(dissenting).
I dissent. The record discloses that on the 17th day of September, 1957, Paul Arnold Brinkerhoff, the deceased two year and two-month old son of the plaintiffs, was drowned in the Jordan and Salt Lake City *219Canal. His body was found in the canal where it crosses under 27th South Street at approximately 12th East in Salt Lake City. The parents of the child, at the time of the death, resided four houses and approximately 200 feet east of the canal. The surrounding neighborhood is heavily populated.
The Jordan-Salt Lake Canal is an artificial canal constructed about a hundred years ago. It is from six to ten feet wide and from three to four feet deep. The canal has the appearance of being a natural waterway, because of its long existence, as compared with the residential area that has grown up around it. The canal is uncovered and unfenced. The banks or sides are smooth in places and bushy, and steep in others, containing heavy vegetation and trees, sticks and debris on the banks. Paul could have reached the canal by a number of routes, that were well trodden and used extensively by children. The City employed a man to check the canal periodically and to remove debris from the trash gates. He testified that he often told children to leave the area of the canal and to not play by the canal.
In the past years, because of several near-drownings, the residents of the area had prepared and presented to the City a petition seeking affirmative relief from the dangers of the canal. On one occasion the Mayor visited the area and met with the citizenry, but the canal remained uncovered or unfenced because of apparent lack of funds in the municipal corporation. Shortly after the accident herein, the canal was covered and enclosed in a pipe.
I am of the opinion the defendant was negligent in maintaining an open, unbarri-caded canal through a residential area of the City. The lower court, sitting with a jury, held the defendant City liable. I agree the court was right in rejecting the count based on attractive nuisance.
The plaintiffs argue and rely upon Restatement of Torts, Section 339:1
“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by structures or other artificial conditions which he maintains upon the land if:
“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or *220realize the risk involved in intermed-dling with it or in coming within the area made dangerous by it, and
“(d) the utility of the possessor of maintaining the condition is slight as compared to the risk of young children involved therein.”
This section has received favorable comment from writers and judges.2 Prosser refers to the section as perhaps the “most effective single section” of the Restatement of Torts. He states that the jurisdictions that follow the section have “discarded the theory of allurement to trespass and have treated the rule as one of ordinary negligence liability.” This acceptance of the section by a majority of the states has broadened the liability of the landowner and has given greater protection to the trespassing child.
I think that the facts of this case fall within this section of the Restatement, and that the lower court was correct in finding the defendant liable.
Paragraph (b) of the Restatement3 refers to the knowledge required by the landowner of the presence of trespassing children. Prosser states that the courts have-set up categories of conditions where the possessor is free to assume that children of insufficient age should not be allowed at large by their parents, and where the child should appreciate the danger. One of these categories is where the only risk is-drowning in water, and in the absence of special circumstances, recovery has usually-been denied.4 But, exceptions have been made in two groups of cases; (1) where the landowner knows or has reason to know that the trespassing children are so extremely young that they cannot appreciate-the danger, and (c) where there is an enhanced risk that is greater than the ordinary, such as deceptive and false overhanging banks on a stream.5
The evidence here indicates the presence-of both of these exceptions. The canal is. in a heavily populated area that contains-*221many small children. The defendant’s employee was aware of children playing in and about the canal; the Mayor was petitioned and even personally visited the site. There was ample knowledge of the presence of small children near the stream.
The evidence also discloses that the stream was brushy and had overhanging weeds and branches in various places. These features make the stream unusually risky to small children.
Paragraph (d) of the Restatement,6 referring to the balancing of risk against utility is favorable to the plaintiffs. The defendant’s efforts of continually telling the children to not play around the canal is not sufficient. The fast urbanization of sections of our cities requires greater effort in behalf of the City to protect its citizens from dangers made apparent by the influx of the people.
All of the elements necessary for liability as set out in Section 339 of the Restatement of Torts are present in this case, and I believe that this is and should be the law in Utah.
Plaintiffs did not claim that their son’s death was due to the negligent maintenance of the canal by the defendant but based their cause of action on the fact that “defendant negligently designed, laid out, constructed, and maintained the bridge, street and sidewalks along Charlton Avenue without providing an adequate fence or other barricade along said canal or between said canal and the sidewalk where the sidewalk passes over the canal.” It is my opinion that in a community containing many residences in which children reside the maintenance of bridges, streets or sidewalks close to a canal without providing an adequate barricade comes within the provisions of Sec. 10-7-77, U.C.A.1953, which provides for claims for damages against a city for the “unsafe, dangerous * * * condition of any street, etc.” and therefore the question of immunity from damages because the canal was being maintained in a governmental rather than proprietary capacity by the defendant is not applicable under the facts of this case. The negligence alleged was not the maintenance of the canal but rather the maintenance of the street in an unsafe and dangerous condition in a populous section near the canal without adequate protection for children by barricading the street and bridges from the canal.
I would affirm the judgment.
WADE, C. J., concurs in the dissenting opinion of McDonough, j.. A.L.I. Restatement of Torts, Section 339.
. See Prosser, “Trespassing Children,” 47 Cal.L.R. 427 (1959).
. Supra, footnote 2.
. Brown v. Salt Lake City, 33 Utah 222, 93 P. 570, 14 L.R.A.,N.S., 619, 126 Am. St.Rep. 828, 14 Ann.Cas. 1004; Smalley v. Rio Grande Western Railroad, 34 Utah 423, 98 P. 311; Charvoz v. Salt Lake City, 42 Utah 455, 131 P. 901, 45 L.R.A.,N.S., 652; Bogdon v. Los Angeles & S. L. R. Co., 59 Utah 505, 205 P. 571; Payne v. Utah-Idaho Sugar Co., 62 Utah 598, 221 P. 568; and Davis v. Provo City Corp., 1 Utah 2d 244, 265 P.2d 415.
. Anderson v. United States, 138 F.Supp. 332 (D.C.Cal.) 1956: Action against United States for damages for death of plaintiff’s three-year old boy who drowned in defendant’s canal. The court held for plaintiff and rejected defendant’s contentions that child was a trespasser and that the pond of water was not per se an attractive nuisance, by saying; That rule is subject to modification in favor of a child of tender years who has no appreciation of the danger involved.
. Supra, footnote 1.