Mr. Henry R. Scott, for plaintiff: Unless plaintiff was a trespasser or a licensee, defendants owed her a duty to construct or maintain their fence in a reasonably safe and prudent manner.

Mahoney v. Libbey, 123 Mass. 20, 25 Am. Rep. 6; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224; Khron v. Brock, 144 Mass. 516, 11 N. E. 748; Woodman v. Shepard, 238 Mass. 196, 13 A.L.R. 982, 130 N. E. 194; Barber v. C. W. H. Moulton Ladder Co. 231 Mass. 507, 121 N. E. 501; Blanchard v. Reynolds, 236 Mass. 596, 129 N. E. 303.

Defendants are not relieved of liability if the efficient cause of the accident was their own neglect.

Lane v. Atlantic Works, 107 Mass. 104, 111 Mass. 136; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 4 Am. St. Rep. 279, 15 N. E. 84; Horan v. Watertown, 217 Mass. 185, 104 N. E. 464; Blanchard v. Reynolds, supra; Currier v. Boston Music Hall Asso. 135 Mass. 414.

Plaintiff was not a licensee or trespasser.

Weldon v. Prescott, 187 Mass. 415, 105 Am. St. Rep. 413, 73 N. E. 536; Bowler v. Pacific Mills, 200 Mass. 364, 21 L.R.A.(N.S.) 976, 128 Am. St. Rep. 432, 86 N. E. 767; Harobine v. Abbott, 177 Mass. 59, 58 N. E. 284; Moffatt v. Kenny, 174 Mass. 315, 54 N. E. 850, 6 Am. Neg. Rep. 564; D'Amico v. Boston, 176 Mass. 601, 58 N. E. 158; Danforth v. Durell, 8 Allen, 242; Fox v. Union Sugar Refinery, 109 Mass. 292; Rodgers v. Parker, 9 Gray, 445; Sexton v. North Bridgewater, 116 Mass. 206; Jacobsen v. Simons, 217 Mass. 194, 104 N. E. 490; Coles v. Boston & M. R. Co. 223 Mass. 408, 111 N. E. 893; Boutlier v. Malden, 226 Mass. 479, 116 N. E. 251, Ann. Cas. 1918C, 910; Holmes v. Drew, 151 Mass. 578, 25 N. E. 22; Romana v. Boston Elev. R. Co. 218 Mass. 76, L.R.A.19'5A, 510, 105 N. E. 598, Ann. Cas. 1917A, 893, 226 Mass. 532, 116 N. E. 218; Robbins v. Athol Gas & E. Co. 236 Mass. 387, 128 N. E. 417, 20 N. C. C. A. 186; Barber v. C. W. H. Moulton Ladder Co. 231 Mass. 507, 121 N. E. 501.

Defendants were bound to maintain their fence safely on their own land.

Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224; Cork v. Blossom, 162 Mass. 330, 26 L.R.A. 256, 44 Am. St. Rep. 362, 38

N. E. 495; Woodman v. Shepard, 238 Mass. 196, 13 A.L.R. 982, 130 N. E. 194; Quinn v. Crimmings, 171 Mass. 255, 42 L.R.A. 101, 68 Am. St. Rep. 420, 50 N. E. 624.

Messrs. Sawyer, Hardy, Stone, & Morrison and J. W. Coughlin for defendants.

Carroll, J., delivered the opinion of the court:

These two actions of tort-one for personal injuries sustained by Ellena Leuci (hereinafter called the plaintiff) on a way in Chelsea known as Locust street, and one for expenses paid by her father-were tried together. The plaintiff, who was ten years old at the time of the accident, lived with her parents on Vale street, Chelsea. She was sent on an errand to Beach street, Everett. On her return, while traveling on Locust street, a door belonging to the defendants, which formed a part of the fence inclosing their property, fell upon her, causing the injuries complained of. The fence into which the door was nailed was old, and "very rotten where it touched the ground." The door was held in place by "three bent spikes," two on the "left-hand side," and one "on the right-hand side." The jury could have found that it was insecurely fastened.

Locust street has never been accepted as a public highway; it is not paved, is about 40 feet wide, and has been used for travel. "There were ruts in Locust street, in the center of the place on either side of these ruts, on both sides, rubbish was piled up in places, more space without than with rubbish."

"There is no special pathway in it. You can walk wherever you want to." The land on either side of the street belongs to various owners; the defendants' land, as indicated on the plan used at the trial, abutting on Locust street. "Both parties to the case are present owners or occupiers of separate lots shown on said plan. The plaintiffs are not owners of lots on the way known as Locust street." It was agreed that

the plaintiff was not invited by "any owner or occupier of property on Locust street" to use the street.

There are shown on the plan a public highway called Everett avenue, Locust street, a way known as Carter street, four other streets, and a plot of land divided into lots. There was evidence that the members of the plaintiff's family, in going to Everett avenue, usually went by way of Carter street, but "went by way of Locust street sometimes." It is stated that there were "five houses on Vale street at the back of the defendants' premises between Locust street and Carter street, and plaintiff's family lived on Vale on Vale street in one of the houses on the opposite side." Their title to these premises is not shown, nor is it shown that their deed, or the deed of those under whom they held or occupied, made any reference to the plan, to Locust street or to any rights of way over it, and it does not appear that it was necessary to pass over Locust street in order to reach the public highway, Everett avenue. It does appear that the defendants took title to their property in 1919, by deed which refers to the plan "of the Everett Avenue Syndicate's Lands Resurvey," recorded in 1895.

Easement-in

Even if we assume that all the land shown on the plan, including that of the defendants and of the plaintiff, was owned by the same common grantor when the plan was recorded, the plaintiff has not shown that the deed street on plan- of her land made any reference to the plan, and no right of way over Locust street was appurtenant to her lot. Regan v. Boston Gaslight Co. 137 Mass. 37; Pearson v. Allen, 151 Mass. 79, 21 Am. St. Rep. 426, 23 N. E. 731.

when exists.

Locust street has never been laid out as a public highway. There is no evidence that the public has any right of way in the street by prescription. See Aikens v. New York, N. H. & H. R. Co. 188 Mass. 547, 74 N. E. 929. It is a private way.

Private roads

licensee upon.

The plaintiff was not invited to use it. She was at the most a licensee, and the duty which the defendants owed her was to refrain from wilful, liability for reckless, or wanton injury to conduct toward her. Robbins v. Athol Gas & E. Co. 236 Mass. 387, 128 N. E. 417; Hafey v. Dwight Mfg. Co. 240 Mass. 155, 133 N. E. 107. There was no evidence of any reckless, wilful, or wanton conduct on the part of the defendants toward the plaintiff, and the plaintiff does not allege in her declaration that the defendants were guilty of such acts. On entering Locust street, she took the risk of the conditions as they existed at the time, and the defendants are not liable because the way was unsafe for travel. Redigan v. Boston & M. R. Co. 155 Mass. 44, 14 L.R.A. 276, 31 Am. St. Rep. 520, 28 N. E. 1133; Moffatt v. Kenny, 174 Mass. 311, 54 N. E. 850, 6 Am. Neg. Rep. 564; Bowler v. Pacific Mills, 200 Mass. 364, 21 L.R.A. (N.S.) 976, 128 Am. St. Rep. 432, 86 N. E. 767; O'Brien v.. Union Freight R. Co. 209 Mass. 449, 36 L.R.A. (N.S.) 492, 95 N. E. 861.

There was no evidence that a notice or sign was posted on Locust street indicating that it was a private way or warning the public against its use. The absence of such a sign, how- -injury by fall ever, did not make of fencethe defendants lia- liability. ble to the plaintiff for mere negligence. She had no legal right to use the way, and the fact that it was laid out between lands of the defendants' predecessors in title and other abutters does not change the rule.

In the case of Barber v. C. W. H. Moulton Ladder Co. 231 Mass. 507, 121 N. E. 501, the plaintiff was not a licensee. His father's house abutted on the private way, and the plaintiff had no other means of access to his home. It was not shown that the defendant had any title to the land occupied by it and abutting on the way. In the case at bar the

land occupied by the plaintiff's family was not on Locust street. The Iland of the defendants did abut on this street, and it was not necessary for the plaintiff to pass through Locust street in traveling from her home to the public highway. Cases similar to Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224, where a party wall fell and injured the property of an adjoining owner; Cavanagh v. Block, 192 Mass. 63, 6 L.R.A. (N.S.) 310, 116 Am. St. Rep. 220, 77 N. E. 1027, 20 Am. Neg. Rep. 379, where the plaintiff, in using the private way, stood in the place of an abutter and was in the exercise of a legal right when iniured; Fuller v. Andrew, 230 Mass.

139, 119 N. E. 694, in which case a wharf was erected without a license and could have been found to be an obstruction to navigation; Woodman v. Shepard, 238 Mass. 196, 13 A.L.R. 982, 130 N. E. 194, where a traveler on a public highway was injured by the falling of a sign from an adjoining building; and other cases where the same general rule is followed, cited by the plaintiff,— are not applicable.

As the plaintiff cannot recover, we do not find it necessary to pass on the plaintiff's exception to the evidence excluded. In each case the exceptions are overruled.

Petition for rehearing denied.

It

This annotation, in discussing the liability of an abutter on a private way for injury to persons using the way, is confined to private ways in the technical sense of that term, viz., ways other than public roads or streets over which individuals or the public at large have an easement of way. does not discuss the liability of owners of premises for injury to persons entering thereon as trepassers, invitees, or licensees. While the cases do not permit of the statement of a general rule as to the liability of an abutter to one injured while using a private way, they are in the main consistent with the doctrine that the abutter is not liable for an injury resulting from the proper use of his own premises, though that use may involve danger to users of the way, but is liable if, by negligence, he creates a condition dangerous to one using the way.

Thus, the accident out of which arose the case of Barber v. C. W. H. Moulton Ladder Co. (1919) 231 Mass. 507, 121 N. E. 501, occurred on a way used as a street, but which had never been formally accepted or opened. A boy whose father lived on this street was injured by the fall of a defectively fastened gate of another abutter, and

a recovery was sustained. See to similar effect, the reported case (LEUCI v. STERMAN, ante, 853).

But a similar undedicated street was involved in Moffatt v. Kenney (1899) 174 Mass. 311, 54 N. E. 850, 6 Am. Neg. Rep. 564, and in that case the abutter was held not to be liable to a person who entered his premises from the street and fell into a manure pit, the maintenance of the pit being a proper use of the premises. See to similar effect, Weldon v. Prescott (1905) 187 Mass. 415, 105 Am. St. Rep. 413, 73 N. E. 536.

In the leading case of Corby v. Hill (1858) 4 C. B. N. S. 556, 140 Eng. Reprint, 1209, 27 L. J. C. P. N. S. 318, 4 Jur. N. S. 512, 6 Week. Rep. 575, it was held that a person over whose premises a private road ran was liable for injuries caused by permitting it to be obstructed with building materials.

In Thayer v. Jarvis (1878) 44 Wis. 388, the practice of storekeepers in allowing a space behind their stores to be used as a driveway was held to amount to a license so to use it, and a storekeeper leaving some caustic substance in the driveway was held to be liable for injury to the horses of one making a delivery to another store. That case was distinguished

in Cahill v. Layton (1883) 57 Wis. 600, 46 Am. Rep. 46, 16 N. W. 1, wherein one of several abutters who maintained a roadway along a river front was held to be under no duty toward a teamster delivering goods to another abutter, with respect to a platform maintained by him across the roadway, which was so low that a teamster would have to stoop to pass under it.

In Corrigan v. Union Sugar Refinery (1868) 98 Mass. 577, 96 Am. Dec. 685, the defendant was held to be liable, it appearing that the plaintiff, while traversing a passageway commonly used by the public, was struck by a keg thrown from a window by one of the defendants' workmen. The court said: "The material question is whether the keg fell upon the plaintiff's head by reason of the negligence of the defendants' servants. If it did, then, whether this was a public or a private way, and whether the plaintiff was passing over it in the exercise of a public right, or upon an express or implied invitation or inducement of the defendants, or by their mere permission, he was rightfully there, and may maintain this action. Even if he was there under a permission which they might at any time revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants which increased the danger of passing, and in fact injured him."

It has been held that a person whose house abuts on a private way is liable for injuries caused by ice forming

by reason of his overhanging eaves, to a person going on business to the house of another abutter. Cavanagh v. Block (1906) 192 Mass. 63, 6 L.R.A. (N.S.) 310, 116 Am. St. Rep. 220, 77 N. E. 1027, 20 Am. Neg. Rep. 379.

Where several persons open a private road primarily for their own use, connecting two public highways, and permit the general use thereof by the public, they are liable for an injury caused by the fall of a bridge on the private road, which they know to be unsafe. Campbell v. Boyd (1883) 88 N. C. 129, 43 Am. Rep. 740.

In Roman v. Boston Elev. R. Co. (1914) 218 Mass. 76, L.R.A.1915A, 510, 105 N. E. 598, Ann. Cas. 1917A, 893, it appeared that a child who was either a licensee or a trespasser on a path near a street-car barn was injured by a pole near the path which had become charged with electricity. The street railway company knew for five hours before the accident that the pole was charged, and took no precautions, though it knew that children habitually used the path. It was held that the company was liable on the ground that its negligence was wanton and reckless.

But where a boy passing along a path on the grounds of an electric light company left the path and took hold of a transformer standing on a platform, it was held in Robbins v. Athol Gas & E. Co. (1920) 236 Mass. 387, 128 N. E. 417, 20 N. C. C. A. 186, that the company was not liable, though the insulation on the transformer was broken, and the company had notice of that fact. R. L. T.

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