come upon his premises, whether for busi ness or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to ren der the premises reasonably safe for the visit. Next it was immaterial how the deceased went to the park, whether he walked or paid his fare on the street cars, or by some other mode of conveyance. The gravamen of the action is the negligent failure of the defen dant to use proper care to protect the de ceased from a danger on its premises while he was. there at the defendant's invitation. It was the duty of the defendant to exercise due care in keeping its premises reasonably safe for those persons it had invited to come upon them to see a balloon go up. When man flies, whither he listeth, there may have to be a radical change, or at least some modification in that old maxim, he who owns the soil owns it up to the sky. Owning it up to the sky, how is a balloon to fly without trespassing upon your or my flume of air? Will the flyer be required to purchase his right of way througn the air from the proprietors, or will the adage be a legal fiction then so as to permit him to go free? While legally and necessarily accord ing to this old maxim, the aeronaut must be a trespasser when he sails, yet he will be one who will do no damages in going into and out of my flume of air, hence we venture to predict that the law will never recognize any right of recovering for trespassing through my air shaft unless actual damage results therefrom. There will be other questions to be deter mined in that flying era. Will the aeronaut be able to acquire a right of way in and out of your or my air flume by prescription, by occupation for twenty-one years, so that we might not be able to dislodge him after his right had become firmly and legally attached thereto by time? Suppose I shall own an acre or two across which some flver will accustom
himself to cross in starting from his station, and which would be recrossed in returning thereto. This passage might be at an alti tude of a hundred feet. He would use this right of way for sufficient length of time to ordinarily give it to a user by prescription. At length I should decide to erect a twenty story house on that acre lot which would sim ply wipe out of existence his right of way through my air flume. Perhaps all of us will have to have twenty-story houses in that day from which to launch our flyers. Would the owner of the right of way of the dirigible, or what not, be able to restrain me from build ing my skyscraper, or would I, having built, be liable to him in damages for a trespass upon his right of way acquired by prescrip tion, or will it be decided that no right of way can be acquired by prescription in air flumes, and that any user of the same may at any time be ousted by the owner of the soil underneath? Another inquiry suggests itself. Suppose one air ship collides with another in my air shaft, and the machines ceasing to fly, sink to earth and in reaching it wreck valuable improvements upon my soil. Will the own ers of- the two machines be liable to me for the injuries done my property, or if the ac cident occurred through the fault of one of the flyers without any contribution on the part of the other, will lack of contributory negligence absolve the one flyer from all damages in dropping through space on me, and saddle the entire bill on the machine re sponsible for the accident? Or will the noncontributing machine be responsible for the reason of being a trespasser ab initia in my air flume? Will a right of way over my property by prescription be such laches on my part that I will assume all hazard of tres passing flyers? Or will I, in order to protect my property, be required to keep a reflector operating up my air flume signalling, "Stop, look, listen, no trespassing by flyers per mitted."
