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."

The learned judge continues:

"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 his property safe for such use. Aside from the notion that temptation is equivalent to invitation (with which we cannot concur), there is nothing in the mere existence of building materials as an obstruction in the street that denotes an invitation to the passerby or to the idler or playful child to use the materials for his own purposes. The doctrine of invitation relates to the entry upon or the user of lands. The very fact that materials piled upon the ground constitute a hindrance to travel negatives the idea of invitation in the ordinary sense."

Of the fetich "attractiveness to children " it was said:

"The case for the plaintiff rests upon the theory that since these girders were so arranged as to be attractive to children, and since the injured child, with her companions, was using them as a place for play, or as a resting place during or after play, the proprietors of the premises, or the defendants, upon whom as independent contractors the matter had been devolved, owed a duty to the children to so arrange the girders as to render them safe for their use. With this view we do not agree.

"No doubt where a duty exists to take care with respect to the safety of children of tender years, their very age must be taken into account, so that what might be reasonable care with respect to the safety of adults, who are capable, to some extent, of looking out for themselves, might not be reasonable care with respect to children. But in the present case the very question is whether any duty existed, and we are not able to see that the age of the child is pertinent upon this inquiry. That

the party injured in this case was less than five years of age did not at all tend to give her any property interest or right of user in the defendant's girders. Whether she used them as licensee or as trespasser, in either case there was no duty upon the owner to exercise active care with respect to her safety.

The circumstance of attractiveness is given its proper force in connection with the question of contributory negligence.

“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 we 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 owner. One difficulty is that the rule pro 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 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 appropriating it?"

Other cases have made this application of attractiveness and it is a proper one under our decisions on the subject of contributory negligence of children. Here a court was found who deemed it proper to consider and refer to the probable consequences the rule contended for (and the Virginia court has done the same), which we took occasion to do in Ryan v. Towar, and sharing our fears of the consequences of a departure from established legal landmarks:

"Another and a very practical difficulty that confronts

148 MICH.-b.

the attempt to lay down any legal rule that depends for its limitations upon the attractiveness of objects to children of tender years lies in the extreme improbability that any man, however prudent, will be able to foresee what may or may not be attractive to children. Certainly if a pile of steel girders, each weighing 1,000 pounds, deposited in the street, as the girders in the present case were deposited, must be foreseen by a prudent man to be attractive to children, we are unable to say what object may not be thus attractive.

"These are the views which we entertain after a careful consideration of the question at issue in this case after most learned and able arguments by counsel on both sides, and a review of numerous reported decisions touching more or less closely upon the point."

It will be noticed that it is a case that can fairly be said to have decided every point that we have in the present case against the contention of plaintiff's counsel and in accordance with Ryan v. Towar.

A discussion of this case would not be complete without considering its view of the English cases. In Ryan v. Towar we said that the first case cited as a precedent

"Was Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29. In that case it was held that a child who, seeing a horse and cart unfastened in the street, got into the cart and was injured, could maintain an action against the owner. The case seems to have gone off upon the questions of negligence and contributory negligence, and, no question of trespass being discussed, the inference is perhaps a proper one that it was found by the jury that the owner was negligent in leaving his horse loose in the public street, and that the child had shown as much prudence as could be expected of him. Not only was there apparently no consideration of this question, but later English cases are in conflict with that case, if it necessarily involved it."

Upon this case the following comment is made.

"So far as the report of the case shows, however, the latter ground was not relied upon, and the motion for new trial was rested solely on the ground that the plaintiff's injury arose in part from his own fault and in part from the fault of his playmate. Curiously enough, the existence of a duty to the playing children, whose breach

would constitute actionable negligence, was not made the subject of argument. It appears clearly that no question was raised before the court upon this point. Defendant's negligence having been conceded by counsel, the remarks of Chief Justice Lord Denman are hardly to be treated as a considered judgment upon that question. The only controverted point that seems to have been determined was that, although the plaintiff's own act co-operated to produce his injury, he was not for that reason debarred from recovering compensation in respect of defendant's negligence, and this because of the plaintiff's tender years."

The court adds:

"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 overruled, by the later English decisions. It is true it was relied upon by our supreme court in Danbeck v. Traction Co., 57 N. J. Law, 463. 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."

Lynch v. Nurdin is not in point, and the majority opinion in Ryan v. Towar, does not say that it is, but says the contrary. It is in the dissenting opinion, if in either, that this claim is to be found.

As to Clark v. Chambers, L. R. 3 Q. B. Div. 327, which the dissenting opinion in Ryan v. Towar cites as disapproving Mangan v. Atterton, the New Jersey case shows that it was not disapproved so far as any point involved in this case or Ryan v. Towar is concerned. Of the doctrine of the Turntable Cases the court says:

"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. Railroad Co., 61 N. J. Law, 314, decided by the supreme court, and Delaware, etc., R. Co. v. Reich, 61 N. J. Law, 635 (41 L. R. A. 831), decided by this court. The rule 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 purposes 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 any one 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."

Of Hughes v. Macfie, 2 Hurlst. & C. 744, it is said:

"Defendants were occupants of a warehouse adjoining the street, with a cellar opening in the street, protected