I concur in the dissenting opinion of MR. JUSTICE ADAIR, but in view of the theory upon which the case was argued in this court, I desire to add the following:
The case was presented to the district court and to this court upon the principal question of the application of section 5080, Revised Codes, as amended by Chapter 122 of the 1937 Session Laws. So far as here pertinent that section appears in the special concurring opinion of the Chief Justice. It is well settled in other jurisdictions that when a city grants a permit to make an excavation, then the city becomes a joint actor with the person making the excavation, because of its nondelegable duty to keep the streets in a safe condition. (Spiker v.Ottumwa, 193 Iowa, 844, 186 N.W. 465; City of Denver v.Aaron, 6 Colo. App. 232, 40 P. 587; Tabor v. City ofBuffalo, 136 A.D. 258, 120 N.Y. Supp. 1089.)
Section 539 of Ordinance 1177 of the city of Billings provides that no person may dig into a street without first having obtained a permit and without having filed a bond. It also provides that plumbers may furnish a yearly bond. In the instant case the one who made the excavation had furnished the yearly bond but had made no application for a permit to make the specific excavation. Sections 201, 202 and 203 of Ordinance No. 1162 provide for a building permit before a building may be constructed. The excavation in question was for the purpose of connecting a building under construction to the sewer line in the street. A building permit was secured to build the building under construction. Under the ordinance the application for the building permit must show in detail the plans for the building. Those plans would necessarily show that the building is to be modern and *Page 269 that connections with the sewer and water must be made. The purpose of the building permit is to give the city notice of the fact that the building is to be built, and further to give the city an opportunity to inspect it during the course of building. It is reasonable to suppose that in granting the permit the city authorized the builders to complete it and to make the building as usable as the plans called for it. It would be ignoring common sense to say that the city, when it granted that permit, did not become aware of and authorize the permit holder to make whatever connections were necessary with the public utilities, including the sewer line and water line. By its action in fixing the building permit the city knew that the excavation would be necessary, and, to my mind, authorized the making of those excavations. It was within the power of the city, acting under the law, to issue a building permit. Its action in doing so was not ultra vires. The failure of the plumber to secure the permit as contemplated by section 539 of Ordinance No. 1177 in no way affects the legality of the acts of the city in issuing the building permit. It seems to me the cases cited hereinbefore are applicable and the complaint states a cause of action even though no allegation of compliance with Chapter 122 of the Laws 1937 appears.
Rehearing denied November 12, 1943.