liable for the consequences of his act upon his own land or not. We think that the proper and true test of legal liability is whether the excavation be substantially adjoining the way, and it would be very dangerous if it were otherwise, if, in every case, it was to be left as a fact to the jury whether the excavation were sufficiently near to the highway to be dangerous."

In Hounsell v. Smyth, 7 Com. B. n. s. 731, the declaration alleged that the defendants were seized of certain waste land upon which was a quarry that was worked by a person, subject to the payment of certain royalties to the defendants; that this waste land was unenclosed and open to the public, and that all persons having occasion to pass over the waste had been used and accustomed to go upon and across the same without interruption or hindrance from, and with the license and permission of, the owners of the waste; that the quarry was situate near to and between two public highways leading over the waste, and was precipitous and dangerous to persons who might accidentally deviate or stray, or who might have occasion to cross over the waste for the purpose of passing from one such road to the other, beside or near the quarry; that the defendants, knowing the premises, negligently and contrary to their duty left the quarry unfenced, and took no care and used no means for protecting the public or any person so accidentally deviating from the said roads, or passing over the the waste, from falling into the quarry; and that the plaintiff, having occasion to pass along one of the said roads, and having, by reason of the darkness of the night, accidentally taken the wrong road, was crossing the waste for the purpose of getting into the other, and,

not being aware of the existence or locality of the quarry, and being unable by reason of the darkness to perceive the same, fell in, and was injured. On demurrer, it was held that the declaration disclosed no cause of action. Mr. Justice Williams said that the allegations, aside from that of use and license, amounted to no more than this, that there was a pit or quarry upon the waste somewhere between two public roads, —not so near to either as to constitute a public nuisance, but so near as to be dangerous, not to persons passing along either of the public ways, but to persons who might accidentally deviate or stray, or who might have occasion to cross over the waste for the purpose of passing from the one road to the other. This state of things gave no right of action, unless it were shown that the excavation was so near the road as to amount to a public nuisance, which was not charged. And the allegation of user and license, the learned judge observed, had added nothing to the declaration, because it did not imply any substantive right. 'Suppose the owner of land near the sea," said he, "gives another leave to walk on the edge of a cliff, surely it would be absurd to contend that such permission cast upon the former the burden of fencing. Can it make any difference that there is a public highway open to, but at some distance from, the cliff?"

Both of the above cases were decided partly upon the authority of Blyth v. Topham, Croke Jac. 158, where it was held that if A., seized of a waste adjacent to a highway, digs a pit within thirty-six feet of the highway, and the mare of B. escapes into the waste, and falls into the pit, and dies there, yet B. shall not have an action

against A., because the making of the pit in the waste, and not in the highway, was not any wrong to B. But it was the default of B. himself that his mare escaped into the waste.

In Dinks v. South Yorkshire Ry. Co., 3 Best & S. 244, it appeared that the defendants had constructed a canal by the side of an ancient public footway, at a distance of more than twenty feet from it, with a tow-path on the bank of the canal and an intermediate space; and, in consequence of acts of persons authorized by the company, the distinction between the footway and the canal had become obliterated. It also appeared that, though the public had no right to pass over the space between the footway and the canal, they were permitted by the defendants to do so. The plaintiff's intestate had, in passing along the way, quitted the footpath, and, in consequence of the dangerous state of the canal, had fallen in and been drowned. It was held that these facts disclosed no cause of action against the proprietors of the canal; the doctrine of the above cases being reaffirmed. Blackburn, J., said: "I do not think it is possible, on the evidence here, to say that this canal was adjoining to the highway originally. There was an intervening breadth of towing-path of about nine feet, and a strip of grass, which was agreed to be a marked and real distinction." And as to the state of the canal, he said: "In order to distinguish this case from that to which I have referred [Hardcastle v. South Yorkshire Ry. Co., supra], it was argued that such alterations had been made in the towing-path that they obliterated the distinction between it and the footway, and so rendered it not noticeable, especially at night, and consequently dangerous. But I do not think that

that amounts to making the canal adjoin the footway, if it did not do so before." The acts of the defendants, he added, did not amount to an inducement to the public to quit the footway.

In Bolch v. Smith, 7 Hurl. & N. 736, it appeared that the plaintiff was a workman in a government dockyard, and the defendant a contractor there. There were water-closets in the yard for the use of the workmen, to which several paths led. Across one of these paths the defendant had by proper permission placed certain machinery for the purposes of his work; and this machinery he had partly covered with planks. The plaintiff, in going along this path to the water-closet, had stumbled, and, putting his hand out to save himself, his arm was caught in the machinery and lacerated. The court ruled that he could not recover.

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On full consideration," said Channell, B., "I am clearly of opinion that the defendant was under no obligation to fence the shaft. The case falls within the law as explained in Hounsell v. Smyth. We must assume that the plaintiff was not a trespasser, and that he was using the road with the permission of the owners of the soil; but he was not obliged to use it, for there were two other ways to the same place, though less convenient. Corby v. Hill, 4 Com. B. n. s. 556, is to my mind distinguishable. In that case permission was given to the defendant to place materials on a private road, and the plaintiff, as one of the public, had a right to use the road on which the defendant had placed a quantity of slates." As to the argument that, the defendant having undertaken to fence, he should have done so securely, the learned baron said that there might be force in such an argument if the insuf

ficiency of the fence had not been apparent. It would then have come within the observations of Mr. Justice Willes in Corby v. Hill. See also Cornman v. Eastern Counties Ry. Co., 4 Hurl. & N. 781.

In Connecticut, where there is a statutory duty resting upon municipal corporations to protect travellers against the dangers of excavation along the highway, it is held that where a city has been compelled to pay damages by reason of a failure to perform this duty, the city may recover over against the party in charge of the obstruction upon proof of his neglect to take the precaution required of the city before the city authorities had had an opportunity to attend to the same; and this, too, without regard to the distance of the excavation from the highway, provided it endangered travel thereon. Norwich v. Breed, 30 Conn. 535. Although the court in this case profess to reject the rigid test of liability of the English cases, supposing that test to depend upon distance from the highway, there is probably little or no real difference between the two rules. It is hardly to be supposed that the English courts mean to prescribe for every case a limit of distance; to wit, that the dangerous place must actually adjoin the highway. The language above quoted from the opinion of Pollock, C. B., in Hardcastle v. South Yorkshire Ry. Co. (which is quoted and adopted by Keating, J., in Hounsell v. Smyth), clearly implies the contrary. The question as he puts it requires that the person injured must have become "a trespasser upon the defendant's land before he reached" the excavation, in order to excuse the occupier. That is, the former must have rendered himself liable to an action for trespass before

he sustained the injury; provided at the same time the excavation is a public nuisance. (He did not mean, of course, that if a man's horse, in running away with him, should rush through an open field and precipitate him into a pit far from the highway, the land-owner would be liable.) This being taken in connec tion with the established principle that the liability of the occupier depends upon his having constructed a public nuisance upon his premises, — i.e., something preventing the public from using the highway as freely and fully as before, it is evident that the matter of distance cannot as a test be adequate for all cases.

See, further, Coupland v. Hardingham. 3 Campb. 398; Jarvis v. Dean, 3 Bing. 447; s. c. 11 J. B. Moore, 354; Jordin v. Crump, 8 Mees. & W. 782; Gautret v. Egerton, Law R. 2 Com. P. 371; Knight v. Ebert, 6 Barr, 472; Roulston v. Clark, 3 E. D. Smith, 366; Illinois Cent. R. Co. v. Carraher, 47 Ill. 333.

So much for the first class of cases; namely, bare licensees. Let us now consider the second class; namely, those who are expressly invited or induced by the active conduct of the defendant to go upon his premises.

To this class of cases belongs the principal case, Sweeny v. Old Colony & N. R. Co. The doctrine of this authority is that where the plaintiff has been induced by the active conduct of the defendant (at the time?) to go upon the latter's premises, he will be liable for injury there sustained by the former, in case of the neglect of reasonable care to protect him from danger. See also Elliott v. Pray, 10 Allen, 378. And if this be true, in a case where the conduct of the defendant has induced the plaintiff to go upon his premises, it must be

true a fortiori where the defendant has expressly, i. e., by word of mouth, invited the plaintiff.

Upon the latter point we must particularly notice the well-known case of Southcote v. Stanley, 1 Hurl. & N. 247. The declaration alleged that the defendant was possessed of a hotel into which he had invited the plaintiff to come as a visitor; that in the hotel there was a glass door, which it was necessary for the plaintiff to open for the purpose of leaving the house; and that the plaintiff, by the permission of the defendant and with his knowledge, and without any warning from him, lawfully opened the same for the purpose aforesaid, as a door which was in a proper condition to be opened. Nevertheless, by and through the mere carelessness, negligence, and default of the defendant, the door was then in an insecure and dangerous condition, and unfit to be opened, by reason whereof a large piece of glass fell from the door and wounded the plaintiff. On demurrer, it was held that the declaration disclosed no cause of action. The learned Chief Baron rested his opinion on the ground that the plaintiff, not being a guest, could not be in a more favorable situation than a servant, who, he affirmed, would have no right of action against his master in such case; referring to the dicta of Priestley v. Fowler, 3 Mees. & W. 1, a case to be noticed hereafter. Mr. Baron Bramwell based his opinion upon the ground that no act of commission had been alleged. Mr. Baron Alderson simply concurred in the judgment, without giving his reasons.

The decision was right, and is consistent with the principle above stated, for several reasons. First, it is to be observed that the statement that the plaintiff was invited" into the hotel is

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made in a declaration, in which case, on a demurrer, words of a vague sense are to be construed against the plaintiff. And the words “invited” and “ visitor" are consistent with the character of (what the plaintiff probably was, else the language would have been stronger) a mere caller. Indeed, the plaintiff's argument shows that the allegation was merely intended to show that the plaintiff was lawfully in the hotel. Whether it be a private house or a shop," said counsel for the plaintiff, "a duty is so far imposed on the occupier to keep it reasonably secure that if a person lawfully enters," &c. Here it is alleged that the defendant invited the plaintiff to come into the hotel as a visitor; that shows that he was lawfully there." Secondly, there was no allegation that the defendant knew of the insecure condition of the door; and it is a well-settled principle that, in order to make a man liable for damages sustained by reason of the insecure or ruinous condition of his premises, it must appear that he had notice of such condition. Welfare v. London & B. Ry. Co., Law R. 4 Q. B. 693. Thirdly, there was no allegation of any misfeasance, or "act of commission," to use the language of Bramwell, B. It was not alleged that the plaintiff had put the glass of the door in insecurely. It was consistent with the allegation that ' through the mere carelessness, negligence, and default of the defendant the door was then in an insecure and dangerous condition," that the glass had become gradually loosened by constant use of the door, and that the defendant had had no notice of the fact. Had the plaintiff been a guest, it would have been no defence that the landlord had not been guilty of a misfeasance in respect of the door. So, too, if the

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injury had been committed in a public highway, that would have been no defence. See ante, pp. 598, 599.

The person making the invitation must of course have authority so to do. Eaton v. Delaware, &c., R. Co., 57 N. Y. 382.

The third class of cases - the entry of customers on business is well illustrated by Chapman v. Rothwell, El., B. & E. 168. This was a demurrer to a declaration. The allegation was that the defendant was in occupation of a brewery and office and a passage leading thereto from the public street, used by the defendant for the reception of customers in his trade as a brewer, which passage was the usual means of access from the office to the street. Yet the defendant wrongfully and negligently permitted a trap-door in the floor of the passage to be and remain open, without being properly guarded and lighted; and the plaintiff's wife, who had gone to the office as a customer of the defendant and otherwise in the defendant's business, and was lawfully passing along the said passage on her return from the office to the street, fell through the opening, and was killed. It was held that the declaration disclosed a good cause of action. On Southcote v. Stanley, supra, being cited, Erle, J., said: "The distinction is between the case of a visitor (as the plaintiff was in Southcote v. Stanley), who must take care of himself, and a customer, who, as one of the public, is invited for the purposes of business carried on by the defendant."

Freer v. Cameron, 4 Rich. 228, was a similar case. The defendants' clerk took a customer into a dark part of their store, and while there she fell through a trap-door, which had been negligently left open, and was injured;

and it was held that the defendants were liable. See also Ellicott v. Pray, 10 Allen, 378; Zoebisch v. Tarbell, ib. 385; Karl v. Maillard, 3 Bosw. 591; Pickard v. Smith, 10 Com. B. N. s. 470.

In Carleton v. Franconia Iron Co., 99 Mass. 216, the plaintiff brought an action of tort for an injury to his vessel. The defendants were owners of a wharf, and had procured the plaintiff to bring his vessel to it to be there discharged of its cargo, and suffered the vessel to be placed there, at high water, over a rock sunk and concealed in the adjoining dock. The defendants were aware of the position of this rock, and of its danger to vessels; but no notice thereof had been given. With the ebb of the tide, the vessel settled down upon the rock, and sustained the injury complained of; and for this the plaintiff was held entitled to damages. Mr. Justice Gray, in delivering the opinion of the court, stated the rule thus: "The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him for an injury occasioned by the unsafe condition of the land or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist, and has given them no notice of." The learned judge referred to Wendell v. Baxter, 12 Gray, 494, where the proprietors of a wharf, established for the use of the public, were held liable for an injury resulting from a defect in its surface, whether occasioned by the action of the sea or by other causes, which they by the exercise of ordinary care and diligence could have provided against, to a person rightfully on the wharf with his horse