Carter v. Harlan

6 Md. 20 | Md. | 1854

Lead Opinion

Le Grand, C. J.,

delivered the opinion of this court.-

Although the various questions presented by the respective-counsel were argued with great fullness and ability, in the view we have of the case, there is no necessity they should all be considered and decided by this court. There is an objection to the prayer offered on behalf of the defendants below that is perfectly conclusive of the case. Were it admitted, ex gratia argumenti, that such a right, as is claimed, to flow the land of the plaintiffs, could pass by a parol license, and that there was proof in the cause from which the jury could properly find such license, yet, the prayer is defective in this r it substantially requires some act of interruption to have been performed by some one or more of the owners of the property on which the water is backed, other than the institution of the suit or the sale of the locus in quo, since the dam under the assumed license was erected in 1828. Wc consider the license to raise the dam, if any such existed in 1828, as what is known as executory, as contradistinguished from an executed license, and as such revocable. That the license relied upon in this case was revocable, is conceded by the counsel of the defendants, but he insists, that this revocation should have been a positive act accompanied by notice to the defendants. In this opinion we cannot concur. The dam was erected in .1828, and the license, if any, extended only to the fact of erection. When Harris, who was then the owner of the land, now belonging to the plaintiffs, disposed of and conveyed it away, such disposal and conveyance, ipso facto, by mere operation of law, amounted to a revocation of the license; and so likewise with all the subsequent sales of it, until the plaintiffs in this action became seized of it. To use the language of Chief Justice Parker, in the case of Cook vs. Stearns, 11 Massachusetts, 536, “If the defendant had a license from the former owners of the plaintiff’s close, to make the bank, dam and canal in their land, this extended only to the act done, so as to save him from their action of trespass for that particular act; but it did not carry with it an authority, at any future time to enter upon the land. As to so much of the license as was not executed, it was countermandable; and transferring the land to another, or even leasing it without any reservation, would of itself be a countermand of the license.” The same doctrine is most explicitly recognized and decided, in the case of Wallis vs. Harrison & others, 4 Meeson & Welsby, 543. In that case Lord Abinger, speaking of the necessity of notice, remarks: “I never heard it supposed, that if a man out of kindness to a neighbor allows him to pass over his land, the transferree of that land is bound to do so likewise. But it is said, that the defendant should have had notice of the transfer. This is new law to me. A person is bound to know who is the owner of the land upon which he does that which prima facie isa trespass.” The distinction in the cases to be found in the books consists in this: Where one is permitted to do certain things on the land of another, and an authority impliedly given to repair the thing erected in all time, then the right must originate in grant; but where the license only authorizes the doing of a single act, it is revocable as to the part which has not been executed, and this, we have seen, is the result of a sale of the land. We of course put out of view all that class of cases where, because of a license, a party has been put to an expense and outlay on the land of the licensor. In such cases equity interferes, and exacts that the party .making the improvement shall be indemnified.

Judgment affirmed.

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Concurrence Opinion

Tuck, J.,

delivered the following separate opinion, com curring with the rest of the court in the affirmance of the judgment:

I am of opinion that the judgment below should be affirmed, because, if all the matters stated in the prayer be taken as true, and the parol license be found by the jury, as prayed by the appellants, it was not sufficient to defeat the action. The damage complained of is for overflowing the plaintiff’s land by the improper height of the defendants’ dam. This they justify under a license from the former, and present owners of the land. I think that the right to overflow another’s land by a mill-dam, is an interest in land which cannot pass by parol. This was decided in Hays vs. Richardson, 1 Gill & Johns., 366, recognized in Addison vs. Hack, 2 Gill, 222. See, also, 11 Mass., 537, Cook vs. Stearns.