specially concurring.
I agree that the nomenclature of nuisance should be discarded in personal-injury actions for damages allegedly caused by a vicious animal. The Restatement language of strict liability is more accurate. Under either theory, however, an individual who keeps a vicious animal after having acquired knowledge of its propensities is strictly liable for resulting harms. *48Hunt v. Hazen, Adm., 197 Or 637, 640, 254 P2d 210 (1953). There is no evidence in this case that the keepers of the animal had any reason to know that it might harm an allegedly innocent bystander. The nonsnit, accordingly, was correct on any theory.
I would affirm, however, for the reason given by the trial judge in the order of nonsuit: governmental immunity. The activity that gave rise to the alleged injury was that of a police officer maintaining order. Even if, upon another trial, the plaintiff can muster evidence that might support liability in an action against an individual, a city government ought to be immune from vicarious tort liability in connection with reasonable force employed in police work.
For the purposes of deciding whether or not governmental immunity ought to apply, it should make no difference whether the officer was using a dog, a tear-gas missile, or a night stick. Police work necessarily involves the risk that force will be required. Any police weapon, if used improperly, can seriously harm the citizen who finds himself in the area in which police action is taking place. This truism may account in part for the development of the rule of sovereign immunity. Characterizing the use of certain weapons as nuisances amounts to an end-run around governmental immunity in situations where immunity is intended to function.
If the focus o£ the inquiry is to be upon animals, outside the context of their use and of their custodians, it is possible to construct a theory for this case within the precedent framework of some of our earlier cases dealing with nuisances. If, on the other hand, the focus of inquiry is upon the city government and the activity out of which this controversy arose, the fact that the instrumentality causing the harm was an *49animal does not appear to be of transcending importance.
The denial of immunity to government in cases properly brought under the law of nuisance does not offend the principles underlying governmental immunity. A private nuisance that substantially interferes with the enjoyment of property must be stopped, or paid for, under well-known constitutional principles. See, e.g., Thornburg v. Port of Portland, 233 Or 178, 376 P2d 100 (1962). A trespass, as by casting water on the land of the plaintiff, is not sheltered by immunity. Levene et ux. v. City of Salem, 191 Or 182, 190, 196, 229 P2d 255 (1951). But a pseudo-nuisance is another matter. Those personal-injury cases in other states which have, for the purpose of by-passing the immunity rule, haphazardly characterized negligent wrongdoing and intentional harms as public nuisances need not be perpetuated as precedent in this state. See cases collected in Annotation, 56 ALR2d 1415, 1419 (1957). On the other hand, those suits and actions which have allowed relief against cities in cases of true nuisance, such as flooding, permitting garbage to accumulate, and the like, are sound extensions of the principle that the government may not take private property for public use without payment. Levene v. City of Salem, supra; Wilson v. City of Portland, 153 Or 679, 58 P2d 257 (1936).
Whether or not sovereign immunity is a disfavored policy in a majority of the states is irrelevant in this state. See Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282 (1961). The employment of police officers to maintain order is precisely the sort of activity in which the government should engage without fear of respondeat superior liability. See eases cited in Prosser, Torts 1006 (3d ed 1964). *50Whether the liability of an individual police officer who uses dangerous instrumentalities ought to be predicated upon notions of strict liability or of negligence, the trial court in this case properly held that the city, as a governmental body, was not liable under any theory.
Holman, J., joins in this opinion.