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American case bearing on the question, where it was held that where a water company, organized for the purpose of supplying the inhabitants of a city with water, contracted to supply the city hydrants with water and by the company's neg lect the fire department was unable to extinguish a fire, the water company was not liable. The next case cited is Davis v. Clinton Waterworks Company, 54 Iowa, 59, 6 N. W. 126, 37 Am. Rep. 185, wherein the court in speaking of the contract said, "It is sufficient to state that the parties thereto were the city and the defendant, and that plaintiff in this case in no sense was a party to the contract." The opinion then points out that the court in Davis v. Waterworks treated the water company as an agent or officer employed by the city, and not as a business enterprise operated for the profit of the water company. As in line with the two cases cited, the court cites a large number of authorities, among them: Wainwright v. Queens County Water Co., 78 Hun. 146, 28 N. Y. Supp 987; Nichol v. Huntington Water Co, S3 W. Va. 348, 44 S. E. 290; Foster v. Lookout Water Co., 3 Lea (Tenn.) 42; Fowler v. Athens City Waterworks Co., 83 Ga. 219, 9 S. E. 673, 20 Am. St. Rep. 313; Wilkinson v. Light, Heat & Water Co, 78 Miss. 389, 28 South 877; House v. Houston Waterworks Co., 88 Tex 233, 31 S. W. 179, 28 L. R. A. 532; Ferris v. Carson Water Co., 16 Nev. 44, 40 Am. Rep 485; Bush v. Artesian Hot & Cold Water Co., 4 Idaho, 618, 43 Pac. 69, 95 Am. St. Rep. 161; Ukiah City v. Ukiah Water & Imp. Co., 142 Cal. 173, 75 Pac. 773, 64 L. R. A 231, 100 Am. St Rep 107; Fitch v. Seymour Water Co, 139 Ind 214, 37 N. E 982, 47 Am St. Rep. 258; Britton v. Green Bay & Ft. H. Water works Co., 81 Wis. 48, 51 N. W. 84, 29 Am St. Rep. 856; Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S W. 784, 23 L. R. A. 146, 41 Am St. Rep. 654. The opinion then states that the terms and conditions of the various contracts involved in the cases are not always alike, but that " the doctrine of a want of privity of con tract between a property owner and the water company runs through them all." Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 S. W. 554, 13 S. W. 249, 7 L. R A. 77, 25 Am. St. Rep. 536; Duncan v. Owensboro Water Co., 15 S. W. 523, 12 Ky. Law Rep. 824; Graves County Water Co v. Ligon, 112 Ky- 775. 66 S. W. 725, are cited as repudiating the doctrine that a water company is not liable under such circumstances, and after reviewing further authorities, the opinion states: "It is impossible to reconcile the conflicting views of the courts and law writers upon the question at bar. . . . We are of opinion that the defendant
enjoying, as it does, extensive franchises and privileges under its contract, such as the exclusive right to furnish water to the city . . . the right to have special taxes levied on the property of the citizen for its benefit . . . has assumed the public duty of furnishing water for extinguishing fires, according to the terms of its contract, and that for negligence in the discharge of this duty . . . it is liable for the damages suffered in an action of tort." The decision appears to be bounded upon Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513, 70 Am. S. Rep. 598, and Fisher v. Greensboro Water Supply Co., 128 N. C. 375, 38 S. E. 912, and Guardian Trust & Deposit Co. v. Greensboro Water Supply Co. (C. C.) 115 Fed. 184, and Guardian Trust Co. v. Fisher, 200 U. S. 57, 26 Sup. Ct. 186. This decision is undoubtedly contrary to the almost overwhelming weight of authority, but undoubtedly too reaches a most desirable result. The cases on this subject are fully considered in this decision, and the court did not for a moment lose sight of the fact that its determination is contrary to the decisions in nearly every jurisdiction that has considered a similar state of facts. It is supported only by the few cases cited by it from Kentucky and North Carolina, and by the one U. S. Supreme Court case (Guardian Trust Co. v. Fisher, 200 U. S. 57 ), but it is to be noted that in the last named authority three of the judges dissented. The decisions generally hold that the individual citizen whose property is destroyed by fire through the water company's neglect to fulfill its contract obligations with the municipality and maintain an adequate pressure in the fire hydrants, cannot sue the water company on contract because he was not a party or privy to the contract. Harvard Law Review, Vol. 15, page 784; Wainwright v. Queens County Water Co. 78 Hun. (N.Y.) 146; 28 N.Y. S. 987. Nor can he sue in tort because an action in tort cannot be predicated upon a mere failure to perform a contract with a third party. Fowler v. Water Works Co., (1889) 83 Georgia 219; 9 S. E. 673. And it has also been held that furnishing of water for fire protection is a governmental duty or power, resting with the municipality and that the water company in undertaking that work acts merely as agent of the municipality and so cannot be sued for inadequate performance any more than the municipality itself could be. Nichol v. Water Co. (1903) 53 West Va. 348; 44 S. E. 290. Nor can the city itself sue the water company for the dam age thus coming to the property of the individual citizen because its interest in the property is too remote. Ferris v. Carson Water Co., 16 Nevada 45. Thus under the prevailing view a water company
