The plaintiff's real property located in defendant city, and some personal property that it had there stored, were injured by surface waters that accumulated on the premises. It brings this action to recover damages for such injuries on the theory that the actions of the defendant city occasioned its loss.
The complaint alleges two grounds of liability: (1) that the city had permitted the C. & N. W. Ry. Company to remove a trestle from its roadbed that had carried the runoff from plaintiff's property and to substitute therefor an inadequate culvert; and (2) that the city constructed a street a short distance from such premises without making adequate provision for the drainage of the surface waters therefrom. Because of the posture in which the case was submitted to the trial court only the second ground of plaintiff's complaint is involved in this appeal.
In addition to a general denial the answer of the city alleges nine affirmative defenses. By agreement of the parties in presenting the matter to the trial court only two of these were asserted: (1) that the complaint fails to state a claim upon which relief can be granted; and (2) that the street involved was designed, planned and constructed by the South Dakota State Highway Department in conjunction with the Bureau of Public *536Roads, and said parties had exclusive control of all construction and design.
The parties stipulated that the issues raised by these defenses, which they regarded as being in the nature of a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted, be considered by the court on the following factual basis:
"I.
"On the 4th day of September, 1956, the governing body of the City of Rapid City passed a resolution dealing with construction of the road involved in this case, a copy of which is marked Exhibit 'A' and attached hereto and made a part hereof by this reference.
"II.
"That thereafter on September 13, 1956, the road of which the Plaintiff complains in this case was constructed by the State Highway Department of the State of South Dakota by a contractor of its selection.
"in.
"That on the 13th day of September, 1956, the City of Rapid City and the Department of Highways, State of South Dakota, entered into an agreement that the City of Rapid City, at its own cost and expense, would maintain the road involved in this case after its construction. A copy of the maintenance agreement dated September 13, 1956, is marked Exhibit 'B' and attached hereto and by this reference made a part hereof.
"IV.
"That the City of Rapid City secured the right of way necessary for construction of the road involved in this case, and passed a resolution on June 11, 1956, declaring the necessity for condemnation of land for the construction of said road, a copy of which is marked Exhibit 'C', attached hereto and by this reference made a part hereof.
*537"V.
"That on November 22, 1957, the then acting City Attorney for the City of Rapid City prepared a certification that in his opinion the right of ways for the Omaha Street extension project which includes the road involved in this case had been acquired or obtained by the City of Rapid City, either by purchase, condemnation, right of entry, or dedication. A copy of the certification is marked Exhibit 'D' and attached hereto and by this reference made a part hereof.
"VI.
"That the road involved in this case is not a part of the Interstate Highway System.
"VII.
"That the plans and specifications of said road were prepared by the State Highway Department and that said plans and specifications were approved by the City of Rapid City on September 4, 1956, as evidenced in Exhibit 'A' attached hereto. The Construction of said road was in full control of and was initiated and completed by the State Highway Commission of the State of South Dakota."
and
"It is hereby stipulated and agreed by and between the parties that the portion of Mountain View Road involved in this case is a part of the State Trunk Highway System of the State of South Dakota and is so designated on the map of said State Trunk Highway System."
Being of the view that the holding in Hurley v. City of Rapid City, 80 S. D. 180, 121 N.W.2d 21, was controlling, the trial court dismissed the action. Plaintiff appeals from that determination. His basic claim is that the rule of the Hurley case is not here applicable.
In that case we held that "the fact a municipal corporation is asked and does adopt or consent to plans for Interstate High*538ways is not an exercise of its right of eminent domain or subject it to an action for damages when the State Highway Commission thereafter constructs or causes the construction." Plaintiff takes the position that this rule does not apply because we are here concerned with construction that was part of the State Trunk Highway System. We think the rule adopted in the Hurley case is equally- applicable here.
While there are differences between the highways which are a part of the Interstate System and those that comprise the State Trunk System as to their type and general purpose, as well as other details including the Federal participation in each, they are both included within the general system of highways known as the Federal-aid systems. 23 U.S.C.A. § 101 et seq. The statutes spelling out the basic authority and responsibility of the Federal authorities and our State Highway Commission in each seems to be the same. U.S.C.A. Title 23, § 101 et seq.; SDC 1960 Supp. 28.02. These were the basis on which we predicated our holding in the Hurley case.
The resolution referred to in the stipulation of facts as Exhibit "A" contains all of the provisions of the resolution in the Hurley case, except paragraph 4 relating to limited access. As to paragraphs 2 and 3 it differs from the Hurley resolution in that the minimum speed to be designated is 35 miles per hour rather than 50, and the prohibition against parking is only as to double and diagonal parking. These variations in the two resolutions obviously arise from the difference in the type and purpose of highways involved and have no bearing on the ultimate decision in these cases.
As decisional support for the view that the city is liable for its injuries the plaintiff here urges the same cases that were urged upon us by the plaintiff in the Hurley case. We there rejected the doctrine of these authorities and are not persuaded that we should depart from that holding.
Affirmed.
HANSON and BIEGELMEIER, JJ„ concur. HOMEYER, J., dissents. *539ROBERTS, P. J., concurs in' dissent.