Johnson v. Bartron
137 N.W. 1092
N.D.
1912
Check Treatment
Bruce, J.

(after stating the facts as above.) It seems to be perfectly clear from the evidence that there was no conveyance of land from the defendant to the plaintiff’s grantor, Hull, any intention that there should be. It is equally clear, however, that it was the intention of the three parties to the original agreement that each should enjoy the use of the well in common, and that each contributed towards the cost of the *633construction thereof. The intention of such parties was that the well should be upon the boundary line, and the whole controversy has arisen from a mistake as to where such line was actually located. It is, however, undisputed that at the time of the location of the well it was agreed that the ownership “should remain as it was, regardless of any change in the line.” Under the peculiar circumstances of the case, a court of equity should imply a license to pass upon the land of the defendant and to, use the well, in the plaintiff, but a license which would be revocable upon the payment to the licensees of the money expended by the plaintiff’s grantor in the construction of -the well, and his half of the interest purchased from Laubaeh, and half of the reasonable value of the windmill which was erected jointly by the defendant and the plaintiff’s grantor.

We know'that there is a wide divergence among the authorities as to whether a license is revocable at all, where the licensee had acted under the authority conferred and has incurred expense in the execution of it by making valuable improvements or otherwise. See 25 Cyc. 646—648; Notes to Lawrence v. Springer, 31 Am. St. Rep. 702—719, and to Nicker v. Kelly, 10 Am. Dec. 38-45; Washb. Easements, 4th ed. 7-18. We believe the better rule to be that where nothing more than a mere license appears it is revocable at the will of the licensor, whatever expenditures the licensee may have made, provided the licensee has reasonable notice and opportunity to remove his fixtures and improvements, or, in case of joint ownership, that the licensor compensate him for the value thereof. To hold such license irrevocable would, on the other hand, be to override the statute of frauds and convert an executed license into an estate in lands, which we believe is going too far. See 25 Cyc. 646-648. To hold, on the other hand, that such a license can be revoked without making compensation or giving opportunity for the removal of the improvements would, in our opinion, be inequitable.

"The fact that the wife of the defendant did not join in any. deed or conveyance, though strongly urged by plaintiff as ground for sustaining the judgment of the trial court, is, in our opinion, of no moment. The rule seems to be well established that the defense of homestead should be formally pleaded. Bergsma v. Dewey, 46 Minn. 357, 49 N. W. 57; Hemenway v. Wood, 53 Iowa, 21, 3 N. W. 794; 10 Enc. Pl. & Pr. 68, notes 1. and 2. In the case at bar, also, there is no evi*634dence tending to show that the lot owned by the defendant was occupied as a homestead by him at the time of the construction of the well. All that the evidence tends to show is that it was so occupied at the time of the conveyance from plaintiff’s grantor to the plaintiff.

The judgment of the district court will be reversed and the cause remanded to said court, with instructions to take testimony as to the value of the windmill erected over said well at the time of plaintiff’s exclusion therefrom, and with directions to enter judgment in favor of the plaintiff for the dismissal of the suit on the payment to said plaintiff of the sum of $135 (being the $90 originally paid by plaintiff’s grantor for his one third of the cost of the construction of the well and the $45. paid by him for the half interest of Laubach) plus one half of whatever the said district court shall find to be the value of the said windmill. On the failure of the defendant to pay the said sum of money within a reasonable time to be fixed by the said district court, a judgment will be entered enjoining the defendant from obstructing plaintiff’s approach to and use of said well at all times until he shall have paid to the said plaintiff the sum of $135 and one half of the value of the said windmill, or until the said well, from disuse on the part of both parties, shall have lost its value and use as a well altogether.