On Motion for Rehearing.
The right of a city to maintain and operate a garbage disposal plant upon any particular lot or parcel of land necessarily depends upon the proprietary rights of the city in such land. In being upon said land to operate such plant the city’s employees are neither trespassers nor mere licensees, but act in virtue of and in the exercise of the city’s proprietary rights therein, as city employees. If a city’s employees in the course of their employment 30 exercise the proprietary rights of a city in land as to maintain a nuisance thereon, the city is liable for the damages proximately caused thereby, because in its. proprietary capacity the rule of respondeat superior applies to a city. It follows that any damaging or destroying of the property of a lot owner, proximately resulting from the tortuous maintenance of a nuisance by city employees upon city-owned or -controlled land, is not a damaging or destroying of private property for public use within the meaning of Section 17, Article 1, State Constitution. A city can condemn or damage private property for public use only when it acts as an arm of the State, not in its proprietary capacity. See Keller v. Corpus Christi, 50 Tex. 614,, 32 Am.Rep. 613; Gainesville, H. & W. Ry. Co. v. Hall, 78 Tex. 169, 173, 14 S.W. 259, 9 L.R.A. 298, 22 Am.St.Rep. 42.
The motion for rehearing is refused.
Refused.