(dissenting). Assuming that plaintiff was not a trespasser in using the traveled path across defendant’s premises, was licensed to do that, he went aside, out of the way, to examine, and then to appropriate, some of defendant’s personal property. Having appropriated and carried away this property, in another place, not on defendant’s premises, and after some lapse of time, he was injured in attempting to convert it to some personal use. It is alleged in the declaration of the plaintiff that because children, including plaintiff, did use the said way and , had for a long time done so, and because they were in the habit, to defendant’s knowledge, of straying from the way and playing about the premises of defendant, over which the way was, it became the duty of defendant to know that children would be
“childishly and innocently attracted by said dynamite, explosives, powder, and caps,' stored, left or retained by said Newport Mining Company, upon and *211near said paths and passageways, and which dynamite, powder, explosives and • caps, said defendant well knew, or in the exercise of ordinary care should and would have known, were of such nature and appearance as to irresistibly attract children, and cause children (such as plaintiff) to handle, pick up, and play with same, with injurious results and effects.”
Defendant used the dynamite and explosive caps in its business carried on upon the premises. They were stored in boxes and pushed under the cover made by an inclining approach to a door of one of its buildings. They were harmless unless interfered with. The boxes were seen by plaintiff and his brother while they were traversing the way and they proceeded to investigate the contents. If an adult had done precisely what plaintiff did, no one, I assume, would contend that the defendant was liable. Why should there be a different rule when a child of ten and another more than eight years of age commit the trespass? Manifestly, there can be no different rule unless it is held that because the children were attracted they were, therefore, excused: that in attracting them the owner invited them and because they were his invitees, upon his premises, he owed them the duty he would owe to any one he invited there.
However much one may analyze and reanalyze the facts disclosed by the record in Powers v. Harlow, 58 Mich. 507, it is plain, I think, that the duty of defendant was made to rest upon an invitation to the injured child to go upon his premises. It is said in the opinion, of the right given to the child’s father:
“A persoñ giving such a license, especially when he gives it wholly or in part for his own interest as was the case here, and thereby invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of, or ought to know of, and of which they are not aware.”
*212In Peklenk v. Isle Royale Copper Co., 170 Mich, 299, the territory invaded by children of occupants of the houses on the tract, tenants of defendant, was open pasture land upon which the cows were allowed to run and the children to gather wood.
There was no invitation in the case at bar unless, as I have said, leaving something upon the premises, outside of the way, attractive to children, amounted to an invitation, a doctrine which this court has refused to recognize. The question was squarely presented, debated and decided in Ryan v. Towar, 128 Mich. 468. The opinions contain references to many adjudicated cases. It was held that an invitation or a license to cross the premises, of another cannot be predicated on the mere fact that no steps have been taken to interfere with such practice, that there is no difference between children and adults as to the circumstances which will warrant the inference of an invitation or a license to enter upon another’s premises, that the owner of land is not liable to trespassers thereon for injuries sustained by them not due to his wanton or wilful acts, and that no exception to this rule exists in favor of children who are injured by dangerous machinery, naturally calculated to attract them to the premises. The judgment of this court affirmed the rulings of Mr. Justice Stone, who heard that cause at circuit. It has been the law of this State since it was decided in 1901. No subsequent decision of the court has questioned it. In Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571, it was alleged in the declaration that a certain reservoir had a great tendency to and did excite the curiosity of and was an attractive place for children to play, many of whom frequented the same as a matter of childish curiosity. A child so attracted fell into this reservoir and was drowned. Recovery was refused upon the ground that defendant city was not negligent. The law of the case *213is not discussed. Mr. Justice Moore, in delivering the opinion, said, among other things:
“The writer of this opinion did not agree with the conclusion reached by a majority of the Justices in Ryan v. Towar, but since it was filed it must be regarded as the law in this State in all like cases. * * * The opinions are long and carefully considered.”
Reid v. Harmon, 161 Mich. 51, is a case in which the doctrine of invitation by attraction was again urged upon this court, and refused. A child was injured while playing upon a railroad turntable. In principle, neither Ryan v. Towar, Peninsular Trust Co. v. City of Grand Rapids, nor Reid v. Harmon can be distinguished from the case at bar.
If any one shall be of opinion that Powers v. Harlow was rested upon some rule other than the one I have stated — upon the doctrine that it is. negligent for any one to leave upon his premises where they can be seen dangerous things attractive to children, as the reference in the opinion to Railroad Co. v. Stout, 17 Wall. (U. S.) 657, might suggest, then the foundation rule of the case was expressly denied in Ryan v. Towar. In any event, therefore, decision of this case cannot be rested upon Powers v. Harlow without overruling Ryan v. Towar and the decisions which have followed it.
In Railroad Co. v. Stout, a boy was injured while playing upon a turntable on the premises of the railroad company. It was alleged that the railroad company was negligent in not fastening or guarding the apparatus so that it could not be moved by children. As stated in the opinion, the trial judge in .that case instructed the jury
“that to maintain the action it must appear by the evidence that the turntable, in the condition, situation, and place where it then was, was a dangerous machine, one which, if unguarded or unlocked, would be *214likely to cause injury to children; that if in its construction and the manner in which it was left it was not dangerous in its nature, the defendants were not liable for negligence; that they were further to consider whether, situated as was the defendants.’ property, in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.”
This instruction was approved.
One has to make but cursory examination of the opinions delivered in Ryan v. Towar to discover that the law of Railroad Co. v. Stout and of similar cases was expressly rejected by this court. It is obvious that cases like Morrison v. Carpenter, 179 Mich. 207, have no application here and discuss no doctrine applicable to the facts or the contentions in this case. That case involved a peril created in the way itself, to the injury of one licensed to use the way.
The learned trial judge, after first submitting the issues in the case at bar to a jury, entered a judgment for defendant non obstante, in doing this, he followed the law of this State, and in my opinion the judgment should be affirmed.
Brooke and Stone, JJ., concurred with Ostrander, C. J.