22 Wis. 550 | Wis. | 1868
This action was brought for a trespass committed by the defendant in drawing logs across the land of the plaintiff. It was tried in a justice’s court before a jury, who found for the defendant; and on appeal to the circuit court, where it was tried on the evidence returned by the justice, the judgment of the justice was reversed; and from that judgment'of reversal this appeal'is taken. The material question in the case — and it is one of much interest — arises out of the defense interposed, which was, that the defendant had made a verbal agreement with the plaintiff for the right to draw logs across his land during the winter, for the sum of five dollars. There was no dispute that such a verbal agreement was made, but as the plaintiff claimed that the money was not paid according to the agreement, he revoked his permission and forbade the defendant to enter upon his land. The defendant, however, continued to enter upon it, and the action was brought.
There is a great variety of decisions, and considerable conflict among them, as to the effect of such an agreement. But there is a clear weight of authority, as well as of the argument, in favor of the conclusion that such an agreement amounts to no more than a mere license, which is revocable at any time by the owner of the land. Foot v. N. H. and N. C. and others, 23 Conn., 214; Jameson v. Milleman, 3 Duer, 255; Mumford v. Whitney, 15 Wend., 380; Miller v. R. R. Co., 6 Hill, 61; Fuhr v. Dean, 26 Mo., 116; Wingard v. Tift, 24 Ga., 179; Brown on Statute of Frauds, chap. 2; Gale and Whately on Easements, chap. 3, sec. 1.
But the exception in our statute contains no such clause. Under it, parol leases of lands for a term not exceeding one year are valid, without regard to the rent reserved, or the value of the thing demised. R. S., chap. 106, sec. 6. If,
"We have found no case where the precise question as to the effect of such verbal agreement, under this exception in the statute of frauds, has been determined. The question was suggested and commented on by counsel in the case of Rhodes v. Otis, 33 Ala., 578, but was not decided by the court.
It would seem somewhat strange, at first thought, to say that a parol lease of the whole land for the winter would have been good, and yet that a parol agreement for a right of way across it would not. And if the two rights were from their nature equally the proper subject of a lease, such a position could not be maintained. The question would then relate only to the statute of frauds; and if a parol agreement would be good for the greater interest, it must also be good for the less. But upon a closer examination of the question, we have come to the conclusion that there is another obstacle to the validity of this agreement, entirely independent of the statute of frauds, and growing out of the nature of the right bargained for. It was a right of way, for a specified time. This was an incorporeal hereditament, which, by the common law, could be created only by deed. The distinction between incorporeal and corporeal property, was that the one lay in livery and the other only in grant. The law upon this subject is very clearly stated, after a full review of the authorities, in Hewlins v. Shippam, 5 B. & Cr., 221 (11 Eng. Com. Law, 207). It is true, that case related to a freehold interest, which this does not; the
The difficulty, therefore, in sustaining this agreement under the section of the statute of frauds relating to parol leases for a year, is that there is no subject matter of a lease to which the statute can be applied. There was no agreement for the lease of the land, or any part of it. And there was no incorporeal right in existence to which the agreement for a lease could attach, even if such a right, after it had once been created by a valid grant, could be leased for a term less than a year by parol, which it is unnecessary to determine. The attempt here was to create an incorporeal right by parol, which, as we have seen, cannot be done.
The only other ground upon which the agreement could be enforced would be that of estoppel. In this case the consideration was not paid. But even if it had been, no estoppel could have been based upon that. It would be like the ordinary case of payment of the consideration on a parol agreement for the purchase of land, which has never been held sufficient to take the case out of the statute of frauds. To apply the doctrine of estoppel in such cases, and hold that the vendor could not deny the sale because he had received the money, would be in effect to abrogate the statute. The purchaser is also bound and presumed to
Tkis subject is discussed in Wood v. Leadbitter, quoted in Chynoweth v. Tenney, 11 Wis., 408-9. If tke doctrine of estop-pel was ever applicable upon tke mere payment of tke consideration, it would seem to kave been applicable in tkat case. Tke party kad paid kis money for tke rigkt to enter and remain upon certain grounds during some races. But tke license was revoked, and be was put off witkout refunding tke money. Tke rigkt of tke owner to revoke tke license and put bim off was sustained. And tke court, in discussing tke subject, said tkat if tke owner of tke land gave a license as an incident to a valid grant, as if ke skould sell personal property by parol witk a license to tke purchaser to enter upon kis land and take it away, there tke license could not be revoked. And it was put upon tke ground of estoppel. But it was further said tkat if tke owner should undertake to grant by parol tkat which could not be so granted, and a license skould be given as an incident to suck grant, there, tke grant being void, tke license would remain revocable, and there would be no estoppel. There was no valid grant in tkis case to which tke license could be attacked as an incident, and consequently no estoppel upon tke ground stated in tkat case.
But there is a class of cases which kave applied tke doctrine of estoppel to suck agreements, where tke licensee kas expended money on tke faitk of tke license, and put himself in suck a position tkat ke would be seriously damaged by allowing it to be revoked. Tke case of Rhodes v. Otis, above cited, is one of tkat class, and in tke opinion a number of others to tke same effect are cited. There is another
By the Court. — The judgment is affirmed, with costs.