43 W. Va. 412 | W. Va. | 1897
This was a suit in equity instituted in the Circuit Court of Upshur county by F. 0. Pifer against Margaret N. Brown. The plaintiff' in his bill alleged that lie was the owner of a lot of land in the town of Buckhannon, in said county (describing it,' and exhibiting a copy of the deed from John D. Martin and wife to himself, dated the 8df December, 1884), and further says that in the month of October, .1894, after a destructive lire in said town, the frame building owned by him, in which he carried on business as a druggist, was completely destroyed; that he at once set to work to erect an expensive brick building on said lot, and had made excavations for a ground room or
The first error assigned and relied upon was claimed to be in perpetuating the injunction awarded to the plaintiff; the second error was claimed to be in overruling the demurrer of the defendant to the bill; and the third, in denying the defendant affirmative relief prayed for in her answer. The first two assignments of error are so inti
The plaintiff, F. 0. Pifer, also testified in the cause that he went to Dr. Brown, and' asked license or permission to put down a tiled drain through his (the defendant’s) premises. After some conversation in regard to it, Dr. Brown gave him permission to put a drain through his premises, on condition that he would not disturb his garden (which is to say, in a way that, would not interfere with his vegetables, growing or planted), or, further, that he should be allowed to tap and use the drain in case he himself should wish to drain his cellar, or incase of waterworks in Buckhannon, and he should use the water privilege, — have the benefit of the drain to conduct, away the waste water. This conversation occurred some time in December, 1894. Witness also states that, he began the work of constructing said sewer on the 18th or 19th of January, 1895, and the tiling was laid some three or four days
The witness Spencer Boylen, in his deposition, states that the ditch, where it is dug, is the practical and natural drainage of said Pifer lot. He also states that, in constructing said ditch through the defendant’s lot, the workmen cut the old sewer which had been used to drain the cellar under the old building about six or eight feet inside of Mrs. Brown’s lot. The defendant Margaret N Brown, in her deposition, says, when asked: “When, and under what circumstances, did you first learn that the plaintiff,
■ Now, the question of fact in regard to the understanding and agreement between the plaintiff and-B. L. Brown as the agent of his wife, and also the question of fact as to the natural course of the drainage or flow of water from the plaintiff’s lot, although there maybe, some conflict in the testimony with reference thereto, were passed upon by the court, which by its final decree found in favor of the plaintiff; and this Court lias held in the ca.se of Smith v. Yoke, 27 W. Va. 639 (first point of syllabus), that: “Where the decree sought to be reversed is based upon depositions which are so conflicting, and of such a doubtful and unsatisfactory character that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the Appellate Court will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the Appellate Court might have pronounced a different decree if it had acted upon the cause in the first instance.” And the same thing is held in the case of Doonan v. Glynn, 28 W. Va. 715; Prichard v. Evans, 31 W. Va. 137 (5. S. E. 461); Bartlett v. Cleavenger, 35 W. Va. 720 (14 S. E. 273). Now, the court below found the fact that Robert L. Brown, acting as the agent of his wife, consented to-the construction of this sewer under the lot which belonged to his wife; the appellant, Margaret N. Brown, at the time the appellee was about proceeding to ojien the ditch through her lot for the
The court held : That, as the pipe was laid in the manner indicated by the owner of the land at the the expense of the owner of the tanyard, a court of equity would treat the latter as owning the right to maintain it there — First, by
On the other hand we find numerous authorities which hold that a mere parol license of this character is revocable at the will of the licensor. Cooley, Torts (2d Ed.) 860, says, after speaking of a license to erect a building on the land of another, and the right, to remove the same : “But a license can not be coupled with an interest in the lands, unless created by deed, or by such other instrument as is sufficient to convey such an interest under the statute of frauds. Therefore rights of way, sales of growing trees, permission to flow lands permanently, or to carry water over or pipes under the land of another, are mere licenses, and revocable as such, unless created or made by deed.” Citing the case of Wiseman v. Lucksinger, 84 N. Y. 31, where it is held that: “A mere license to drain is not made irrevocable by the fact that a valuable consideration was paid therefor, and that a right of drainage through the lands of another is an easement requiring for its enjoyment an interest in such land which can not be conferred by parol license. It can only be granted by deed or conveyance in writing.” Danforth, Judge, in delivering the opinion of the court, says : “A right awarded to the plaintiff' to have his drain pass through the defendant’s land is, in the terms of the judgment, an easement, and, for its enjoyment, requires that the plaintiff' shall have an interest in the defendant’s land.” Citing Hewlins v. Shippam, 5 Barn. & C. 221. The question was whether a. right to a drain running through the adjoining lands could be conferred by parol license, and, after the fullest examination, it was decided that it could not; also citing Cocker v. Cowper, 1 Cromp. M. & R. 418, — a similar case. The plaintiff therein sued for the obstruction of a drain which had been originally constructed at his expense on the defendant’s land by his consent, verbally given. After it had been enjoyed for eighteen years the defendant obstructed it, and it was contended by the plaintiff that the license, having been acted upon, could not be revoked. But the court held that Hewlins v. Shippam was decisive to show that such an easement, can not be conferred except, by deed. And the same, in substance, is held in Cronkhite v. Cronkhite, 94 N. Y. 323. In that case water had
Angelí on Water Courses (page 322, § 169) says: “The case of Fentiman v. Smith (4 East, 107) is clear and pos
Now, while I find it extremely difficult to reconcile the
Reversed.