proper for the Court, upon such evidence, to leave it to the jury to say whether such license was in fact given.1

3. Extent of the Right derived from Parol Licenses executed, and as Conveying an Interest in Land.

§ 295. There has been occasion, in a former chapter, to introduce authorities to show, that at Common Law, and by the Statute of Frauds, easements and all incorporeal hereditaments can only be created and transferred by deed, devise, or record. The several provisions of the well-known statute referred to, has been asserted by a very learned and eminent Judge, (Lord C. J. KENYON,) to be one of the wisest laws in the English statute book; and according to the views of Mr. Baron PARKE, there cannot be, by force of this statute, an irrevocable license to enter upon land without its amounting to an interest in lands, and which, therefore, by the force of the Statute of Frauds, can pass only by deed. Mr. J. LITTLEDALE inquired, "Suppose he" (one of the parties in the action) "had given a parol license to a neighbor to put cattle on his premises, and that person had in consequence made pens and roads, could not the license be countermandable?" To which the counsel replied, that in such case the license was subject to technical difficulties, and that if it conveyed an interest in the land, it must be granted by lease, written, and signed, or be held

1 Johnson v. Lewis, 13 Conn. R., per Sherman, J.

2 Ante, 168-173.

3 Chaplin v. Rogers, 1 East, R. 194.

4 Williams v. Morris, 8 M. & Welsb. R. 488.

merely at will; and if it amount to an easement, it can pass only by deed.1 Where a rector granted to A, by parol leave, to make a vault in the parish church, for the burial of the remains of a certain person there, and also the exclusive use of the vault; and afterwards, without the leave of A, opened the vault and buried the remains of another person there, it was held, that no action could be maintained against him for so doing; for that the rector could not grant the exclusive use by parol: BAYLEY, J., said, "If it be not an interest in land, it is an easement, or the grant of an incorporeal hereditament, which could only be effectually granted by deed, and no such instrument was executed."2 A demise in writing, but not under seal, of a messuage, with full, free, and exclusive license for the lessee to hunt, shoot, and sport in, over, and upon the manor of the lessor, and to fish in the waters thereof, at an entire rent, was held to be altogether void. In a very elaborate judgment given by Mr. J. BAYLEY, the necessity of a deed for creating any incor

1 Bridges v. Blanchard, 1 Adol. & Ell. R. 536. "A license," says Lord Ellenborough, "is not a grant, but may be recalled immediately, and so might this license, the day after it was granted." The license, in this case, was from the lord of the manor, to build a cottage on the waste; the license had been executed, and the cottage inhabited by the licensee. Rex v. Horndon, 4 M. & Sel. R. 565. In Doty v. Gorham, the Supreme Court of Massachusetts determined, that where a building is placed on land of the plaintiff, with his permission, and the building was sold on an execution against the owner of it, the purchaser had a right to enter upon the land and remove the building. The debtor having placed the building upon the plaintiff's soil, by his permission, was tenant at will of the land on which it stood. Doty v. Gorham, 5 Pick. (Mass.) R. 487. 2 Bryon v. Whistler, 8 B. & Cress. R. 288.

3 Bird v. Higginson, 4 Nev. & Man. R. 505; and see also Somerset (Duke of) v. Fogwell, 5 B. & Cress. R. 875.

poreal hereditament affecting land was expressly recognized, and formed the ground of decision.1

§ 296. Notwithstanding the authorities adduced in the preceding section, establishing the doctrine, that easements and other incorporeal hereditaments, can in England pass only by deed, there have been cases in that country to the contrary. But, as has been forcibly observed, "to give absolute effect to a parol license, and hold that it passes a perpetual right, or an absolute right, even for years, in, upon, and over the grantor's land, so as thereby to part with or prejudice any part of his interest therein, would be in the teeth of the statute against frauds." 2 We do not refer to the case of Winter v. Brockwell,3 which has been so very much discussed both by the bench and at the bar, in America as well as in England, as it is ranked among cases of another category, and, as we shall by and by show, is inapplicable to the subject immediately before us. It is one of that class of cases which we have already had occasion to bestow considerable attention, and which shows that a parol license carried into execution may work the extinguishment of an easement. The doctrine with regard to the nature and effect of a parol license, in creating an easement, had derived very considerable illustration from the case of Wood v. Leadbitter, to which we propose to have recourse, for the purpose of

1 Hewlins v. Shippam, 5 B. & Cress. R. 222, and cited Ante, § 169, and see also Fentinam v. Smith, 4 East, R. 109, and cited Ante, § 169, and other cases cited from § 168 to § 173.

2 Sugden on Vend. and Pur. (8th Eng. edit.) 74, 75; and see 1 Chitty, Gen. Pract. 336-339.

3 Winter v. Brockwell, 8 East, R. 308.

4 Wood v. Leadbitter, 13 M. & Welsb. R. 837; and 34 Lond. Law Mag. p. 129.

removing the doubt and uncertainty which have been occasioned by some of the earlier cases.

§ 297. Four cases have been relied on in England in support of the doctrine, that there are some parol licenses which are irrevocable. The first is Webb v. Paternoster. This case, as appears from the report in Rolle, was an action of trespass brought against the defendant for eating, by the mouths of his cattle, the plaintiff's hay. The defendant justified under Sir William Plummer, the owner of the fee of the close in which the hay was, averring that Sir William Plummer leased the close to him, and therefore, as lessee, he turned his cattle into the close, and they ate the hay. The plaintiff replied, that, before the making of the lease, Sir William Plummer had licensed him to place the hay on the close, till he could conveniently sell it, and that before he could conveniently sell it, Sir William Plummer leased the land to the defendant. The defendant demurred to the replication. From the arguments, as given in Rolle, it appears that the plaintiff's counsel, who was first heard, contended, first, that the license, being a license for profit, and not merely for pleasure, and being also for a certain time only, namely, till he could sell his hay, was not revocable; and secondly, even if the license was revocable, still that the lease to the defendant was an implied, and not an express revocation, and therefore was inoperative against him without notice; and for this he referred to Mallory's case, 5 Rep. 111. To this latter proposition, the Court appears to have assented; but DODDERIDGE, J., suggested, that, even if the license was in force, still

1 Webb v. Paternoster, reported in five different books, viz.: Palmer 71; Rolle, 143, and 152; Noy, 98; Popham, 151; and Godbolt, 282.

the licenser did not, by such a license, preclude himself, nor consequently his tenant, from turning cattle on the land, and that the licensee ought to have taken care to protect the hay from the cattle. As to this, however, the Chief Justice expressed a doubt. The defendant's counsel was heard some days afterwards, and he alleged, that it appeared by the record, that the plaintiff had had two years to sell his hay, before the defendant's cattle had eaten it; and he argued that the Court would say, as matter of law, that this was more than reasonable time; and to this the Court assented. The plaintiff's counsel, in reply, reverted to the distinction between the license for profit, and a license for pleasure; but DODDERIDGE denied it, and said that a license to dig gravel, though a license for profit, is revocable; and he said that the true distinction was between a mere license, and a license coupled with an interest. Judgment was eventually given for the defendant, on the ground that the plaintiff had had more than reasonable time to sell the hay. It will be seen, therefore, that the only two points decided were, first, that the question of reasonable time was for the Court, and not for the jury; and, secondly, that two years was more than a reasonable time. The decision, therefore, itself, has no bearing on the point for which it has been cited; and the only support which the case affords to the doctrine which has been so very often contended for, is what is said in the report of the case in Popham, to have been agreed by the Court, namely, that a license for profit for a term certain is not revocable; a proposition to which, with the qualification we have already pointed out, we entirely accede. It is, moreover, by no means certain, that the license in Webb v. Paternoster was not a license under seal. The defend