35 Barb. 162 | N.Y. Sup. Ct. | 1859
This is an action to recover the possession of land. The plaintiff has also claimed damages for withholding the possession, but as he has not recovered any damages, we may lay this part of the case out of the questions now to be considered. The defendants answered, first, denying the plaintiff's title, and denying an unlawful withholding, which is equivalent merely to a denial of any withholding of the possession. Upon so much of the issue
There was, however, another defense set up in the residue of the answer,- and it remains to consider that defense, and the evidence to sustain it, given at the trial. This part of the answer is to the effect, that the rail road of the defendants was located through the plaintiff’s farm in June, 1849, with the license and consent of Nicholas Eggleston, then the owner thereof, and that the defendants have ever since occupied the same, and that the plaintiff took possession of the farm with knowledge thereof. The evidence showed that in June, 1849, Nicholas Eggleston signed a paper, which was introduced by the defendants. By this instrument, which was under seal, but was executed by him only, and not by the defendants, he agreed or promised, in case the defendants’ road should be located across his farm, to convey to them at any time within the period allowed by their charter for the completion of their road, whatever land the company required, on receiving the price of sixteen dollars per acre in their bonds. The paper also contained stipulations reserving timber; and providing that the owner of the. land should make and maintain fences, and that the company should make and keep crossings. It was proved at the trial that the defendants took possession of the premises described in the complaint, in the autumn or winter of 1850, and proceeded to build their road, and have ever since occupied and used the land as part of their track. When Nicholas Eggleston conveyed the land to the present plaintiff, his son, the road was built and the cars running. The plaintiff, after he had acquired the title, was applied to for a conveyance under the paper signed by his father, but he declined to .execute a deed, or recognize the instrument of June, 1849, as a valid contract for a sale.
It is to be observed, that the answer does not raise the
The referee has not stated whether he was satisfied, upon this evidence, that the defendants actually entered under a license. A mere' agreement to sell does not of itself import a license to enter into possession, and it will be found, upon a reference to the cases in which the rights of parties who have gone into possession of lands finder contracts to purchase have been examined, that they have had possession either by the stipulations of the contract, or by the express consent of the vendor. (See 9 John. 35; Id. 331; 6 Barb. 186; 1 B. & C. 448; 13 East, 210.) In the present case, the utmost which can be claimed for the defendants is, that they, holding an agreement by Nicholas Eggleston to sell to them, went into possession with his knowledge and without objection on his part. The defendants’ entry was in the fall or winter of 1850, and in May, 1851, Nicholas Eggleston conveyed to the plaintiff, who immediately disavowed the alleged agreement, and refused to give a deed. Nicholas Eggleston died in October, 1853, and this action was commenced in March, 1856.
When a purchaser goes into possession under his contract, if the contract is broken and terminated, he becomes a tenant at will to the vendor. To this effect are several of the cases already cited, and others will be found collected in 1 Sugd. on Vendors, 264, note q. But if this relation ex
Whatever license there was, rested wholly in parol. It is not contained in nor derivable from the instrument of J une, 1849, admitting that this was an agreement to sell. It must be inferred from the entry and subsequent possession by the defendants, with the knowledge of the plaintiff’s grantor, and without objection on his part. As a mere license, no doubt this would be a bar to any action for damages during the period for which the oocupation continued, and unless or until the plaintiff proved that the license was revoked. The case of Miller v. The Auburn and Syracuse R. R. (6 Hill, 61) was decided upon this principle. It was an action on the case for damages, for the erection of an embankment by the defendants, upon a street in Auburn, lying between and adjoining lands of the plaintiff. The defendants offered at the trial to prove a parol license, which was rejected. The court granted a new trial on account of this ruling; holding that such a license as a personal authority would be a bar to an action for damages, as long as it continued unrevoked. Judge Cowen, in delivering the opinion, strongly disapproves of the doctrine of irrevocable license, which is now pressed upon us. It is true that the case did not call for a decision of that question, and it is not therefore an authority in point upon the precise issue in the present action.
But as a defense to an action to recover the possession of the land, and not damages for acts done upon it, such a license as is claimed in this case is not a defense, unless we are to hold that it is irrevocable. As a mere license, it would have been revoked by the death of Nicholas Eggleston, and indeed by his previous conveyance to the plaintiff. It is therefore incumbent upon the defendants to establish that the license given by Nicholas Eggleston to them, to enter and locate their road upon his land, was irrevocable, so as forever to bar him or his heirs from recovering its possession. This is in effect, as I understand it, the claim made by the defend
It is true that the purpose for which the land is required is perpetual. But this only brings the defendants to the necessity of insisting that a parol license to them to enter upon land, and construct a railway, is equivalent to a conveyance in fee of the land. It is merely stating their propositions in other terms. In most of the cases in which it has been attempted to maintain a similar doctrine, the right which was claimed under the license was an easement or incorporeal right, which, according to the phraseology of the books, lay in grant at the common law. The general doctrine is well discussed and applied to this class of cases in the admirable opinion of Baron Alderson in Wood v. Leadbetter, (13 M. & W. 838.) He says, at p. 845: “A mere license is revocable, but that which is called a license is often something more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot, in general, revoke it.” He adds: “ A license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature .capable of being made by parol. But where there is a license by parol, coupled with a parol grant or pretended grant of something which is incapable of being granted
The doctrine of estoppel is sometimes invoked in such cases. It has however no just application to the present issue. A man may be estopped from asserting his title, where he -has made statements upon the faith of which others have acted, or has acquiesced in acts by others, involving an assertion of a title hostile to his own, and which they would not have committed but for his apparent consent. In an action at law a party may be concluded by an estoppel in pais from denying the existence of facts which he has thus asserted or admitted,_ and in that way his legal title may be barred. In a court of equity he may be restrained from enforcing a legal title, where circumstances exist which would make it inequitable and fraudulent for him to do so. But there is no appeal here to the equitable jurisdiction of the court, and no
In the case of Miller v. The Auburn and Syracuse R. R. Co., (6 Hill, 61,) to which allusion has already been made, Judge Co wen very pointedly dissents from the doctrine of executed and irrevocable licenses, as applied to cases where they are to be substituted for deeds. He expressly says that the owner of lands is incapable of granting by parol such a right as was there claimed by the railway company. If that remark be true, it is decisive of the present case. In the previous case of Mumford v. Whitney, (15 Wend. 380,) the same doctrine was applied by Oh. J. Savage, where it was in point and decisive, and until that case is overruled, the contrary rule can hardly be admitted into the jurisprudence of this state. “ To decide,” said the chief justice in that case, “ that a right to a permanent occupation of the plaintiff’s land may be acquired by parol, and by calling the agreement a license, would be in effect a repeal of the statute.”
We were referred to two recent cases in the English courts, in support of the defendants’ claim. One of them is Doe v. The North Staffordshire Railway Co., (4 Eng. L. and Eq. 216.) That was a case where a railway company having compulsory powers by charter to take lands within a certain time, located their road over the lands of the plaintiff’s lessor, entered and took some initiatory steps towards acquiring a complete title. Then however they paused, and no farther proceedings were had to clothe them with the legal title, or to ascertain the compensation to be made to the land owner. The period
The other case is Doe v. The Leeds and Bradford Railway Co., (6 Eng. Law and Eq. 283.) In that case the defendants, having located their road over the lands in question, entered upon them under an agreement by which the lessor of the plaintiff consented to the entry, and to refer the question of the amount of compensation for his land to an arbitrator. The arbitrator made his award, and then the owner of the land raised a question as to the terms of the conveyance to the defendants, and finally gave them notice to quit and brought ejectment. At the trial the plaintiff was non-suited, and the court of queen’s bench sustained the nonsuit. The precise legal ground upon which the rights of the defendants were placed is not very readily ascertained from the short observations of Lord Campbell and Mr. Justice Patterson. It rests, however, upon the provisions and procedure of the English railway acts, and the construction given to the rights of parties under them by the English courts. It must be remembered that the legislature and the courts of G-reat Britain are not under the restraints of written constitutional provisions, such as are the guides of our tribunals in administering the law of eminent domain. It is held in England, that after notice given by the railway that they require and will take land, a complete contract—a parliament
The judgment of the learned referee was right, and must be affirmed with costs.
Lott, Emott and Brown, Justices.]