I dissent.
Briefly, the question presented here is whether a municipal corporation is liable under our Public Liability Act (Gov. Code, § 53051) for the destruction by fire of plaintiff’s home, by reason of its water main and hydrant used for fire protection becoming clogged, thus making it impossible to obtain sufficient water to quench the fire. The majority holds that the case does not come within that act. Certain principles are conceded: (1) That the city’s fire prevention function is governmental rather than proprietary, and that in the absence of a statute there is no liability for a tort committed in the course of that activity by reason of the doctrine of sovereign immunity; (2) that the liability act includes governmental as well as proprietary activities; (3) that the liability act covers cases where the injured person is using the dangerous or defective city property and also where the city is using its property or'works and injury is proximately caused thereby; (4) that the choked hydrant constituted a dangerous and defective condition in the city’s property known by the city to exist; (5) that funds were available to repair said hydrant; (6) and that such condition was the proximate cause of the destruction of plaintiff’s house by fire.
How then does the majority reach the conclusion that the case is not covered by the Public Liability Act? The real basis appears to be that to apply it here would impose a “crushing burden” upon the city. Formally the decision is founded upon the reasoning that there was no liability at common law—no duty of care upon one, public or private, supplying water for extinguishing fires, to the inhabitants of the city. That reasoning appears chiefly from the cases of Steitz v. City of Beacon, 295 N.Y. 51 [64 N.E.2d 704, 163 A.L.R. 342], and Moch Co. v. Rensselaer Water Co., 247 N.Y. 160 [159 N.E. 896, 62 A.L.R. 1199] relied upon and quoted in the majority opinion. In the Steitz case the statute involved was not a public liability act; it was nothing more than a waiver of sovereign immunity—of the privilege not to be *493sued. Hence the court could not find a duty imposed upon the city to keep its property reasonably safe, from the mere statutory obligation of a city to supply fire protection, and none flowed from a mere permission to be sued. There is further discussion in the same tenor, emphasis being laid on the governmental character of a city’s obligation to furnish protection against fire. That argument is, of course, wholly beside the point, because the obligation is here imposed by the Public Liability Act to maintain all city property, whether used governmentally or not, in a safe condition.
The complete answer to all that discussion is that it is not the obligation of the city to maintain a fire department from which flows the duty to maintain its property in a safe condition. It is the liability act itself. This act constitutes more than a mere waiver of sovereign immunity which the court considered in the Steitz case. No exceptions are provided in this act. It says that cities shall be liable for any injuries to any person or property resulting from the dangerous or defective condition of its property or works. If there is a liability for such condition, there must necessarily be included therein a duty to maintain its property in a safe condition—a duty to all persons and to all owners of my property that may be injured by a breach of that duty, including inhabitants as well as others. The cases have uniformly held that the Public Liability Act created and imposed a duty upon the public agencies named to maintain their works and property in a nondangerous and nondefective condition, which is not affected or controlled by the common law. It is said in the first case decided by this court which considered the act: ‘1 The legislature has removed from the consideration of the ease all common law and archaic obstacles that formerly stood in the way of a citizen recovering from a municipality damages for personal injuries suffered from dangerous and defective conditions of public streets, by adopting in 1923 (Stats. 1923, p. 675), the following act . . . the obligation of a city to make its highways reasonably safe for general use cannot be chartered away even though a municipality should attempt to do so.” (Rafferty v. City of Marysville, 207 Cal. 657, 660 [280 P. 118].) The District Court of Appeal in discussing the title of the act said: “ [T]he second part [of the act], as the title also indicates, creates an entirely new and different liability, to wit: the liability of the county,—making the county a legal entity, liable for the negligence of its officers in certain cases.” (Italics by the court.) (Gorman v. County of Sacramento, 92 Cal.App. *494656, 668 [268 P. 1083].) In dealing with the then section 1623 of the Political Code imposing liability on school districts for negligence the same as the Public Liability Act, this court said it (section 1623) “creates a liability on the the part of school districts for damages ... by reason of the negligence of the school district. ...” (Ahern v. Livermore Union High Sch. Dist., 208 Cal. 770, 782 [284 P. 1105].) We said in Fackrell v. City of San Diego, 26 Cal.2d 196, 209 [157 P.2d 625, 158 A.L.R. 625] : “Obviously, the city is not being held as an insurer of anything but it is being held to the standard of ordinary care in planning, constructing, and maintaining its streets and sidewalks. Liability for its failure in that regard is not due to the whimsy of court or jury; it is imposed by the public liability statute. ... It now seeks to justify its conduct by announcing for itself a rule that it assumes no responsibility for the condition of the sidewalk and that pedestrians must use the same at their own risk. But its legal duty in the premises is defined by general law (Stats. 1923, p. 675; Leering’s Gen. Laws, 1944, Act 5619) and negligence and liability therefor do not depend upon, and cannot be limited by, self-formulated standards.” (Italics added.) This court discusses the question in detail in Gibson v. County of Mendocino, 16 Cal.2d 80, 84 [105 P.2d 105], in determining that the common law rules of liability were not applicable: “In effect, it has been held that the rules with respect to the measure of care to be exercised by owners of private property toward invitees and licensees have no application to the duty imposed by the statute on a county, municipality or school district to maintain public property in a safe condition. Thus, in the case of Castro v. Sutter Creek U. H. S. Dist., 25 Cal.App.2d 372, 377 [77 P.2d 509], where the issues involved the applicability of the same section of the act here concerned, the plaintiff, who had accompanied her two daughters to a dance held at an auditorium belonging to a school district, was shown to have received an injury because of having stepped into a hole as she was ‘crossing over’ a parkway or strip of land lying between the sidewalk and the curving adjoining a driveway which extended along the south side of the auditorium, which strip of land was owned by the school district, but was intended to be used only as a lawn plot or place for the planting of trees. In that case, where arguments were directed to the question whether at the time of the accident the injured person was a licensee or an invitee, the court ruled that the answer to that question was im*495material and not determinative of the liability of the defendants. The provisions of the section were there set forth to the effect that a county, municipality or school district is liable for injuries to persons and property resulting proximately from the dangerous or defective condition of public buildings, grounds, etc., in all cases where the government or managing board of such school district, county, municipality or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such buildings, grounds, etc., and within a reasonable time after acquiring such knowledge had failed to remedy such condition. The court in that case said that the provisions of the section ‘base liability upon any act which leaves a place or condition dangerous or defective and liable to cause some injury to the general public’, and that the section was ‘designed not for the safety, particularly, either of licensees or invitees. . . .’ ”
There being a duty thus established by the liability act, there remains no reason why the act should not apply to this case.
Reliance is placed by the majority, however, on cases decided before the 1923 liability act, which it says hold that neither a city nor an individual could recover from a water company for a property loss by fire due to the company’s failure to maintain its water system properly (Ukiah v. Ukiah Water & Imp. Co., 142 Cal. 173 [75 P. 773, 100 Am.St.Rep. 107, 64 L.R.A. 231] ; Niehaus Bros Co. v. Contra Costa Water Co., 159 Cal. 305 [113 P. 375, 36 L.R.A. N.S. 1045]) and that the Legislature did not intend to abrogate that rule when it adopted the Public Liability Act. The latter premise is at least dubious for there are no exceptions in the scope of the liability act. It does not say that it is right for the city to maintain dangerous and defective property used for fire fighting. In any event, these eases are clearly wrong. The inaccuracy of those cases is ably pointed out in referring to Mock Co. v. Rensselaer Water Co., supra, 247 N.Y. 160 [159 N.E. 896, 62 A.L.R. 1199] : “. . . Cardozo speaks of the failure of the water company as if it were merely a failure to confer a benefit upon the injured householder, and in denying liability relies upon the recognized principle that one is under no duty to confer a benefit upon another. Of course, the plaintiff did not complain of the failure to receive a benefit. His real ground was that, because of reliance upon the undertaking of the water company to maintain an adequate pressure *496at the hydrants, the city had failed to make other provision for the protection of its citizens, and the plaintiff, among others, being lulled into a false sense of security, had failed individually to take measures to protect his property. In substance, the situation does not differ from that where a train cuts a fire hose or blocks a street, so that the fire department cannot extinguish a fire. In both cases the defendant has prevented a third person from rendering assistance. Where the act is after the beginning of the fire, there is an immediacy of need which does not exist in the waterworks situation, yet since it is well known that fires occur from time to time in any town large enough to afford waterworks, there would seem to be such a substantial risk of harm to the group of which the plaintiff is one as would make such cases directly in point. The risk to the individual plaintiff is less, but the chance of harm to any one of a large number is great. Furthermore, in the Moch case, it was alleged that the defendant had failed to keep up the pressure after knowing of the fire. It had been held before the Moch case, as it has been held since, that the negligent breaking of a water main may be the basis of a cause of action in favor of a householder who had been thereby deprived of the assistance of the fire department in quenching a fire. Analogous are the cases where a railroad has undertaken more than its legal duty in supplying at a railroad crossing a watchman upon whose presence travelers frequently using the crossing have relied, and those where an agent in charge of a building has failed to keep it in repair, as a result of which a third person is injured. In these cases where the wrong consists of a failure to act, the older viewpoint was that since there is mere ‘nonfeasance’ and no direct obligation to the injured person, there can be no liability to him. The fallacy of this older point of view has been today generally exploded. '. . .” (Cardozo and the Law of Torts, Professor Warren A. Seavey, 52 Harv.L.Rev., 372, 392.) Many more illustrations may be added to those suggested by Professor Seavey. The firefighting equipment may be maintained in a dangerous and defective condition with full knowledge of the city officials— brakes on the automotive equipment may be defective— fire hoses may be defective and burst when water is run through them under pressure—hydrants may be broken off or burst from freezing and no effort made to repair them until water discharging therefrom damages private property. The liability act was obviously intended to apply to situations such *497as these. If such dangerous and defective conditions result in loss or damage to property by fire, why should it not be applied to extend protection to a person so damaged? To my mind there is no basis in reason, logic or common sense for the construction placed upon said act by the majority. Under the facts alleged in the complaint and not denied, plaintiffs lost their home as the direct and proximate result of the dangerous, defective and unsafe condition of the fire hydrant which was known by the city officials to exist and they failed to cause said condition to be repaired although funds were available for such purpose.
I would, therefore, reverse the judgment.