Appeal from a judgment on the pleadings in favor of Roy City, an industrial city of about 10,000 population. Affirmed. No costs awarded.
Our concern is whether an incorporated city is liable for damage resulting from a sewer stoppage on a theory of 1) negligence or 2) nuisance, in an isolated case, where the question pointed up is whether operation of a sewer is governmental or proprietary. Under the facts of this case, and because of what we have said before, we think the result is the same whether it is urged on negligence or nuisance grounds. We express no opinion as to a situation where the condition is one resulting in continuing damage.
Utah constantly has adhered to the principle of governmental immunity where the sovereign has been attacked on account of injury to property, which principle has been applied to state activity or that of its agencies, such as school boards, cities, counties, the highway department, and the like.
It is recognized that there is but one Utah case having to do with sewers, which was decided before statehood (1892) (Kiesel v. Ogden City, 8 Utah. 237, 30 P. 758) which determined that the operation of a sewer was actionable against the city if negligence was shown to exist. So far as that case is inconsistent with what is said here, it is reversed, particularly since that case predated our state sovereignty, our Constitution and subsequent legislation that gave new breadth and immunity to state agencies, except where specifically waived.
It seems to us that the operation of a sewer more nearly is governmentally charged than are most or all of those situations we have reviewed, as reflected in the cases just mentioned. To exclude the operation of sewers from this field reasonably would seem unjustifiable in logic or otherwise. To do so would do violence to our concept of separation of powers, we believe. We have left to the Constitution and legislature the matter of waiver of immunity in such cases.
We have committed ourselves to a test we consider accurate in determining what a governmental function is as opposed to a proprietary one. In the language of Mr. Justice Crockett in Ramirez v. Ogden City, mentioned above, it was said that:
It seems quite obvious that this case cannot hurdle the above test nor the precedents to which we are committed. This, in the light of our legislative history. We say this, in numbering sewers among the other situations about which we have spoken, with a concession that we do so as members of a minority of the courts that have met this problem.
The cases that isolate sewers as a subject for liability do not seem to say why, except that somehow the municipality should respond in damages. Many of them come to the conclusion with a paradoxical respect for immunity, if the subject matter is a city street or other civic facility. There seems to be a sorted-out reverence for imposing liability in sewer cases, without any realistic reason that separates it from immunity in other situations that seem to have more distant kinship to what we know as a governmental function than does a municipally operated sewer system. They seem to come to such conclusion arbitrarily without apology for or recognition of the fact that they may be legislating judicially. They seem to do so without considering that an adjunct to the privilege and benefit of citizenship in a community furnishing desired and oft times necessary municipal services, occasional unremunerated hardship might be exacted of the citizen in the interest of the public weal.
It is not enough simply to say that an operation is "proprietary." The sewer, as the rose, would smell as sweet by any other name. Fact is, that in each individual case, the activity must fall within the test mentioned, whence it would be governmental, but, falling without it, may be proprietary or even ultra vires, as the facts may disclose. We think a municipally operated sewer to come within the test and so hold.
Our personal feeling is, that on moral and social grounds an eventuality like that here, where an overflowing sewer floods a home, should somehow be compensable if negligence is shown. The city did have a liability policy, purporting to cover the loss, but still asserted the defense of sovereign immunity, which apparently was a waste of taxpayers' money. The defense resulted in an unfortunate, untimely and uncompensable loss to Mr. Cobia, whose only recourse would have been to have had a policy of his own to protect against such mishap. Regrettably, we, as interpreters of the principles of liability in such cases, cannot supply a remedy therefor. It occurs to us that there must be a constitutional and legal vehicle in which the city could carry such protection against such damage.
WADE, C.J., and McDONOUGH, CALLISTER and CROCKETT, JJ., concur.