49 N.J. Eq. 289 | N.J. | 1892
The opinion of the court was delivered by
The facts necessary to the intelligibility of the views to be expressed can be stated in a few words.
There are three several tracts of land in the county of Gloucester, lying along the Delaware river. A part of each of these consists of meadows that were injuriously affected by the flow of the tides, so that in the year 1851 commissioners were appointed under the act (Rev. p. 642) to enable the owners of meadows to improve the same. By force of that proceeding certain embankments, drains and sluices were established and an apportionment of the expense of constructing and maintaining them was duly made. That this course of law was and is legal no one disputes. Of the three tracts thus improved the respondents, who were complainants in the court below, are at present the owners of the central one and which is drained on one side through the property of the appellant, and on the other through that belonging to one Beckett, who is not a party to this suit.
This being admittedly the legal situation, some years ago the respondents, being minded to reclaim other parts of their low lands, removed the bank on their property erected by the commissioners nearer to the river, so as to take in about twenty-five acres of additional meadow, and thereby at least doubled the acreage of their farm to be drained. By means of subsidiary drains laid' in the superadded land thus reclaimed, they carried the water from it into the drains laid by the commissioners, so that thereby part of such water is carried and discharged through the property of the appellant, and the remainder through that of Mr. Beckett, above named.
It will be observed that the inquiry thus supervening involves the difficult and troublesome problem as to what extent, and under what circumstances, a court of equity will disregard the well-established rules of the common law, as well as the plain provisions of the statute of frauds, in the establishment of a servitude of this kind.
In the present instance, the proposition upon which this decree has been founded is this : that a parol license, without any consideration moving to the licensor, operating as a part of an easement, is irrevocable in equity where the licensee has gone to expenditures in the erection of structures on his own land in pursuance of such authority.
In the sequel it will become requisite to consider how far this formula, even in its extremest latitude, will support the decree before us in its application to the facts of the case; but before approaching that inquiry it seems necessary, in order to avoid misconception on the subject, to consider whether the equitable principle thus propounded has any place, and, if so, to what extent, in the legal system of this state.
“ Considerations of this sort have led eminent judges to declare that they-would not carry the exceptions of cases from the statute of frauds farther than-they were compelled to do by former decisions.”
To the same purpose are the criticisms of Chancellor Kent in Phillips v. Thompson, 1 Johns. Ch. 149, and of Chancellor Zabriskie in Cooper v. Carlisle, 2 C. E. Gr. 529.
In responding to this question in the affirmative, the experienced and able vice-chancellor, who decided this case, relied upon two recent opinions in the court of chancery as containing the equitable rule now applicable, and which has been already expressed, and in addition to these was cited the case of The Raritan Water Power Co. v. Veghte, 6 C. E. Gr. 463. This last case was decided in this court and rests upon satisfactory grounds, but its applicability in the present instance is not perceived; then this court was called upon to test the equitable efficacy of a written license under certain conditions; now it is to pass upon .an oral license under very different conditions. The language of the opinion must be construed with relation to the facts then under consideration. In the reported case the statute of frauds was not a factor influencing the determination, while on the
The two English cases cited appear to be equally alien from our present subject. One of these is that of the Duke of Devonshire v. Elgin, 14 Beav. 530, and it is entirely plain that the circumstances called for the application of a rule altogether unlike the one now in question. In his opinion in the present case, the vice-chancellor describes this as an instance “ of a parol license to maintain a water conduit across the licensor’s land to supply a village with water; ” but the fact that the equitable effect of such an unwritten authority, intrinsically considered, was not in any degree passed upon, appears to have escaped observation. In the reported case the answer admitted the agreement, and it was so found, the chancellor saying: “ I am of opinion that the passages read from the answer show that .there was a parol agreement to allow the water-course to be made-through the defendant’s land, in consideration of paymeut of a reasonable sum,” and, consequently, works that had been built in reliance on such an admitted contract were not permitted' to-be disturbed. It is obvious that the point under consideration, was not in anywise decided.
The other English authority relied on is that of Mold v. Wheatcroft, 27 Beav. 510, bat the briefest statement of the facts of that case will serve to show that the rule controlling them cannot be of any concern in our present inquiry. It is true, as the vice-chancellor says, that this “ was a case of a right of way,” but such a description is not complete, for it was a' right to a railway that was in question. The deféndant being invested by act of parliament with the power to lay a railway over the complainant’s land, paying a reasonable compensation for such, privilege, had entered upon such property with the assent of its owner, and made the construction in dispute; it was, therefore, a case plainly within the equitable rule already stated, of a parol agreement for the purchase of an interest in land and an entry and possession by force of such an agreement; and there was also parliamentary authority to do the act consented to. In-short, the case is identical iu all its essential features with that
' The result seems to be that neither of the cases cited in the opinion of the vice-chancellor from the opinions of the English chancellors supports in any noteworthy degree the rule embodied in the decree now before this court. Hor has it appeared from my own researches in that field that there is to be found any authority directly upon this question ; but in making this remark, it should be said no stress is laid on the two eases which are to be found in 2 Eq. Cas. Abr. 520, although in the State of Pennsylvania they appear to have had a decided effect in leading to the promulgation by the courts of the doctrine now under criticism. The book referred to is of slight repute, and it alludes to, rather than reports, these two judicial resolutions. The first of them is contained in six lines, stating that A diverted a watercourse which put B to great expense in laying of sooths &c., and the diversion being a nuisance to B he brought his action, but an injunction was decreed upon a bill exhibited for that purpose, it being proved that B did see the work when it was carrying on, and connived at it without showing the least disagreement, but rather the contrary. Short v. Taylor, in Lord Somers’s time, was cited, which was this: Short built a fine house ; Taylor began to build another, but laid part of his foundation on Short’s land. Short seeing this, did not forbid him, but, on the contrary, very much encouraged it; and when the house was built he brought his action, and Lord Somers granted an injunction.
It will be observed that this case of Short v. Taylor was correctly disposed of, for the facts do not seem susceptible of other than one of two interpretations, viz.: that Taylor took possession of the land in question with the assent of Short, in which event it was a license executed by possession, which would be enforceable in equity according to the established rule; while the other case, from the insufficiency of its disclosures, is unintelligible in any reasonable sense, as it is not shown that the licensee had
With respect to the state of the law in this country on this subject, it is sufficient to say that it exhibits much contrariety of judicial opinion. A copious collection of such authorities will be found in 13 Am. & Eng. Enc. tit. “License ” 550, and in the ,text of that work it is declared that “ in most of the states it has been held that even where money has been expended by the licensee on the faith of the license, the licensor may exercise his power of revocation.” And, indeed, Professor Pomeroy himself; although his work on Specific Performance is cited by the vice-chancellor in the support of the doctrine of the irrevocability of parol license of this kind, after referring to such principle as prevailing in certain jurisdictions in this country, concludes with the decided declaration that “ this rule is undoubtedly opposed to the common law doctrine concerning licenses as it prevails in England and in most of the American states.”
In this view I concur, and shall conclude this succinct' examination of the subject with the remark that if the principle that licenses of this character are to be, under the conditions in question, treated as irrevocable, the same principle, if logical reasoning is to be maintained, would, of necessity, have to be extended so as to control most of the regulations' of the statute of frauds &c. If a parol license, inefficacious by force of the act, should be rendered efficacious by reason of a losing part performance on the side of the licensee, it would be difficult to refuse, on a like ground, to apply a similar quality to a sale of goods equally within the statutory condemnation. Suppose A, a merchant, should, by parol, purchase a cargo of merchandise of B, to be delivered at a certain day, and, trusting in such agreement of sale, should, to the knowledge of B, proceed at great expense to procure a vessel and prepare it for the voyage, would such sale be enforceable either at law or in equity ? In such ease it would not be pretended that by reason of part performance and great loss a practicable equity would arise, and yet how, in point of principle, is such supposed case distinguishable from that of one of these licenses after part performance by the licensee ? The
My general conclusion is that servitudes cannot be imposed •upon land by parol transaction, except to the extent above indi•cated, as evidenced by the ancient decisions in the English chancery, and that our own courts should not .extend that limit.
But whatever views may be entertained by others on -this subject, it is still, as it seems, demonstrably clear that the decree before this court cannot be sustained.
Whether the broad rule adopted in the court below, or the narrow one just indicated, be applied for present purposes, the •result must be the same, for the proofs do not make either rule •effective in favor of the respondents.
Nothing is clearer- or more settled than that in all cases in which any court has validated an encumbrance imposed upon land by force of a parol contract, that such contract has been required to be proved to the point of demonstration, and that the repudiation of it would work irreparable injury. Both these essentials are wanting to the affair before the court.
In the first place, there was no such proof as that just indicated as to the existence of the alleged license.
Such fact was attempted to be proved in two ways — first, by showing an express consent to the easement by the agent of the appellant, and, second, by the circumstance that the appellant saw the structures building on the respondents’ land' and remained rsilent.
Also, on the assumption that the agent of the appellant granted the license in question, still the case of the respondents is fatally defective, because it clearly appears that their expenditures were not made in reliance upon such license. In the entire line of cases on this subject it is believed that in no instance has relief even been extended to a licensee who has failed to show that he has incurred large expense in the confidence that his license would not be revoked. In the. instance in hand the license that is set up was given when the entire work on the respondents’ land was, in the language of the vice-chancellor, “ nearly finished,” so that the expenses afterwards incurred were plainly .trivial. Under such circumstances it has never been claimed, nor can it reasonably be claimed, that there is even a colorable basis for the respondents’ bill, for if they did not make their outlays because of the assurances or promises of the appellant, how is it that the latter is to be estopped from asserting her legal rights ?
But, further, even if the foregoing considerations should be-waived, the respondents’ case is, as it is deemed, wholly defective, for if we assume that the son of the appellant gave the license in. question, it is plain that such grant was nugatory, for in that respect the son was not the agent of his mother. Nothing can be clearer than this latter proposition, for the entire proof of'
As to the suggestion that the appellant saw this work progressing, and encouraged, by her silence, such expenditures, and is therefore equitably estopped from making her present contest, the answer is, that assuming that the result thus asserted' would ensue from such conduct, we think it clear that the proofs-before us do not lay any foundation for the contention. There is
This essential feature is wanting in the instance now in hand. The revocation of this assumed license could not operate disastrously to the interests of the respondents. The remedy was in their hands; all they had to do was to apply under the Meadow act and they would have obtained, in substance, all the relief that has been afforded them by force of the present decree., There was, on their own showing, no necessity to- call a court of equity to their aid. Their remedy at law was complete; it has never heretofore been claimed that a parol license of this nature can be sustained and enforced in a case in which its revocation will work no essential damage to its possessor.
The decree should be reversed, with* costs- to* the appellant in both courts.
For affirmance — None.
For reversal — The Chief Justice, Depue, Reed, Scudder, Van Syckel, Bogert, Brown, Clement, Krueger, Smith, Whitaker — 11.