It may be that heretofore their entries to homes have been trespasses, not consented to, but merely endured because the home occupants (usually housewives) did not think it worthwhile to take the trouble necessary to put a stop to the practice. See Winder v. Blake, 4 Jones L. (N.C.) 332, 334; Cooley on Torts (4th ed.) § 358. Without pursuing this question further, we may concede that in the past, in the absence of objection by the occupants, solicitors have been free to enter homes for their business purposes.
Such right is similar, though not identical, with the enjoyment of property by tenants in common. The whole matter has been thoroughly discussed in the following cases: Collins v. Benbury, 25 N.C. 277; Winder v. Blake, 49 N.C. 332; Skinner v. Hettrick, 73 N.C. 57; and Hettrick v. Page, 82 N.C. 68. In Collins v. Benbury, 27 N.C. 118, it is said: "The mere circumstance of fishing at a particular place, no matter for how long a time, raises no presumption of such a grant, because the person so fishing exercises prima facie only a right which belongs to him in common with all others."
It was the first time he was ever there. It would impose hard lines upon the owner of premises — and, in respect to the plaintiff, the defendant occupies that position — if by permitting persons, in a few instances, to enter thereupon for their own purposes or convenience, a custom or usage should be established, imposing upon such owners the degree of care imposed in the case of invited guests or persons going in for the purpose of transacting business with the owners. Winder v. Blake, 49 N.C. 332; Penland v. Ingle, 138 N.C. 456; 12 Cyc., 1028. Discussing the question involved in this appeal, Boynton, J., in R. R. v. Bingham, 29 Ohio St. 270, says: "It is therefore a right that the public have to enter upon the premises of the company at points designed or designated for receiving passengers, and upon compliance with the rules governing the transportation of persons to be carried over its road to such points thereon as they may desire.
We are decidedly of opinion that the proof of the usage was admissible, as is abundantly shown by the authorities referred to by the defendants' counsel. Story on Bailments, 9, 10, 256; Moore v. Eason, 11 Ired. Rep. 568. The case of Winder v. Blake, 4 Jones' Rep. 332, cited by the counsel for the plaintiff, is not in opposition to this doctrine. Although no special custom can be recognised as having grown up in this country, the effect of which is to supersede the common law, yet a custom or usage relating to the trade or business of a particular place, where a contract is entered into, may be shown, for the purpose of annexing incidents to, and explaining the meaning of terms used in such contract; Moore v. Eason ubi supra; Hutton v. Warren, 1 Mees. and Wels. 466.
Though the public has customarily resorted to such waters for time immemorial and taken fish therefrom without objection, a member of the public, solely as such, cannot continue to do so after the owner has protested." As supporting the above rules of law see Turner v. Town of Hebron (1891), 61 Conn. 175, 22 A. 951, 14 L.R.A. 286; Winder v. Blake (1857), 49 N.C. 332. See also 26 C.J. §§ 13, 14, 15, and 16, pp. 600 and 601.