tains ordinarily to acts of this character.198 On the other hand, it might be said the weight of authority sustains the doctrine that if injuries occur through the adoption of a defective plan of improvement provided the other essentials of actionable negligence are to be found, a liability follows.199 A legal reason for the distinction between sewers and highways does not clearly appear. It is held by some authorities that the construction, and by this term is now meant all steps preliminary to actual work, of both sewers, drains and highways, is a municipal or local duty, a failure to properly perform which will lead to corresponding liabil ity. Some authorities place in the list of municipal, corporate or local duties the construction of highways but not that of sewers or drains imposing a liability in respect to the form and permitting an exemption in the case of the latter. The distinction is more interesting than substantial for the authorities are well divided along these lines. 200 § 998. Work of construction or repair. While the adjudications are not uniform as to the precise character which should be ascribed to the adoption of a plan of improvement of public highways there is no doubt that the actual work of construction of the improvement or the making of repairs is regarded as a ministerial act.201 If it is negligently performed, 198 City of Peru v. Brown, 10 Ind. App. 597, 38 N. E. 223; Champion v. Town of Crandon, 84 Wis. 405, 54 N. W. 775, 19 L. R. A. 856. 199 Kane v. City of Indianapolis, 82 Fed. 770; City of Springfield v. Le Claire, 49 Ill. 476; City of Chicago v. Seben, 165 Ill. 371, 46 N. E. 244; City of North Vernon v. Voegler, 103 Ind. 314; Smith v. City of Pella, 86 Iowa, 236; Sawyer v. City of Newburyport, 157 Mass. 430, 32 N. E. 653; Blyhl v. Village of Waterville, 57 Minn. 115, 58 N. W. 817; Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 268; Requa v. City of Rochester, 45 N. Y. 129; Lehmann v. City of Brooklyn, 30 App. Div. 305, 51 N. Y. Supp. 524; Collett v. City of New York, 51 App. 200 Judge v. City of Menden, 38 Conn. 90; Bigelow v. Inhabitants of Randolph, 80 Mass. (14 Gray)541; Bates v. Inhabitants of Westborough, 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156; Donovan v. New York Board of Education, 85 N. Y. 117; Gilman v. Town of Laconia, 55 N. H. 130. 201 Nevins v. City of Peoria, 41 Ill. 502; Delphi v. Evans, 36 Ind. therefore, and one receives an injury by reason of this fact, a liability will attach for the special damages which may be proximately caused by the negligent performance of the duty to carefully and skillfully construct.202 The obligation also attaches during the progress of repairs.203 § 999. Change of grade or taking of property. Through a change of grade, under lawful authority, damages to private property direct or consequential may follow. The question of a liability, whether statutory or otherwise, has been fully considered in sections 810 et seq., to which reference is made. Taking of or injury to property. The principle of law universally obtains that private property cannot be taken for public use without the payment of just compensation, first had or received, the word "taken" receiving such a broad construction as to include the right to recover for injuries to property rights less than an actual physical taking. The subject of eminent domain which includes a discussion of the meaning of these words and phrases has been previously considered in sections 743 et seq. Constitutional provisions also protect private property rights against seizure or injury without due process of law. These fundamental principles prohibit all classes or grades of public corporations from taking or injuring private property in the construction or improvement of public highways without the payment of just compensation or without due process of law. If, 90; Town of Princeton v. Gieske, 93 Ind. 102; Perry v. City of Worcester, 72 Mass. (6 Gray) 544; Nichols V. City of St. Paul, 44 Minn. 494, 47 N. W. 168; Davis v. City of Jackson, 61 Mich. 530, 28 N. W. 526; Lacour v. City of New York, 10 N. Y. Super. Ct. (3 Duer) 406; Bor ough of Easton v. Neff, 102 Pa. 474; Crossett v. City of Janesville, 28 Wis. 420. 202 City of Durango v. Luttrell, 18 Colo. 123, 31 Pac. 853; Templin v. Iowa City, 14 Iowa, 59; Hitchins v. Town of Frostburg, 68 Md. 100, 11 Atl. 826; Gilman v. Town of Laconia, 55 N. H. 130; Keating v. City of Cincinnati, 38 Ohio St. 141. 203 Robbins v. City of Chicago, 71 U. S. (4 Wall.) 657; Mulligan v. City of New Britain, 69 Conn. 96, 36 Atl. 1005; Jones v. Collins, 177 Mass. 444, 59 N. E. 64; Beattie v. City of Detroit, 129 Mich. 20, 88 N. W. 71; Ray v. City of Poplar Bluff, 70 Mo. App. 252; Sauthof V. Granger, 19 R. I. 606, 35 Atl. 300. But see Mills v. City of Philadelphia, 187 Pa. 287, 40 Atl. 821. therefore, they in their construction or maintenance destroy, take or injure 204 private property, whether this is done in the adoption of the plan or in the actual work involved in the making of the improvement, they will be held liable for the damages sustained." § 1000. Surface water injuries from plan or construction. 205 Many of the adjudicated cases are based upon a defective plan or construction of a highway which causes injury to private property through the accumulation or the diversion of surface waters. These for purposes of convenience are cited under this section. Where surface waters are collected in unusual quantities 206 or diverted and discharged 207 upon private property to its injury 204 Long v. City of Elberton, 109 Ga. 28, 34 S. E. 333, 46 L. R. A. 428. The mere erection of a prison within the city limits is not an invasion of the property rights of adjacent owners and no liability will follow. Barfield v. Macon County, 109 Ga. 386, 34 S. E. 596; Fiske Wharf & Warehouse Co. v. City of Boston, 178 Mass. 526, 60 N. E. 7; Worcester Gas Light Co. v. County Com'rs, 138 Mass. 289; Town Council of Akron v. McComb, 18 Ohio, 229. 205 City of Bloomington v. Brokaw, 77 Ill. 194; Kemper v. City of Louisville, 77 Ky. (14 Bush) 87; Inman v. Tripp, 11 R. I. 520. 206 Stanford v. City & County of San Francisco, 111 Cal. 198, 43 Pac. 605; Phinizy v. City of Augusta, 47 Ga. 260; City of Elgin v. Welch, 16 Ill. App. 483. The right of recovery follows the title to the premises injured. City of Alton v. Hope, 68 Ill. 167; Roll v. City of Indianapolis, 52 Ind. 547; Town of Thorntown v. Fugate, 21 Ind. App. 537, 52 N. E. 763; Murphy v. City of Indianapolis, 83 Ind. 76; Town of Sullivan v. Phillips, 110 Ind. 320; City of Louisville v. Seifert, 21 Ky. L. R. 328, 51 S. W. 310; Schuett v. City of Stillwater, 80 Minn. 287, 83 N. W. 180. It is the duty of the city to take care of surface water so as to avoid injury to private property, accumulated because of street grading, when this can be done and at a reasonable expense. Carson v. City of Springfield, 53 Mo. App. 289; Bowman v. City of Omaha, 59 Neb. 84, 80 N. W. 259. Liability for death of child in pond partly within the city street. Schumacher v. City of New York, 166 N. Y. 103, 59 N. E. 773; City of Comanche v. Zettlemoyer (Tex. Civ. App.) 40 S. W. 641; Powell v. Town of Wytheville, 95 Va. 73, 27 S. E. 805; Spelman v. City of Portage, 41 Wis. 144. But see Collins v. City of Waltham, 151 Mass. 196, 24 N. E. 327; Rychlicki v. City of St. Louis, 115 Mo. 662, 22 S. W. 908. See, also, §§ 977 et seq., ante. 207 Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478; Geurkink v. City of Petaluma, 112 Cal. 306, 44 Pac. 570; Aicher v. City of Denver, 10 Colo. App. 413, 52 Pac. 86; Ivey v. City of Macon, 102 Ga. 141; City of Peoria v. Crawl, 28 Ill. App. 154, by reason of the negligent construction or plan of an improvement, a liability will follow. A distinction seems to be made in this line of cases between an accumulation and diversion and a mere shifting of the flow of surface waters as they ordinarily gather upon the surface of the ground. In the latter case no liability seems to result.208 § 1001. Duty in respect to maintenance of public highways. By far the greater number of decided cases relate to defects arising from a negligent maintenance or repair of public highways. Attention is again called to the duty of the public corporation. It is not that of an insurer; it varies under different conditions and circumstances. It is not an absolute or an unvarying one; it is simply the duty to keep in a reasonably safe condition for ordinary travel the public ways for the use of those having the right and exercising the privilege of travel. It is affected by the character and extent of travel, the age or condition of the traveler, the purpose for which used, the extent of use, the means at the disposition of the corporation for the purpose of repair or improvement,209 questions of proximate cause,210 notice to the corporation,211 contributory negligence,212 special injury to the one City of Aurora v. Reed, 57 Ill. 29; City of Effingham v. Surrells, 77 Ill. App. 460; City of New Albany v. Lines, 21 Ind. App. 380, 51 N. E. 346; Rice v. City of Flint, 67 Mich. 401, 34 N. W. 719; Pye v. City of Mankato, 36 Minn. 373, 31 N. W. 863; Taubert v. City of St. Paul, 68 Minn. 519; Barnes v. City of Hannibal, 71 Mo. 449; City of Beatrice v. Leary, 45 Neb. 149; Andrews v. Village of Steele City, 2 Neb. Unoff, 676, 89 N. W. 739; McCarthy v. Village of Far Rockaway, 3 App. Div. 379, 38 N. Y. Supp. 989; Schumacher v. City of York, 166 N. Y. 103, 59 N. E. 773; Bohan v. Avoca Borough, 154 Pa. 404, 26 Atl. 604; City of Houston v. Bryan, 21 Tex. Civ. App. 553, 22 S. W. 231. But see Noble v. Village of St. Albans, Abb. Corp. Vol. III — 20. 56 Vt. 522. See, also, §§ 977 et seq., ante. 208 Downs v. City of Ansonia, 73 Conn. 33, 46 Atl. 243; City of Atlanta v. Word, 78 Ga. 276; Hirth v. City of Indianapolis, 18 Ind. App. 673, 48 N. E. 876; Hoffman v. City of Muscatine, 113 Iowa, 332, 85 N. W. 17; Alden v. Minneapolis, 24 Minn. 254; Imler v. City of Springfield, 55 Mo. 119; Cannon v. City of St. Joseph, 67 Mo. App. 367; Rutherford v. Village of Holley, 105 N. Y. 632, 11 N. E. 818; Heth v. City of Fond du Lac, 63 Wis. 228. 209 See §§ 1031 and 1060, post. 211 See §§ 1033 et seq., post. claiming damages, 213 whether the way is urban or suburban and others which have been or will be suggested in the preceding and following sections. As already stated, the decisions are many and a few only of the leading and latest authorities will be cited. § 1002. Lights. 215 The lighting of streets or highways is commonly regarded as a governmental duty of a discretionary character and no absolute obligation, therefore, rests upon a public corporation to perform it.214 Where a municipality has undertaken the lighting of public ways or is specifically charged with the duty in some cases it has been held liable for a failure to light them in the usual manner.2 The modifications of the rule first stated in the section are not important or usual and if such a duty should be held as existing, it is in common with others affected by the considerations named in the preceding section. What will be regarded as an insufficient or negligent lighting of a business street in a densely populated city would be considered as more than necessary in respect to a street in an outlying district of the same city or an urban highway.216 If repairs or improvements are being made or obstructions left in the street, the public should be warned against the dangerous place by suitable lights or other means.217 218 See §§ 952 and 993, ante. 214 City of Halifax v. Lordly, 20 Can. Sup. Ct. R. 505; Oliver v. City of Denver, 13 Colo. App. 345, 57 Pac. 729; Gaskins v. City of Atlanta, 73 Ga. 746; City of Vincennes v. Thuis, 28 Ind. App. 523, 63 N. E. 315; Randall v. Eastern R. Co., 106 Mass. 276; Lyon v. City of Cambridge, 136 Mass. 419; O'Rourke v. City of New York, 17 App. Div. 349, 45 N. Y. Supp. 261; Monongahela City v. Fischer, 111 Pa. 9. 215 City of Freeport v. Isbell, 83 Ill. 440; City of Chicago v. Baker, 195 Ill. 54, 62 N. E. 892; McHugh v. City of St. Paul, 67 Minn. 441, 70 N. W. 5; Collett v. City of New York, 51 App. Div. 394, 64 N. Y. Supp. 693; Canavan v. City of Oil City, 183 Pa. 611, 38 Atl. 1096; City of Winchester v. Carroll, 99 Va. 727, 40 S. E. 37. 216 City of Columbus v. Sims, 94 Ga. 483, 20 S. 322; City of Chicago v. Apel, 50 Ill. App. 133; City of Chicago v. McDonald, 57 Ill. App. 250; Van Wie v. City of Mount Vernon, 26 App. Div. 330, 49 N. Y. Supp. 779; O'Rourke v. City of Sioux Falls, 4 S. D. 47, 54 N. W. 1044, 19 L. R. A. 789. 217 King v. City of Cleveland, 28 Fed. 835; City of Indianapolis v. Marold, 25 Ind. App. 428, 58 N. E. 512; Kansas City v. Birmingham, 45 Kan. 212, 25 Pac. 569; Kimball |