CHAPTER VIII. OF THE RIGHT TO THE USE OF THE WATER, AS DEPENDING UPON PAROL AND VERBAL LICENSE. 1. Difference between an Easement and a Right by License. 2. The Extent of the Right derived from Parol Licenses, in general. 3. The Extent of the Right derived from Parol Licenses executed, and expense incurred, &c., as conveying an Interest in Land. 4. The Equitable Doctrine concerning Parol Licenses. 5. Doctrine of Estoppel, as applicable to. 1. Difference between an Easement and a Right by License. § 285. AN easement, it has appeared, is a liberty, privilege, or advantage in land, without profit, and existing distinct from the ownership of the soil;1 and it has appeared also, that a claim for an easement must be founded upon a deed or writing, or upon prescription which supposes one. It is a paramount interest in another's land, with a right to enjoy it fully and without obstruction. A license, on the other hand, is a bare authority to do a certain act or series of acts, upon another's land, without possessing any estate therein; and, it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who 1 Ante, § 142. 3 gives the license transfers his title to another, or if either party die. Yet, notwithstanding the positive authorities which have been referred to in a former chapter, questions of considerable difficulty and nicety have arisen, both in England and in America,* as to the effect of a license; and it has been contended, that "a beneficial interest in land may be granted without deed, and, notwithstanding the Statute of Frauds, without writing;" and in fact, the distinction between a privilege or easement carrying an interest in land, and requiring a writing within the statute just mentioned to support it, and a license which may be by parol, "is," it has been considered, "quite subtle; and it becomes difficult, in some cases, to discern a substantial difference between them." 6 It is certain, however, 1 3 Kent, Comm. 452; Miller v. Auburn and Syracuse Railroad Co. 6 Hill, (N. Y.) R. 61. 2 Chap. V. § 168 – 173. 3 Gale & What. on Easem. 13. 4 3 Kent, Comm. 452. 5 7 Taunt. R. 384. 6 3 Kent, Comm. 345. For the nature of licenses, and for the legal nature of a license, we give the following from the elaborate judgment of C. C. J. Vaughan, in Thomas v. Sorrell, (Vaughan, R. 351,) and in Wood v. Leadbitter, (13 M. & Welsb. R. 843.) In the course of his judgment, the latter learned Judge says, "A dispensation or license, properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which, without it, had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions, which, without license, had been unlawful. But a license to hunt in a man's park, and carry away deer killed, to his own use; to cut down a tree in a man's ground, and to carry it away the next day after, to his own use, are licenses as to the acts of hunting and cutting down the tree; but as to the carrying away the deer killed, and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney, to warm him by, as to the actions of eating, firing my wood, and warming them, they are licenses; but it is consequent necessarily to those actions, that my property may be destroyed, in the meat eaten, and in the that a license, otherwise inconsistent with the Statute of Frauds, may convey as extensive an interest as that statute provides for, whenever it is so contemplated by an act of the legislature. By the act of the State of New York, concerning the regulation of highways,' it is declared, that it shall not be lawful to lay out any road through improved land without the consent of the owner. The Court, in Noyes v. Chapin, held, that, by this statute, the public may acquire an interest in lands or an easement, without a writing, and that such was not inconsistent with the Statute of Frauds, inasmuch as it was by act and operation of law. 2. The Extent of the Right derived from Parol Licenses in General. § 286. The right to a privilege annexed to, or growing out of lands, and the exercise or enjoyment of which is inseparable from the land, when conveyed by an instrument duly signed and sealed, cannot be recalled or revoked, even before it is carried into execution by the grantee; whereas, a license unexecuted to enter and enjoy the privilege, (unless created as above wood burnt. So as in some cases, by consequent, and not directly, and as its effect, a dispensation or license may destroy and alter my property." Now, as Mr. Baron Alderson says, (in giving judgment in Wood v. Leadbitter, ub. sup.,) "alluding to this passage, in conjunction to the title License,' in Brooke's Abridgment, from which, and particularly from paragraph 15, it appears that a license is in its nature revocable; we have before us the whole principle of the law on the subject. A mere license is revocable; but that which is called a license, is often something more than a license; it often comprises, or is connected with, a grant, and then the party who has given it, cannot, in general, revoke it, so as to defeat his grant, to which it was incident." 1 16 sect. See Rev. Laws, New York, 275. 2 Chapin v. Noyes, 6 Wend. (N. Y.) R. 461. mentioned by law,) is countermandable and revocable at any time, just as it may be agreeable or not to the licenser.1 A license, said Lord Ellenborough, is not a grant, but may be recalled immediately; 2 for although it may be a contract (parol) for "an interest in or concerning land, yet it is but collateral, and no additional interest in the land (as in the case of an easement) is conveyed by such contract; the interest of the land-owner being the same as before." But that a limited or partial right to enjoy a privilege connected with the soil, may be acquired by parol license, is shown in many cases. Where, for example, a person contracted with the owner of a close for the purpose of a growing crop of grass, for the purpose of being mowed and made into hay by the vendee; it was held, that the vendee had such an exclusive possession of the close, that he might maintain trespass against him who entered and took the grass, even with the consent and license of the land-owner. The Statute of Frauds, it was considered, did not expressly and immediately vacate such contracts, but that it only precluded the bringing of actions to enforce them by charging the contracting party on the ground of such contract, and of some supposed breach thereof.5 1 Fentinam v. Smith, 4 East, R. 107; and Ante, § 169. 2 Rex v. Inhabitants of Horndon on the Hill, 4 M. & Sel. R. 565. 3 Donellan v. Read, 3 Adol. & Ell. R. 899. 4 See 2 Hilliard, Abr. Am. Law of Real Property, 52, et seq. 5 Crosby v. Wadsworth, 6 East, R. 602. An outgoing tenant, after the determination of his lease, has the right to enter upon the land, but this, it was held, is not sufficient for him to maintain trespass against a succeeding tenant, who enters to seed the land before the crop comes to maturity. Dorsey v. Eagle, 7 G. & Johns. (Md.) R. 321. The defendant, in June, agreed to sell to the plaintiff the potatoes then growing on a certain quantity of land of the defendant, the plaintiff to have them in October, and § 287. Nevertheless, it is a well-established general principle, that an unexecuted parol grant of any interest concerning land is revocable at the pleasure of the licenser. A general permission to enter upon land and take timber, is revocable; and so a parol license to abut a dam upon the land of another, has been held subject to be revoked at any time before the expenditure of money. Where the defendant gave permis sion to the plaintiff to pass over his land with teams, and there being no consideration for the license, it was held, that it might be revoked at pleasure. Where a drain and tunnel from a spring were dug, with the verbal consent of the then tenant, and had been used for fifteen years, such license was adjudged to be revocable. A parol license was given by A to B, to dig up the soil and make embankments and a railway over it, it was held to be countermandable at any time, whilst it remains executory; and that if A conveyed the land to another, the license was determined at once, and without notice to B of the transfer; and that if B afterwards enters upon the land, he is liable in trespass.5 Where an ancestor consented by parol to have his land overflowed, by the erection of a dam, the to find diggers. It was held, that this was not a contract for the sale of an interest in land, within the statute of frauds. Sainsbury v. Matthews, 4 M. & Welsb. R. 343. An oral agreement, for the sale of mulberry trees in a nursery, and raised to be transplanted, and a license to enter upon the land and remove the trees, is valid, though not in writing. Whitmarsh v. Walker, 1 Met. (Mass.) R. 313. I Baker v. Wheeler, 8 Wend. (N. Y.) R. 505. 2 Beidelman v. Foulke, 5 Watts, (Penn.) R. 308. 3 Dexter v. Haven, 10 Johns. (N. Y.) R. 426. 4 Cocker v. Cowper, 1 Cr. M. & R. Exchr. R. 418; and see Hewlins v. Shippam, 5 B. & Cress. R. 221. 5 Wallis v. Harrison, 4 M. & Welsb. R. 538. |