Houston v. Laffee

| N.H. | Jul 15, 1866

Sargent, J.

It has been repeatedly held in this State that a parol license to do a certain act or a series or succession of acts on the land of another, does not convey any interest in the land, but simply a privilege to be exercised upon the land, and hence that the statute of frauds does not apply to such license; and that such license is a sufficient justification to the licensee for entering upon the land of the licensor to do the act or acts thus licensed, until it is revoked. So far the authorities seem to be uniform.

It has also been held, that, where a license, like the one in this case, had been given to the plaintiff to enter upon the plaintiff’s land, and do acts which involved an expenditure of money, and the license becomes executed by an expenditure incurred, it is either irrevocable, or cannot be revoked without remuneration, on the ground that a revocation under such circumstances, without remuneration, would be fraudulent and unconscionable. Harris v. Dillingham, 6 N. H. 9; Putney v. Day, 6 N. H. 430; Woodbury v. Parshley, 7 N. H. 237; Ameriscoggin Bridge v. Bragg, 11 N. H. 102; Sampson v. Burnside, 13 N. H. 264; Carleton v. Redington, 21 N. H. 291; Cowles v. Kidder, 24 N. H. 364; Miller v. Tobie, 41 N. H. 86.

But we think the more recent decisions, however, sustain the doctrine that the license is in all cases revocable, so far as it remains unexecuted, or so far as any future enjoyment of the easement is concerned. Carleton v. Redington, supra; Ruggles v. Lesure, 24 Pick. 187; Stevens v. Stevens, 11 Met. 251; Marston v. Gale, 24 N. H. 176; in which last case it is said, that, "to hold otherwise would be giving to a parol license the force of a conveyance of a permanent easement in real estate. Such a doctrine cannot be sustained. No such right or interest in real estate can be created by parol,” See, also, upon this point, Hall v. Chaffee, 13 Vt. 150" court="Vt." date_filed="1841-01-15" href="https://app.midpage.ai/document/hall-v-chaffee-6572437?utm_source=webapp" opinion_id="6572437">13 Vt. 150; Prince v. Case, 10 Conn. 375" court="Conn." date_filed="1835-06-15" href="https://app.midpage.ai/document/prince-v-case-6574827?utm_source=webapp" opinion_id="6574827">10 Conn. 375, where it is held that when such license is given by parol, and not in writing, it is countermandable at will, even when executed, so as to make any further enjoyment of the easement a ground of action, and that in such cases where money has been expended upon the faith of such license, so that the parties cannot now be placed in statu quo, a court of equity would grant relief as in any other case of part performance of a parol contract for the sale of land or any interest therein, upon the ground of preventing fraud. Angell on Water-courses, 326, 359; Morse v. Copeland, 2 Gray 302; Foot v. The New Haven &c. Co., 23 Conn. 214" court="Conn." date_filed="1854-07-15" href="https://app.midpage.ai/document/foot-v-new-haven--northampton-co-6576761?utm_source=webapp" opinion_id="6576761">23 Conn. 214, 223; Mumford v. Whitney, 15 Wend. 380" court="N.Y. Sup. Ct." date_filed="1836-05-15" href="https://app.midpage.ai/document/mumford-v-whitney-5514629?utm_source=webapp" opinion_id="5514629">15 Wend. 380; Wood v. Leadbitter, 13 M. & W. 838; Wood v. Manley, 11 Adol. & E. 34.

These cases all hold that a mere license is revocable at any time, so far as any further enjoyment of the easement is concerned, at the will of the licensor, but they may not all agree as to the form of the remedy which the licensee should pursue to recover back the money he has expended ; some holding that it may be done in an action at law for breach of contract, others that it must be in equity by compelling specific performance.

But it does not become necessary to consider that question here. It would seem clear, that, in this action of trespass, the plaintiff cannot recover the money he had expended in digging or deepening the well, or purchasing and laying his pipe, or the consequential damages he may have suffered in his stable in consequence of the stopping of the water at that particular time. Whatever other remedies the plaintiff may have to recover back his money expended, or his damages received, we think he cannot recover on those grounds in this action. So that if the plaintiff can recover at all in this action, he is not entitled evidently to' the amount allowed him by the referee.

Can the plaintiff recover at all in this action ? The lead pipe remained the property of the plaintiff though in defendant’s land, and he could have maintained trespass against a stranger who had no interest in or right to either the pipe or the lands, if he had cut it off. But the defendant had the right to revoke his license in a way that should be effectual, and, if the cutting off of the pipe was done simply for the purpose of putting an end to the license, of revoking it, and without any malice, or intentional wrong, we think the defendant would not be liable in this action; but if he cut the pipe wantonly, unnecessarily, and maliciously, and with a view to injure the pipe or to injure the plaintiff we think he would be liable.

But in any case, we cannot see that he would be liable for anything more than the actual injury to the pipe, unless he might possibly be liable for exemplary damages; but, as the case stands, we think there is nothing to show that he is liable at all. The referee can probably find that fact and state it clearly from the evidence; and for that purpose, and for assessing the damages according to these suggestions,

The report is recommitted.