63 Md. 319 | Md. | 1885
delivered the opinion of the Court.
This is an action of trespass quare clausum fregit against the appellant for running its trains over the land of the appellee, and the main question is whether a license under which the company entered on the land, and upon the faith of which it expended large sums of money in the construction of its road, can be set up as a defence in a Court of law to the action ? And this depends upon whether a right of way can be acquired in this State by a license upon the faith of which the way has been constructed ?
Sec. 1, Art. 24, of the Code, provides that no interest in or concerning land for a term exceeding seven years, shall be transferred, otherwise . than by deed duly executed and recorded. Under this statute it was decided so long ago as Hays vs. Richardson, 1 G. & J., 366, that a right of way was an interest in land, which could not be created, except in the mode and manner prescribed by the statute. In that case the plaintiff constructed the road, and huilt a bridge under a license in writing from the owner of the land, and it was held that no action would lie against a subsequent owner for obstructing the road.
But while admitting this to be so in regard to an ordinary way, it was argued that in a case like the one now before us, where a railway company has made large expenditures in the construction of a permanent way under a license of the owner, the latter ought not to be permitted to revoke it, and that such a defence is available at law as well as in equity. Were this a question to be
Cases may be found, it is true, in which the defence now relied on has heen held to be a good defence, even in-actions at lavo. Some of these cases proceed on the ground that where one has induced another, either by express consent or acquiescence, to incur expense in the erection •of permanent works, he will not be permitted to deprive the licensee of the benefits of such expenditure, by reason of want of a complete legal title. In other words, such con
We may remark, however, in passing, that there is a broad distinction between a license and a contract or agreement for the sale of land. A license is but an authority to do an act or series of acts on the land of the licensor. It needs no consideration to support it, and
But, be that as it may, we may safely say, as a general rule, the decisions in this country hold that an interest or easement in land cannot be acquired at law by license, but must be acquired in the mode provided for the transfer of real estate. We shall not extend this opinion by citations from the many cases in which this question has been considered, but refer merely to the cases themselves. Cook vs. Stearns, 11 Mass., 533; Stevens vs. Stevens, 11 Metcalfe, 251 ; Foot vs. New Haven and Northampton Co., 23 Conn., 214; Bridges vs. Purcell, 1 Dev. & Batt., 492; Mumford vs. Whitney, 15 Wend., 380 ; Woodward vs. Seely, 11 Illinois, 157.
And in England, where' this question has been fully considered of late years, the decisions are all one way. In Hewlins vs. Shippam, 5 B. & C., 221 ; where the plaintiff made a drain at a considerable expense through the lands of the defendant, and, with his consent, all the authorities are reviewed in the elaborate opinion of Bayley, J.; and it was held that the license granted, being an interest in land, was within the Statute of Frauds, and not being granted in writing as required by the Statute, the plaintiff had a right at will only. This doctrine was again recognized in Cocker vs. Cowper, 1 C. M. R., 418 ; where a tunnel had been laid in the lands of the defendant with the consent of the tenant, and it was held that the plaintiff did not thereby acquire any interest in- the land, and could not maintain an action against the defendant for diverting the channel.
We take the law then to be well settled that a permanent interest in land cannot be acquired by a mere license, and a right of way being an interest in land, it is equally well settled that such an interest cannot be acquired at law.
But it was also argued that the declaration claimed damages only for the alleged unlawful acts of the appellant, prior to the revocation of the license. But in this view we do not concur. The appellant could not, of course, he deemed a trespasser so long as the license remained unrevoked. The third count, however, charges “ that the defendant on the first day of May, 1878, and on divers other days and times, between that day and the time of bringing this suit, broke and entered, &c.” And as the license was revoked before the institution of the suit the plaintiff was entitled to recover damages under this count for the unlawful acts of the defendant, subsequent to such revocation.
Finding no error in the rulings below, the judgment will he affirmed.
Judgment affirmed.