I concur in the order affirming the judgment. I am unable to agree that the operation of a sprinkling wagon along a park pathway is a nuisance in any legal sense. In the 3 opinion of Mr. Justice HANSON, nuisance is defined and distinguished. It is there said of nuisances:
"It becomes an absolute duty not to perform the creative acts at all. The wrongfulness thus has shifted to the doing of the acts as distinguished from the mere failure to exercise care in their performance. A nuisance arises from the violation of an absolute duty not to do, and is thus distinguished from negligence which involves the requisite care in the doing."
There can be no absolute duty in the city to refrain from laying the dust in the parkways of a park by means of a *Page 469 sprinkling wagon, either when the park is void of people or when children are playing and bathing in the swimming pool. There is, however, a higher degree of care required when children are present than when they are absent. The case presents a failure to exercise the degree of care required to make the operation safe under the particular circumstances. The operation itself was perfectly lawful. The failure alleged on the part of the city is one of negligence and not of nuisance. I concur with Mr. Justice HANSON in his holding that the establishment, care, and maintenance of parks is a governmental activity of the city and that the city cannot be sued for negligence of its employees in connection therewith. The rule of immunity from liability in tort where the function involved in governmental as distinguished from a corporate or private activity of the city is one that is firmly intrenched in our law. The doctrine rests on the theory that the sovereign cannot be sued without its consent. The municipality in the exercise of its governmental function is acting as the agent of the sovereign and therefore it cannot be required to respond in damages by a suit in court. I see no reason why the city may not make some provision of compensation for injury or damage occasioned by the negligence of its employees or agents who may be engaged in governmental activity even though the city might successfully defend a suit on the ground of its immunity because the activity is governmental. I cannot bring myself to believe the legal principles involved will allow any other result than the sustaining of the judgment of dismissal as entered by the district court.