Francis H. (Francis Hermann) Bohlen.

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397, But if the photographs were properly admissible in evidence,
then there was evidence tending to prove that some of the hoops on
the tank were, at the time of the injury, rusted to such an extent as
to destroy or partially destroy the efficiency of such hoops, and that
such condition could readily have been discovered by the exercise of
ordinary care on the part of the defendant.

By the Court. — The judgment of the superior court of Mil-
waukee county is reversed, and the cause is remanded for a new

Bardeen, J. The relation between the deceased and defendant
was more than that of a mere licensee. The defendant owed him the_
duty of active vigilance to the extent of using ordinary care in dis-
covering and informing„him - of dangers. The jury found that thF^
defendant did not know of the defective condition of the hoops on
the vat, but that in the exercise of ordinary care it ought to have
known of their condition prior to the accident. I think the evidence
is overwhelmingly against this last finding.

Marshall, J. I agree that the judgment should be reversed.
This personal opinion is written, in part because it seems that the
opinion of the court does not make the grounds for decision rendered
sufficiently plain to prevent misconception on some points, and in
part because my views are not in harmony therewith. I understand
the court holds that it follows as a matter of law, from the findings
of the jury to the effect that the deceased was engaged in a business
transaction with the appellant w^hen injured, at a place on the latter's
premises where he was permitted to be in the pursuit thereof, that
he was not a mere licensee ; that though he was not, strictly speaking,
an invitee as to the particular place he was in, since he was pennitted
to be there and it pertained to the business in which he and the
respondent were interested, his status was at least that of a licensee
coupled with a mutual interest of licensee and licensor, not that of a
mere licensee, and that such relation carried with it an implied assur-
ance that the place was free from danger discoverable by the exercise
of ordinary care. In other words, that the license, being coupled

'Accord: Pittsburgh, etc., R. R. v. Simons, 168 Ind. 333 (1906), an
implied invitation casting on the owner "the duty of exercising ordinary
care to construct and keep the place reasonably safe" for the invitee's recep-
tion ; 1st, "when he by positive acts or inducements entices others to come
upon or cross his premises at a particular point," p. 341 ; 2nd, "where it
appears that there is a common interest or mutual advantage in the entry."
p. 344 ; in this case both elements were held to exist, since a gateway was
opened in the fence along the tracks and by opening the gate onto the rail-
road they satisfied the citizens and were not required to provide public street


with a business relaticTii, so far as legal rights were concerned, was
equivalent to an invitation. There is abundance of authority to sup-
port that view, but 1 do not understand that it includes the cases
cited by the court. They are, in the main at least, cases of liability
to a mere licensee. To point only to such authorities to support the
decision here, it seems, is very misleading, — so much so as to almost
certainly lead to error by trial courts. In them the element of busi-
ness relation, generally, distinguishing a mere licensee from a licensee
or invitee, was absent, and the liability was sustained upon the
ground that one cannot justly set a trap even for a mere licensee,
or conduct his business regardless of the Hcense granted; — upon the
doctrine that if a railroad company permits, merely by not objecting,
persons to habitually walk upon its tracks where there is no highway,
and to do so to such an extent as to render it probable that pedes-
trians may be in the pathway of an approaching train at any time,
it should keep a lookout from trains approaching such place and
signal such approach when that seems reasonably necessary to warn
such pedestrians of its presence. The extent to which that doctrine
has been carried by this court is not in entire harmony with authori-
ties elsewhere. Elliott, Railroads, § § 125 1, 1252.

There is a broad difference between a trespasser and a mere
licensee; also between a licensee and a mere licensee, as the terms
are used in the authorities, A trespasser is a wrongdoer, — one who
acts in defiance of or regardless of the rights of another. Let that
other give permission to do the act. he having no interest therein
himself, directly or indirectly, and the trespasser becomes a_ mere
licensee. Add the element of mutual interest or business relation of
some kind, with or without advantage to the owner of the property,
and the mere license becomes a license or invitation with a sug-
gestion or assurance of safety, according to circumstances. To illus-
trate: A railroad company prepares a walk for its passengers to use
in approaching to or departing from its trains. Such use is said to
be by invitation. The preparation of the path is a suggestion to
patrons of the road to approach and depart from trains by that
particular way, and an assurance that it is reasonably safe to do so.
Persons using a different way to approach or depart from trains
customarily, wnth the knowledge of the company and without its
protest, do so without any element of invitation, strictly speaking.
There is rather an invitation not to use it. plainly suggested by the
specially prepared way. The permissive use of the unprepared way,
by itself, constitutes but a bare license, as the term is commonly
used. The added element of business relation between licensee and
licensor increases the degree of duty on the part of the licensor from
that due to a trespasser or mere licensee to that due to an invitee,
though there is no implied suggestion to go outside the prepared
way," hence, strictly, no implied invitation to do so. In that we ob-
serve all the elements present in this case as indicated by the verdict
of the jury, showing as a matter of law that the deceased was not a
mere licensee ; nor was he, strictly speaking, an invitee, but he was
a licensee with the added element of business relation between li-
censee and licensor. The duty to him in such circumstances, how-
ever, under the authorities, was substantially the same as that due


to an invitee, not that due to a person circumstanced as were the
plaintiffs in the cases cited.

Johnson z\ Lake Superior T. & T. Co., 86 Wis. 64, 56 N. W.
161, turned on the duty of a railway company to a person walking
upon its track, where pedestrians were accustomed to travel by per-
mission of the company and might, under the circumstances, be
reasonably expected to be at any time. It was said that he was not
a mere trespasser, but it was not intimated that he could be regarded
as occupying, in any sense, defendant's premises by invitation. In
Caliill z'. Layton, 57 Wis. 600, 16 N. W. i, another case cited to sup-
port the ruling here, the deceased was a licensee without the element
of business relation with the licensor, in every sense a mere licensee,
and it was held that bare permission by one person to another to
use his premises for any purpose does not carry with it a duty to
maintain the premises in a reasonably safe condition for the per-
mitted use. The court there drew a distinction between mere omis-
sion to inform a bare licensee of danger in his way, and acts on the
part of a licensor rendering enjoyment of the license dangerous, there
being breach of duty in the former, but not in the latter. The idea
is that expressed in authorities quite generally, that one cannot be
actively negligent toward a mere licensee. It is said that much con-
fusion exists in American cases, partly by failure to distinguish
between mere passive and active conduct in respect to a mere li-
censee; that while such a licensee is bound to enjoy his license upon
the premises over which his license extends as he finds them, the
licensor owes him a duty, while the right of enjoyment exists, not
to actively render it dangerous. Bennett v. Railroad Co. 102 U. S.
577 ; Ellszi'orth v. Metheney, 44 C. C. A. 484, 104 Fed. 119 ; Felton v.
Aubrey, 20 C. C. A. 436, 74 Fed. 350.

From what has been said it will be seen that appellant's con-
tention that the verdict of the jury and the evidence do not show
that it was under any duty of active vigilance to discover those
things that were discoverable by the exercise of ordinary care to that
end, and to have informed deceased thereof, because he was only a li-
censee — was not in the place of danger by invitation, — is not satis-
factorily answered by pointing to the cases holding that a licensor
owes a duty to his mere licensee not to render the enjoyment of his
license dangerous by active negligence, as by running a railway
train regardless of the probability of the presence of persons on the
track where it has been customarily used as a traveled way. No
active negligence is claimed in this case. Breach of a duty to be
actively vigilant to discover dangers that were discoverable by the
exercise of ordinary care, and to inform the licensee thereof, is
claimed. If the sole test of liability were whether deceased was in
the place of danger by invitation, strictly speaking, either express or
implied, the result would necessarily be in favor of the defendant.
There is nothing in the evidence to suggest such invitation, but there
is ample evidence to show permission. The test of whether the ver-
dict, on its face, shows breach of duty to be actively vigilant is
whether the status of the deceased in respect to appellant was other
than a trespasser or bare, or mere, licensee. If he was neither be-
cause of the relations between the two, it is immaterial whether he


was in the place of danger by permission or by invitation, strictly so
called. Counsel for appellant brought this appeal on the theory
that if the deceased was not in such place by implied suggesti(jn, he
was necessarily a bare licensee. That is wrong. Suggestion, strictly
speaking, to go or come into the place, is essential to invitation, not
to permission. But where permission, without such suggestion, is
coupled with the element that creates the duty of active vigilance as
regards the safety of a visi tor bv invitation. tJ icpermission is a legal
^quiyiiki vt to invitati on, because it carries ^wltTi it a sixxTilar suggestTon""
of reasoiiabTe safety?

"" If it were necessary much authority could be produced to sup-
port the foregoing proposition. 1 will refer to them but briefly.
One of the most satisfactory decisions in the books, as regards the
particular circumstances of the case before us, is Holmes v. N. E. R.
Co. ( 1869) L. R. 4 Exch. 254. The plaintiff there was injured while
unloading coal at the defendant's track, the coal having been shipped
over its line. There was a usual and provided way for conducting
the unloading operations. Plaintifif, being unwilling to wait for his
turn to be accommodated in such way, which was to first shunt the
coal from the car into a cell by the side of the track and then draw
therefrom, informed the station master that he would take some coal
for immediate use directly from the car. That required him to mount
the car. He was permitted to do so by mere silence of the master
with knowledge of the operation. After removing the coal plaintiff
descended from the car to a flagged way along which patrons were
accustomed to walk in voluntarily assisting in the unloading opera-
tions in the usual way. In doing so he stepped upon a loose flag, of
which the defendant knew or ought to have known, and was injured.
The defendant claimed that the plaintiff was a mere licensee and
could not. therefore, legally charge the former with actionable neg-
ligence, since it did not wilfully or wantonly injure him. In defining
the plaintift"'s status, Channell, B., said :

"Where a person is a mere licensee he has no cause of action
on account of dangers existing in the place he is permitted to enter.
In one sense the plaintiff" was a licensee, but he was not a mere li-
censee, and the word 'mere' has a ver)^ qualifying operation; . . .
and this prevents the case from being that of one who is a mere

Cleasby, B., said, in effect, that the mere fact that the ordinary
way of unloading the coal was departed from was not material to
the defendant's duty to the plaintiff', since the way chosen by the
latter was known and assented to by the former; and further: "The
question of a mere license does not arise; for as soon as you intro-
duce the element of business, which has its exigencies and its neces-
sities, all idea of mere voluntariness vanishes." Kelly, C. B., speak-
ing for the court in chief, said, in substance, that since the conduct
of the plaintiff' was in pursuit of business relations with the defend-
ant, the permission, by not objecting, for' the former to depart from
the usual way of unloading the coal, made the latter responsible f^r
the safety of the way chosen, to the same extent as that of t!ie
usual way. In Bennett v. Railroad Co. 102 U. S. 577, the dis-
tinction is clearly recognized between a mere licensee and an invitee


in the technical sense, or one in the broad sense of including all
persons entering upon the premises of another in the transaction of
business with him by some other than the ordinary and suggested
way. but one permitted and ordinarily used. It is held that in each
of the latter situations there is an implied assurance of safety as
regards all dangers known to the proprietor or discoverable by the
exercise of ordinary care. Elliott, Railroads, § § 1248, 1249, points
out the same distinctions ; and that while invitation implies license,
license does not necessarily imply invitation ; that mere sufferance
does not constitute license, nor license invitation. Where there is
mere permission by the occupier of property to another to come upon
it. there being no mutuality of interest in the subject to which the
latter's visit relates, the visitor is a mere licensee. Add the omitted
element, and he is a licensee and an invitee. Pursuing the author's
line of reasoning, we should say: Add the further element of pro-
ceeding, while on the premises by invitation, beyond the region of
suggestion, but by permission, the business relation still continuing
and the visitor acting in pursuit thereof, and there is license im-
plying assurance of safety so far as legal rights are concerned —
invitation, so far as legal liabilities are concerned, — though that ele-
ment, in the technical sense, is absent.

From what has been said it will be seen that the deceased, ac-
cording to the verdict, was not a mere licensee, nor was he engaged
in manipulating the contents of the tank when the accident occurred
by implied suggestion essential to invitation in the general sense of
the term ; but he was so engaged by_JJae-a-&&e«t-oi the defendant
essential to license, and was lured into the place of danger by reason
nf his business with appellant. That carried with it legal responsi-
bility for the safety of such place as regards dangers known or dis-
coverablg.,by— the ex - grcisc o i„ord jnary c are. There was the same

itedassurance of safety as there wouW~iTave been if it had been
part of the regular duties expected of customers to aid in delivering
the subject of the deal between the parties, to do as the deceased
was doing when the accident occurred. In this respect the case is
precisely like the English case from which we have quoted at con-
siderable length.^

' The remainder of the opinion dealing with the admissibility of photo-
graphs of the vat as evidence and of the sufficiency of the evidence to sup-
port the fourth finding, together with the concurring opinion of Bardeen, J.,
is omitted.

Accord: Samuelson v. Cleveland Iron Co., 49 Mich. 164 (1882). one
inviting another on his premises "assumes to all who accept the invitatior
the duty to warn them of any danger in coming, which he knows or by the
exercise of proper care he ought to have known, and of which they are not
aware." Cooley, J., p. 170, and see Beven Negligence, 3rd ed., bottom of
page 448, discussing Southcote v. Stanley. The duty is not to ensure the
safety of the business guest but to exercise ordinary care for it.



Vendors and Lessors of Real Estate,



Superior Court of Judicature of Xcic Hampshire, 1824. 3 New Hampshire,


This was an action of the case for maintaining and continuing
a dam across the Pcmigewasset brook, from July 8, 1821, to August
6, 1822, whereby the plaintiff's land was covered with water, and

The cause was tried here at September term, 1823, upon the
general issue ; when it appeared in evidence, that the defendant, in
1818, erected a dam across the Pcmigewasset brook, which caused
the water to overflow the plaintift"s land, and injure his grass and
trees. But it appeared, that the defendant, on the 23d November,
1820, by deed, conveyed to one John Harper the dam and the land,
on which it stood ; and the said John Harper has ever since been in
possession. Since the said conveyance, however, the defendant has
at times occupied the mills, connected with the dam, under said J .
Harper; and he occupied them between the 8th July, 1821, and
August 6, 1822.

A verdict was taken for the plaintiff, subject to the opinion of
the court upon the above case.

Richardson, C. J., delivered the opinion of the court.

It is contended, on the part of the defendant, in this case, that
he is not liable for the injury, of which the plaintiff complains, be-
cause, previous to the time mentioned in the declaration, he con-
vevcd the land, upon which the nuisance had been erected, to a third
person ; and so the continuance of the nuisance must be deemed, not
his act. but the act of such third person ; and the question is, whether
the deferidant is liable for the continuance of the nuisance, after
having parted with his title to the land?

He, who is injured by a nuisance, may enter and abate it, or
he may have redress by an action. 9 Coke 53, Baten's case. — 5 ditto
101, Penruddock's case. — 2 Salk. 459, Rex vs. Rosezuell.

In ancient times, the remedy by action, for a nuisance, was a
quod pcniiittat, or an assize of nuisance. In both those actions, the
plaintiff' had judgment, not only for his damages, but for the abate-
ment of the nuisance. 9 Coke 53, Baten's case.

But, at the common law, an assize of nuisance was held to lie
only against him, who erected the nuisance, and not against him, to
whom the tenement had been transferred. The reason assigned for
this was. that there was not found in the register any form of writ,
in which it was not supposed, that the tenant erected the nuisance.
This defect was remedieil by the statute of Westminster 2, cap. 24,


which made him hable, to whom the person, erecting the nuisance,
had conveyed the tenement. This statute was construed to give an
assize against him who erected, and him who continued, a nuisance,
jointly ; and the form of the writ is given in Baten's case, 9 Coke 53.
It is therefore clear, that in Lord Coke's time it was held, that he,
who erected a nuisance, and then conveyed the tenement, remained
liable after the conveyance, for any damage resulting from the con-
tinuance of the nuisance.

In the reign of Queen Elizabeth, the quod permittat and assize
began to go out of use, and an action on the case to be brought for a
nuisance; and in the 36th year of that reign, the case of Beswick vs.
Comhden was decided in the King's bench. Moor 353. — Crokc
EUz. 402. The facts are stated differently by the two reporters. It
was an action on the case, and Croke says, that the defendant erected
the dam, which caused the water to overflow the land of /. S., who
enfeoft'ed the plaintiff; and the question was, whether the feoffee
could maintain case for the continuance of the nuisance? But Moor
says, that the nuisance was erected by one, who enfeoft'ed the de-
fendant, and that the cjuestion was, whether the feoffee was liable
in case for the continuance of a nuisance? Whatever the facts may
have been, both Croke and Moor agree, that the plaintiff had judg-
ment. But two years afterwards, in the case of Beszvick vs. Cum-
den, in the court of common pleas, which was an action on the case
for the continuance of a nuisance, the action was held not to lie;
because the proper action was an assize, or a quod permittat, and
not case ; and because the defendant could not be liable for permit-
ting a nuisance to continue.

Penruddock's case, (5 Coke loi,) was a quod permittat in the
common pleas, brought by the grantee of him, to whose prejudice
the nuisance was originally erected, against the grantee of him, who
first erected the nuisance ; and the question was, whether the de-
fendant was liable ; and it was held, that he was, he having con-
tinued the nuisance after he had been requested to abate it.

Notwithstanding the decision of the common pleas, case seems
after this time to have maintained its ground, and the other two
remedies to have gone wholly out of Lise. The case of Ryppon vs.
Bozvles, (Croke James 373,) was an action on the case. The facts
were, that one Thomas Henson erected a building, by which the
plaintiff's window was darkened. Afterwards Bozvles, the defend-
ant, being in possession, the plaintiff brought an action against him,
for continuing the nuisance. Coke, C. J., inclined to the opinion,
that the defendant was not liable ; but all the court held, that he, who
erected the nuisance, was liable.

In Brent vs. Haddon, (Cro. James 555,) the case was, that one
Qnarles had a mill, and erected a dam, which caused the water to
overflow the plaintiff's land ; Quarles leased the mill to J-Jaddon,
against whom the plaintiff brought his action, for continuing the
nuisance ; and Haddon was held to be liable.

In RoswelJ vs. Prior, (2 Salk. 460. — i L. Raym. 713) it was
decided, that where a tenant for years erected a nuisance, for which
an action was brought against him, and a recovery had, and he then


underlet to another, an action might still be maintained against him
who erected it, for the continuance of the nuisance.

Upon an examination of the cases bearing upon the question
now to be decided, it will be found, that, although in the lapse of
time, the form of action has entirely changed, yet the books indi-
cate no change in the liabilit}' of the wrong doers. Xo case is to be
found, in which it has been doubted, that he, who erects a nuisance,
continues liable as long as the nuisance continues. But it has
often been made a question, how far, and under what circumstances,
he. who adopted the acts of the original wrong doer, shall be

If the question, which this case presents, were now to be de-
cided for the first time, it seems to us, that it would be very difficult
to find a good reason, why the original wrong doer should be dis-
charged by conveying the land. The injury has no connection with
the ownership of the land. If A. enter into the land of B. and there
erect a dam, which causes the water to overflow B.'s land, there can
be no doubt, that he will be liable for any damage resulting from
such overflowing. So if A. enters B.'s land, and there erects a
nuisance to the prejudice of C, it is clear, that A. will be liable to C.
When he who erects the nuisance conveys the land, he does not
transfer the liability to his grantee. For it is agreed, in all the
books, that the grantee is not liable, until, upon request, he refuses
to remove the nuisance. It does not make the original act less in-
jurious, because the grantee adopts it ; and we are not aware, that
in any action against an individual for a tort, it can be a good
defence to shew, that a third person has assented to the wrong, and
thus become liable.

We are therefore of opinion, that the objection, which has been
raised in this case, cannot prevail, and that there must be

Judgment on the verdict.^

^Accord: Mason v. Shretvshiiry, L. R. 6, Q. B. 577 (1871), Blackburn,

J., p. 584. scmhlc: Prentiss v. Wood, 132 Mass. 486 (1882); Dorman v. Ames

and George, 12 Minn. 451 (1867), p. 456; Eastman v. Amoskeag Mfg. Co.,