Supreme Court of Idaho. On Rehearing April 4, Earl E. Martin , Boise, Frank F. Kibler , Nampa, G. These two cases were heard together; the main, fundamental issues being common to both. The differences are that appellant Splinter owned the building where the explosion as hereinafter detailed, occurred, alleging the storage tank was installed without his knowledge or consent; appellant Metzer was employed as a waitress in the restaurant, the operators of which were lessees from appellant Splinter.
That the front end of said tank, to-wit: the end containing the valves and filling devices, protruded into said vertical shaft, and that thereafter, said vertical shaft was used as a means of ingress and egress of hoses used for the purpose of filling said tank with liquefied petroleum gas. The complaints further allege in appropriate language that it was negligent for the Butane Company and the City of Nampa to place the outlet of the tank in this shaft and that so locating the tank caused a situation of peril and constituted a nuisance, menace and hazard to the lives and property of the public in general and to the property of appellant Splinter in particular, in that in replenishing the tank from the company's tank trucks, gas was apt to be spilled and being heavier than air, would collect and settle in the basement and, if ignited, would explode; that on November 15, , at about eight o'clock in the evening while the tank was being filled by the company, an explosion did take place totally wrecking the building, the basis of the suit for damages by appellant Splinter for the value of the building, and by appellant Metzer for injuries received by her.
General demurrers were interposed in both cases , challenging the complaints as not stating facts sufficient to constitute causes of action against the city, which were sustained and upon defendants ' refusal to plead further, judgments of dismissal were entered--hence these appeals.
The respondents ' pertinent and ultimate contentions as bases to support the ruling sustaining the demurrers , and decisive of the issues, may thus be summarized: that the city in granting the permit was exercising governmental and not proprietary powers; that the proximate cause of injury, both to the building and to appellant Metzer, was the spilling of the gas and not the location of the tank, and attendant suggestions of nonforeseeability of damage, effect of intervening independent incidents, contributory negligence disclosed in the complaints, and somewhat inferentially that the city, in connection with its control of the streets and alleys, owes no duty to anyone other than a traveler thereon; and that the permit under section , I.
We are passing only on the sufficiency of the complaints to state causes of action, though perforce we discuss substantive propositions. This court has held repeatedly, and it must now be taken as established law, that the city owns the streets and alleys and has complete and exclusive control and dominion thereof. Carson v. City of Genesee , 9 Idaho at page , 74 P. Doyle , 11 Idaho at page , 83 P , 4 L.
