Opinion of the Court. reason to believe will be traversed by his licensee, sound morals would seem to demand that he should give reasonable warning of the danger to be encountered. This distinction seems to be more marked in cases where the evidence establishes in the public a permission or license to cross a railway at a given place or locality. If the company has so long acquiesced in the continuous and open use of a particular place as a crossing as to justify the inference that it acquiesces in that use, it would seem to follow that it was bound to anticipate the presence of such licensees upon its track at the place where such crossing had been long permitted. In such a case it would not be consistent with due regard to human life and to the rights of others to say that such licensees are mere trespassers, or that the duty of the acquiescing company was no greater than if they were mere trespassers. Nonliability to trespassers is predicated upon the right of the company to a clear track, upon which it is not bound to anticipate the presence of trespassers. It therefore comes under no duty to a trespasser until his presence and danger are observed. But if it has permitted the public for a long period of time habitually and openly to cross its track at a particular place, or use the track as a pathway between particular localities, it cannot say that it was not bound to anticipate the presence of such persons on its track, and was therefore not under obligation to operate its trains with any regard to the safety of those there by its license. This distinction between liability for the passive and active negligence of the owner of premises to licensees is recognized very clearly by the Court of Appeals of New York. Barry v. The New York Central and Hudson River Railroad Company, 92 N. Y. 289, 292; Byrne v. The New York Central and Hudson River Railroad Company, 104 N. Y. 362. In Barry v. The New York Central and Hudson River Railroad Company, cited above, the plaintiff had been run over by a train, of whose approach no warning was given, while crossing a railway at a place which the people of the vicinity had openly and continuously used as a crossway for some thirty years. The court said, Justice Andrews delivering the opinion, that under such facts "the acquiescence of the de Opinion of the Court. fendant for so long a time, in the crossing of the tracks by pedestrians, amounted to a license and permission, by the defendant, to all persons to cross the tracks at this point. These circumstances imposed a duty upon the defendant, in respect of persons using the crossing, to exercise reasonable care in the movement of its trains. The company had a lawful right to use the tracks for its business, and could have withdrawn its permission to the public to use its premises as a public way, assuming that no public right then existed; but so long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury." The English cases which we have cited above, as well as the cases of Nicholson v. The Erie Railway Company, 41 N. Y. 525, and Sutton v. The New York Central and Hudson River Railroad Company, 66 N. Y. 243, were distinguished upon the ground that they presented cases where the injury complained of resulted from no proximate affirmative act of the licensor by which the condition of the premises had been changed. The reasoning of these New York cases seems unanswerable, and accords with the natural justice incident to such a situation. That such a licensee is himself under the highest obligation to look out for his own safety, and that he cannot recover if his own want of due care proximately contribute to his misfortune, cuts no figure in the determination of the question now under consideration. The rule we deduce from the cases best reasoned and most consistent with sound public policy is this: If the evidence show that the public had for a long period of time customarily and constantly, openly and notoriously, crossed a railway track at a place not a public highway, with the knowledge and acquiescence of the company, a license or permission by the company to all persons to cross the track at that point may be presumed. Barry v. The New York Central and Hudson River Railroad Company, 92 N. Y. 289; Byrne v. The New York Central and Hudson River Railroad Company, 104 N. Y. 362; Virginia Midland R. R. Co. Opinion of the Court. v. White, 84 Virginia, 498; Davis v. The Chicago & Northwestern Railway Company, 58 Wisconsin, 646; Hooker v. The Chicago, Milwaukee & St. Paul Railway Company, 76 Wisconsin, 542; Troy v. The Cape Fear and Yadkin Valley Railroad Company, 99 No. Car. 298; The Louisville, New Albany and Chicago Railway Company v. Phillips, 112 Indiana, 59, 67; Palmer v. The Chicago, St. Louis & Pittsburgh Railroad Company, 112 Indiana, 250, 261; Hargreaves v. Deacon, 25 Michigan, 1. Persons availing themselves of such an implied license would not be trespassers, and the railway company would come under a duty in respect to such licensees to exercise reasonable care in the movement of its trains at points where it was bound to anticipate their presence. To establish such an implied license it is essential that the use shall have been definite, long, open and continuous. The mere fact that a railway track is frequently used as a walkway, or frequently crossed, and that no active steps were taken to stop such use, would not justify the presumption of a license. The cases which we have cited in support of the rule stated abundantly support this limitation. The practice of crossing a railway track at random or walking upon it should not be encouraged, and when one injured seeks to show that he was not a trespasser, and relies upon an implied license, he should be required to make out the license clearly. If the question be the right to walk upon a trestle or a railway bridge, a much higher degree of evidence should be required than when the place was less dangerous and the impli cation of consent more probable. Mason v. The Missouri Pacific Railway Company, 27 Kansas, 88; Anderson v. Chicago, St. Paul, Minneapolis & Omaha Railway Company, 87 Wisconsin, 195, 205. On the other hand, where a track is laid down upon a public street, the public would seem to have an equal easement therein and the company be held to the same rule of liability as at a street crossing. Smedis v. The Brooklyn and Rockaway Beach Railroad Company, 88 N. Y. 13. If, under the principles which we have endeavored to announce, the railway company was entitled to the exclusive use Opinion of the Court. of this track, then the defendant in error was a trespasser, and the company owed him no duty until his danger was discovered. If he was a trespasser, the fact that he was of immature years imposed no higher duty on the company, until his danger was discovered, than if he had been an adult. The railway company was no more required to keep a lookout for infant than for adult trespassers. Morrissey v. Eastern Railroad Company, 126 Mass. 377; Moore v. Pennsylvania Railroad Company, 99 Penn. St. 301; Cauley v. The Pittsburgh, Cincinnati and St. Louis Railway Company, 95 Penn. St. 398; Wright v. Boston and Albany Railroad Company, 142 Mass. 296; Hargreaves v. Deacon, supra. Whatever the proper legal effect of the city ordinance given in evidence may be in case the defendant in error was rightfully using this track for his own purposes, it is clear that it can have no conclusive effect if he went upon the track between street crossings and at a point where the company has the exclusive right to the use of its track. In the latter case he was a trespasser, and no active diligence was due to him as a trespasser until his danger was discovered. The city ordinance did not and could not make his presence on the track rightful at a place other than one where the rights of the railway and the public were mutual, or where the circumstances were such as to imply a license to use the track by wayfarers. If he was a trespasser, the railway company owed him no duty, except that of avoiding his injury if his danger was discovered in time to do so. The evidence touching the customary and continuous use by the public of this embankment as a crossing place was exceedingly meager, and we are not prepared to say that on the testimony in this record the court would not have been justified in assuming the defendant in error to have been a trespasser, and charging the jury upon that theory exclusively. In view, however, of the possibility that but slight attention was given to this branch of the case, and of the fact that a new trial must be granted, we express no opinion upon the weight of the proof nor the allied questions raised by the refusal of the court to instruct for the plaintiff in error, or to give the charge Syllabus. requested based upon the assumption that the defendant in error was a trespasser. Reversed, and remanded for a new trial. CARSWELL v. FARMERS' LOAN AND TRUST COM PANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DIVISION OF THE EASTERN DISTRICT OF TENNESSEE. No. 352. Argued February 18, 1896. Decided April 14, 1896. A receiver appointed by a court of equity does not take or hold as an assignee. He is the mere hand of the court appointing him, and his custody is that of the court, and is for the benefit of all who may ulti. mately appear entitled under the decrees of the court. A receiver appointed by a court of equity may take and retain possession of leasehold property for such reasonable time as will enable him to elect intelligently whether the interest of his trust will be best subserved by adopting the lease and making it his own, or by returning the property to the lessor. A contract was executed between a railway company and a depot company wherein it was provided that the railway company should have a perpetual right to occupy the property of the depot company rent free and subject to certain specified charges. A receiver of the railway company was appointed shortly after the railway company had taken possession of the property of the depot company, and he took possession of this property. Thereafter a receiver of the depot company was appointed, who sought to enforce against the receiver of the railway company the covenants in the lease under which the railway company had been let into possession of the property of the depot company, and praying that the claim of the depot company for rentals should be adjudged a liability against the property of the railway company superior to the obligation of the bonds of the latter company. The property of the railway company was at the time the contract was made, and at the time the claim by the receiver of the depot company was made, insufficient to pay the creditors secured by mortgages which long antedated the contract. Held, (1) That any claim for rentals as between the lessor and lessee was an unsecured claim and was not entitled to be paid until the secured creditors had been first fully paid; (2) that any allowance for rentals of the depot property would have to come out of the corpus of the mortgaged property of the railway company, and to that |