Nelson v. City of Spokane

Main, C. J.

The city of Spokane, being the owner of a public park which was not operated for profit, erected a dam within the park across a running stream of water. This dam was negligently constructed by the board of park commissioners in such a manner that it obstructs the stream to the damage of respondents’ property, which is situated about one-half mile up the stream from the park. The appellant city claims that no liability exists against it for the reason that, in the construction of the dam, it was acting in a governmental capacity.

This court has held that the liability of a city for acts such as the one here complained of depends upon whether the negligence was in respect to governmental or proprietary functions. We are committed to the doctrine that, in respect to governmental functions, cities are not liable for those negligent acts. Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347; Simpson v. Whatcom, 33 Wash. 392, 74 Pac. 577, 99 Am. St. 951, 63 L. R. A. 815; Lynch v. North Yakima, 37 Wash. 657, 80 Pac. 79, 12 L. R. A. (N. S.) 261.

There remains then only to determine whether a city, in the operation of a park not for profit, is performing a governmental or proprietary function. Here, again, we are committed by the decisions of this court to the doctrine that the operation or improvement of a park not for profit is the exercise of a governmental function. Russell v. Tacoma, 8 Wash. 156, 35 Pac. 605, 40 Am. St. 895; Clark v. Seattle, 102 Wash. 228, 172 Pac. 1155.

These cases would seem to be determinative of the issue presented here and exempt the appellant from liability. There is nothing in conflict with this holding in those cases in which we have maintained the right of a riparian owner to have the water of the stream flow by in its natural course and in which we have held the city liable for the obstruction thereof. It will be found that those cases were ones in which the city’s negligence occurred while in the exercise of its proprietary functions. Ronkosky v. Tacoma, 71 Wash. 148, 128 Pac. 2; Powelson v. Seattle, 87 Wash. 617, 152 Pac. 329; Willett v. Seattle, 96 Wash. 632, 165 Pac. 876.

The case of Jorguson v. Seattle, 80 Wash. 126, 141 Pac. 334, cited by the.respondent, does not hold that the city is liable when acting’ in either a proprietary or governmental capacity, but holds that the city, being otherwise liable, has no right'to take or damage property without compensation. It would serve no useful purpose to enter into a discussion of the reasons for the different rules of liability of municipalities when acting in different capacities. It suffices to say that the rule in these cases is as indicated and we adhere to it in this decision. The judgment is reversed and the action dismissed.

Mount, Holcomb, Chadwick, and Mackintosh, JJ., concur.