Hicks Bros. v. Swift Creek Mill Co.
133 Ala. 411
Ala.
1901
Check Treatment
TYSON, J.

Practically hut a single question is presented for our consideration and determination. It is whether the defendant, who is sued for a trespass upon the plaintiffs’ lands, acquired an irrevocable license from the plaintiffs’ grantor to use and maintain a ditch and. dam for the purpose of floating logs. The facts, out of which this question arose, are undisputed and are these: One Smith, being the owner of the lands, in 1896 gave verbal permission to the defendant to construct and operate the ditch and dam upon them, Avhich was done by it at great cost. In August, 1899, the plaintiffs became the owners of the lands by deed upon which these structures were constructed, and went into possession of them, with full knowledge that the defendant was actively using and operating the ditch and dam, claiming the right to do so, under the permission given them by Smith.

Preliminary to a discussion of the question, it may not be amiss to say that, under these facts, no question of adverse possession can possibly arise. The entry by defendant being permissive, its possession was not adverse, but was in subordination of the rightful title. Collins v. Johnson, 57 Ala. 304; Jesse French Piano Co. v. Forbes, 129 Ala. 471; 18 Am. & Eng. Ency. Law (2d ed.), 1130.

It is not insisted by appellee that the permission granted to it created an easement. Clearly such an insistence, if made, would be untenable, for the reason that it would have required a deed to have conveyed such a right. For “an easement must be an interest in or over the soil,” and does not lie in livery, but in grant. Wash, on Easements, p. 6; 10 Am. & Eng. Ency. Law (2d ed.), 409; Jones on Easements, § 80; Brown on *419Statute of Frauds, § 232. The difference between an easement and a license is, the former implies an interest in land, while the latter does not. An easement must be created, as we have said above, by deed or prescription, while a license may be by parol. The former is a permanent interest in the realty, while the latter is a personal privilege to do some act or series of acts upon the land of another without possessing any estate therein, and is generally revocable at the will of the owner of the land in which it is to he enjoyed. — Wash, on Easements, supra; Jones on Easements, § 63. And when revocable, it is revoked by the death of the licensor, by his conveyance of the lands to another, or by whatever would deprive him of doing the acts in question or giving permission to others to do them. — Hodgkins v. Farrington, 5 L. R. A. 209; 18 Am. & Eng. Ency. Law, p. 1141 and note 10; Jones on Easements, § 73 and note 4. Confessedly the license to the defendant in this case was revoked by the conveyance of Smith, from whom it acquired it, unless he estopped himself to do so. And that it is insisted he did because the defendant has been at great cost in constructing the ditch -and dam, being induced to do so under the permission granted to it. It is further contended that the license has become an executed one and, therefore, irrevocable. To use the language of Baron Parke: “It certainly strikes one as a strong proposition to say that a license can be irrevocable, unless it amounts to an interest in the land.” — Williams v. Morris, 8 Mess. & W. 488. To say nothing of so thin and gauzy attempt to evade the provision of the statute of frauds, requiring a sale of all interest in lands to be in writing except leases for a term not longer than one year; unless the purchase money, or a portion thereof, be paid and the purchaser be put in possession of the land by the seller. — Subdiv. 5 of § 2152 of Code. In other words we are asked to hold, although the license to the defendant when granted was not intended by either party, to be anything more than a mere personal privilege to it, revocable by Smith at his will, and knowing as it did, that under this license it acquired no interest whatever in the lands, that forsooth, with a knowledge of all these facts, *420it acquired an indefeasable title to an easement over them because it expended money in constructing the ditch and dam. For it is too plain for argument, that if Smith is estopped to revoke the license, all others who may acquire his title would be and the defendant would enjoy a fee simple title to an easement, which had its origin in a mere license, and this too without paying one cent of consideration therefor, to say nothing of so plain and palpable violation of the statute of frauds. Smith is not so much as shown with or without consideration, to have made any promise that he would not exercise his privilege of revoking the license. And there is no pretense that he made any misrepresentation of any fact that induced the defendant to expend its money. The broad proposition is asserted that because he granted the license, knowing the purpose for which it was to be used, that he could never revoke it, because it would be a fraud to allow him to do so, and because it has become executed. We are aware that many courts hold this contention to be sound, but we cannot subscribe to it. Reason and the great weight of authority are against it. In Browne on the Statute of Frauds, § 31, it is said: “In some of the earlier decisions, both English and American, the licensee was protected against revocation, on the ground that the licensor was estopped to revoke a license on the faith of which the licensee had incurred expense; but is now well settled that the doctrine of estoppel does not apply, inasmuch as the licensee is bound to know that his license was reyocable, and that in incurring expense he acted on his own risk and peril. Courts of equity also have repeatedly declined to interfere on this ground.” See also note 3 for cases cited to this.

In Jones on Easements, section 84, it is said: “An oral promise to grant an easement is not sufficient to raise an estoppel in favor of one who has acted upon it. In a case not relating to easements Mr. Justice Gray states a principle which is applicable to this subject: ‘A promise, upon which the statute of frauds declares that no action shall be maintained, cannot be made effectual by estoppel merely because it has been acted *421upon by tbe promisee and not performed by the promisor.’ ”

In 18 Am. & Eng. Ency. Law (2d ed.), p. 1146, it is said: “Acording to the prevailing view of the courts in England and a large number of the courts of the states of the United States, neither the execution of the license nor the incurring of expense, nor both combined, affect the right of the licensor, and he may revoke under all circumstances. It is held that the statute of frauds prevents any act other than the giving of a deed from vesting an irrevocable interest in land.” See cases cited in note 7 in support of this proposition.

Mr. Freeman in his note to Lawrence v. Springer, 31 Am. St. Rep. 713 and 715, says: “A parol license is founded in personal confidence, and is defined to be an authority given to do some act, or a series of acts, on the land of another, without passing any interest in the land; * '* * is a complete answer and defense to a claim of adverse possession set up by the licensee, " * * and not assignable. * * * At common law a parol license to be exercised upon the land of another creating an interest in the land, is within the statute of frauds, and may be revoked by the licensor at any time, no matter whether or not the licensee has exercised acts under the license, or expended money in reliance thereon. In many of the states this rule prevails, while in others the licensor is deemed to be equitably estopped from revoking the license, after allowing the licensee to perform acts thereunder, or to make expenditures in reliance thereon. These two lines of cases cannot be reconciled; for one of them holds that an interest in land cannot be created by force of a mere parol license, whether executed or not, while the other declares that where the licensee has gone to expense, relying upon the license, the licensor may be estopped from revoking it, and thus an easement may be created. The former line of cases, it seems to us, is founded upon the better reason. They decide that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is revocable, at the option of the licensor, and this, although *422tlie intention was to confer a continuing right, and money has been expended by the licensee upon the faith of the license. Such license cannot be changed into an equitable right on the ground of equitable estoppel.”

Case after case might be cited to support the principles announced by these text-writers, but they are too. numerous to do so here. They can be found by reference being had to the notes referred to in the text quoted. However, before examining the decisions of our own court, we will refer to the case of Thoemke v. Fiedler, 91 Wis. 386, because of its striking analogy to the one in hand. We quote from a part of the opinion: “The oral agreement under which the ditch across the defendant’s land was made did not create an easement in the land. An easement is a permanent interest in the lands of another, with a right to enjoy it fully and without obstruction. Such an interest cannot be created by parol. It can be created only by a deed or by prescription. But this agreement did not have the effect of a parol license. A license creates no estate in lands. It is a bare authority to do a certain act or series of acts upon the lands of another. It is a personal right and is not assignable. It is gone if the owner of the land who gives the license transfers his title to another* or if either party die. So long as a parol license remains executory, it may be revoked at pleasure. So an executed parol license, under which some estate or interest in the land would pass, is revocable. Otherwise title would pass without a written conveyance, ‘in the teeth of the statute of frauds.’ Nor is such a license made irrevocable by the fact * * * that expenditures have been made on the faith of it. * * * Nor can the parol agreement be enforced in equity by way of specific performance.”

We will now examine our own cases. In Riddle v. Brown, 20 Ala. 412, it was held that the right “to dig and carry away iron ore” from the mine of another is an easement; and any contract for the sale of such right, to be binding, must be in writing. That a verbal contract conferring such a right, though not binding under the statute of frauds, will nevertheless ope*423rate as a verbal license and while unrevoked, will protect the person to whom it ivas given, from trespass (ruare clausum fregü, for digging ore and vest in him the property in the ore that ivas actually dug under it; but that it is revocable, at the pleasure of the party by whom it was given, and ivas personal and not assignable.

In Motes v. Bates, 74 Ala. 378, it ivas said: “We find no evidence in the record, tending to show that the plaintiff, Bates, had any claim of legal right to be-upon this portion of the defendant’s field. It is shown that the lessee agreed to use the public road; and his employes, or sub-tenants, had no greater rights than he had. If the plaintiff’s alleged custom in using the pathway, for some time previous, could be construed into a permission by defendant to do so, this was. at best, only a parol license, which was revocable at the pleasure of the person giving it. Every license of this kind, by which one is permitted without consideration, to pass ever the lands of another, is essentially revocable in its very nature, its continuance depending upon the mere Avill of the person by Avbom it avus created or granted.” Citing approvingly Riddle v. Brown, supra.

In Tillis v. Treadwell, 117 Ala. 448, quoting from Rudisill v. Cross, 54 Ark. 519, wrhere it Avas held: “The obligations of a land owner to build and maintain a division fence, in whole or in part, for the benefit of adjoining land, is something more, indeed, than an obligation to furnish the materials and labor necessary from time to time for the erection and reparation of the fence; it imposes a burden upon the land itself. A partition fence ordinarily must rest equally upon the land of the respective proprietors. Hence an agreement of one of those proprietors to maintain such a fence necessarily imports a dedication of the use of the land required to support half of it. To that extent it is, therefore, an estate in the land itself. In accordance, then, with the general rule that an easement, being an interest in realty, cannot be conveyed. or reserved by parol, an. agreement by an owner of land to maintain a partition fence between such land and that of an adjoining-proprietor cannot ordinarily rest in parol, but to be *424binding, must be in writing.” Our court then proceeds: “A grant to an adjoining proprietor of the use of a wall on his own premises, as a partition wall between their buildings, is the grant of an easement, and a parol agreement to build and grant the use of such Avail is within the statute. * * * Under our decisions parol agreements for the grant of easements are void under the statute.' — Riddle v. Brown, 20 Ala. 412; Hammond v. Winchester, 82 Ala. 470.” See also the folloAving cases in which Riddle v. Brown is cited approvingly: Heflin v. Bingham, 56 Ala. 575; Chambers v. Ala. Iron Co., 67 Ala. 357; L. & N. R. R. Co. v. Boykin, 76 Ala. 564; Motes v. Bates, 80 Ala. 368; Hammond v. Winchester, 82 Ala. 477.

The right of a licensor to revoke a license given by him is fully recognized by our court, as will appear from a mere cursory examination of the cases cited above. And, indeed, is fully recognized in the case of Rhodes v. Otis, 33 Ala. 578, npon Avhich the defendant relies to support its contention of estoppel. Suffice it to say, that in that case a consideration Avas paid for the easement or license and the licensee or transferee put into possession of the land and waterway over Avhich the rights to him were agreed to be granted. There Avas, therefore, no question of the operation of the statute of frauds, and, indeed, could not be. This being true, upon the plainest principles of equity, the licensor or seller should not have been permitted to retain the purchase money paid to him and to destroy the rights which he had sold to the other party. This is far from sustaining the doctrine contended, for here.

In Clanton v. Scruggs, 95 Ala. 282, it is said: “The fact that one of the parties to such an agreement has acted on the faith of its validity does not raise up an estoppel against the other party to deny that it is binding on him. A mere breach of promise cannot constitute an estoppel en pais. — Weaver v. Bell, 87 Ala. 385.” Continuing, on page 283, after quoting from Weaver v. Bell, supra, that “A representation relating to future action or conduct operates as an estoppel oúly when it has reference to the future relinquishment or *425subordination of an existing right, which it is made to induce, and by which the party to whom it was addressed was induced to act,” the court said: “The representation there referred to does not include a mere promise to do or refrain from doing something in the future. * * * Brigham v. Hicks, 108 Mass. 246. Such a rule, of estoppel would take the sting out of the statute of frauds, and defeat its manifest purpose.” The case of Brigham v. Hicks, cited approvingly, is the one from which the quotation from Jones on Easements was taken.

It is clear that the decisions of this court are in harmony with the principles announced by ns and with the text-writers from whom wé have quoted at length. Smith, not being estopped, his conveyance of the land ipso facto was a revocation of the license to the defendant and the plaintiffs having acquired the legal title to the land and to the ditch were entitled to the immediate possession thereof and have a right to maintain this action and to recover such damages as they may have suffered by reason of the trespass committed by defendant. — Davis v. Young, 20 Ala. 151; Boswell v. Carlisle, 70 Ala. 244; Dunlap v. Steele, 80 Ala. 424; Fields v. Williams, 91 Ala. 502. And the jury may award exemplary damages if they see proper. — Wilkinson v. Searcy, 76 Ala. 181; Allen v. Daniel, 75 Ala. 408. “Whatever is done,” says Si-iaw, J., in Wills v. Noyes, 12 Pick. 324, “willfully and purposely, if it be at the same time wrong and unlawful and known to the party, is in legal contemplation malicious.” — Lynd v. Picket, 82 Am. Dec. 89.

There is nothing in the facts Avhich tends in the remotest degree to shoAv that the plaintiffs ever renewed the license. On the contrary, they are shown to have asserted their rights under the revocation by demanding the payment of rent of defendant.

It is scarcely necessary to say that no damages for the negligent maintenance or operation of the ditch or dam are sought to be recovered in the complaint, and indeed, could not be under its averments.

Reversed and remanded.