Lewis v. Patton, 113 P. 745

113 P. 745 | Mont. | 1911

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

Appeal from an order denying a temporary injunction. The parties to this action own adjoining ranches in Beaverhead county. In order for plaintiff conveniently to get to the public highway from his dwelling-house, it is necessary for him to pass over a small portion of defendant’s land. In 1903 or 1904 plaintiff constructed a roadway of a permanent character from his dwelling to the public road, fenced the same, and used it uninterruptedly until late in 1909, when defendants obstructed such roadway and threatened to continue such obstruction.

In his complaint the plaintiff alleges that he owns a right of way for such roadway over the lands of defendants. Upon filing this complaint and an affidavit in support of it, the district court issued an order to show cause, and a hearing was had. Upon the hearing the plaintiff testified that for four hundred feet or more his roadway over the land of defendants was constructed through a swamp, and for seven hundred feet or more the road was built through the same swamp on plaintiff’s land; that it cost about $1,200 to build the road; that it was built in a manner designed to be permanent; that it was built and fenced at plaintiff’s expense; that he was engaged in work upon it for three years or more, and enjoyed the uninterrupted use of it for two years after it was completed; that at the time the road was built, Hugh Patton, since deceased, the husband of Margaret Patton, owned the Patton ranch; and that before he commenced building the road he had a conversation with Hugh Patton. When asked to give the conversation an objection was interposed, but overruled pro forma, with the right reserved in counsel for defendants to move to strike out the evidence. Plaintiff then testified: “I went to Patton and told him I wanted to build a road, and showed him the route, and he very willingly consented to go and look it over—the proposed road and the old road. After we looked over the old road he said to me, ‘We are uncertain where the lines are, and the route you propose is the best, and I have no objection to it.’ And he consented to it. * * * Q. When you were talking to Mr. Patton about this matter, was there any conversation in regard to the manner in which the road was to be built? A. Yes. He said: ‘Now, let me make a suggestion as to how to build this road, having had a great deal of experience in making roads; I would corduroy the road.’ I told him, ‘I don’t want to make a temporary road, I want to make a permanent road.’ And when I got through with my statement as to how I wanted to make the road he complimented me and said my theory was right. He says: ‘ You will make a road there that will last forever.’ And at different times in the construction of this road he complimented me in regard to the way I was building it.” Plaintiff further testified that while he was building the fence along this roadway, Patton came to his work and complimented him upon the character of fence he was building, saying: “Your fence is like your road; it is very permanent. You will have a fence there forever.” And again plaintiff testified that when he was constructing a gate at a point where the road connected with the public highway, Patton came to him and complimented him upon the manner in which he was doing the work and in a joking way said: “I wouldn’t have given you this right of way had I known you were going to put up so much better a gate than mine.” Upon cross-examination plaintiff testified that he never had any writing with Patton concerning this right of way. Defendant moved that all evidence of the conversation between plaintiff and Hugh Patton be stricken out, and this motion was sustained and the injunction refused. The foregoing is all the evidence material to the question which was before the lower court.

In Great Falls Water W. Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 Pac. 963, this court reviewed at great length the authorities dealing with the question of a license resting in parol. The doctrine of that case was approved in Prentice v. McKay, 38 Mont. 114, 98 Pac. 1081, and in Archer v. Chicago, Milwaukee & St. P. Ry. Co., 41 Mont. 56, 108 Pac. 571. But it is contended that the facts of this case do not bring it within the rule announced in the eases above, but rather within two exceptions to the rule—exceptions which it is said have been recognized by this court. We do not agree with counsel for appellant that they state the first exception, so called, correctly.

(a) .It is a well-settled rule in equity that where A agrees orally to convey a right of way to B, and there is a sufficient consideration for such agreement, and, acting upon it, B enters into possession of the right of way and makes improvements to his financial detriment, equity will protect the right. The principle of the rule was involved and applied in Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918. The rule itself is well illustrated by the case of Dempsey v. Kipp, 61 N. Y. 462. The underlying principle of the rule, however, is that there was such a contract between the parties and such part performance that equity would, in a proper action, decree specific performance. Direct reference to this rule is made in the course of the opinion in Great Falls Water W. Co. v. Great Northern Ry. Co., above. But we are unable to gather from the record of this case any evidence o'f a contract between Patton and Lewis by which Patton agreed to convey the right of way over the Patton ranch to Lewis. At most the evidence discloses mere consent on Patton’s part that Lewis might construct the roadway, a consent which does not imply anything more than a bare license. We are unable to distinguish this case upon its facts from either the Great Falls Case or the Archer Case, above.

(b) The second so-called exception to the rule is stated by Herman on Estoppel, section 1140, volume 2, as follows: “Where the owner of an estate has stood by and seen another expend money upon an adjacent estate, relying upon an existing right of easement in the first-mentioned estate, and without which such expenditure would be wholly useless and wasted, and has not interposed to forbid or prevent it, equity has enjoined him from interrupting the enjoyment of such easement.” Instead of being an additional exception to the rule, this is but the application of the principle of the first exception to a different state of facts. It presupposes that there was an express oral agreement to convey and part performance.

There is not any question of a right by prescription involved here, and that there is but a single exception to the rule that an agreement for the conveyance of an interest in real estate (other than a lease for not more than one year) must be evidenced by some writing, is determined by our Code. Our statute of frauds, section 5091, Revised Codes, provides: “No agreement for the sale of real property, or of any interest thérein, is valid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.” The wisdom of the rule is well illustrated in this case. Here the attempt is made to, found a claim to a part of the Patton ranch upon oral negotiations had between Lewis and Hugh Patton. Hugh Patton, the only person who could deny or explain those negotiations, is dead, and the statute cited above furnishes his heirs their only defense to a ol aim of this character. Of course, if there was in fact an agreement between Lewis and Hugh Patton by which Patton contracted to convey to Lewis the right of way for the road, the death of Patton would not necessarily defeat Lewis’s right to have specific performance decreed; but as said by this court in Finlen v. Heinze, above, quoting from Mr. Justice Story in Smith v. Burnham, 3 Sum. 435, Fed. Cas. No. 13,019: “It is a general rule not to interfere to direct specific performance of any agreement where the terms of the contract are not all definite and full and.in its nature and extent are not made out by clear and unambiguous proof.”

A mere license is revocable at the will of the licensor, and it is not a defense that the licensee has expended money upon the faith of it which will be lost to him, for, as said by this court in the Great Falls Case above: ‘ ‘ The licensee is bound to know that his license was revocable, and that in incurring expense he acted at his own risk and peril.” In 25 Cyc. 647, it is well said: “To hold otherwise would be to override the statute of frauds and convert an executed license into an estate in land, which is going a greater length than equity ever went under the doctrine of part performance.” Neither will the character of the improvement made change a license into a grant.

While the authorities do not all agree upon the application of these principles, we prefer to adhere to the doctrine heretofore announced by our own court.

The order is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.