WEICK, Chief Judge.
Appellants, who are mother and son, have appealed from a judgment entered upon a directed verdict in an action for personal injuries sustained by the son when he, along with his teen-age brother and a cousin, were trespassing on fenced pasture land owned by defendants but leased to Whitehaven Saddle Club.
The defendants owned a 34 acre tract of land the easterly half of which was used for picnics, rodeos and dances and was known as the Oak Lake Club. The westerly half had been leased for five years to the Whitehaven Saddle Club for use as a pasture for horses belonging to its members. West of the Saddle Club premises was a field not owned by defendants which fronted on Horn Lake Road.
The leased Saddle Club premises were fenced in entirely by a wire fence. The field on Horn Lake Road was also fenced.
On the day of the mishap, Edward Lee Webb went to the Chandler residence to visit Don Finis Chandler’s older brother, Taylor Otis Artis, and his cousin Joseph Hall. The three boys were teen-agers. The residence was located on Horn Lake Road about two blocks from the field. The three boys left the residence to go to the Oak Lake Club to seek employment in cleaning up the place after a rodeo.
The boys took a short cut to get to the club by walking through the field and the Saddle Club pasture. The plaintiff, Don Finis Chandler, age four, “tagged along” after them. They went through or over the field fence and the two pasture fences to get to the Club property. Arriving safely at the Club, the teenagers learned that employment was not available and they started to return to the Chandler residence by the same route.
They passed again through the barbed wire fence on the Saddle Club property and while walking on a path in the pasture Don, who was barefooted, stepped on some ashes which covered hot embers and was severely burned. The mishap occurred in broad daylight. It is noteworthy that no injury occurred on the way to the Oak Lake Club.
The Saddle Club had collected some piles of manure and sawdust in the pasture which caught on fire a few days before the accident. There was conflicting evidence that the defendant, Joseph M. Massa, instructed his employee, Joseph Lee Webb, brother of Edward Lee Webb, to take a tractor and scatter the piles of manure and sawdust so that the fire would die out. There was proof also that the fire department was called. Massa denied that he gave any such instructions or that he called the fire department. On this issue we must accept plaintiffs’ evidence as true.
The fire chief testified:
“No, sir, we did not put the sawdust fire out. What I done was put the grass out that was burning around the outer edge, and we took what water we had with us at the time, and we went around the edge of this sawdust area where it was spread down, and soaked it down to where it couldn’t catch the grass on fire, because sawdust — you could have been there for a week hauling water on it and still have smouldering.”
Employee Webb testified that he again spread the sawdust and manure and that it continued to smolder although “it looked like it was out.”
A number of theories for recovery were advanced. Plaintiffs contended that the boys were invitees but there was not a scintilla of evidence to support that conclusion particularly as to the four year old plaintiff.
Next plaintiffs claimed the right to recover on the thoery of “attractive nuisance.” But a fenced pasture would hardly fall within that category. There was no proof that Don was lured or enticed to the leased premises by the instrumentality or condition which caused the harm. Pardue v. City of Sweetwa-ter, 54 Tenn.App. 286, 390 S.W.2d 683 (1965). The pasture was not a playground for boys.
The District Judge found that plaintiff and his companions were trespassers and, in our opinion, there was no question about it.
Plaintiff’s brother, Taylor Otis Artis, who was a witness in plaintiff’s behalf, testified on cross-examination concerning the fence on the Saddle Club property:
“Q But this was a fenced pasture? It has a fence all the way around it?
A Yes, sir.”
Plaintiff offered in evidence a number of photographs, one of which (Exhibit 6) showed a portion of the Saddle Club fence through which plaintiff and his brothers had to pass. It was a wire fence with strands of barbed wire at the top line of the fence. In identifying the exhibit, Taylor Otis Artis testified on direct examination:
“Q What does that show?
A This is the second fence where we mashed down and got across.”
The photograph (Exhibit 6) bears mute testimony to the fact that Artis and his brother and cousin indeed had to “mash down” the wire fence so as to make an opening between the wire fence and the barbed wires, through which to pass. The photograph is appended hereto.
The fence was obviously adequate to keep the horses confined in the pasture, but was not impenetrable so as to keep out human trespassers who were able to and did bend or “mash down” the wires. The boys had to pass through or over four fences before the injury occurred. The law imposed no duty on a property owner, much less a landlord out of possession, to erect impenetrable barriers on leased land in order to keep trespassers from entering thereon and injuring themselves.
Appellants made the following admission as to Tennessee law in their rebuttal brief:
“We acknowledge that the general rule in Tennessee, as elsewhere, restricts the liability of a landowner to licensee or trespasser on his land to circumstances of wanton or wilful injury.”
This is a rule of property law. The fact that plaintiff was a minor of tender years does not alter the rule. Ellis v. Orkin, Exterminators Co., 24 Tenn.App. 279, 143 S.W.2d 108 (1940); Garis v. Eberling, 18 Tenn.App. 1, 71 S.W.2d 215 (1934); 65 C.J.S. Negligence § 63 (61) at p. 782.
In Tennessee, a landlord is liable to his tenant and to invitees of the tenant for injuries resulting from a dangerous condition of the leased premises which existed at the time of the lease, if the landlord knew or in the exercise of ordinary care should have known thereof. The landlord, however, is not liable for a dangerous condition which originates during the tenancy when the landlord is out of possession of the premises. Willcox v. Hines, 100 Tenn. 538, 46 S.W. 297, 41 L.R.A. 278 (1898); Willcox v. Hines, 100 Tenn. 524, 45 S.W. 781 (1898); Stenberg v. Willcox, 96 Tenn. 163, 33 S.W. 917, 34 L.R.A. 615 (1896); Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824 (1896). See also Manes v. Hines & McNair Hotels, Inc., 184 Tenn. 210, 197 S.W.2d 889 (1946).
If the landlord had done nothing to es-tinguish the fire, no liability could possibly have attached to him.
In his opinion, the District Judge stated:
“The proof is without dispute that prior to this accident, the owners of the property had leased it to the Saddle Club. The plaintiff’s very theory is that the property had been so leased. There is no evidence here even that there was a pile of sawdust and manure down there at the time of the lease, and presumably there wasn’t, because it was the Saddle Club that apparently created the pile after it rented the property.”
But it is contended that the landlord sent an employee with a tractor in an effort to put out the fire, which he negligently failed to do; that the landlord later called the fire department, which responded, and which also was negligent in failing to completely extinguish it; and that the ashes covering the burning embers constituted a trap which defendants set for the plaintiff; and, further, that the landlord knew or should have known that adults as well as children were trespassing on the leased land.
The District Judge stated:
“I think the law is that it would still be necessary to show that the injured party in some way relied on the landlord’s having attempted to correct the situation. As I said earlier in the colloquy with Mr. Buford during argument, the landlord starts without a duty whatsoever with respect to correcting the situation, and some way you have to raise the duty.
“Well, as I understand the annotation, in 150 A.L.R., at page 1379, the duty is raised if the landlord gratuitously undertakes to correct a situation and negligently fails to do so, and in reliance thereon, the plaintiff was injured, and the annotation goes on to say that where the plaintiff doesn’t know that the landlord has made any effort to correct the situation, there simply can’t be any reliance, and there is no scintilla of evidence that these boys, and particularly Don Chandler, has any knowledge that Mr. Massa made an effort to correct the situation, if, in fact, he did.”
Recently we applied the same principle in Cope v. Southern Ry., 410 F.2d 1146 (6th Cir.1969), a Tennessee case, wherein it was contended that the railroad was liable for negligent performance of a duty which it had assumed without legal obligation. We said:
“Plaintiff-appellee, who had no knowledge of a flagman’s presence until after the accident, did not act in any way in reliance upon the flagman’s directions. Where the injured party had no knowledge of nor any reasonable grounds to expect a flagman at the crossing, the legal principles involved are the same as if no flagman were present, and thus no duty was violated.”
The dissent relies on dictum in Bass & Co. v. Parker, 208 Tenn. 38, 343 S.W.2d 879 (1961) and Walker v. Williams, 215 Tenn. 195, 384 S.W.2d 447 (1964).
In Bass & Co. v. Parker, supra, unlike our case, the plaintiff was found to be an invitee and not a trespasser. In Walker v. Williams, supra, the property owner repaired a screen door in such a manner that it offered less resistance when being pushed open than it previously did, and neglected to warn a guest who was familiar with the previous condition of the door. The guest fell as she pushed open the door. The Court held that as a matter of law this did not constitute a trap.
It was the Saddle Club and not Massa who piled the sawdust and manure on the property. Massa did not cause or contribute to cause the fire.
Neither do we think that spreading burning embers so that the fire would die out, constituted setting of a trap. It did not constitute negligence for the landlord to call the fire department, if he did make the call. In our opinion, the landlord is not liable for the acts of the fire department in failing to put out the fire.
There was no proof that defendants knew that plaintiff or his brother or cousin were trespassing in the leased land. They had never been there before. There was no duty on the part of the landlord to warn trespassers on leased property in the possession of the tenant. There was no duty on the landlord to station guards around the leased property to prevent trespassers from climbing through or over the fences or to warn them of the danger of the smoldering fire. There was no proof that the landlord knew of the existence of a trap, so he was not in position to warn anyone of it.
Harrison v. Southern Ry., 31 Tenn.App. 377, 215 S.W.2d 31 (1948), cited in the dissent, involved a path along the side of a railroad track, which the company owning and possessing the property had permitted the public to use. In our case, the path was enclosed by a barbed wire fence which was notice to the public that the path was not a public way. The landlord was not in possession of the Saddle Club property.
We hold that the plaintiff, Don Finis Chandler, was a trespasser and that the only duty owed by the tenant, Whitehaven Saddle Club, was not to wilfully or wantonly injure him. The landlord, out of possession of the property, owed no greater duty. Don had no knowledge of any efforts of Mr. Massa to extinguish the fire and hence could not have relied thereon. Massa’s failure to completely extinguish the fire cannot therefore form the basis of actionable negligence. There was no proof of wanton or wilful misconduct.
The dissent quotes dictum from Pardue v. City of Sweetwater, 54 Tenn.App. 286, 390 S.W.2d 683 (1965), an attractive nuisance ease dealing with the liability of the occupier or possessor of land to trespassers. Since defendants were not occupiers or possessors of the leased pasture land, the dictum is inapplicable.
Appellants assign error relating to an evidentiary issue which we deem without merit.
Affirmed.
APPENDIX
Trial Exhibit No. 6