Powers v. Harlow. as we think they were properly proposed to be proved, if believed by the jury, would have made the respondent's defense perfect; and it is difficult to see why Wilson should not be regarded as the aggressive party, and equally culpable, at least, with the respondent. He went to the farm to take the wheat by force; he went armed with a pistol, and evidently with an intent to use it, if necessary, to accomplish his object, and did use it for that purpose. In the case of Pond v. People, 8 Mich. 177, this court held : If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue his adversary, if necessary, till he finds himself out of danger." A reasonable apprehension of such danger is all that is necessary in such case. 66 Upon the people's own showing in this case, had death resulted, the defendant would have been guilty of no more than manslaughter, and under all the circumstances a new trial would be necessary. The judgment of conviction must be reversed and the respondent discharged. The owner of a farm leased small parcels in the middle of it to laboring men. A farm road approached the holdings, but did not reach them. Toward the leased parcels from the end of the road the lessor stored a box of dynamite, with cartridge exploders, under a low shed made against a stump, and only partially inclosed, and in a rough-bound box, not always kept covered and never securely fastened. A child of one of the lessees who had been at work in the field went into the shed, broke one of the cartridges from the box, and striking it with a stone, exploded it, and was injured. Neither he nor his father knew what was kept in the shed, or knew of any danger there, or of any reason for keeping away from it; and there was no warning on or about the shed, except the word "powder" written on the box, which neither of them, if they had seen it, could have read. Held, that the lessor was responsible. YASE. C Powers v. Harlow. The opinion states the facts. The defendant had judgment below. W. P. Healy, for appellant. F. O. Clark, for appellee. COOLEY, C. J. Action on the case to recover damages for an injury alleged to have been caused by the negligence of defendant's servant. The material facts are the following: For many years the defendant has been owner of a farm near the city of Marquette, which has been under the general management of one Hodgson, his foreman or superintendent, who has leased small parcels to laboring men for cultivation. Upon these parcels potatoes and other vegetables have been raised, and the ground has been cultivated by the lessees with the assistance of their wives and children. In the year 1883the farm was divided by a rail fence into two fields, in one of which there were some ten or twelve parcels of the leased land, and in the other thirty. The farm was formerly covered with timber, and many stumps still remain, which the superintendent when he finds them in the way of cultivation has been accustomed to remove by the use of dynamite. The dynamite is put up by the manufacturers in boxes made of rough boards in which it is covered and surrounded with saw-dust, and in the same box, but put up by themselves in a small tin box, are placed the exploders. These exploders. are shaped like ordinary percussion caps, but are very much larger and they are partially filled with a fulminate, which is exceedingly sensitive and more powerful as well as more explosive than dynamite. It is liable to explode at any time if accidentally struck against a stone or any hard metal, or if picked with a pin or knife or touched with fire. A piece of dynamite is exploded by placing one of the exploders at the end with a fuse attached which is ig nited, and stumps are blown in pieces by their use. In the spring of 1883 one of the wood boxes containing dynamite and exploders was deposited under what is called by some of the witnesses a temporary shed on the farm, where it had been placed by Hodgson. The shed was made by placing a piece of scantling across the top of a stump and sloping planks from this piece to the ground. The planks did not form a perfect inclosure, and it was in evidence that persons had sometimes gone under the planks to escape show ers. Powers v. Harlow. The father of the plaintiff had done this a few days before the injury, and he had seen the box there partly uncovered with saw-dust in it but he did not know what else. There were screws in the top boards of the box to fasten them down, and these were screwed in and out with the fingers. The word "powder" was written conspicuously upon the box, but plaintiff and his father could not read, and had not been told that any thing dangerous was stored there. The shed was distant from any public highway. A farm road which was used by defendant and his lessees ran from the direction of the city toward the leased parcels but without reaching any of them, and in passing from its terminus to the several parcels one would pass by the shed, but how near to it would depend upon the parcel to which he was going. One parcel was leased by the plaintiff's father, and this was one of the nearest to the road and to the shed. He had leased it for some years; it contained a little less than an acre, and in 1883 he was paying rent for it at the rate of $16 an acre and had it planted to potatoes. In going to their several holdings the lessees crossed each other's parcels as was found convenient, and also passed over land plowed by defendant for his own use. How near the plaintiff's father would go to the shed in passing from the farm road in a straight line to his own holding is left uncertain on the evidence; it might perhaps be ten rods or it might be less than one. There was no inclosure about the shed, and nothing to warn people away from it except the word "powder" upon the box. The superintendent went to the box for dynamite and exploders as he had occasion to use them. The evidence all tended to show that the handling of the exploders by persons who were ignorant of their nature, or were careless, or under circumstances rendering them liable to accidental concussion would be exceedingly hazardous. ner. On July 4, 1883, the plaintiff's father was at work among his potatoes, and plaintiff, who was then eight years and four months old, went with a brother two years older to take the father his dinWhen they had delivered the dinner to him they worked for an hour or so destroying potato bugs, and then moved about at pleasure for an hour or so longer in the vicinity of their father's work. The plaintiff looked into the shed and saw the box there partly uncovered, and from the saw-dust took out one of the exploders. He was aware of no danger from handling it, and thought no harm in taking it from the open box. After a little he picked Powers v. Harlow. up a small stone, as large as his fist, and holding the exploder upon another stone, which he describes as being of the size of a spittoon, he struck it with the stone in one hand while holding it in the other, and with the third blow it exploded, breaking the stone on which it was held, and tearing from his left hand the thumb and one finger. For this injury the suit was instituted. The negligence charged against the defendant was the keeping of the exploders thus exposed, and in dangerous proximity to where persons were accustomed to pass and repass, and where children like the plaintiff with childish instinct and without any knowledge of the great peril to which they were exposed might go to the open box and take and handle them. When the case was submitted to the jury the Circuit judge instructed them to return a verdict for the defendant. This he did upon the ground that it is the duty of parents to take care of their children, and to see that they do not commit trespass; and if they do not do that, but suffer the children to wander away upon other people's property, the children go there at their own risk, and the negligence is contributory on the part of the parents in allowing them to wander where they have no right. And this negligence of the parents is for the purposes of legal remedy imputable to the children themselves. The instruction was probably given in reliance upon Hargreaves v. Deacon, 25 Mich. 2, which was such a case as the instruction supposed. Counsel for the defendant with commendable industry has collected and brought to our attention a large list of similar cases in which the same principle has been laid down and applied, and he insists that they are in their facts analogous to the present. case. The children, it is said, were trespassers in going in or near the shed; and even if it could be held that they were licensed to go where they did, the result must be the same, since a license to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against accidental injuries. Ill. Cent. R. Co. v. Godfrey, 71 Ill. 506; s. c., 22 Am. Rep. 112. This is the point upon which the case must turn; and it therefore becomes necessary to determine whether on the one hand the Circuit judge was correct in holding the plaintiff to be a trespasser, or on the other, the counsel are justified in regarding him as a licensee to whom the defendant owed no duty of protection. Powers v. Harlow. It is quite certain that the plaintiff's father was not a trespasser in crossing the defendant's land to reach the land he had leased. The leasing by implication gave a right of way of necessity, in order that he might render his tenement beneficial. Clark v. Coggs, Cro. Jac. 170; Beaudely v. Brook, Cro. Jac. 189; Pinnington v. Galland, 9 Exch. 1; Pernam v. Wead, 2 Mass. 203; Underwood v. Carney, 1 Cush. 285; Pierce v. Selleck, 18 Conn. 330; Holmes v. Seely, 19 Wend. 507; Lawton v. Rivers, 2 McCord, 445; Thompson v. Miner, 30 Iowa, 386; Thomas v. Bertram, 4 Bush, 317; Tracy v. Atherton, 35 Vt. 52; Wissler v. Hershey, 23 Penn. St. 333; Mitchell v. Seipel, 53 Md. 251, and the notes thereto; s. c., 36 Am. Rep. 415; Davies v. Sear, L. R., 7 Eq. 427. The defendant, as the party creating this way, had the right to make out the line on which it should run; and on his failure to do so, the right of defining it passed to his tenant (Holmes v. Seely, 19 Wend. 507); and when it was once defined, both parties would be bound by the lines so fixed. Nichols v. Luce, 24 Pick. 102; 35 Am. Dec. 302. See O'Rorke v. Smith, 11 R. I. 259; s. c., 23 Am. Rep. 440. But in this case the way was marked out by neither party, and the tenant had for several years gone as was convenient from the end of the farm road to the land leased; not always on the same precise line, but probably without any considerable departure from the same general direction. No fences were built, or stakes set, or lines marked to indicate that from any portion of the land between the farm road and his own lot he was excluded; and these facts seem to make out a practical agreement of the parties that the privilege of passing and repassing might be freely exercised within limits broader than an ordinary foot-path, and that the tenant should be deemed within the limits of his right if he did not depart altogether from the direct line between the end of the farm road and the lot which had been leased to him. If however we are in error as to this, and the right of passage while not specifically defined is to be considered as only a license, the conclusion in this case must still be the same. Licenses in general may be revoked by the licensor, at pleasure; but this license would continue while the lease was in force; it had been created not exclusively for the benefit of the tenant but for the benefit of the defendant also; the tenant had paid rent on a leasing to which the license was a necessary incident, and his right to the enjoyment of it was as complete as the right of the defendant to the money he |