26 Mo. 116 | Mo. | 1857
delivered the opinion of the court.
The first instruction given by the court was erroneous, for it assumes that a custom had been proven regulating the rights of miners, but the bill of exceptions is silent except as to the usage of a particular mine. The practice of a few persons in a business in which many are engaged will not establish a custom which all persons who are engaged in the same pursuit are presumed to know and recognize. A custom which would confer a right so important as that asserted in the instruction — being no less than the right of one person to occupy fo.r the purpose of mining the land of another as long as he pleases without a deed or other writing — ought at least to be well established by proof. A local custom must be proved on the trial; and we may suppose there was more evidence given on the trial of this case than we see in the record, but it ought to have been preserved in the bill of exceptions, so that it could be ascertained what interest the plaintiff had in the land.
The judgment will be reversed and the cause remanded to be retried ; and without intending to anticipate all the questions that may arise on another trial, it may be appropriate to notice some of them that will necessarily be presented. It will be developed by the evidence whether the plaintiff claims the right to mine on the defendant’s land as an easement or under a license. If he claims an easement it must be established by deed, for being an incorporeal hereditament it lies in grant and can not pass by livery. (Arnold v. Stevens, 24 Pick. 109.) A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed and the party has incurred expense on- the faith of it, so that he would be injured by its revocation. (3 Kent, 452; Pierpont v. Bernard, 2 Selden, 279; Wood v. Lead-
Though it is difficult, often, to determine between an ease;¡ment and a license, it seems to be settled that the right to ¡enter and remain on another’s land for a certain time or indefinitely at the pleasure of the party claiming the privilege is an interest in the land which can only be ■ created by deed.
The other judges concurring, the judgment will be reversed and the cause remanded.