concurring in the result.
Although I am unable to accept as tenable the reasons given for the controlling *764opinion, the trial court’s judgment was proper and should be affirmed on the basis that the situation disclosed constituted a nuisance and the pleadings of plaintiff were properly amended to conform to the proof.
It is well settled that the doctrine of governmental immunity for municipalities is inapplicable in situations wherein a nuisance exists. Grover v. City of Manhattan, 198 Kan. 307, 424 P.2d 256, 260; Steifer v. Kansas City, 175 Kan. 794, 267 P.2d 474, 478; 18 McQuillin, Municipal Corporations § 53.49 (3d ed.rev.); Annotation, 156 A.L.R. 714, 718. We recognized this fact in Ramirez v. City of Cheyenne, 34 Wyo. 67, 241 P. 710, 713, 42 A.L.R. 245, observing that:
“It is often said that a city, even though acting in a governmental capacity, cannot escape liability for creating or maintaining a nuisance. * * * This should not, perhaps, be classed as an exception to the rule exempting a city from liability for negligence, for common-law negligence does not enter into cases of true nuisance. The liability of municipal corporations for damages for nuisance seems generally to be recognized where property has been injured * *
In the present case, it cannot well be controverted that the manner in which the dump was maintained by the Town of Douglas prior to the time of the fire in question constituted a nuisance. The trial court held this obvious from the facts recited by Judge Harnsberger in Town of Douglas v. Neilsen, Wyo., 409 P.2d 240, 241, a companion case-the damage growing out of the same December 6, 1963, fire —wherein the opinion stated, inter alia, that on July 30, 1963, a fire from the dump had escaped and burned off probably 150 acres of range land before the fire department of the town got it under control; there were other prairie fires ignited from the dump; when complaint had been previously made to the mayor of the dangerous fire condifion at the dump, his response was that if there was any damage the town would be responsible — other town officials making similar response; and the dump was located on high ground exposed to more wind than the lower ground. Accordingly, I concur in the result.