landing, and boat so floating on the water constituted an attraction of extreme danger to children of tender years; that such children, not knowing or realizing the danger, entered through the openings in the fence and played in, on, and about the rowboat; that the defendant knew of these facts, but failed to protect or guard such grounds; and that the five-yearold son of the plaintiff entered the grounds, and, being attracted to the said unsecured boat, boarded it, floated out on to the water, and fell from the boat and was drowned. The court, referring to the case of Peters v. Bowman (1896) 115 Cal. 345, 56 Am. St. Rep. 106, 47 Pac. 113, 598, 1 Am. Neg. Rep. 4, and Polk v. Laurel Hill Cemetery Asso. (1918) 37 Cal. App. 624, 174 Pac. 414, in which the liability of the landowner for the drowning of a child in an artificial pond on his premises was denied, said: "In the light of the precedents binding upon this court, there is only one possible theory upon which appellant can recover, and that is that the single additional feature of an unsecured floating boat entirely removes the case from the application of the settled rule in California. To take respondent's striking presentation of the matter: If a child of the age of appellant's son, while trespassing on private property, is attracted to an artificial pond and falls in and drowns, there is no liability; if the same child, attracted to the same pond for the purpose of fishing, loses his balance and falls into the water and is drowned, there is no liability; if the child, while swimming in the pond, is drowned, there is no liability; if he constructs a raft and uses it upon said pond and falls from it, and is drowned, there is no liability under the authority of the California cases cited therein. Can it be that if he falls from a rowboat left upon the water by the owner of the property and is drowned, a different legal. principle is involved? We think there is no reason for a different rule in the instance last mentioned."

In Polk v. Laurel Hill Cemetery Asso. (Cal.) supra, it was held as a

matter of law that a cemetery association maintaining an unguarded reservoir in its cemetery was not liable for the drowning of an eight-yearold boy who, while playing near it, stumbled and fell into it, although it was known that children were in the habit of playing in the cemetery. In distinguishing the case from the Turntable Cases, the court said: “A pond of water, it may be conceded, is always attractive to youngsters, but the dangers connected with and inherent in a lake or pond of water, natural or artificial, are obvious to everybody-even to a child old enough to be permitted by its parents to go about and play unattended upon the streets or in the public parks. It would not conform to the dictates of common reason to say that a child of the age of eight years, or even much younger, does not know and fully realize that a fall into a pond of water or a deep reservoir would result in injury to him, if not in his death. But there is no necessity for abstract reasoning upon the proposition, for we think it thoroughly settled by the decision that a pond of water, whether natural or artificial, is not to be included in the same class with turntables and other complicated machinery, the inherent dangers of which are not obvious to a child."

In Price v. Atchison Water Co. (1897) 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450, 3 Am. Neg. Rep. 392, a water company maintaining a reservoir from which it would be difficult for a person falling in to get out unaided on account of the steepness of the walls, having an apron made of lumber designed to prevent injury to the wall of the reservoir by water falling into it, which was partially buoyed by the water, rising and falling as the water supply increased or lessened, was held liable for the drowning of a boy who went there to fish and play, and who, venturing upon the apron for the purpose of crossing from one part of the reservoir wall to another, was precipitated into the water when the end which projected out upon the water sank, where

it appeared that, though the grounds: were inclosed with a barbed wire fence 10 to 12 wires high, there were stiles over which it was not difficult for boys to climb from the outside, and that the custodian of the grounds was aware of the habit of the boys of the town to climb over the stiles and permitted them to do so without objection. The court said: "Knowing the fence to be ineffective either as barrier or warning, it was the duty of the company to expel the intruders, or adopt other measures to avoid accident."

In Peninsular Trust Co. v. Grand Rapids (1902) 131 Mich. 571, 92 N. W. 38, it was held upon the authority of Ryan v. Towar (1901) 128 Mich. 463, 55 L.R.A. 310, 92 Am. St. Rep. 481, 87 N. W. 644, that a city having as part of its waterworks system a reservoir surrounded by a tight board fence was not liable for the drowning of a little girl who crawled through a hole under the fence where the earth had been washed out, and, in attempting to wade in the water, was drowned.

In Carey v. Kansas City (1905) 187 Mo. 715, 70 L.R.A. 65, 86 S. W. 438, it was held that the duty of a city to use reasonable care to guard an attractive reservoir in a public park so as to prevent the drowning of a boy therein was discharged when it surrounded the place with a woven wire fence 4 feet high that children could not climb over without taking off their shoes and when it provided watchmen who, before the accident, warned the boy to keep outside the fence.

In Jaffy v. New York C. & H. R. R. Co. (1922) 118 Misc. 147, 192 N. Y. Supp. 852, it was held at trial term that a railroad company having on its premises a masonry reservoir containing 4 or 5 feet of water, the sides of which were such that it was impossible for a small boy falling into it to get out, and which had been inclosed by a fence, the door of which was so out of repair as to afford access to the reservoir, was not liable for the drowning therein of an eightyear-old boy who went there to fish.

In Starling v. Selma Cotton Mills (1915) 168 N. C. 229, L.R.A.1915D, 850, 84 S. E. 388, it was held that a mill owner was negligent in permitting a fence inclosing a reservoir with perpendicular sides 7 or 8 feet deep, to the top of which a sloping embankment led on the outside, to become dilapidated, when small children were accustomed to play in the vicinity of the reservoir, so as to be liable for the death of a five-year-old boy who, while at play, crawled through a hole in the fence for a drink, and was drowned.

In Gurley v. Southern Power Co. (1916) 172 N. C. 690, 90 S. E. 943, a water tank or reservoir 11 feet deep with perpendicular sides, to which boys resorted to swim, was held not to be a dangerous instrumentality or an attractive nuisance so as to render the owner liable for the drowning of a boy while bathing therein. The court said: "Bathing pools are nothing new or rare. They abound in almost every public park, gymnasium, and Y. M. C. A. building, as well as many country clubs. It is a wellknown and general custom for boys to swim in mill ponds and invade the lands of farmers to bathe in their marl pits. Who will contend that the mill owner and farmer are liable for death or injury of the bathers because of such ownership? Mill ponds, swimming holes, and marl pits are equally as attractive to boys for bathing purposes as this particular reservoir."

In Swartz v. Akron Waterworks Co. (1907) 77 Ohio St. 235, 19 L.R.A. (N.S.) 1136, 122 Am. St. Rep. 503, 83 N. E. 66, 11 Ann. Cas. 981, 21 Am. Neg. Rep. 272, affirming (1906) 28 Ohio C. C. 627, a waterworks company was held not liable for the drowning of an infant who, while playing about its reservoir, without the knowledge of the company, fell in and was drowned.

In Anadarko v. Swain (1914) 42 Okla. 741, 142 Pac. 1104, in which it appeared that the defendant city had in its public park a reservoir in connection with its waterworks system, and had placed a high wire fence

around the base of the incline for the purpose of protecting the public, but that the agents and employees of the city had removed a large portion of such fence and negligently allowed the same to remain down for a long time, and during such time the minor son of the plaintiff went into the park and on to the ground used for waterworks purposes and was attracted to the reservoir by his curiosity and childish instinct and was drowned, it was held that the child was upon the premises by express invitation, and the city owed him the duty of using ordinary care to avoid injuring him. while on the premises.

In Franks v. Southern Cotton Oil Co. (1907) 78 S. C. 10, 12 L.R.A. (N.S.) 468, 58 S. E. 960, a cause of action was held to be stated by a complaint alleging that defendant maintained a large and deep reservoir filled with water in an open field, near the public streets and residences of a city, where children of tender years were accustomed to resort for play; that the reservoir was not protected by a fence, guard, or otherwise, but was exposed and easily accessible to children who, not knowing of the danger, made use of it as a place of amusement; that defendant knew of the unprotected position of the reservoir and that children resorted there as a place of amusement; and that plaintiff's intestate, a boy under ten, while playing around the reservoir, was drowned.

(In McLendon v. Hampton Cotton Mills (S. C.) infra, it was suggested that the rule in Franks v. Southern Cotton Oil Co. (S. C.) supra, might not be applicable in the case of artificial bodies of water created in sparsely settled communities; but doubt thus raised as to the scope of the decision seems to be set at rest by Renno v. Seaboard Air Line R. Co. (1922) 120 S. C. 7, 112 S. E. 439, in which the question of negligence of one upon whose premises there was a pond in an out-of-the-way place was held to be for the jury.)

In McLendon v. Hampton Cotton Mills (1917) 109 S. C. 238, 95 S. E. 781, it was held that the duty of safe

guarding a reservoir was performed by the maintenance around it of a fence between 4 and 5 feet high, built of farm wire with meshes about 3 inches in size at the bottom and increasing in size to the top, having a plank for a baseboard and a 2x4 scantling for a top rail, although such fence was easily climbed by children of tender years, it not being the duty of the landowner to erect a barrier which no child can overcome, but only such as is sufficient to safeguard the child of ordinary and normal instincts, habits, and training.

For other instances in which recovery has been permitted for the drowning of a child in an inadequately protected reservoir, see Tucker v. Clinton Cotton Mills (1913) 95 S. C. 302, 78 S. E. 890, Tucker v. Clinton Cotton Mills (1913) 96 S. C. 466, 81 S. E. 182, and Pigford v. Cherokee Falls Mfg. Co. (1923) 124 S. C. 389, 117 S. E. 419.

In Missouri, K. & P. R. Co. v. Moore (1915) Tex. Civ. App. 172 S. W. 568, a railroad company maintaining a reservoir built of cement which sloped inwardly from the margin toward the center and which contained 12 or 15 feet of water, just outside the corporate limits of the city, at a place where there were a good many residences, and which was inclosed by a fence of cedar posts, pine planks, and barbed wire, 6 feet and 5 inches high, was held not to be liable under the attractive-nuisance doctrine for the drowning of a boy who entered the inclosure through a hole in the fence to gather some of the green grass which grew about the reservoir for guinea pigs, and fell in, though there was evidence that the reservoir was attractive to children and that on several occasions children had been seen on the inside of the fence inclosing it, on the ground that such an attraction is not of such an unusual nature as to amount to an implied invitation, and on the further ground that the deceased was not at the place of the accident because of such attraction.

In Ritz v. Wheeling (1898) 45 W. Va. 267, 43 L.R.A. 148, 31 S. E. 993, it was held as a matter of law that a city was

not liable for the drowning of a fiveyear-old child in its waterworks reservoir, both on the ground that a landowner owes no duty to trespassers other than to refrain from wilful and intentional injury, and on the ground that in surrounding its reservoir with a fence it had made the place reasonably safe, although there was an opening under it at one point, through which the child presumably passed, left for the purpose of draining away surface water from the reservoir, where such opening was at the remote end of the inclosure, away from houses a considerable distance, and at the end of an inconvenient and dangerous path.

In Roullier v. Magog (1909) Rap. Jud. Quebec 37 C. S. 246, it was held that a municipal corporation which permitted children of all ages to go and play on its property, which was insufficiently inclosed to keep them out, and on which there was a reservoir 9 feet deep with slippery banks, was liable for the drowning of a twelve-year-old boy who fell in while sailing a toy boat there. In reply to the contention that defendant was not bound to fence in the reservoir, because it was on its private property and because the plaintiff's child committed a trespass in coming there, the court said: "Has not the defendant changed the nature or use of this property in allowing to play there, as it has, all the children of the neighborhood? Could it pretend after the accident, when it knew that its property was being intruded upon by the youthful public, that it is not responsible for having drawn into danger, without sufficient protection, those who, above all others, have greatest need of protection? Was its property private property? We regard it, on the contrary, as a public place.

In inviting children to go there to play in that dangerous spot, or at least in permitting them to do so, the defendant should by the same token protect them against the danger to which it has exposed them.”

267. Retaining wall.

In Hageage v. District of Columbia

(1914) 42 App. D. C. 109, it was held that the District of Columbia, as the owner of land dedicated as an alley but never opened to travel, bordered by a retaining wall, the top of which was about flush with the surface, was not liable for the death of a child who, while playing there, slipped down a declivity and fell over the edge of the wall, the court saying: "There was nothing inherently dangerous either in this alley or in the fact that the embankment wall along its southern side was not guarded. Children had played there for a considerable time apparently without mishap. Conditions were observable by all. If the District is to be held liable in this case, then it necessarily follows that it is its duty to fence every pond and every stream, and make absolutely safe every foot of ground under its jurisdiction, when children are liable to resort thereto."

In Coon v. Kentucky & I. Terminal R. Co. (1915) 163 Ky. 223, L.R.A. 1915D, 160, 173 S. W. 325, it was held that the attractive-nuisance doctrine was not applicable to a retaining wall about 20 inches wide, with a smooth surface on top, constituting part of a railroad viaduct constructed over a city street, beginning at a height of 28 inches and gradually ascending until it reached a height of 15 feet from the street, on which children were known to be in the habit of climbing, so as to render the railroad company liable for injury to a child who climbed upon the wall and fell off into the street. The court said: "The only ground, therefore, for holding the defendant liable, is that it maintained in a public place in an unguarded and unprotected condition a dangerous instrumentality or thing that was attractive to children. It could hardly be said that a retaining wall like the one in question is dangerous. It is not like a stack of lumber composed of separate pieces that are liable to fall at any time. On the occasion of the accident, it did not fall or break. The only sense in which it could be said to be dangerous is that it was easy to climb and easy to fall from; but, for that matter, so is every tree, every pole, every fence, every ladder, every railing, or set of steps