Jackson v. Emmons
19 App. D.C. 250
D.C. Cir.
1902
Check Treatment
Mr. Justice Morris

delivered the opinion of the Court:

1. The first assignment of error is plainly untenable. It matters not whether under the form of action adopted in the cause testimony would otherwise be admissible as to the nature *255and extent of the injuries sustained by the plaintiff’s wife in consequence of the wrongful act of the appellees on July 21, 1892. The defendants had pleaded the bar of the statute of limitations in defense of the action; and consequently no wrongful act of theirs committed prior to August 3, 1892, could constitute a ground of recovery in this case. The appellant seeks to avoid the bar of the statute by the contention that the action of the defendants in the premises was a continuing nuisance. But plainly there was here no continuing nuisance — no nuisance at all, in fact, in contemplation of law. It is plain that the defendants, under the circumstances, had a right to blast. The plaintiff himself shows that they had a permit for the purpose from the lawful authorities of the District. It was their duty, of course, to do the work carefully and cautiously, and in such manner as to cause no injury to person or property; and upon this record it would seem, on the contrary, that they were not only grossly negligent, but even criminally reckless, and that by their negligence and their recklessness the plaintiff suffered serious injury, for which he should have been compensated by them. But their want of care in the performance of the work does not constitute the work itself a nuisance. Their several acts of trespass against the plaintiff and against his wife and property were sporadic acts, having no necessary connection with each other. Each in itself was an independent trespass and a ground for action on behalf of the plaintiff. Inasmuch, therefore, as the act of the defendants which resulted in injury to the plaintiff’s wife occurred on the 21st day of July, 1892, and was begun and completed on that day, and a cause of action immediately accrued therefor, it is very plain that recovery for it in the present suit was barred by the statute of limitations. It is of no consequence, therefore, so far as the present action is concerned, how long the plaintiff’s wife was ill, and what the extent was of her injuries. It was incumbent on the plaintiff, if he would recover therefor, to have instituted his suit within three years after the cause of injury had occurred. The exclusion of testimony, therefore, as to the extent of her injuries was right and proper.

*2562. The second assignment of error raises tbe question whether, in a case like the present, tbe plaintiff is entitled to prove bis ownership of tbe house tbat was injured, as distinguished from tbe land on wbicb it stood and wbicb is conceded to be in some other person or persons, tbe heirs of one Elias Travers, by showing a parol license from Elias Travers to the plaintiff to move the bouse, wbicb then stood somewhere else, upon tbe land of Travers, then tbe. owner of tbe land.

The general law of license to go upon land is stated by Mr. Justice Davis, speaking for tbe .Supreme Court of tbe United States, in the case of De Haro v. United States, 5 Wall. 599, 627, where be said:

“ There is a clear distinction between tbe effect of a license to enter lands, uncoupled with an interest, and a grant. A grant passes some estate of greater or less degree, must be in writing, and is irrevocable, unless it contains words of revocation; whereas a license is a personal privilege, can be conferred by parol or in writing, conveys no estate or interest, and is revocable at tbe pleasure of tbe party making it. There are also other incidents attaching to a license. It is an authority to do a lawful act, which without it would be unlawful ; and while it remains unrevoked is a justification for tbe acts which it authorizes to be done. It ceases with tbe death of either party, and cannot be transferred or alienated by tbe licensee, because it is a personal matter, and is limited to tbe original parties to it. A sale of tbe lands by the’ owner instantly works its revocation, and in no sense is it property descendible to heirs. These are familiar and well established principles of law, hardly requiring a citation of authorities for their vindication; but if they are needed, they will be found collected in tbe notes to 2d Hare and Wallace’s American Leading Oases, commencing on page 376.”

Tbe license claimed by tbe plaintiff in tbe present case and offered by him to be proved was “ a parol license from Mr. Travers to put tbe bouse on tbe lot as bis (plaintiff’s) house.” This is somewhat indefinite, as stated; and if tbe plaintiff would recover in this case, be should make tbe offer more specific. But we may assume tbat it was intended to mean *257that the plaintiff had a parol license from Travers to put the house upon the lot, to retain the ownership of the house, to-have the right to occupy it as such, and to have the right to remove it at any time thereafter during the period of the existence of the license or within a reasonable time after its revocation. Now, under the authority of the case of De Haro v. United States, this license was determined and came to an end by the death of Travers, its grantor; or rather it was derterminable by that occurrence, and the heirs of Travers did not continue to be bound by it. But it does not follow that the heirs of Travers might not elect to continue the license or to recognize its continued existence. The rule of law does .not compel them to regard it as being no longer in force; and they might well prefer to let it continue to be operative. This, they seem, in fact, to have done. He seems to have continued to pay the heirs, or their agents, rent for the ground, and not for the house, precisely as he had done to the original grantor of the license. No change whatever seems to have occurred in the situation; and it would have been a fair inference for the jury to draw that the license had been continued or renewed by the heirs. The character of the building, as evidenced by the testimony relative to its value, was such as to confirm this inference, inasmuch as, when it became desirable to improve the property, the removal of the building would have been desirable. While, therefore, the testimony on the point, both that adduced and that sought to be adduced, was exceedingly meager, we can not say that there was no testimony for the jury proper to be considered as showing the continued existence or recognition of the license claimed by the plaintiff.

This conclusion antagonizes no right of the heirs of Elias Travers. If, in fact, the license granted by Elias Travers to the plaintiff has come to an end, and the relation between the plaintiff and the heirs of Travers is that of tenant and landlord, not only in respect of the land, but equally in respect of the house, it being assumed that the latter has become part of the freehold, yet the heirs of Travers have not asserted any right in the house as against the trespasses com*258mitted by the defendants, and, in view of the bar of the statute of limitations, it is now too late for them to do so. This, also, is a circumstance which the jury might well consider as tending to show the continuation of the license by the heirs.

Now, if the plaintiff could have shown by competent testimony that the house which he inhabited he had owned before it was put upon the lot on which it stood, that he piit it on the lot by a parol license from Elias Travers which authorized him to continue in the ownership of it and to remove it, if he so desired, at any proper time thereafter, and that this license had been recognized and continued in force by the heirs of Elias Travers, it is not apparent why he should not have been allowed to recover damage for the injury sustained by the house through the unlawful act of the defendants to the extent of the amount of the injury, which seems to have been, according to the testimony, the sum of $64.21. Ownership of a house, independently of the land upon which the house is placed, is nothing unusual or unprecedented in the law. On the contrary, it is of frequent occurrence in the matter of constructions for the purpose of trade, as well as for other purposes. And if such ownership can exist, and can be created by parol, as all the authorities hold it can be, we see no reason why the plaintiff may not show that he held such ownership by parol in the house occupied by him. This is not the creation of an estate in the land by parol, which, under our laws respecting the conveyance of land, and under the provisions of the statute of frauds, may not be done; but it is merely a permission to the licensee to come upon the land with his movable property and an agreement that the property shall remain movable and shall not become a part of the freehold.

We think, therefore, that there was error in the refusal of the trial court to permit the plaintiff to show the parol license under which he claimed,, although this error was in great measure superinduced by the plaintiff himself through the indefiniteness of his offer and the peculiar character of his pleadings.

3. The third assignment of error is based upon the instruction given by the trial court at the conclusion of the plaintiff’s *259testimony to the effect “'that in law, under the pleadings, including the statute of limitations, plaintiff’s evidence did not entitle him to recover.”

In view of what we have said in reference to the second assignment of error and inasmuch as a new trial will have to be awarded for the error specified therein, it is unnecessary to consider this third assignment further than to say that, in any new trial of this cause, all damage alleged to have been sustained by the plaintiff prior to August 3, 1892, must be eliminated from the case as finally barred by the statute of limitations. Only one act of trespass is alleged to have been done after that day, namely, that of August 6,1892. Whether this was the act by which the house was damaged, does not very satisfactorily appear. But if it was, the plaintiff is not barred by the statute of limitations from recovering for it to the extent of the injury which he shows himself to have suffered, and to no greater extent.

From what we have said we must reverse the judgment in this causej hut such reversal will he without costs, of which each party, will pay his own, and the cause will he remanded to the Supreme Court of the District of Columbia, with directions to award a new trial therein. And it is so ordered.