treated for the purposes of the trial as if | century ago in Winter v. Peterson, 24 N. J. amended.

Under this state of the pleadings and proofs, therefore, we assume that the jury might reasonably find that, if any legal duty was owing to the injured child or to the plaintiff, as her parent, with respect to the condition of the pile of girders, it was owing by this defendant, and that, if this duty included the exercise of care that the gir ders should be so placed and maintained as not to cause injury to children playing upon them, or resting upon them during the play, it might be found that the duty had been neglected. At the same time the question of defendant's responsibility must be viewed in the light of the uncontroverted fact that whatever it had done about placing and keeping the girders there had been done under employment of Colgate & Company. for the purpose of repairs upon their building, and done in their right as owners and occupants of the land.

L. 524, 527, 61 Am. Dec. 678. The same rule was recognized ten years later by Chancellor Green in Hinchman v. Paterson Horse R. Co. 17 N. J. Eq. 75, 82, 86 Am. Dec. 252, where he said: "The presumption of law is that the owners of the land on each side of the street own to the middle of the street, and have the exclusive right to the soil, subject to the right of way. It is objected by the defendants' answer that the complainants' titles do not extend to the middle of the street, because the lots as described are bounded by the sides of the streets. But the established inference of law is that a conveyance of land bounded on a public highway carries with it the fee to the center of the road, as part and parcel of the grant." This statement of the rule was referred to by Chief Justice Beasley in delivering the opinion of this court in Salter v. Jonas, 39 N. J. L. 469, 472, 23 Am. Rep. 229; and the rule was Motions for nonsuit and for direction of a made the basis of deciding that in a conveyverdict in defendant's favor were overruled. ance of lands, with abuttals coinciding and the case was submitted to the jury with with the side of a street or highway, nothinstructions from the trial justice to the ing short of express words of exclusion will effect that the defendant company had the prevent the title from extending to the right to put the girders in the street, pro- middle of the street, if the grantor at the vided they were put there in a safe condi- date of such conveyance is the owner of the tion; that while they remained there the street to that extent. In Weller v. McCorduty rested upon the defendant of exer- mick, 52 N. J. L. 470, 473, 8 L. R. A. 798, 19 cising reasonable care to see that they were Atl. 1101, it was held by the supreme court kept in a safe condition; that the pro- that where one is in actual occupation, as pensity of little children to play upon the owner, of the premises abutting upon the street, and to rest from their play in the street, his title and possession presumably street, was to be taken into consideration; extend to the middle of the street, subject that, if through defendant's want of care only to the public rights. The same docthe girders were left in the street in trine is recognized in Hoboken Land & Imsuch condition that they would tempt prov. Co. v. Kerrigan, 31 N. J. L. 13; State, little children to make use of them either Benson, Prosecutor, v. Hoboken, 33 N. J. L. for, play or for resting, and would be 280, 281; State, Green, Prosecutor, v. Trendangerous to the children thus using them. | ton, 54 N. J. L. 92, 102, 23 Atl. 281; Ocean a case of actionable negligence was made | Grove Land Asso. v. Berthall, 62 N. J. L. 89, out; and that the fact that Fannie 40 Atl. 779 and Ocean City Asso. v. Shriver, Friedman was playing upon the girders, in 64 N. J. L. 554, 51 L. R. A. 425, 46 Atl. view of her tender years, would not bar her 690. The substantial character of the right to recovery. Numerous exceptions rights of the abutting owner in the soil of challenged the propriety of these instruc- the street is recognized in all our decisions tions, and of other rulings and instruc- that touch upon the subject. Besides the tions that were based upon the same theory. cases already noted, the following may be There was nothing in the case to exclude referred to: Wright v. Carter, 27 N. J. L. the inference that the title and possession of 76. See State v. Laverack, 34 N. J. L. 207; Messrs. Colgate & Company extended to the Burnet v. Crane, 56 N. J. L. 288, 44 Am. middle of the street. In our courts it has St. Rep. 395, 28 Atl. 591; Wuesthoff v. long been established that, in the absence Seymour, 22 N. J. Eq. 66, 70; State, Avis, of anything to show the contrary, the title Prosecutor, v. Vineland, 56 N. J. L. 474, and legal possession of the abutting owner 477, 23 L. R. A. 685, 28 Atl. 1039; French or occupant do extend to the middle of the v. Robb, 67 N. J. L. 260, 57 L. R. A. 956, road or street; the freehold remaining in 91 Am. St. Rep. 433, 51 Atl. 509. him, subject only to the easement or right of passage in the public. So it was laid down in our supreme court more than half a

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It is the undoubted right of landowners to deposit in the street building materials required in the improvement of their abut

ting property, although the public lawfully | building materials as an obstruction in the street that denotes an invitation to the using the street may be, as in many cases they necessarily are, to some extent in- passer-by or to the idler or playful child to use the materials for his own purposes. The commoded thereby. 27 Am. & Eng. Enc. Law, 2d ed. title, Roads and Streets, p. doctrine of invitation relates to the entry upon or user of lands. The very fact that 156. Of course, the right is to be reasonably exercised, in view of the rights of materials piled upon the ground constitute a hindrance to travel negatives the idea the public, and is subject to regulation in the public interest. Where the ownership of invitation in the ordinary sense. The case for the plaintiff rests upon the of the soil of the street is not in the abutting owner, his right to use the street for theory that, since these girders were so arthis and other like purposes is vindicated on ranged as to be attractive to children, and the ground of necessity, as in Van O'Linda since the injured child, with her companions, was using them as a place for play, or as a v. Lothrop, 21 Pick. 292, 297, 32 Am. Dec. 261. While not questioning that necessity resting place during or after play, the prowould furnish a sufficient justification in prietors of the premises, or the defendants, the present case, yet, since it appears that upon whom, as independent contractors, the matter had been devolved, owed a duty to Messrs. Colgate presumably held the legal possession of the soil of the street, the the children to so arrange the girders as to With this right of the defendant, as their contractor, render them safe for their use. to store building materials there, may be view we do not agree. No doubt, where a simply and directly referred to the land-duty exists to take care with respect to the owner's right to use the soil for all proper safety of children of tender years, their very purposes, provided he avoided unreasonable age must be taken into account, so that interference with the public easement. It is what might be reasonable care with respect to the safety of adults, who are capable to manifest that every deposit of building materials of the character now in question some extent of looking out for themselves, necessarily amounts to a temporary exclu- might not be reasonable care with respect sion of the public from the space thus to children. But in the present case the occupied. A reasonable interference with very question is whether any duty existed, the public easement is rightful. If the pub- and we are not able to see that the age of lic be unreasonably hindered or endangered, the child is pertinent upon this inquiry. the party at fault may be indicted for main- That the party injured in this case was less than five years of age did not at all tend taining a public nuisance, or may be required to remove the obstruction. And to give her any property interest or right Whether further, an individual member of the public, of user in the defendant's girders. if specially damnified by the nuisance while she used them as licensee or in the exercise of his rights in the street, passer, in either case there was no duty may maintain a private action. But this upon the owner to exercise active care with refers only to parties injured while using respect to her safety. the street as a street, and not to those whose injuries arise from their attempted use of the obstructing materials for their own purposes, whether of pleasure, convenience, or profit. For the building materials themselves do not in any sense become public property by being allowed to remain in the street. And neither a traveler, nor an idler, nor even a playful child, can gain rights against the landowner, or against his agent who stands in his rights, by using such building materials as a resting place or playground. In the absence of circumstances denoting invitation, one thus using the private property of another for his own purposes may be either a licensee or a mere trespasser, depending upon circumstances. In neither case is there any duty incumbent upon the proprietor to make Aside from his property safe for such use. the notion that temptation is equivalent to invitation, with which we cannot concur, there is nothing in the mere existence of

as tres

we

The fact that a dangerous place or object is attractive to children of tender years is legitimately significant where the question of their own want of care is raised. But there are fundamental, and, as think, insuperable, difficulties standing in the way of adopting the rule that the mere attractiveness of private property gives to the person attracted rights against the One difficulty is that the rule pro owner. tanto ignores the distinction between meum and teum. And on what principle is it to be limited to cases of trespass? Why does it not apply equally to the conversion of personal property, or even to larceny? If those who temporarily and for limited purposes convert the private property of their neighbors to their own use are to be not only excused, but justified, where by reason of their tender years they were tempted to the trespass, and at the same time are to have rights of action against the true owners for the failure to exercise care about rendering

the property suitable for their use, why may | istence of a duty to the playing children, not those who under similar temptation convert the property of others wholly to their own use be likewise justified, and, instead of a right of action, gain a complete title to the property by simply appropriat-point. Defendant's negligence having been ing it?

quence of the bad management of the plain- | tiff, a child of five, climbed upon the lid, tiff's shopman, who came out and laid hold of his head. During the cross-examination of the second of these witnesses the jury interposed, and said they did not believe the evidence of either of them. From this it is inferable that the verdict for the plaintiff was based upon the ground that the horse of its own motion had backed the cart into the window, an act of trespass, for which the owner of the cart was held responsible. Tindal, Ch. J., commenting upon the evidence of the witnesses who were disbelieved by the jury, said that, supposing them to be speaking the truth, it would not amount to a defense, since, if a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done.

Dixon v. Bell, Daniels v. Potter, and Illidge v. Goodwin do not seem to us to furnish adequate authority for attributing ac tionable negligence to the defendant in Lynch v. Nurdin. That the court of Queen's bench would have concluded there was such negligence, or any legal duty existing under the circumstances of that case, if these questions had been seriously discussed by defendant's counsel, is not to be taken for granted. The authority of the latter case was doubted by Pollock, C. B., in Lygo v. Newbold (1854) 9 Exch. 302. In this case the plaintiff was riding in defendant's cart by permission of the servant in charge, but without authority of the defendant. The cart having broken down and injured the plaintiff, the question was whether defendant was liable for these injuries. Recovery having been denied by the trial judge, the court refused to disturb the verdict. In Singleton v. Eastern Counties R. Co. (1859) 7 C. B. N. S. 287, the plaintiff, an infant three and one-half years of age, strayed upon the railway track, and had its leg cut off by a passing train. It was held that, in the absence of any evidence to show the child got there through some neglect or default on the part of the company, they were not responsible for the injury. Lynch v. Nurdin was cited by counsel, but was not considered by the court as sufficient support for the plaintiff's action.

and, in jumping down, pulled it over, to the injury of the two plaintiffs. The court denied the right of recovery to the child who had caused the lid to fall; Pollock, C. B., saying: "We think the fact of the plaintiff being of tender years makes no difference. His touching the flap was for no lawful purpose, and if he could maintain the action he could equally do so if the flap had been placed inside the defendants' premises, within sight and reach of the child. As far as the child's act is concerned, he had no more right to touch this flap for the purpose for which he did touch it than he would have had if it had been inside the defendants' premises. Cases were referred to, supposed to be in favor of the plaintiff. We think none are decisive of this case, and no case establishes a principle opposed to our view, which is that the nonsuit was right." As to the other action, in which Abbott was plaintiff, it was held that if he was playing with Hughes, so as to be a joint actor with him, he could not maintain his action, but, if not, he could, as his injuries would then be the result of the joint negligence of Hughes and the defendant. In the argument, Lynch v. Nurdin was cited as express authority that in the case of an infant of tender years the circumstance that he was a trespasser, and contributed to the mischief by his own act, will not necessarily preclude the maintenance of the action, and it was attempted to be shown that the authority of that case stood unimpeached by later decisions. Chief Baron Pollock made no more specific reference to Lynch v. Nurdin than is above quoted, but the present decision was manifestly inconsistent therewith.

And in Mangan v. Atterton (1866) L. R. 1 Exch. 239, 4 Hurlst. & C. 388, 35 L. J. Exch. N. S. 161, where defendant exposed in a public place for sale, unfenced and without superintendence, a machine which might be set in motion by any passer-by, and which was dangerous when in motion, and the plaintiff, a boy four years old, by the direction of his brother, seven years old, placed his fingers within the machine whilst another boy was turning the handle which moved it, and the plaintiff's fingers were crushed, it was held there was no ground of action.

Hughes v. Macfie and Abbott v. Macfie (1863) 2 Hurlst. & C. 744, 33 L. J. Exch. N. S. 177. Defendants were occupants of a warehouse adjoining the street, with a In Clark v. Chambers (1878) L. R. 3 Q. B. cellar opening in the street, protected by a Div. 327, 47 L. J. Q. B. N. S. 427, 19 Engwooden lid. Their workman, in order to lish Ruling Cases, 28, defendant had unlower casks into the cellar, had raised the lawfully placed a barrier armed with spikes lid, and rested it against the wall, nearly across a road, and some person other than upright. One of the plaintiffs, a child seven he (presumably a person entitled to use years of age, was playing in the street the road, and to whom the barriers was a with other children, when the other plain- | hindrance) had removed it from the position

in which defendant left it, and placed it in | 41 L. R. A. 831, 68 Am. St. Rep. 727, 40 an upright position across the footpath. Atl. 682, decided by this court. The rule Plaintiff, passing that way, in the dark. and ignorant of the obstruction, collided with it, and sustained a severe injury. His action was sustained. In the judgment of Lord Chief Justice Cockburn there is a review of Dixon v. Bell, Illidge v. Goodwin, Lynch v. Nurdin, Daniels v. Potter, Hughes v. Macfie, Abbott v. Macfie, and Mangan v. Atterton, but the sole point in controversy was whether defendant's act was the prox. imate cause of plaintiff's injury, and the affirmative decision was rested on the princi ple of Scott v. Shepherd, 3 Wils. 403, 2 W. Bl. 892, 1 Smith, Lead. Cas. 210. Plaintiff. it will be observed, was lawfully using the way for purposes of passage, so that there was no question of his being within the class of persons for whose safety the defendant was bound to be careful. The distinction between such a case and one when the injured party is making use of defendant's private property for his own purposes is entirely clear.

It is safe to say, therefore, that, so far as Lynch v. Nurdin is relied upon in support of the present action, it has been distinctly discountenanced, if not necessarily over. ruled, by the later English decisions. It is true, it was relied upon by our supreme court in Danbeck v. New Jersey Traction Co. 57 N. J. L. 463, 31 Atl. 1038. But that was the case of a child injured while riding as a gratuitous passenger upon a railway car, having entered it upon the invitation of the conductor, and furnishes no support for the present action.

We deem it unnecessary to rehearse at length the decisions cited by counsel for the plaintiff from the courts of some of our sister states, affirming, as is claimed, the general principle upon which the present plaintiff's right of action is based. Many, if not most, of those decisions depend fundamentally upon the same notion that in many states and in the Supreme Court of the United States has been given effect in the so-called turntable cases, which will be found collated in 29 Am. & Eng. Enc. Law, 2d ed. p. 32. That is, that a landowner who maintains upon his own premises for his own purposes that which is alluring or tempting to little children is held to a duty of exercising care with respect to their safety, in anticipation of the probability that they may be tempted to make use of his property for purposes of play. This doctrine has been repudiated in this state by the cases of Turess v. New York, S. & W. R. Co. 61 N. J. L. 314, 40 Atl. 614, decided by the supreme court, and Delaware, L. & W. R. Co. v. Reich, 61 N. J. L. 635,

laid down in these cases is, as we think, wholly inconsistent with the asserted liability of the present defendant. That rule draws a clear distinction between temptation and invitation, and is to the effect that those who enter upon private property for their own purposes without invitation, but as trespassers or licensees, do so at their own peril, so far as any right on their part to call for active care on the part of the property owner for their welfare is concerned, and that, although the injured | party be an infant of tender years, and for that reason less able to care for its own safety, and more susceptible to the attractions that private property affords for pur poses of play, this circumstance does not create a duty where none otherwise would exist. It is true that in our turntable cases the attractive objects were not within the limits of the public highway; but it is likewise true that in the present case, as already pointed out, while the building materials were within the street, they were deposited there as private property for lawful purposes by the defendant, in the exercise of the landowner's rights in that behalf. And, although the representatives of the public might complain of the occupancy of a portion of the street by building materials, if unreasonably prolonged, or if the materials were insecurely placed; and although anyone lawfully using the street as such might have an action if specially injured by collision with the materials, or by their fall if they were negligently left in an insecure position, we cannot see that these circumstances confer rights upon one who is using the building materials as the injured child in the present case was doing. We hold, therefore, that the rulings and instructions of the learned trial justice above referred to were erroneous. The judgment under review should be reversed, and a venire de novo awarded.

Garrison, J., concurring:

From the testimony the jury could find that the plaintiff's infant daughter was sitting on one end of one of the girders, and aiding in imparting to it the movement that is described as "titter-totter," and that the movement so imparted caused the fall of the girder by which the infant was injured.

The jury was instructed that "the inquiry must be, Were these girders at the time of the accident in such condition that they would tempt little children to use them for play, . . . and, if they did so use them, would endanger them? If they did so tempt