Vanhorn v. City of Des Moines , 63 Iowa 447 ( 1884 )

Adams, J.

1. Cities and Towns: liability of for inadequate supply of water to extinguish fires. The defendant was authorized by law to provide for the supply of water for the extinguishment of fires, and to levy a tax to defray the expenses. Having undertaken to provide for such supply, and having levied a tax to defray the expenses, the plaintiff-contends that the city became liable for a lack of supply, upon the same principle that cities are liable for personal injuries sustained by reason of defective streets and sidewalks.

But the power on the part of a municipal corporation to provide for the accomplishment of certain results does not necessarily impose a liability for their imperfect accomplishment. Even a failure to furnish suitable streets and sidewalks, or to maintain them, does not of itself render the city liable, however much the exigencies of business or the preservation of property may demand them. Dubuque Wood & Coal Association v. City of Dubuque, 30 Iowa, 176. The injury sustained must be something more than the lack of facility or means of accomplishing an ulterior result. There are many matters in which municipal corporations have power to provide for the accomplishment of results beneficial to the public, but it would be very unwise to hold them-liable' for failure to make adequate provision, because, in the various emergencies which may arise, it would heimpossible to know what provision would be adequate. Take the matter of the extinguishment of fires. The provision which a given city should make is a matter of legislative discretion. It may be, and often is, inadequate, but individual sufferers have never been held to have a right of action against the city upon such ground. Probably the plaintiff would not contend that they should. ' His idea, as we understand it, is that, while it may be a matter of legislative discretion in the outset as to what provisions should be made, and no liability can be predicated upon the improper exercise of such discretion, yet, having made a provision, the city is responsible for any misfeasance in carrying it out.

But in our opinion the principle remains the same. The individual sufferer’s ground of complaint still is alack of facility for accomplishing an ulterior result. If the city is bound to furnish no particular facility, it seems to us that that is the end of all question of liability for failure. Tainter v. The City of Worcester, 123 Mass., 311; Wheeler v. Cincinnati, 19 Ohio St., 19. In the matter of the contraction and maintenance of streets and sidewalks, the city may well enough be held liable for personal injuries resulting proximately from its misfeasance or neglect. It should not be allowed to create a source of danger to the public.

2.--: assumption of liability: ultra vires. But it is said that the case at bar is peculiar in this, that the city took a contract from the Water-Works Company to protect itself against all actions which might be brought against it for misfeasance or neglect on par£ 0f †]16 company. This indemnity, it is claimed, gives a right of action where otherwise it w’ould not exist. But, clearly, this is not so. Indemnification against liability must always be regarded as having reference to existing grounds of liability, and not as serving to create new ones. Besides, the city could not assume liability for negligence in cases where the law did not already impose a liability. The contract, then, must be construed as covering cases only where an action might be maintained against the city independently of the contract. We think that the demurrer was rightly sustained.

Affirmed.