24 N.H. 474 | Superior Court of New Hampshire | 1852
-The plaintiff was present several times during the construction of the dam; worked for the defendant in making the repairs ; knew that the dam when put in use would flow his land; that the intention was to keep up the water during the whole year; there was'no evidence that he forbade the defendant to proceed with the work; and he said to third persons that the mill would be a benefit to the neighborhood, and urged the workmen to make the dam tight.
The court charged the jury that this was evidence, but not conclusive evidence, of a license : That if the defendant understood from the plaintiff’s language and conduct that he had the plaintiff’s permission to flow the land, and the plaintiff intended he should so understand, there was a license; that if on all the evidence they should find a license, the defendant was entitled to a verdict.
When a party is proved to have used certain language in a verbal conversation, it has been held in this State that the court will give a legal construction to the language used, as they would if the same terms were found in a written agreement. In this case, if the evidence shewed that the plaintiff, in a conversation with the defendant, used certain language, which, if reduced to writing, would amount to a license, the court should have instructed the jury that if they found as matter of fact the language was used, it amounted to a license. Sampson v. Eastman, Grafton county, not yet reported.
But the case does not state evidence which proved or tended to prove that any language was used by the plaintiff to the defendant, which, if reduced to writing, would have amounted in law to a license. It was properly left to the jury to draw the inference, as matter of fact, whether it was understood by the parties that a license was given. Enfield v. Day, 7 N. H. Rep. 457.
Taking the fact to be established, that the dam in question was built by the license of the plaintiff, if the question were still an open one in this State, the confused and somewhat conflicting state of the authorities, and the learned argument of the defendant’s counsel would require a more extended examination of the question than we propose to give it at this time. But we understand that question to have been settled in the case of Carlton v. Reddington, 1 Foster 291, after a very thorough and satisfactory examination of the authorities. In that case the defendants offered evidence that before they built the dam complained of, the plaintiff agreed verbally that it might be built and maintained as they afterwards built and maintained it. We are unable to distinguish that case from this. In this case there was no concealment of the plaintiff’s title, or of any fact bearing on the question. The defendant must rely on a simple license, or on an agreement, which, not being in writing, is void by the statute of frauds. In such case the doctrine of estoppel in pais does not apply. Wilton v. Harwood, 23 Maine 131.
Judgment on the verdict.