I concur in the decision of the court, that by the weight of authority, a municipal corporation, or public agent, acting in pursuance of law, and with due care and skill, is not responsible for consequential injuries to property which has not been actually taken for public use, occasioned by the construction of a public improvment. Though such consequential injury would, if caused by an individual, or purely private corporation, constitute a good cause of action. I place my assent upon the ground that the law seems to be so settled by a decided current of authority. And I make this statement for the reason, that in the case of Weeks vs. The City of Milwaukee, 10 Wis., 242, I approved the reasoning of Justice Smith in Goodall vs. The City of Milwaukee, 5 Wis., 39, which would sustain the opposite conclusion. I should now, if I felt at liberty to regard the question as a new one, hold that either a city or the state was liable for such damages. And by this I mean such damages as would be recoverable, if the injury was caused by a private person, by reason of their remoteness. The distinction between the two kinds of damages is well settled in the law. And with respect to the recovery of remote damages, municipal municipal corporations stand upon the same footing with all other defendants. They are not recoverable, not because the defendant is a municipal corporation, acting under authority of law, but because the damages *258are so remote that they do not in law constitute a ground of action.
But I have been unable to see the applicability of much that has been said in some of the cuses about remote damages, where the injury shown, though consequential, was clearly not remote, but would have afforded a good cause of action if done by a private person. Such I regard the character of the injury alleged here. It seems to me, that if a man should build a dam upon his own land and cause the water to overflow the lands of his neighbor above, it might as well be said that the damages were remote, as to say so here.
The exemption therefore, can rest only upon the fact, that the injury is caused by a public agent acting under the authority of law with due care, the authorities having settled that there can be no recovery in such cases. I concede that the infliction of such damages, where no portion of the property of the plaintiff is actually taken or occupied for public uses, does not come within the letter of the constitutional provision, prohibiting the taking of private property for public use without compensation. Yet as a matter of justice, the right of the owner to such damage, is as clear as his right to compensation, where his property is actually taken. And to deny it, though not a violation of the letter, yet is entirely out of harmony with the spirit of that constitutional provision.
It is clear that the agents who execute such a public authority with proper care, ought not lo be personally liable. And this was really the question presented in some of the earliest cases out of which the doctrine of exemption from liability arose. And it seems to have grown up insensibly from the position that the agents should not be personally liable, which was founded upon good reasons, to the doctrine that there is no liability anywhere, which I think never ought to have been established. But as already said, believing the law to be so settled, I have concurred in the decision upon that ground.