"Answer. This is correct.'

"2. That there is no evidence in the case that at the time the plaintiff re-entered the premises in question, he did so, to show the same to any person or persons wishing to hire or purchase, or to place the notice 'to let' or 'for sale' upon the walls or doors, or to relet the said premises as the agent of the defendant.'

"Answer. I so find.'

"3. That at the time the plaintiff re-entered the premises in question, the defendant was in possession of the same as tenant under the plaintiff, though not personally present, and had goods and chattels on the same.'

"Answer. I so find.'

"4. That the plaintiff broke, removed or opened the defendant's lock on the door of said premises, took down the defendant's signs, re-entered and took possession of said premises, used the same for his own purposes, in his own business, and excluded the defendant from said premises.'

"Answer. I cannot find that the plaintiff excluded the defendant from the premises; with this qualification I find the facts as asked in this request.'

"5. That at the time the plaintiff re-entered the said premises the same were not vacant; that the plaintiff re-entered the premises in question before the expiration of the term, and during the time from and including February 1, 1880, to May 1, 1880, he was in possession and used the premises in question for his own purposes, in his own business, and the defendant was not in possession of any part of said premises during said time.'

"Answer. The exact date of re-entry I cannot find, otherwise the request is affirmed.'

6. That said plaintiff re-entered said premises on or before the 1st day of February, A. D. 1880.'

Answer. I find that in the fore part of February, 1880, the plaintiff re-entered the premises.'

"1. The rooms were not vacant when the landlord, Cattnach, re-entered. When a tenant removes from premises they are not held to be vacant if he leaves goods upon them. 2 Bouv. Dict. 631, and authorities cited.

"There are two other facts which indicate that Burr did not intend to abandon the premises: First, he kept the key-leaving it with his janitor; second, he returned to New York soon after his removal, and went to and examined the premises.

"He had reason, in my opinion, to infer from what he saw, and what is admitted by the plaintiff, that the plaintiff did not intend to collect rent for the remainder of the term.

"Mr. Cattnach had the right to re-enter the premises if they were vacant, and let them as the agent of the tenant. But he re-entered and used the premises in his own business. To say that he only used a part, and the use was only temporary, is not a sufficient reply to the defense. He did wrong in occupying them at all, if he intended to collect rent. "2. Cattnach, by the removal of Burr's goods, signs and locks, and

the occupation and use of the rooms, evicted Burr from the premises, and forfeited his right to collect rent after the eviction; and, under the evidence, there can be no apportionment of the rent. Wolf v. Weiner, 2 Brewst. 524; Smith v. Raleigh, 3 Campb. 513; Garrison v. Moore, 1 Phila. 282; Bauer v. Broden, 3 id. 214; Jackson & Gross Landl, and Ten. 177.

"3. If Burr had abandoned the premises and Cattnach had taken possession and used the rooms as already found, I am of opinion that it would have amounted to a surrender and acceptance of the term. Talbot v. Whiffle, 14 Allen, 177; Dos Santos v. Hollingshead, 4 Phila. 57; McKinney v. Rader, 7 Watts, 123; 15 E. C. L. 164; 104 id. 334.

"I have considered the cases holding that the taking possession, acceptance of the key and making repairs by the landlord are acts for the benefit of the tenant, and do not discharge him from his covenant to pay rent. Breackman v. Twibill, 8 Norr. 58; Marseilles v. Kerr, 6 Whart. 499; Auer v. Penn, 11 W. N. C. 213.

"I do not think these decisions pertinent to this case. Very slight evidence in addition to the facts stated in them as not amounting to an acceptance will establish an acceptance. A precedent request by the landlord for the keys, followed by a delivery of them to and possession and re-entry of the premises by the landlord, has been held to be an acceptance. Reaney v. Fannessy, 14 W. N. C. 91.

"A fortiori the occupation and use of the premises by the landlord in his own business must be held to be an acceptance. And though the lease stipulated for re-entry if the rooms were vacant, and for the sake of argument admitting they were vacant, yet the conduct of Cattnach was inconsistent with that of landlord, and not in accordance with the terms of his lease. A landlord, I think, cannot re-enter the premises under lease, use them, or part of them in his own business, and, for the same period, collect rent of the tenant under his covenant to pay

rent.

"Plaintiff's counsel ask me to find the following conclusions of law :' "1. That the lease in evidence was for an entire term, or for five months, the defendant is liable for the rent unless there was an eviction or a surrender of the term, and an acceptance by plaintiff.'

"Answer. This is affirmed, but is not pertinent to the case.'

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"2. That the temporary occupancy, testified to by plaintiff's witnesses, is not such an occupancy as would create an eviction or a surrender of the term unless there was an acceptance by plaintiff.'

"Answer. This is not correct; I deny it.'

"3. The plaintiff taking possession, repairing, advertising the premises to rent, are all in the interest and for the benefit of the tenant under this lease and do not discharge him from his covenant to pay rent.'

"Answer. This point is affirmed, but it is not applicable to the facts in this case.'

"Defendant's counsel present the following conclusions of law :'

"1. That the burden of showing that the premises in question were vacant at the time he re-entered is on the plaintiff, and unless it appears from the weight of the evidence in the case the referee cannot find that the premises were vacant at said time.'

"Answer. This is affirmed.

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2. If the plaintiff re-entered, or took possession of the premises in question and used the same for his own purposes in his own business, without the consent of the defendant, it was an eviction; and if with his consent, it was a rescission of the lease, and in either case the rent was suspended.'

"Answer. Affirmed.'

"3. If the plaintiff, lessor, wrongfully deprived the defendant, tenant, of the whole or any part of the premises in question, the defendant is discharged from the payment of all the rent which subsequently accrued.'

"Answer. Affirmed.'

"4. That the plaintiff cannot recover.'

"Answer. Affirmed.'

"I, therefore, find that the plaintiff has no cause of action, and direct the prothonotary to enter judgment for the defendant."

Fred. W. Gunster and Chas. H. Welles, for plaintiff in error. An eviction was defined by this court in Hoeveler v. Fleming, 10 Norr. 322, to be "any act of the landlord which deprives the tenant of that beneficial enjoyment of the premises to which he is entitled under the lease." Hoeveler v. Fleming, 10 Norr. 322. See Baron Gilbert, 145. If a landlord take possession of the premises without the consent of the tenant, it is an eviction; if with his consent, it is a rescission of the lease, and, in either case, the rent is suspended, has never been swerved from. Magaw v. Lambert, 3 Barr, 444; Briggs v. Thompson, 9 id. 338; Hoeveler v. Fleming, 10 Norr. 322; see, also, Day v. Watson, 8 Mich. 535. The mere locking of the door of a pew, and thereby preventing one who had the right to use it, has been held to be equivalent to an eviction. Taylor Landl. and Ten. (6th ed.), § 378; Lloyd v. Tompkins, 1 T. R. 671. And the railing off a part of the demised premises is an eviction. Smith v. Raleigh, 3 Camp. 513. See Doran v. Chase, 2 W. N. C. 609.

Ranck & Smith, for defendant in error. Taylor Landl. and Ten., §715, p. 609. An abandonment by the tenant of demised premises is such a relinquishment as amounts to an implied surrender, and justifies an immediate resumption of the possession by the landlord. Jackson and Gross, Landl. and Ten. 218; McKinny v. Reader, 7 Watts, 123, 124. What will constitute a surrender. See Raney v. Fannassey, 14 W. N. C. 91; Mouselles v. Kerr, 6 Whart. 499; Bunchman v. Triobill, 8 Norr. 58; Hiester v. Miller, 1 Casey, 481; Philada. Fire Extinguisher Co. v. Brainard, 2 W. N. C. 478; Bradley v. Brown, 6 id. 282; Auer v. Penn., 3 Out. 370. Any entry by the landlord on the premises demised, against the will or wishes of the tenant, is not an eviction in point of law which will suspend the rent. Bennett v. Brittle, 4 Rawle, 338; Noble et al. v. Warren et al., 2 Wr. 340.

STERRETT, J. After considering the exceptions filed by plaintiff below to the report of the referee, the learned judge of the common pleas in the concluding paragraph of his opinion says: "It follows that the plaintiff's second conclusion of law should have been affirmed and

defendant's fourth conclusion of law denied, and that upon the facts found by the referee the plaintiff is entitled to recover. The corresponding exceptions of plaintiff are accordingly sustained, and the judg ment of the referee reversed." And thereupon he directed judgment to be entered in favor of plaintiff below for $221.76.

The plaintiff's second conclusion of law, referred to above, was: "That the temporary occupancy, testified to by plaintiff's witnesses, is not such an occupancy as would create an eviction, or a surrender of the term, unless there was an acceptance by the plaintiff." Defendant's fourth conclusion was: "That the plaintiff cannot recover." The learned referee refused the former and affirmed the latter, and he accordingly directed judgment in favor of defendant below; but, upon the same facts found by the referee, the learned judge reversed these legal conclusions, and judgment was accordingly entered in favor of plaintiff below, as above stated. These rulings are the subjects of complaint in the several assignments of error respectively.

It will be observed that the referee's findings of fact are accepted as substantially correct. It is only as to the legal conclusions drawn therefrom that the court overruled the referee on the controlling questions in the case.

Among other things, the referee found in substance that in November, 1879, plaintiff in error leased from plaintiff below two second-story front rooms on Broadway, New York, for five months, from first of December following, at $55 per month, took possession of the same accordingly and paid the rent until February first following; that in early part of February plaintiff below took possession of the rooms, removed locks, signs and goods left there by plaintiff in error, and thence until the expiration of the lease used the rooms for storing trunks; that at the time he thus re-entered the premises, plaintiff in error was in possession of the same as tenant under said lease, though not personally present, and had goods and chattels at the same; that defendant in error broke, removed or opened the plaintiff in error's lock on the door of the demised premises, took down his signs, re-entered and took possession of the premises, and used the same for his own purposes in his own business; that at the time he so re-entered, the demised premises were not vacant, nor had the lease expired, and from the time he so re-entered in the early part of February, 1880, until May first of that year, he continued in possession, and during that time plaintiff in error was not in possession of any part of the demised premises.

Having found the foregoing and other corroborating facts, the referee rightly concluded as matter of law that plaintiff below having re-entered and taken possession of the demised premises and used the same for his purposes without the consent of plaintiff in error, the latter was evicted and, therefore, relieved from further payment. The facts found by the referee clearly warranted each of the four conclusions of law claimed by defendant below, the last of which was "that the plaintiff cannot recover." The first conclusion of law submitted by plaintiff below was: "That the lease in evidence was for an entire term of five months and defendant is liable for the rent unless there was an eviction or surrender of the term and an acceptance by plaintiff." The second, as before

stated, was: "That the temporary occupancy, testified to by plaintiff's witnesses, is not such an occupancy as would create an eviction or a surrender of the term unless there was an acceptance by plaintiff." This was rightly refused for the reason that it was not warranted by the testimony nor by the referee's findings of fact. As to all the controlling points in the case the findings of the referee, as well as his conclusions of law, are substantially correct, and, in accordance with his report, judgment should have been entered in favor of defendant below. Judgment reversed, and now judgment in favor of defendant and against plaintiff below.

TAYLOR V. DELAWARE AND HUDSON CANAL Co.

October 4, 1886.

RAILROAD CROSSING-SUFFERANCE DUTY-FACT FOR THE JURY.

When a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care toward those crossing, and whether in a given case such reasonable care has been exercised or not, is ordinarily a question for the jury under all the evidence.

Error to the court of common pleas of Lackawanna county.

This action was brought in the court below by a girl eight years of age, to recover damages for injuries received by her while crossing & railroad track by way of a well-defined and well-known foot-path leading across the track, which had been used by the public as a crossing place, without let or hindrance on the part of the railroad company, for at least fourteen years.

The place of the injury was a thickly-populated part of the city of Scranton, where school children in large numbers and others were permitted to cross and recross daily. The common pleas directed a compulsory nonsuit.

E. N. Willard and Everett Warren, for plaintiff in error. "The promiscuous use of the grounds of a railroad company by the employees of the company and by the public generally for a long time, for traveling across the same, grows into a license for such user, when unforbidden, and a person, though a stranger to the company, using the same for such purpose, does not thereby become a trespasser. 1 Rorer Railroads, 476. See Kay v. Penn. R. R. Co., 15 P. F. S. 273; Phila. & Reading R. R. Co. v. Troutman, 11 W. N. C. 453. Willful injury is not the only ground of liability. Davis v. Chicago & N. W. R. R. Co., 15 Am. & Eng. R. R. Cases, 424. See Barry, Adm'r, v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289. Where persons are in the habit of crossing a railroad at a particular place, though there is no right of way there, it throws upon the company the responsibility of taking reasonable precautions in their use of such place. Barrett v. Midland R. R. Co., 1 F. & F. 361. 66 Eight years is quite sufficient time for presuming a dedication of a way to the public." P., F. W. & C. R. R. Co. v. Dunn, 6 P. F. S. 284. Six years was held sufficient. 11 East, 375. And in Jarvis v. Dean, 3 Bing. 447, " as it had been used for four or five years as a public road, the jury were warranted in pre