The opinion
Weygandt, C. J.,
dissents for the reason that the Court of Appeals was correct in its unanimous summary of the case in the following statement:
“In the instant case, however, we have a claim for a private nuisance, and we have the city engaging in the disposal of garbage and rubbish not only for its own inhabitants, but it is also engaged, for a fee, in the business of disposing of the same matter for other municipalities and private parties. In thus performing this function, it acts in a proprietary capacity, and hence is subject to the common-law rule of liability for conduct which causes injury to another.”
City of Cleveland v. Russo, Admr., 98 Ohio St., 465 ; City of Toledo v. Cone, 41 Ohio St., 149 .