make any disposition of the Mantle and sufficient involves the necessity of writing or Warren interests. The fair, reasonable con- reading into it provisions not found there, struction to be given to the language employ- and to that extent making for the parties a ed in the writing would tend rather to es- contract materially different from the one tablish that it was the purpose of all the par- they made for themselves. And the reason ties to dissolve whatever relationship of trust for the rules applied here is not wanting. or confidence existed by virtue of the part- In the light of the facts of this particular nership, and to reduce the parties to the con- case, the righteousness of those rules is apdition of strangers dealing with each other parent. For more than 16 years this plainat arm's length. tiff permitted the defendant to pay all the taxes upon the lands in dispute and stood by without protest, and saw him handle the property in controversy as his own; and now, after the lapse of all these years, without explanation for his delay, he seeks to avoid the defense of laches or the defense of the bar of the statutes of limitation by claiming that the defendant during all those years was the trustee of an express trust for his use and benefit. It was doubtless to prevent the assertion of just such stale demands as this under the guise of the enforcement of a trust that the rule was adopted that the evidence of such relationship (Sheehan v. shall be direct and certain. Sullivan, 126 Cal. 189, 58 Pac. 543); and, if it concerns real estate, that it shall have the added stability furnished by a writing. [5] In so far as the plaintiff seeks to establish an express trust concerning real esA trust concerntate, he fails altogether. ing personal property might have been created in parol (Hellman v. McWilliams, 70 Cal. 449, 11 Pac. 659); but the trial court as well as the parties apparently proceeded upon the theory that the rights of the parties were to be determined altogether by the The theory writing of October 19, 1891. adopted was an erroneous one, and a retrial of the cause, so far as it affects the personal property, upon a correct theory would be required, but for the fact that the findings and conclusions of the trial the shares of stock in the Butte Sewer Pipe court disclose that upon the disposition of & Tile Company, and the note for $625 and interest, the only items of personal property in controversy, the rights of the parties plaintiff and defendant are substantially

[2] It will not do for respondent to urge his suggestion that, if the evidence fails to establish an express trust, it may be sufficient to constitute the transaction a constructive or resulting trust. There is not anything in the pleadings to justify such a conclusion. The complaint counts upon an express trust; and while the particular character of the transaction by which the alleged trust was created is not revealed by the complaint from the fact that the trust-if one was created-had to do with real property, the presumption arises that such trust if created by the voluntary act of the parties, was evidenced by an instrument in writing in conformity with the provisions of our statute of frauds. Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201; Sweetland v. Barrett, 4 Mont. 217, 1 Pac. 745; Mayger v. Cruse, 5 Mont. 485, 6 Pac. 333. The record discloses that plaintiff relied upon this written instrument of October 19, 1891, and the trial court made it the basis of its decree. [3] It is also suggested in the brief of respondent that there is a sufficient statement in the verified answer of this defendant in the court below to meet the requirements of the rules for establishing an express trust; but in this respondent overlooks three important facts: (1) If the answer be accepted as establishing a trust, it is a trust for a purpose altogether different from that which the court found was created;

(2) the respondent in his reply specifically denied the allegations in the answer, upon which he now relies for assistance; and (3) the trial court found that those allegations in defendant's answer were not true. In the

light of these facts it ill becomes respondent to make this suggestion.

[4] While there is no magic in the word "trust" or "trustee," and any agreement, however informal, which indicates with reasonable certainty the intention of the trustor to create a trust, the acceptance or acknowledgment thereof by the trustee, and the subject, purpose, and beneficiary, will be held to be sufficient, still this court cannot change the law in aid of a litigant. Every element essential to the creation of a trust is wanting in this writing, and to hold it

equal, and that the claims of one are offset

by the claims of the other.

[6] The difference amounts to about $2.38, and is insufficient to justify any further court proceedings under the maxim "De minimis non curat lex."

the cause is remanded to the district court, The judgment and order are reversed, and with direction to dismiss the complaint. Reversed and remanded.

BRANTLY, C. J., and SANNER, J., con

cur.

allegations to negative contributory negli- | common law that the owner of real propgence. The general rule as settled in this erty owes no duty to trespassers, other than state by the uniform course of decision is to refrain from intentional injury. Hence no that where the complaint shows that a prox- right of action would arise, in the absence of imate cause of plaintiff's injury was the act statute, in favor of a trespasser who might of the plaintiff himself, it will be held in- suffer injury under the circumstances here sufficient unless it goes further and by appro- | pleaded (Driscoll v. Clark, supra); but every priate allegations shows that the plaintiff owner holds his property subject to reasonwas, at the time, exercising ordinary care and circumspection. Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21; Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Hunter v. Montana C. Ry. Co., 22 Mont. 534, 57 Pac. 140; Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 68 Pac. 852; Ball v. Gussenhoven, 29 Mont. 328, 74 Pac. 871; Nord v. Boston & Mont., etc., Co., 30 Mont. 48, 75 Pac. 681; Birsch v. Citizens' El. Co., 36 Mont. 574, 93 Pac. 940; Poor v. Madison R. P. Co., 38 Mont. 361, 99 Pac. 947; Montague v. Hanson, 38 Mont. 376, 99 Pac. 1063; Badovinac v. Northern Pac. Ry. Co., 39 Mont. 454, 104 Pac. 543. Of course this rule has reference only to acts of which negligence must be predicated in the absence of a countervailing explanation.

At what age a child becomes sui juris, so that negligence may be predicated of his acts, is a matter upon which authorities differ. By some it is held that a child of seven years of age is conclusively presumed incapable of contributory negligence. Watson v. Southern Ry., 66 S. C. 47, 44 S. E. 375; Tay

lor v. Delaware & Hudson Ry., 113 Pa. 176, 8 Atl. 43, 57 Am. Rep. 446; Chicago, etc., Ry. Co. v. Welsh, 118 Ill. 572, 9 N. E. 197; Indianapolis, etc., Ry. v. Pitzer, 109 Ind. 194, 6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387. However that may be, the rule in this state is that contributory negligence is not to be inferred as a matter of law, even in the case of a much older child. Mason v. Northern

Pac. Ry. Co., 45 Mont. 476, 124 Pac. 271. This being true, it follows that the rule invoked by appellant can have no application to the complaint at bar. But apart from this consideration, we think the averments of the age of the plaintiff; the fact that it was dusk; his ignorance of the existence of the shaft; the natural engrossment in his childish pursuit; and the general allegation that he was "using due care, and prudence and without contributing fault and carelessness on his part"-are, as a matter of pleading, sufficient to negative contributory negligence and to avoid the rule. Birsch v. Citizens' El Co., supra; Poor v. Madison R. P. Co., supra; Evansville & T. H. Ry. v. Crist, 116 Ind. 446, 19 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865; 1 Thompson on Negligence, §§ 375, 377, 378.

[4] 2. Under the allegations of the complaint, the respondent was technically a mere trespasser upon the property of the appellant. Egan v. Montana C. Ry. Co., 24 Mont. 569, 63 Pac. 831; Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373. It is the undoubted rule at

able control and regulation of the mode of
keeping and use as the Legislature, under
the police power vested in the state, may
think necessary for the prevention of injury
to the rights of others and the security of
the public health and welfare. Parker v.
Barnard, 135 Mass. 116, 46 Am. Rep. 450.
The question, then, is whether or not a
trespasser upon private property may recov-
er damages for injury suffered by him while
so trespassing, because of the property own-
er's failure to comply with section 8535, Re-
vised Codes. This section is found in title
10 of part 1 of the Penal Code, under the
heading: "Crimes Against the Public Health
and Safety," and, so far as pertinent to this
case, reads as follows: "Every person who
sinks any shaft
or causes the

same to be done, within the limits of any
city or town or village in this state, or with-
in one mile of the corporate limits of any
* * and who shall fail
city or town
to place a substantial cover over or tight
fence around the same, is punishable by a

*

shall be

* to

The contention is

fine not exceeding one thousand dollars. The
owner of any property
deemed to be within the provisions of this
act if he permit any such shaft
remain open, exposed or unprotected upon
his property *
for a period of more
than ten days. *
that this is a mere penal statute, providing
its own express sanction, and, in the ab-
sence of appropriate language, gives rise to
to this we remark that there is by this stat-
In answer
no civil responsibility whatever.
ute imposed a duty positive and absolute,
where none existed before; and it is the
well-settled rule that failure to observe such
a duty is negligence per se. Osterholm v.
Boston & Mont., etc., Co., 40 Mont. 508, 107
Pac. 499; Neary v. Northern Pac. Ry. Co.,
41 Mont. 480, 110 Pac. 226; Melville v. Butte-
Balaklava C. Co., 47 Mont. 1, 130 Pac. 441;
Note, 9 L. R. A. (N. S.) 339.

In the Melville Case, decided at the last term of this court, we said: "It is the general rule that, where a statute makes a requirement, or prohibits a thing, for the benefit of a person or class of persons, one injured by reason of a violation of it is entitled to maintain an action against him by whose disobedience he has suffered injury; and this is true whether the statute is penal or not." To this declaration we still adhere as in accord with the express provisions of our Code. A failure to perform an act imposed by law as an absolute duty is an unlawful omission (section 5051, Rev. Codes); and any person suffering detriment by reason of it

may recover damages (section 6040, Rev., applicable to that obligation follows as an inCodes).

cident; but whether a liability arising from But it is urged that this principle cannot the breach of a duty prescribed by a statapply in favor of one not within the purview ute or ordinance accrues for the benefit of of the statute by which the duty is imposed, an individual specially injured thereby, or and to this we assent; so that the remaining whether such liability is exclusively of a pubinquiry is: Does the duty imposed by section lic character, must depend upon the nature 8535 apply for the benefit of persons who of the duty enjoined, and the benefits to be may by chance be technical trespassers upon derived from its performance." The duty enmining property? This question, both direct- joined by section 8535 is such that noncomly and in its analogies, has been before many | pliance affects the public commonly through courts with apparent diversity of result; the person or property of the individual. but no real difficulty is encountered in ex- The benefits to be derived from its performtracting a consistent rule out of the apparent ance inure to the public through the added conflict of decision, when it is observed that safety assured to individual person and the various statutes involved are interpreted property, and can affect the public in no according to substantially this classification: other way. That the failure to observe the (a) Those imposing duties to or for the bene- requirements of such a statute will, if the fit of the municipality or to the public con- proximate cause of injury, support an action sidered as an entity. From such statutes no even by a trespasser is sustained by an private right of action arises. Heeney v. abundance of authority. Richardson v. El Sprague, 11 R. I. 456, 23 Am. Rep. 502; Tay- Paso, C. G., etc., Co., 51 Colo. 440, 118 Pac. lor v. L. S. & M. S. Ry., 45 Mich. 74, 7 N. W. 982; Erb v. Morasch, 8 Kan. App. 61, 54 Pac. 728, 40 Am. Rep. 457; Frontier Laundry Co. 323; Alabama & Va. R. Co. v. Carter, 77 v. Conolly, 72 Neb. 767, 101 N. W. 995, 68 L. Miss. 511, 27 South. 993; Chicago, B. & Q. R. A. 425. (b) Those imposing duties to per- R. Co. v. Grablin, 38 Neb. 90, 56 N. W. 796; sons of a particular class. To have a right Keyser v. Grand Trunk Ry., 66 Mich. 390, 33 of action from such a statute one must clear- N. W. 867; Meeks v. Railway Co., 56 Cal. ly belong to the contemplated class. Oster- 513, 38 Am. Rep. 67; South & North Ala. Ry. holm v. Boston & Mont., etc., Co., supra; v. Donovan, supra; Hayes v. M. C. R. Co., suToomey v. Southern Pac. Ry., 86 Cal. 374, 24 pra; Jackson v. Kansas C., etc., Ry. Co., Pac. 1074, 10 L. R. A. 139; Flanagan v. Sand- supra. ers, 138 Mich. 253, 101 N. W. 581. (c) Those imposing duties to the public, considered as a composite of individuals, in which case a right of action does arise in one of the public when, and only when, he has sustained some special injury by reason of noncompliance. Hayes v. M. C. R. Co., 111 U. S. 239, 240, 4 Sup. Ct. 369, 28 L. Ed. 410; P. W. & B. Ry. v. Stebbing, 62 Md. 516, 517; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S. W. 648, 5 L. R. A. (N. S.) 187; Union Pac. Ry. v. McDonald, 152 U. S. 282, 14 Sup. Ct. 619, 38 L. Ed. 434. It may be said, and perhaps correctly, that these are essentially restatements of the same thing, looked at from different angles (Note, 9 L. R. A. [N. S.] 343); but that is unimportant. The important thing is that there are statutes such as we have mentioned under (c), and these statutes usually bear the aspect of police regulations for the protection of the public relative to matters with which the public contact is commonly through individuals, and as to which the individuals are entitled to assume that the law has been observed. South & North Ala. R. Co. v. Donovan, 84 Ala. 141, 4 South. 142; Jackson v. Kansas C., etc., Ry., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650.

In a case relied on by the appellants (Frontier Laundry Co. v. Conolly, supra) the existence and meaning of such statutes is clearly recognized, as follows: "Wherever a statute or ordinance creates a duty or obligation, though it does not in express terms

* *

In further elucidation of our views of this phase of the present case we quote the language of the Supreme Court of Colorado from the Richardson Case, supra: "An open, unprotected shaft is a menace to life and limb. In the nighttime or in a storm persons may fall into it, or children may thoughtlessly approach too near the edge and be precipitated to the bottom. Reasonable provisions, requiring an abandoned shaft to be so protected as to prevent such casualties, come clearly within the police powers of the commonwealth. * It is contended that plaintiffs, as well as the deceased, were mere licensees, which did not entitle either of them to the use of the dump in the immediate vicinity of the shaft, which was about 110 feet from the house; that deceased was therefore a trespasser when upon the dump and at the shaft, or, if the license extended to the immediate vicinity of the shaft, * the defendant violated none of its obligations growing out of the relationship of owner to licensee or trespasser. The proposition is wholly inapplicable. Plaintiffs' action is not based upon the ground of a failure on the part of defendant to fulfill any obligation which it owed them or the deceased because they occupied a house on the Australia claim, but upon the failure of the defendant to comply with a statutory requirement, the purpose of which was to protect the public from injury, which neglect, they claim, caused the death of their son. To prevent injury to the public, including