This court, many years ago, in 1902, in the case of York v.Pacific Northern Ry. Co., 8 Idaho 574, 69 P. 1042, aligned itself with that group of courts giving approval to and which have applied the " attractive nuisance" doctrine. Nevertheless, the majority refuse to apply that doctrine to the case at bar because, it is said, "High explosives may be locked up beyond the reach of children, turntables and other dangerous machinery may be so secured that children cannot injure themselves thereby, but this is not true of ponds, lakes, streams, and many other properties which are the subjects of private ownership and which may cause the injury or death of children who play about them." Thus, the majority opinion assumes that appellant's mill pond could not have been made reasonably secure against injury or death to children because there are, for example, lakes which cannot be made reasonably safe from injury to or death of children, and of course there are many such lakes in Idaho and elsewhere. But the artificial mill pond involved in this case is not such a lake, and cannot be made such by any stretch of the imagination. Appellant's mill pond is approximately 2,000 feet long, and about 800 feet across at the widest point, and could be completely and easily fenced. In the vernacular of the small boy, it is merely a "frog-pond."
It is held, however, by the majority, that respondents are entitled to recover because the "Bicandi boy and his companions were not trespassers. They were invited to remain *Page 556 on appellant's premises by its caretaker and watchman who acted, in so doing, within the scope of his authority. While they were there, with appellant's knowledge and consent and by its invitation, it owed them the positive duty to exercise reasonable care for their safety."
Under the "attractive nuisance" doctrine, an expressinvitation from, for example, a watchman is not required, the invitation being implied from the attractive and alluring nature of the thing, whether it be a turntable or log pond. In other words, under the majority opinion, an express invitation is required as a condition precedent to imposing upon a landowner the "duty to exercise reasonable care" for the safety of children of tender years, while under the "attractive nuisance" doctrine, the alluring and enticing nature of the thing causing injury to or the death of children is held, in and of itself, to amount to an express invitation.
In the case at bar, then, one is compelled to determine whether to align himself with that group of courts which have adopted what has been designated as the "humane" (attractive nuisance) doctrine, or with that other group which have adopted what has been designated as the "hard" doctrine. The "hard" doctrine puts property above humanity; on the other hand, the "humane" doctrine puts humanity above property. To hold that one who artificially creates and maintains something dangerous on his land, which from its very nature is attractive to children, something which will attract children to it to play just as certainly as a fish is attracted to and mechanically follows a bait, is under no duty to exercise reasonable and ordinary care to protect children from its dangers because they are not given an express invitation, smacks of the barbarous it seems to me. I do not hesitate, personally, to adopt the rule which places humanity above property, and gives reasonable protection to children of tender years against dangers which they cannot perceive and appreciate, even though an express invitation may not have been given. (1 Thompson Neg., 2d ed., secs. 1024, 1031 and 1033; Best v. District of *Page 557 Columbia, 291 U.S. 411, 420, 54 Sup. Ct. 487, 78 L. ed. 882;Sioux City P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745;Union Pac. Ry. Co. v. McDonald, 152 U.S. 262, 14 Sup. Ct. 619,38 L. ed. 434; Pekin v. McMahon, 154 Ill. 141, 39 N.E. 484, 45 Am. St. 114, 27 L.R.A. 206; Howard v. City of Rockford, 270 Ill. App.? 155; Cochran v. Kankakee S. L. Co., 179 Ill. App. 437;Linnberg v. City of Rock Island, 136 Ill. App. 495; 45 C. J. 758; Peters v. City of Tampa, 115 Fla. 666, 155 So. 854;Ramsay v. Tuthill Building Material Co., 295 Ill. 395,129 N.E. 127, 36 A.L.R. 23; Windsor Reservoir Canal Co. v. Smith,92 Colo. 464, 21 P.2d 1116; City of Altus v. Millikin,89 Okl. 1, 223 P. 851.)
The complaint alleges, among other things, that appellant's log pond was attractive to children; that it allured and attracted children of tender years to it to play; that it was dangerous, and that appellant knew the pond was attractive to children, that it was alluring and attracting children of tender years to it to play, and that it was dangerous, all of which stands admitted by the general demurrer of the appellant. So that, without expressing an opinion as to whether respondents' complaint states a cause of action, entitling respondents to recover upon the grounds and for the reasons stated in the majority opinion, I am fully convinced that it states a good cause of action against the appellant under the "attractive nuisance" doctrine. Therefore, while I do not concur in the majority opinion in so far as it refuses to apply the attractive nuisance doctrine to the case at bar, inasmuch as the complaint states a cause of action based upon that doctrine, I concur in the conclusion of the majority, that the respondents are entitled to recover and to that end that the judgment ought to be affirmed, and I base my concurrence on the rule announced in Gould v. Hill, 43 Idaho 93, 251 P. 167, to the effect that a plaintiff may recover if his complaint statesany cause of action entitling him to relief, either at law or in equity.