An opinion heretofore adopted in this case is reported, ante, p. 802, reference to which is made for a general statement of the issues. A rehearing has , been allowed and the cause again submitted for further consideration upon a single question, viz.: Had plaintiff’s cause of action accrued when the action was brought?
Plaintiff and the Omaha Water Company entered into three written contracts of like tenor, by the terms of which the plaintiff agreed to, and did, advance to the water company the cost of extending its water-mains into and through Creighton’s First and Second additions to the city of Omaha which had been platted by plaintiff. Each of the contracts contained the following provision:
“Said The Omaha Water Company hereby agrees that when the city of Omaha shall by competent authority order the extensions herein provided for and shall order hydrants placed thereon at intervals of not more than 400 feet under an agreement with said The Omaha Water Company to pay rental for such hydrants, said water company will there*811upon refund the cost of the construction of said mains to the said John A. Creighton Real Estate & Trust Company.”
The mains were extended according to the agreement, and thereafter the city of Omaha purchased the system of water-works theretofore owned- by the water company and, as heretofore held, assumed the obligation of these contracts. No hydrants were ever placed upon the mains, and, since the city had purchased the plant, of course no contracts were made with the water company to pay rentals. In the former opinion the view was taken that, until the hydrants were actually placed, or the city had wrongfully refused to install hydrants, no cause of action would accrue.
One of plaintiff’s contentions is that the contract obligation was matured by the provisions of section 3760, Comp. St. 1922. This statute was enacted in 1913, which was after the making of the contracts involved in this action and after the city of Omaha had, by purchase, acquired the water, plant previously owned by the Omaha Water Company. The part of said section 3760, pertinent to the present inquiry, is as follows:
“Said metropolitan water districts shall maintain free of charge the number of hydrants heretofore established for fire protection in the streets of municipalities constituting said district, and in addition thereto shall maintain ‘regular’ fire hydrants approximately four hundred feet apart on service mains in the streets of said municipalities not now equipped therewith.”
The Metropolitan Water District, mentioned in the statute quoted above, is a municipal corporation created by statute to control and operate the water plant owned by the city of Omaha. In our former opinion no attention was given to this statute, because, while mandatory in terms, it was believed to be directory only, and did not impose the obligation to install or maintain fire hydrants except when and where there was a real need of such hydrants for fire protection. We are still inclined to that view. But it is alleged in the petition that—
*812“Creighton’s First addition comprises 11 blocks, subdivided into 210 lots; that since the platting of same and prior to the filing of the petition more than 150 residence houses have been erected on said lots and more than 150 families now reside in the houses in said addition; that the houses so erected are located generally throughout said addition; that said houses and contents are of a value amounting to several hundred thousands of dollars, and the same and the families occupying said houses, by reason of the failure and neglect of the defendants to locate and establish water or fire hydrants on the water-mains laid and extended in and through said addition pursuant to the said,4eontracts between this plaintiff and said water company, are wholly without adequate protection from fire. * * * Creighton’s Second addition comprises 6 blocks, subdivided into 88 lots; that, since the platting of same and prior to the filing of this petition, more than 50 residence houses have been erected on said lots and more than 50 families now reside in the houses in said addition; that the houses so erected are located generally throughout said addition; that said houses and contents are of a value amounting to several hundred thousands of dollars.”
This is followed by allegations similar to those quoted relating to Creighton’s First addition.
A majority of the court are of the opinion that the facts alleged are sufficient to clearly show an actual and real need for the installation and maintenance of hydrants for fire protection in Creighton’s First and Second additions to the city of Omaha, and that, under the circumstances, the above quoted statute imposes on defendants the duty of installing fire hydrants on the water-mains laid pursuant to the contracts between plaintiff and the Omaha Water Company, and that the facts alleged show that defendants are wrongfully neglecting to perform the duty imposed by statute. If the conclusions arrived at are correct, then it follows that the power and the duty are in defendants to mature the obligation to refund the cost of the mains to plaintiff. To hold that the obligation to refund has not ma*813tured would be to permit the defendants to take advantage of their own wrong, and thereby defeat a just obligation. Neither good morals nor law will sanction such a course.
The court is of the opinion that the petition states a cause of action, and that the demurrer should be overruled. Our former opinion, in so far as it conflicts with the views herein expressed, is vacated.
The judgment of the district court is reversed, and the cause is remanded for further proceedings.
Reversed.