Marston v. Gale

| Superior Court of New Hampshire | Dec 15, 1851

Woods, J.

The permission given the defendant to pass over the lands of the plaintiff-was nothing more than a parol license to be exercised thereon. As such it gave no permanent right to pass there. The right given did not extend beyond the pleasure of him that gave it. Such a license, before it is executed, is revocable ; but it will afford the party full protection for the acts done under it before revocation. It will furnish a justification for an act which would otherwise be a trespass. But when such a license is countermanded, it will protect the party in the exercise of it no farther. In this sense such a license is irrevocable, so far as it is executed or acted upon, but beyond that is revocable at the pleasure of the party giving it. Ruggles v. Lesure, 24 Pick. 187; Cook v. Stearns, 11 Mass. 533" court="Mass." date_filed="1814-11-15" href="https://app.midpage.ai/document/cook-v-stearns-6404252?utm_source=webapp" opinion_id="6404252">11 Mass. Rep. 533; Carlton v. Redington, 1 Foster’s Rep. 291, and cases there cited. In the present case, so far as the right to pass was exercised before the plaintiff revoked the license, no question is made. The only question is, whether the defendant was justified in the exercise of that right after the- plaintiff forbade it. And we think it quite clear that he was not. So far, the license was unexecuted at the time of the revocation. The subsequent acts of the defendant were not done under the protection and shield.of the license, for that no longer existed, and was, as to those acts, as if it' had never been given. 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. Stevens v. Stevens, 11 Met. Rep. 251; Cook v. Stearns, and Carlton v. Redington, before cited.

And we think it can make no difference that the parol license was given upon an agreement of the defendant that he “ would not petition for a road to be laid out, and would keep the gates on the passway closed.” That fact could not change the character of the parol license, or alter its legal effect. It was nevertheless revocable in its character, and furnished no justification or excuse for acts done subsequently to its revocation. Ruggles v. Lesure, before cited. Upon this view the ruling of the court below is fully sustained, and there must be

Judgment on the vei'diet.