The .obligation resting upon a municipality respecting its streets is that they shall be kept in a reasonably safe condition for use by the public. This obligation depends' upon the fact of the use or the invitation to use the highway as such, so that it exists with regard to a street apparently laid out as such and commonly used, . although in fact never acquired for or legally appropriated to street uses,, and would not exist respecting a strip of land which, although acquired for and .in law appropriated to use as a street, had never been actually opened or graded, and presented to the' eye none of tli'e characteristics which usually indicate the existence of a street or highway. It is afso essential that the municipality shall be lawfully vested with the power to do those things which are necessary to be done in order to secure and preserve the safety of the .highway. It follows that, if, in a given case, by the paramount authority of the Legislature, a portion of a street or highway has ‘been permanently or temporarily diverted from its public use as a street or highway, and appropriated to another public use, which necessarily involves such an interruption or obstruction as Will prevent its use for street purposes, and the municipality is given no power or authority to prevent of regulate its altered use under legislative authority, the obligation of the municipality to keep this portion of the highway reasonably safe for travelers is suspended so long as it remains appropriated to such altered use. For all practical intents and purposes, so far as. concerns the municipality,, the portion of thé street thus diverted from use for highway púrposes stands upon the same footing as if it were private property abutting upon the highway. .
This is precisely the situation disclosed by the record in the present case/ The portion of Park avenue upon which the dynamite magazine was erected had, under the provisions of the *563Rapid Transit Act, been temporarily diverted from use as a' highway, and the city had been left with no power to prevent, such diversion and no authority over the part of the street so diverted. The sole authority left to it, and the sole obligation resting upon it, was to keep in a reasonably safe condition so much of the avenue as remained appropriated to highway purposes, and this was effected by the erection of the fence separating the traveled highway from that portion thereof appropriated to other uses. But for the Rapid Transit Act, the erection of a shed or magazine for dynamite, or anything else, in the public highway would have been an unlawful obstruction which the city was bound to remove. Under the act the city was powerless, and was obliged to permit this portion of its highway to be diverted to other purposes inconsistent with its use as a highway. If the dynamite magazine had been erected and maintained upon private property abutting upon the highway, it is clear that the city would not have been liable for permitting the contractor to store any given quantity of dynamite, for it can be held liable neither for failure to pass an ordinance .forbidding such storage nor for failure to enforce such an ordinance if passed. Under the peculiar condition of affairs created by the Rapid Transit Act, I am of opinion that the city incurred no greater obligation respecting this dynamite magazine merely because it was located upon land acquired and held for street purposes, but which by superior authority had been diverted from such use and appropriated to another and inconsistent use, than it would have incurred if the magazine had been erected upon private property abutting upon the street.
Laughlin, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.