Defendant purchased a lot of land in October, 1890. Across this lot ran a road leading from one street to another, having a well-defined track made by wagons, horses, etc. The road was not a public highway, but had been used by the travelling public generally for a period of from five to fifteen years. Defendant’s lot was not fenced on the front and rear, the direction in which the road ran, but was fenced on the sides. After building a house on the lot, defendant “informed” the people travelling over this roadway not to use it any longer for such purpose; but no heed was paid to this. In the latter part of December, 1890, in order the more effectually to stop the travel over the lot, the defendant stretched a strand of barbed wire across the rear end of the lot, about three feet above the ground and at right angles, or nearly so, with said road. The entire fence was upon the appellee’s lot. No notice of any kind was given of this obstruction otherwise than as it advertised itself. The wire could not be seen in the dark of night and only a short distance—twenty to twenty-five feet—in daylight. There were no posts that could be seen from the road in the night when the accident hereinafter alluded to occurred. The appellant, who lived in that community, had frequently travelled over the road leading across this lot, and had no notice or knowledge of its being closed up with the wire. The last time before the accident when he passed over the lot was in September or October, 1890. At about 6 o’clock on the evening of January 1, 1891, after it had become too dark to see this wire, the appellant attempted to drive across this lot, in the road, to perform some legitimate errand on the other side. Not knowing of the presence of the wire, he drove his horse briskly ahead of him until the animal came up suddenly against the barbs, cutting a gash in its front leg four to five inches in length and two inches deep, severing the frontal muscle, from which the horse was injured, to the damage of the appellant.
When the appellant had closed his evidence, the learned judge observed that he had examined the law of the case, and saw no reason why a man could not fence in his own land, on his own ground, and that, [if] “a travelling man over such property taking the license into his own hand, without invitation or inducement, because others do so, suffers injury, he must put up with it.”
The judge ruled that plaintiff’s evidence did not make out a prima facie right to recover; and found for defendant; denying plaintiff’s motion for a new trial. Plaintiff appealed.
Reinhard, C. J. [The learned judge said that a license may be created either by parol or by acquiescence in the use of the property for the purpose in question without objection. He held that plaintiff was prima facie a licensee, and not a trespasser.]
A mere license, however, to travel over the land of another may be revoked at any time at the pleasure of the licensor. Parish v. Kaspar, 109 Ind. 586; Simpson v. Wright, 21 Ill. App. 67; 13 Am. & Eng. Encyc. of Law, 555.
Where the license is once proved, however, or a prima facie case of such license has been made out, it then devolves upon the party asserting a revocation to prove it. Blunt v. Barrett, 54 N. Y. Sup. 548.
Consequently if the license in the present case was claimed to have been discontinued or revoked, the burden was upon appellees to show that fact.
Was such revocation established, or was there any evidence from which the court could infer the same?
The transfer of the property, or the fencing of the same, may, under ordinary circumstances, be sufficient to amount to a revocation. Ordinarily a man has a right to use his own property as he pleases, but at the same time this gives him no right to use it to the detriment or injury of his neighbor. We think the erection of an ordinary fence around the lot, one that was not calculated to inflict injury, was proper and right, and it was the privilege of the appellees to thus close up their premises without asking of any one the permission to do so. But whenever they undertook to inclose their property under circumstances that made it dangerous to those likely to pass over it, and which the appellees must anticipate would incur injury by it, it became their duty, if such dangerous means must be employed to accomplish the purpose, to give some sort of warning.
Thus it was held in Houston, etc., R. W. Co. v. Boozer, 70 Tex. 530, that if the owner of the land has been accustomed to permit others to use his property to travel over to such an extent as to produce a confident belief that the use will not be objected to, he must not mislead them by failing to give a proper warning of his intention to recall the permission. See, also, Cornish v. Stubbs, 5 L. R. C. P. 334; Mellor v. Watkins, L. R. 9 Q. B. 400.