Midwest Oil Co. v. City of Aberdeen, 8588

• Citation: 69 S.D. 343,10 N.W.2d 701
• Decision Date: 27 July 1943
• Docket Number: 8588
• Parties: MIDWEST OIL COMPANY, Appellant, v. CITY OF ABERDEEN, Respondent.
• Court: Supreme Court of South Dakota

69 SD 343, 10 NW2d 701 (1943)

MIDWEST OIL COMPANY, Appellant v. CITY OF ABERDEEN,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Brown County, SD

Hon. Van Buren Perry, Judge

#8588—Affirmed

Danforth & Danforth, of Sioux Falls, SD

Attorneys for Appellant

F. W. Noll, E. B. Harkin, Aberdeen, SD

Attorneys for Respondent

Opinion filed July 27, 1943

RUDOLPH, J.

Plaintiff brought this action to recover damages sustained due to a break in a water main which was a part of the water supply system operated by the defendant city of Aberdeen. Plaintiff operates a gasoline filling station in the city of Aberdeen. In the street in front of this filling station the defendant maintains a ten-inch water main as a part of the water supply system of the city. On the night of January 7, 1941, at about midnight, a break was discovered in this ten-inch main in front of the filling station operated by plaintiff: The employees of the city water department were called and consumed approximately three hours in shutting off the water. The water had worked its way from a break in the pipe to a point adjacent to the underground gasoline storage tanks used in connection with the filling station and the pressure of the water had evidently caused the tanks to break. The water then forced its way into the tanks. At the time the break was discovered water and gasoline were being forced through the air vent pipe. When the city employees came to the station and removed the cap from the top of the gasoline tank, water and gasoline were forced from the tank and into the air about 15 inches high. This ten-inch main was made of cast iron and is ‘described in the record as “class 150 centrifugal cast.” In the process of manufacture the pipe was tested under a 500 pound pressure. The main was installed in 1932, was laid below the frost line and after it was laid and before the ditch was filled, water was turned into the main under the normal water pressure of the supply system which is between 50 and 60 pounds. No evidence was introduced to show the cause of the break in the pipe and there is no evidence of negligence on the part of the city either in the installation or maintenance of this water main unless this evidence may be inferred by the application of the rule of res ipsa loquitur. The trial court found that the break in the main was not due to the negligence of the defendant city and denied plaintiff any recovery for the damage sustained.

We consider first appellant’s contention that the respondent city is absolutely liable for the damage occasioned by the breaking of the main and that this liability is present regardless of negligence. This contention is based upon a rule now generally credited to the English case of Rylands v. Fletcher, L. R. 1 Exch. 265, decided in 1866, wherein the court announced a rule as follows:

“We think that the true rule of law is, that the person who for his own purposes brings on his lands 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 damage which is the natural consequence of its escape.”

This rule has been the subject of consideration in subsequent English cases with the result that at least one author after reviewing these cases has been forced to the conclusion that “from this welter of cases it is impossible to extract any consistent principle ....” Arthur L. Goodhart, “Restatement of Law of Torts, Vol. III: A Comparison Between American and English Law”, 89 U. of Pa. L. Rev. 265-274. The rule has been discussed in many American cases. See articles by Francis H. Bohlen, 59 U. of Pa. L. Rev. 298, 373, 423. No attempt will be made here to discuss the many cases where the rule has been considered.. We are content to rest our decision on, this feature of the case upon the rule of absolute liability for tort as set forth in the. Restatement of the Law of Torts, Vol. III, Division 3, Chapters 20 and 21. Chapter 20 relates to liability of possessors and harborers of animals and obviously has no application to the present facts. Other than the liability relating to the possessors of animals, absolute liability for tort is limited to ultrahazardous activities as defined in Chapter 21. The Restatement has apparently tried to avoid some of the controversy concerning the case of Rylands v. Fletcher by inserting a caveat to the comment on Clause (a) of Section 520 wherein it is stated that

“The Institute expresses no opinion as to whether the construction and use of a large tank or artificial reservoir in which a large body of water or other fluid is collected is or is not an ultrahazardous activity.”

The facts in the Rylands-Fletcher case had to do with the collection of water in a large reservoir which escaped without the fault of the defendant and damaged the plaintiff. We are not here concerned with the collection of water in a manner comparable to that in Rylands v. Fletcher. The present facts disclose water being sent through a ten-inch main in the manner now generally accepted for the purpose of furnishing a water supply to city dwellers. We think it clear that such a distribution of water does not constitute an ultrahazardous activity. The definition of an ultrahazardous activity as set forth in Section 520 of the Restatement of the Law of Torts is as follows:

“An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.”

Water mains are universally in use in cities, and to hold that a proper and reasonable use of such mains “necessarily involves a risk of serious harm to the person, land or chattels of others” would be contrary to the experience of at least several generations.

It might be suggested that plaintiff’s loss is the same whether this pipe broke by accident or by fault of the city, and that plaintiff should be made good his loss, as it was by reason of the activity of the city that the loss was occasioned. This suggestion overlooks the fact that the water system of which this ten-inch main was a part, was installed and in operation for the benefit of the plaintiff as well as all other residents of Aberdeen. Plaintiff being engaged in business, it is assumed that the water supply was not only available but was actually being used to plaintiff’s benefit and advantage. In...