nuisance, and if persons or animals are killed or injured in consequence of his failure to do so, no damages can be recovered.' "The qualification of this rule is that when the owner of land, expressly or by implication, invites a person to come upon it, he will be liable for damages if he permit anything in the nature of a snare to exist thereon which results in injury to such person, the latter being at the time in the exercise of ordinary care. If, however, he gives a bare license or permission to cross his premises, the licensee takes the risk of accident in using the premises in the condition in which they are. Quoting from 1 Thompson on Negligence, 361: 'Among other authorities cited by the administrator to sustain this doctrine is Hardcastle v. Railroad Co., 4 Hurl. & N. 67, where Pollock, C. B., uses this language: When an excavation is made adjoining a public highway, so that a person walking upon it might, by making a false step, or being affected 227 with sudden giddiness, or in the case of a horse or carriage that might, by a sudden starting of the horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made at some distance from the highway, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to be different. We do not see where the liability is to stop. A man getting off the road on a dark night and losing his way may wander to any extent. And if the question be for the jury, no one could tell whether he was liable for the consequences of his act upon his own land or not.'"

In Shearman and Redfield on Negligence, fifth edition, section 705, it is said: "The owner of land where children are allowed or accustomed to play must use ordinary care to keep it in a safe condition. And yet, merely allowing children to play upon a vacant lot is held not to amount to an invitation which creates liability for its condition": Citing a large number of cases, and among them Moran v. Pullman Palace Car Co., 134 Mo. 641, 56 Am. St. Rep. 543. In the syllabus of this case this language is used: "The owner of a lot in a city who failed to fence the same is not liable in damages for the death of a boy who entered upon the premises without invitation or permission, and was drowned while bathing in a pond on the lot." There was a judgment in favor of the defendant in this case, just as in the case 228 at bar, and the same argument was made by counsel for appellants in that case as is made here. Thus, on page 642 we find appellant's counsel making this conten

tion: 1. The owner of the property having thereon any dangerous agency which is attractive to children, or where he has knowledge that they resort to it for amusement or otherwise, and fails to use ordinary care, under the circumstances, to guard the same against injury, must respond in damages for such neglect, irrespective of the fact that the danger is not adjacent to the highway: Quoting Pekin v. McMahon, 154 Ill. 141, 45 Am. St. Rep. 114; Mackey v. Vicksburg, 64 Miss. 777; also Branson v. Labrot, 81 Ky. 638, 50 Am. Rep. 193, and a long list of authorities cited by opposing counsel in case at bar.

The opinion in the late Missouri case, however, after stating the facts, which are much more favorable to the plaintiff than the facts in the case at bar, since the pond is shown to have been only twenty feet away from a public street and in a populous part of the city, uses this language: "The views expressed in Overholt v. Vieths, 93 Mo. 422, 3 Am. St. Rep. 557, are applicable to the case at bar, and are not rendered inapplicable by the fact that the child entered on the premises where he was drowned through adjoining private property. The same principle applies, whether the unauthorized entry be made on private grounds, as where a public street is used for the like purpose." Overholt's case has been recently and approvingly cited and followed in the quite recent cases of Witte v. Stifel, 126 Mo. 295, 47 Am. St. Rep. 668, and Barney v. Hannibal etc. R. R. Co., 229 126 Mo. 372. Having fully discussed in these cases the subject here involved, it is needless to go over the same ground again. Abundant authorities, in addition to those just mentioned, have been collected by the industry of counsel, which as fully maintain these views as those already mentioned.

The case of Richards v. Connell, 45 Neb. 467, was decided last year by the supreme court of Nebraska. The facts in that case are almost identical with those in this case. The action there, as here, was against the city of Omaha and the owners of certain uninclosed lots of ground. The petition there alleged that defendants had, for a long time prior to the death by drowning of a boy of about ten years of age, permitted the surface water to accumulate on the lots, thereby creating a deep and dangerous pond, and that defendants had failed and neglected to fence the lots or erect any barrier to prevent children, lawfully in the vicinity, from falling into the pond; that the lots were in the vicinity of a public school, and adjacent to a street, and in a place much frequented and attractive to children of tender years, who were accustomed to play about and upon the water.

The boy was playing upon a raft floating upon the water, and fell in and was drowned. The case also approvingly cites and follows the Overholt case, and distinguishes the facts treated in that case from what is commonly known as the turntable cases. To the like effect see Ratte 230 v. Dawson, 50 Minn. 450; Charlebois v. Gogebic etc. R. R. Co., 91 Mich. 59; Murphy v. Brooklyn, 118 N. Y. 575; Clark v. Manchester, 62 N. H. 577; Frost v. Eastern R. R. Co., 64 N. H. 220, 10 Am. St. Rep. 396; O'Connor v. Illinois Cent. R. R. Co., 44 La. Ann. 339; Benson v. Baltimore Traction Co., 77 Md. 535, 39 Am. St. Rep. 436; Clark v. Richmond, 83 Va. 355, 5 Am. St. Rep. 281, and other cases.

The case of Witte v. Stifel, 126 Mo. 295, 47 Am. St. Rep. 668, holds as follows: "The owner of a building in process of construction in a city is not liable for injuries to a child playing thereat without his knowledge, and without any inducement or invitation, implied or otherwise, on his part to a child to go upon the premises. Plaintiff's son, seven years of age, went to one of the cellar windows of a building in process of construction in the city of St. Louis, which was about three feet from the street line, and sought to draw himself up by taking hold of a stone placed across the top of the window frame. The stone was not fastened, and fell and killed him. It did not appear that the owner of the building, a contractor, knew of the dangerous position of the stone, or that children were in the habit of playing around the building. Held, that deceased was a trespasser, and that no inducement or invitation, implied or otherwise, having been held out to him to enter upon the premises, there could be no recovery for his death."

In the case of Murphy v. Brooklyn, 118 N. Y. 575, this language is used: "This action was brought to recover damages for the death of 281 plaintiff's intestate, a boy six years old, who was found drowned in a hole alongside a sewer constructed by defendant through private property and then into the street, with the consent of the owner. It appeared that the sewer emptied into the bay. At high tide the sewerage was driven back up the sewer, causing the cavity in question. This was about fifty feet from one of defendant's streets, along which, forming the boundary of the adjoining premises, was an embankment faced by a wall, and on the top of this a fence or railing of posts and crossbars. At a point where it was supposed the plaintiff's intestate went upon the premises a crossbar was down -the wall had given way. People going to the bay had occasionally crossed there, and the ground for ten or twelve feet from

the fence had the appearance of a path. It did not appear that any objection had been made by any person to the construction and maintenance of the sewer. Held, that no violation of any duty which the defendant owed to the deceased had been shown, and so it was not liable. The construction of the sewer was not wrongful, nor was its maintenance a nuisance; the defendant owed to him no duty of care to protect him while upon the premises, or to guard the hole, as it was not so close to the street as to make the latter unsafe; it seems that the owner of the premises could not have been charged with negligence in permitting the hole to remain: Distinguishing Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175; quoting 282 with approval Hargreaves v. Deacon, 25 Mich. 1, Blythe v. Topham, Cro. Jac. 158, Hardcastle v. Railroad Co., 4 Hurl. & N. 67, and many other authorities."

In the case of Hargreaves v. Deacon, 25 Mich. 1, the rule is laid down as follows: "Owners of private property are not responsible for injuries caused by leaving a dangerous place unguarded, when the person injured was not on the premises by permission or on business or other lawful occasion, and had no right to be there. Where an injury arises to a person from the neglect of one doing his lawful business in a lawful way, to provide against accident, the question arises at once whether he was under any obligation to look out for the protection of that particular person under the particular circumstances of the case, for the law does not require vigilance in all cases, or in behalf of all persons. If on the sidewalk, the duty of protection extends to all persons who have a legal right to go there; or, in other words, to the whole public, and it depends upon that right. On private property, not open of right to the public, it applies less generally, and only to those who have a legal right to go there and claim the care of the occupant for their security while on the premises against negligence, or to those who are directly injured by some positive act involving more than passive negligence. We have found no cases which hold that an accident from negligence on private premises can be made a ground of damages, unless the party injured 288 had been induced to come by invitation, or by employment which brings them there, or by resorting there as to a place of business, or a general resort held out as open to customers or others, when lawful occasion may lead them to visit there. We have found no support for any rule which would protect those who go where they are not invited, but merely from motives of convenience in no way connected with business or other relations with the occupant." In that case a little child

of tender years had strayed upon the property of defendants, and had fallen into a pond which was open and unguarded.

In Ratte v. Dawson, 50 Minn. 450, this language is used: "Where a child of tender years was taken by an older sister, to whose care it was intrusted, to a vacant lot in a city for recreation and pleasure, and was accidentally knocked down and killed by the caving in of an enbankment caused by excavations for sand, and which had been left unfenced, it was held that the landowner was not liable in damages, and that he owed no duty to persons coming upon the premises without his invitation to protect them from danger from excavations therein." The court uses this language: "There is nothing to take the case out of the general rule that where the owner of land, in the exercise of his lawful dominion over it, makes an excavation therein so far from the street that a person coming on to the land without his invitation, and falling into it, would be a trespasser 234 before reaching it, such owner is not liable in an action for injuries sustained. There was nothing in the nature of the excavation, or anything kept or used there, which can be said to have been specially inviting or attractive to children, or calculated to entrap them into danger, so as to bring the case under the rule established in the turntable cases. The maxim, 'Sic utere tuo,' has no application to such a case; it refers to acts the effect of which extend beyond the limits of the property, and to neighbors who do not interfere with or enter upon it. If the rule were otherwise, the landowner could not sink a well, or dig a ditch, or open a stone quarry on his land, except at risk of being made liable for the consequential damages, which would unreasonably restrict its enjoyment."

In Peters v. Bowman, 115 Cal. 345, 56 Am. St. Rep. 106, we have a case very similar to the one at bar: "Plaintiff brought an action for damages for the death of his infant son drowned in a pond of water upon a lot owned by the defendant. The water used to run over the lot until the street was graded by the city of San Francisco on the side toward which the land sloped, since which time the water accumulated in the rainy seasons, forming a pond which disappeared during the dry season. The boy was drowned while playing on a raft that was floating in the pond, and was eleven years of age. The general rule is, that the owner of land is under no obligation to keep his premises 235 safe for trespassers, whether children or adults, and governs this case."

The rule of turntable cases is not applicable. That rule is approved in that state (see Barrett v. Southern Pac. Co., 91 Cal.