I most respectfully dissent from the majority opinion in this case. The owner of the several buildings and warehouses owned the ground in the rear of the same, next to the river, in severalty, and by an agreement between themselves have for many years maintained and used a roadway along and across the same in connection with a public alley and public streets leading to and away from the same, for the access to and egress from the same of teams and wagons, in the appropriate business of each. This unquestionably made this open ground the private way of each one of the proprietors for such purpose, and created in each a private easement in the same. In such a case the law is perfectly well settled that these several proprietors took their right and use of this roadway subject to any obstruction, either natural or artificial, existing therein at the time of such dedication, on the premises of either one of them, and there was no obligation or duty resting upon any one of them to remove such obstruction, however dangerous or inconvenient to the others. They all had, or are presumed to have had, notice of such obstruction, and if • its removal was desired it could have been provided for at the time. They must, therefore regulate and enjoy such joint use in view of the same. In'this there is no hardship or possible wrong, and all of the authorities which are cited to sustain this demurrer have application onl/y to such a case.
But the complaint makes a case very different from this. The language in respect to the dedication of this roadway *619is, “ thus at all times affording to said occupants and proprietors, their agents and servants, and to the public i/n, general, access for teams and wagons to the rear ends of all the various buildings situated on said half-block, and also a passage along such dock-line of said river to said West Water street,” etc. The deceased was driving a wagon loaded with barrels of pork, and was sitting on one of the barrels, which was a perfectly proper place for him to sit and drive such a load, and he was on the way from the alley into the open ground just at the rear of the defendants’ building or warehouse to the pork warehouse of another of the proprietors. It was in the night-time, and quite dark. He drove with due care. He was not aware that this roof, shed, or elevated platform existed over such roadway at the defendants’ building. He had never driven there before, and had no notice of it. His business was legitimate and proper, and required the use of the roadway unobstructed for his team and loaded wagon,— the very use for which it was intended. That shed or platform had been dangerous for a long time to any one situated as he then was, to the knowledge of the defendants. His head came into contact with it, and he was thereby killed without his fault.
This roadway was for the use of “ the public in general,” as well as of the proprietors, in connection with a public alley and public streets for such purposes. It was necessary that the public should have access to such buildings for the appropriate business of each. The plaintiff was one of that public. He had a right there by virtue of this dedication, and his attempted use of the roadway was proper. What does the law call this right of the public, and the roadway in connection with such public use? Is there any name for it? Does it involve any public right which the law can recognize? It is said it is not a highway like one of the streets of a city, or roád in a town, which is required to be kept in repair by the public authorities. Probably not. It *620is not a private way, and it is a way for the use of the public. May it not be called a publie way without doing violence to language or law? It must be a public way for the use of the public in general; that is, the public having a use for it. To this extent — that is, so far as the defendants who dedicated it to such public use, and the plaintiff, as one of the public wishing to enjoy such use, are concerned — may it not be called a highway ? It was to be used in connection with other highways, and in the same manner. By the dedication to the public of this ground, and its long use as a private and also as a publie roadwajq were not the public notified, yes, and invited, to use the same, and assured that it was safe for such purpose? But it is said the public were not so “ invited.” The defendants never issued cards of invitation, or published an invitation in the newspapers or hand-bills, or wrote letters of invitation to the public to come and use the way, it is true. Its dedication to the public use was invitation enough.
The defendants maintained a dangerous nuisance in this way of which the public was not apprised, and which they had no reason to suppose existed. They maintained a trap in the way. They virtually, by the dedication to such use, said to the public, notified the public, that there was no such shed or roof existing at their building just high enough to take the heads of the unsuspecting and unnotified public using the way in the night-time off from their shoulders. Can it be possible that by such dedication the defendants owed no duty, were under no obligation, to the public to remove such a dangerous obstruction from the way, or raise it above the heads of those for whose use it was intended? The very principle which underlies the relation of cities and towns to the highways and the public, of liability to the public, or of obligation or duty to the public, is boldly present in this relation between the defendants, this roadway, and the public, so far as to require them to remove such a *621dangerous obstruction,— to remove tbe i/ra/p or pitfall or impending shed which they had placed there. "Whether they placed it there before or after such a dedication, so far as the danger to the public or their obligation to the public is concerned, it makes no difference. In morals and law their duty would be precisely the same in either case; but, of course, not to the other joint proprietors who made the dedication and had notice of existing obstructions. It is bad policy as well as wrong to underestimate public obligations, or duty to the public, where, as here, property owners and business men voluntarily place themselves in such a relation to the public that there is death or great danger in attempting to use what was intended as a valuable convenience and favor by them to the public without any known restriction or condition.. If this complaint is true, and on demurrer it must be assumed to be true, these defendants have known for many years that whenever one of the- public attempted to use this roadway as used by the deceased, in the nighttime, that there was certain death or great danger in so doing, and that any one almost any night in the proper season was liable to make such an attempted use of the way; and yet we are told there was no obligation or duty resting upon them either to give such notice that all of the public might know of the danger, or to remove it.
The following language of Chief Justice CooKBnRN'in Corby v. Hill, 93 Eng. C. L., 556, is perfectly applicable to this case, and no criticism or refinement can make it otherwise: “ The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question. They held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. Could they have justified the placing an obstruction across the way, whereby an injury was occasioned to one using the way by their invitation? Clearly they could not.” No distinction was ever made, where the rights of the unnotified public were concerned, as to liability, whether the obstruction was *622permitted to remain there or was placed there. In the one case there is alone the duty to remove it, and in the other the violation of duty in placing it there, coupled with the duty to remove it. The grounds of liability are precisely the same in both cases; for in both there is the faxdt of the proprietor, the allurement and invitation, the want of notice to the public, due care, and injury or death as the consequence.
The case of Low v. Grand Trunk Railway Co., 72 Me., 313, is precisely in point as to facts and .principle. The court said, in that case: “ In fitting up a place for business purposes one is at liberty to consult his own convenience and profit, but not without a reasonable regard for the safety of those whom his operations bring upon his premises upon lawful business errands. In particular, anything which may .operate as a trap _ or a pitfall for those not familiar with the place or moving in a dim light is to be avoided, if reasonable care will accomplish security to life and limb in that respect.”
There are 'many other cases in point in the brief of respondents’ counsel, and many not cited. Indeed, it may be safely challenged that no respectable case can be found involving substantially the same facts, wherein the duty and liability of the proprietor to one of the public in such a case are even questioned. It is of no use to cite cases having no bearing upon the-real question here, however numerous they may be, or suppose a great multitude of cases of no possible analogous relevancy to this, and discuss the law applicable to them.
I feel the more interest in this case because I cannot but think that the principle upon which it is based is very important and well established both by reason and authority, and that legal justice may be impaired by its repudiation, and the manifestation of undue zeal in its discussion may be excused on the ground of strong conviction.
I think the complaint states a cause of action.
By the Court.— The order of the circuit court is affirmed.