swing in one of its parks. He juries to persons frequenting parks by rearecovered a verdict for $600. His father' son of the negligence of the servants of

We

was

such corporations, and held that no such | provide suitable engines or fire apparatus, liability existed.

or to keep in repair public cisterns, or conIt is true there is great contrariety of tinue the supply of water to particular opinion in the several courts of final resort hydrants.

The reason is that the in this country upon the question whether hazard of pecuniary loss might prevent the municipal corporations, in maintaining parks corporation from assuming duties which, as resorts for the people, are in the dis- although not strictly corporate nor essencharge of a public duty, or one purely pro- tial to the corporate existence, largely subprietary and ministerial. It is not our serve the public interest. The supplying of purpose to discuss this question at length, water for the extinguishment of fires is but only to indicate, in a general way, that precisely one of those acts which bring no

are in accord with those authorities profit to the corporation, but are eminently which hold that such duty is a public one, humanitarian. To hold a city responsible based on the obligation of the municipality, for the loss of a building, or of whole as a branch of the state government, to streets of houses, as sometimes happens, guard and preserve and maintain the pub- because it might be thought, or because in, lic health. Parks, in crowded cities, are reality, some of its indispensable agents had eminently conducive to this purpose, as been negligent of their duty, might well places to which the people may go and en- frighten our municipal corporations from joy pure air, the sight of trees, grass, and assuming the startling risk." flowers, and find the means of release for These views were ratified and utilized and a time from the weight of care, rest from substantially passed into decision and judglabor, relaxation for body and mind, and ment in Irvine v. Chattanooga, 101 Tenn. the recuperation of exhausted energies, -all : 294, 47 S. W. 419, in which case it was aids to health of incalculable value. We sought to hold Chattanooga liable for the approve the following authorities on the negligence of its agents in the fire departsubject: Harper v. Topeka, 92 Kan. 11, 51 ment, whereby complainant's house L.R.A.(N.S.) 1032, 139 Pac. 1018; Park lost by fire, through want of diligence on Comrs. v. Prinz, 127 Ky. 460, 105 S. W. the part of the department. In Conelly v. 948; Russell v. Tacoma, 8 Wash. 156, 40 Nashville, supra, it was held that the city Am. St. Rep. 895, 35 Pac. 605; Blair v. was not liable for the negligence of one of Granger, 24 R. I. 17, 51 Atl. 1042; Steele its employees, who, in driving a sprinkling v. Boston, 128 Mass. 583; Clark v. Waltham, cart, ran against a carriage and injured the 128 Mass. 567. We have read and consid- occupant. The ground of the decision was ered the cases cited from other states, and, that the city, in sprinkling the streets, was while conceding that they outnumber those i engaged in an effort to preserve the public we have mentioned, we do not think they health. In the course of the opinion the are so well founded in principle. Moreover, court referred, with approval, to authorities the ground we have mentioned as governing of other states wherein it had been held our decision accords with that controlling that a city was not liable for an injury other cases in this state on kindred aspects caused by the negligence of an ambulance of municipal duty. Conelly v. Nashville, driver; for the loss of a slave placed by his 100 Tenn. 262, 46 S. W. 565; Irvine v. Chat- master in a city hospital to be treated for tanooga, 101 Tenn. 294, 47 S. W. 419; Davis smallpox, but who, through the negligence 6. Knoxville, 90 Tenn. 599, 18 S. W. 254; of his attendant, escaped and died from exPesterfield v. Vickers, 3 Coldw. 206. We posure; for the damage caused by a hook fully sympathize with the observations of and ladder company while driving rapidly Mr. Justice Cooper in Foster v. Lookout along a public street to a fire; for injury Water Co. 3 Lea, 42, 48, to the effect that, to a pupil from defective heating apparatus while we enforce the liability arising out in a public school. of the violation of a duty owing in their It is urged by counsel for defendant in proprietary character, the inclination of the error that all or nearly all of the cases courts has been not to press the pecuniary which we have cited in support of our conliability of municipal corporations to cases clusion are from states in which it is likewhere a duty is assumed, not for the mere wise held that municipal corporations are proprietary or corporate benefit, but for the not liable for injuries caused by defects in common good. He continues : The courts their streets unless made so by statute, on “have refused to hold a city liable for the the ground that the construction and mainacts of its police officers, although they are tenance of public streets are a part of the appointed by it, or for the acts or negli- public duty of such corporations, while the gence of its agents and employees in charge contrary view was expressed in this state of patients in a public hospital; for the a long time ago in the case of Memphis v. misconduct of the members of its fire de- | Lasser, 9 Humph. 757; it having been held partment, or for the city's own neglect to in that case that such duty belonged to the

our

cases

private or proprietary aspect of the dual | taining streets, highways, and public parks, nature of such organizations. The Lassar municipalities act in their governmental, Case has been followed in all subsequent and not in their proprietary, capacity. cases on the point that liability for injuries Highway defect liability of municcaused by defective streets exists against

ipality. municipal corporations, although the ground

2. Cities and villages are liable for inon which it was based has been more than in their streets; but, with this single ex

juries resulting from dangerous conditions once questioned. (Knoxville v. Bell, 12 Lea, ception, municipalities are not liable in 157, 158; Niblett v. Nashville, 12 Heisk. damages for negligence in performing their 684, 686, 27 Am. Rep. 755); and the lia bil-governmental functions, unless such liability of cities and towns for injuries caused ity has been imposed by statute. by defective streets has been asserted in Parks defective footpath liability a very recent reported case (Fleming v. of municipality. Memphis, 126 Tenn. 331, 42 L.R.A.(N.S.) 3. A city that constructs and maintains 493, 148 S. W. 1057, Ann. Cas. 1913D, 1306), walks and footpaths in its parks which are and is daily applied without reference to used as thoroughfares in passing from one the original ground of the early decision part of the city to another is liable for in

juries resulting from dangerous conditions asserting the liability. It is now simply in such walks caused by the negligence of treated as settled law. But the question its employees. now before us is not necessarily bound up Notice claim for injuries sufficienwith the one last stated. It may be true

су. that both are rooted in the same general 4. A notice given by a parent of a claim principle (see, however, note “b” in 20 for injuries sustained by his minor child, L.R.A.(N.S.) 518, 519), but it does not fol. which contains the essential information low that we are compelled to reason from required by the statute, is sufficient, alstreet as furnishing binding

though it fails to state specifically that analogies, or that we should overrule those the parent claims damages on his own ac

count and al as the statutory representacases as not founded on sound principle; tive of his child, and fails to make an apnor does it even follow that the street cases portionment between the two of the amount were erroneously based. Everyone knows, claimed. as stated in Foster v. Lookout Water Co. Party injury to child suit by fasupra, and as conceded in the authorities ther. everywhere, that it is extremely difficult to 5. A father who is supporting the family correctly assign the various duties of a mu. may maintain an action for loss of the servnicipal corporation as belonging to this or

ices of a minor child without joining the that aspect of its nature. Suffice it to say

mother as a party of plaintiff. that we believe our conclusion on the sub

(March 26, 1915.) ject of parks is soundly based. cers in charge of its parks, would not be A of the "Vistrict Courto for Hennepin

by guilty of a misdemeanor, and so indictable, County denying a motion for judgment notfor permitting these places to become dan- withstanding a verdict for plaintiff in an gerous to life or limb; but that liability action brought to recover for expenses inrests on a different ground, and does not curred in providing medical treatment for arise in this case.

his injured minor child, and for partial loss The judgment of the Court of Civil Ap- of services. Affirmed. peals must be affirmed, with costs.

PPEAL by defendant from an order of A

the District Court for Hennepin County

denying a motion for judgment notwithMINNESOTA SUPREME COURT.

standing the verdict, or for a new trial, in CASPER A. ACKERET, Respt.,

an action brought to recover damages for

personal injuries for which defendant was CITY OF MINNEAPOLIS, Appt.

alleged to be responsible. Affirmed.

The facts are stated in the CommissionALOYSIUS J. ACKERET, By Father and er's opinion. Guardian, Respt.,

Mr. C. J. Rockwood, for appellant:

Liability for negligence does not attach SAME, Appt.

in the performance of public or govern(129 Minn. 190, 151 N. W. 976.) mental functions. Municipal corporation caring for

Note. As to liability of municipal corstreet character of duty. 1. In establishing, caring for, and main. poration for injuries through unsafe con

ditions in parks, see note to Nashville v. Headnotes by TAYLOR, C.

Burns, ante, 1108.

V.

V.

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