The importance of this appeal is not measured by the amount of the judgment recovered in this particular action. Upon the argument it was stated, without contradiction, that an accumulation of upwards of $200,000 of claims against the city was waiting to follow in the train of this action if successful.
I find myself unable to concur in the conclusion reached by my associates that the judgment should be affirmed, and while their decision may so involve questions of fact as to be controlling upon any further appeal in this action, it still seems proper to briefly state the grounds of my dissent.
The plaintiff has been allowed to recover two entirely distinct, independent classes of damages, namely, those resulting from the *91action of the flood as such upon her property; and, secondly, those resulting from the filth and sewage deposited by the overflow of the creek.
I think that her recovery against the city, so far as it is based upon the mere action of the waters, was not warranted. The learned referee held the city liable for this (as distinguished from the sewage), for two reasons. In the first place, lie found that it, by means of sewers, conducted a large amount of surface water and drainage into the creek, thus augmenting its volume, and that by the construction of bridges with insufficient spans, and by permitting the channel to be narrowed by various obstructions, it dammed up and retarded the flow and in a substantial degree caused an increase of water upon plaintiff’s premises. In the second place, he found, as I understand his decision, that because the city used the creek for sewerage purposes it so assumed dominion and control over it that under the powers conferred it became obliged by widening and deepening to furnish a channel sufficient not only to carry off the extra water and sewage turned into it, but also sufficient to carry off all of the water flow and surface drainage which came into the creek naturally and independent of the city. This latter theory of responsibility upon the part of the city is entirely independent of its liability by reason of its increasing and obstructing the natural flow of the creek. It means that because the city has used the creek for one purpose it is bound to make it sufficient as a watercourse or sewer for all other purposes, even though thé latter were unchanged and unaffected by its acts.
So far as the first of these grounds is concerned, a careful consideration of all of the evidence seems to demonstrate beyond any reasonable doubt that the extra drainage which the city turned into the creek and the obstructions which it caused or permitted to exist in the bed thereof, did not in any substantial degree whatever increase the volume of water upon plaintiff’s premises or the damages therefrom. Her land was situated upon a- comparatively low level. The flood was an extraordinary one. The creek was the only outlet for a valley extending from its outlet to its source and including a watershed of over one hundred square miles exclusive of the city. There was a great quantity of water, both by rainfall and melting of snow, and the ground was already so saturated as *92not to absorb much of it. Long before the stream had reached any point where it could be said to be affected by the defendant’s obstructions, it had carried out dams, overflowed its banks, spread over highways, submerged railroad tracks and inundated large tracts of country. It inevitably spread over plaintiff’s lands, and, in my judgment, the conclusion that the volume and destructive force of this great torrent, which had been increasing at every foot of its progress for twenty miles, was materially augmented by the flow of the few sewers which emptied above plaintiff’s premises, or by the alleged obstructions, is based upon theorizing and the somewhat finely-spun deductions of experts, rather than upon a practical and reasonable consideration and weighing of all the evidence.
So far as the second ground of this particular liability is concerned, it is altogether too burdensome a rule under the circumstances of this case to hold that because the city utilized the creek for one purpose it became bound to make it sufficient for all other purposes and demands which existed independent of it; that because it drained some sewers into the channel it so far assumed dominion and responsibility that it became obligated to make such channel adequate and sufficient for such an unusual freshet as occurred in 1901.
There was no evidence that a flood of such magnitude ever occurred but once before in the history of the city, and that was over thirty years ago. It is apparent that owing to natural conditions, and independent of any complications caused by the city, it would have been a difficult and expensive undertaking to provide for such an emergency a^ occasioned plaintiff’s damages. And while the court may think that the city, in the light of its recent experience and in the exercise of a wise discretion and progressive policy, ought to protect its citizens from the recurrence of any such disaster, or even may feel that it would have been justified in so doing before the flood of 1901, such view does not by any means lead to or justify the conclusion that the city and its taxpayers are to be made liable because it did not do so. A municipal government is vested with wide powers of discretion as to what improvements it shall make and when it shall undertake them.. It is only bound to guard against dangers reasonably to be apprehended. And neither the authorities cited in behalf of plaintiff nor the evi*93dence as a whole seem to me to justify the decision that the city by its limited and restricted use of the creek had become liable to protect plaintiff from such an extraordinary emergency as caused her injury, even though such emergency and injury were not in fact altered or increased by any act performed by it.
The second class of damages allowed to plaintiff is for the sewage and filth which were deposited upon her premises. This injury is distinct from that caused by the mere action of the water in injuring and destroying her property, and I think that she was entitled to recover for it.
For a long time the city has been accustomed to drain its sewers into the creek. So far as the property owners are concerned it has done this by sufferance and without any such precautions as ordinary prudence required. The draining of sewage into the creek was something for which the city was solely and directly responsible. Its action in this respect involved considerations not only of property but of health and general welfare, and it was bound to solve these problems in a proper and reasonable way or else to meet the responsibility for not doing so. Under the circumstances presented in this case, it became liable to see that the sewage which it discharged into the creek did not become a source of injury and damage to property owners. If after it was discharged into the creek it was cast upon somebody’s lands, a different rule of liability applies than should govern in the case of a flood or natural water flow for which the city was not in any way responsible. Having conducted this matter into the channel of the stream, where it might be and in fact was thrown upon plaintiff’s premises, the city became liable for the damages which resulted therefrom.
These views lead me to the conclusion that the judgment appealed from was erroneous because it included with the damages for a deposit of sewage for which the city was liable, damages for the results of the flood proper for which I do not think it was liable.
Judgment affirmed, with costs.