(dissenting).
Subsequent to the filing of the majority opinion in this case a rehearing was granted, additional briefs were filed and the matter was re-argued on March 21st.
The importance of this case, and the unlimited implications of the majority opinion require me to further amplify my views.
I have again examined the law applicable to the facts alleged and am still unable to determine on what theory the City of Nampa can be held liable.
As an accommodation to Splinter’s tenant, permission was granted by the City to install a butane tank in the alley adjacent to plaintiff’s property, which was also an accommodation to the land owner and a benefit or improvement to his property. The only interest that the City would or could have in the proper installation of the tank would be to determine that its installation would not obstruct the use. of the alley by the public in the ordinary and customary way, and not create a nuisance per se. The installation of the tank was for the use and benefit of the plaintiff’s tenant and to improve plaintiff’s property. The fact that the land owner, or the tenant, or both, maintained a coal chute in the vicinity of the tank was a matter ’ over which the City had no control whatsoever, and to hold that the City was liable for a subsequent explosion caused by the negligence of the gas company while filling the tank, and in spilling the gas, is in substance permitting the land owner to recover for his own negligence.
The common law rule that one should not use his land so as to injure the property of another does not apply here.
The rule announced in the majority opinion would be, in effect, that the plaintiff Splinter should not be permitted by the City to use City property, as well as his own property, in a manner to cause injury to himself; and if'the City permits him to use his own or City property, or both, in a manner to cause injury to himself, the *304City in not objecting to or prohibiting his so doing, becomes liable for the consequences of plaintiff’s own act.
The City did not own the tank, did not order it installed, nor installed in any particular place. It permitted the installation for the benefit of plaintiff’s property, and if the land owner or his tenant saw fit to install the tank at a location and in a manner that might, due to unforeseeable contingencies, cause damage to the tenant or to the land owner, or both, the City, on no theory that I am able to find, could be considered negligent or liable for the consequences of such act.
The majority opinion in this case would, in effect, insure the land owner against his own act of negligence, and the negligence of others over which the City had no control. It might be inquired, should the City of Nampa be held liable for the unforeseeable consequence and result of the negligence of the land owner himself, or his tenant, or agent, or third party not employed by the City?
It would be more logical to conclude that the plaintiff Splinter would be liable to the City of Nampa for permitting an explosion which caused damage to the City’s alley or street.
Much was said in the argument and in the briefs on the question of whether or not the issuing of a permit for the installation of the tank and supervision by the City Engineer were governmental or proprietary functions. In my opinion, these are governmental functions, and this Court has many times so held. I do not believe there would be a liability on an individual under the same circumstances, and even though it were a proprietary function of the City, still the City would not be liable.
While the City has an affirmative statutory duty to pedestrians and persons using the streets to keep them reasonably safe and open for use in the usual and customary manner, and may be held liable for a negligent performance of this duty, no precedent that I have been able to find holds that the City is liable for the performance of a purely governmental function unless made so by statute.
The installation of the tank was in itself not a nuisance, nor did it in anywise obstruct the free and ordinary use of the alley; nor does the City have complete and exclusive control and dominion over the streets and alleys. Every property owner abutting the street is entitled to a use not common to other citizens. Thus he is entitled to ingress and egress from the premises and has the right, with other abutting owners, to use underground sewers, gas works and electrical connections, and in this sense has a property right in the street abutting his property, and this Court has so held. Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, 17 L.R.A.,N.S., 497.
The rights of a property owner abutting a street are, of course, subject to rea*305sonable regulations in the exercise of police power, and the exercise of police power in making such rules and regulations is a governmental and not a proprietary-function. Fosters, Inc., v. Boise City, 63 Idaho 201, 118 P.2d 721; Strickfaden v. Greencreek Highway District, 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057; Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508.
The City of Nampa is not the owner of the property where the explosion occurred, and hence had no control over it. The installation of the butane tank or the maintenance of the coal chute, could under no theory be said to be advantageous to the City.
The explosion complained of occurred on plaintiff’s property and within his building. The tank itself did not explode. The coal chute and the opening into the basement where the explosion occurred were placed there by the owner of the property and were in existence prior to the time the butane tank was installed.
It was not the City or any of its agents that put in motion the chain of events which caused the injury complained of. The spilling of the gas by the butane company’s agent was not an act of the City. No act of the City in the exercise of a governmental or proprietary function in anywise caused the explosion or the damage complained of. Nor am I able to find any act or thing done by the City complained of in the complaint that even remotely caused the explosion.
There are but few similar cases passing on the question of alleged liability complained of here, and those that have passed on the question have uniformly held the city not liable. In the case of Beeson v. City of Los Angeles, 115 Cal.App. 122, 300 P. 993, a suit was filed by the mother of a child who had drowned in an unguarded storm sewer. The plaintiff claimed that the City had left the sewer open and in a dangerous condition. In denying the claim, the Supreme Court of California held that streets were not playgrounds for children, and said 300 P. at page 997: “In all of the cases thus far decided the injured party was using the street in which he was injured, or the property which caused the injury, in the usual and ordinary manner in which it was contemplated that the street or property would be used. We are of the opinion that in passing and adopting section two of the act approved June 13, 1923, the Legislature intended to limit the liability of the city for damages resulting from defective streets, works, or property to damages suffered in the ordinary, usual, and customary use thereof. * * * ‘As a general rule, highways and bridges are constructed for ordinary use, in an ordinary manner, and not for an unusual or extraordinary use, either by crossing at great speed or by the passing of a very large and unusual weight. A township is not bound to do more than to so construct *306its bridges as to protect the public against injury by a reasonable, proper, and probable use thereof, in view of the surrounding circumstances, such as the extent, kind, and nature of the travel and business over them.’ ”
In the case of Foster v. Capital Gas & Electric Co., 125 Kan. 574, 265 P. 81, an action was brought for damages for the destruction of a house caused by the explosion of gas alleged to have been caused through the negligence in the laying of sewer and gas pipes in the city streets, permission' having been granted the gas company for that purpose. In holding that the .city was not liable, although the gas company was, the Supreme Court of Kansas said 265 P. at page 83: “In our opinion the ■city is not liable because the injury was too remote and because the city was engaged in a governmental function. The general rule is that municipal corporations are not liable in damages for negligence of their officers in the discharge of their duties when engaged in governmental functions, unless the liability is expressly imposed by law. * * * In the instant case, it is argued that the construction of a sewer is a ministerial and not a governmental function, and that the city is liable for any tort committed in the performance of a ministerial function. We think not. The .construction and maintenance of a sewer, in our opinion, is governmental as distinguished from ministerial or proprietary. We believe it the better and more reasonable rule to hold that (except in injuries arising from defects in streets or highways) the municipality is not liable when engaged in performing governmental functions.”
In the case of Von Almen’s Administrator v. City of Louisville, 180 Ky. 441, 202 S.W. 880, an action was brought to recover damages for the death of a child that had drowned in a pond which was formed due to obstructions maintained by the city on a public street. The child at the time was playing near the pond and fell in. The Court held that the city was not liable since the accident did not happen on, or result from its ordinary use of the street, the ordinary use of the street at the point in question not being dangerous, and said 202 S.W. at page 881: “We do not think the facts justify a lengthy discussion of the alleged liability of the city for the accident upon the ground of negligence in the maintenance of the street, since the accident did not happen upon, or result from the use of, the street, the boys having purposely left the street in obedience to their childish instincts for amusement; and, although the place of the accident was barely off the street right of way and within less than four feet of the sidewalk, the uncontradicted proof shows that the wall, the pond, and the culvert with its sewer connection, considered severally or together, were not constructed or maintained in such a manner as to render any reasonable use of the street, by children or adults, danger*307ous; hence no danger could 'have been anticipated even to children playing in the street; and, as stated, this accident did not happen to decedent from any such use of the street, but from playing in the pond near the street where it was accessible from the street, just as it would have been at any other point within sight of the street, but no more so.”
As applied to the case at bar, the City of Nampa did not maintain the alley in a dangerous condition, and the manner and method in which it was maintained in nowise caused or contributed to the damage and injury complained of.
The injury and damage complained of in the case at bar occurred because of intervening and unrelated causes and the City’s permitting the plaintiff or his tenant to install a butane tank for the use of the plaintiff’s property was not the proximate cause of the explosion. The proximate and intervening agency that caused the damage in this case was unrelated to and unconnected with any act permitted or done by the City. The spilling of the butane gas and its entering through an opening maintained by the plaintiff on his own property was the direct and proximate cause. If the City by any theory could be held liable in this case it would be something that must be reasonably foreseen and provided against, and if there was any duty to provide against the contingency which happened in this case, it would be a duty to be performed by the land owner.
If the coal chute had not existed or had been cared for by the plaintiff Splinter so that the gas could not run down it, the injury complained of here would not have occurred.
There is no claim that the tank itself was defective or that it was improperly installed or that the City maintained the tank or the alley in a way that caused the gas to spill or enter the building. Nothing happened until the gas was spilled by an employee of the company, which was apparently ignited by a spark in the basement of the building destroyed. This was not an act of the City.
Further, the last responsible agency that put in force the chain of events that caused the damage and injury was a servant of the gas company and not a City employee or agent.
The further prolonging of this dissent would serve no useful purpose. Summarizing, it is my opinion that the City is not liable for the injury complained of for the 'following reasons:
First, the permit to install the tank as done, and as supervised by the engineer, was a governmental function.
Second, there would be no liability and no legal claim for damages even though the acts charged to the City were proprietary functions.
Third, the damage and injury complained of was the result of negligence of a third *308party and the negligence and carelessness of the plaintiff, his tenant and agents.
Fourth, no acts of the City contributed to or were the proximate cause of the damage and injury complained of.
Fifth, one should not be allowed to recover for a condition which he himself created, and which causes damage to himself.
For reasons stated in Justice TAYLOR’S dissent, I am also of the opinion that the plaintiff Metzer has no claim against the City.
The judgment should be affirmed.
Justice TAYLOR concurs in this dissent.