Page:The Green Bag (1889–1914), Volume 24.pdf/178

 Latest Important Cases regarding what constitutes an invitation subjecting a land owner to obligation for injuries received by a person who goes upon his land and is hurt. The question arose in the case of Fox v. Warner-Quinlan Asphalt Co. (decided Jan. 23, N. Y. Law Jour., Feb. 7). There was a driveway over the defend ant's land which had been used by the public for a long period, without inter ference by the owner, and the defendant made an excavation at the side of this driveway, which invaded it so fast that the plaintiff, unaware of the rapid progress of the excavation, fell into the pit one night and was injured. At the trial term of the Supreme Court a non suit was directed, but the Appellate Division reversed the judgment. The Court of Appeals reversed the Appel late Division, on the ground that the plaintiff was merely a licensee. But one member of the Court of Appeals, Vann, J., dissented. The way in which the mixed question of law and fact was dis posed of is interesting. The majority of the Court took the position that the mere fact that the landowner had not interfered with the use of his land for public travel did not afford any evidence of invitation on his part, and holding that there was no evidence of invitation, the Court (Willard Bartlett, J.) decided the case solely on the authority of the rule regarding licensees. Judge Vann, however, took a different view of the facts, stating them "as the jury could have found them if the case had been submitted to them for decision." He concluded that on this view of the circumstances, the question as to whether there was an implied invitation might have been answered by the jury in the affirma tive. The facts supporting this infer ence were stated by Judge Vann as follows: —

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"This driveway had been used con tinuously by the public for more than twenty years and was practically a high way, though not legally such, because it had never been accepted by the public authorities. It was of the uniform width of from fourteen to sixteen feet through out the entire distance between the two avenues which it connected. It had no fence on either side, no grass grew on it, and it was simply naked earth, stone, and gravel, worn by long use into a plain, hard, well-beaten road. It was not plowed or cultivated, although crops were raised on either side, and it was openly and notoriously used by the general public as a short cut from one avenue to the other. For more than twenty years — twenty-four years ac cording to the recollection of one witness — it had been in daily use by all kinds of vehicles, including grocery, coal, dirt, milk and delivery wagons, huck sters, carriages, buggies, hacks, light wagons, and heavy wagons, farmers' wagons loaded with hay and produce, and the like. Men, women, and children walked over it every day and apparently it was traveled upon much more than many regular highways in the country. Traffic thereon was continuous and in creased as the years went by. There were no obstructions in the driveway, but it was an open and well-defined road, a highway for all practical purposes, and was regarded as an actual highway by travelers and observers generally. During all this time its course and character were unchanged, except that its condition was improved by the long-continued use." It is certainly a strange result, when the New York Court of Appeals holds that such facts disclose no evidence of an implied invitation to the public to use what was in practice, if not legally, a public road.