The correctness of the view taken by the lower court is now to be examined.
The question first to be determined in this case is whether the use was really adverse to the owne r, or was it merely permissive in its character. If permissive in its inception, then such permissive character being stamped on the use at the outset will continue of the same nature, and no adverse user can arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature, and exclusive and independent in its character. Budd v. Collins,
Though the statute of limitations has no reference to easements, yet, where a party has enjoyed an easement for such length of time as to confer title to land from the true owner to a disseizor, this adverse enjoyment will in law establish the right to the easement as against the owner of the serviente state. Wood on Nuisances, sec. 704; House v. Montgomery,
And such adverse user for the statutory period will give origin to the rebuttable legal presumption of a grant, even though the use in its inception was a trespass. Wood on Nuisances, secs. 704, 705.
The circumstances of this case already detailed conspicuously show that the use in this instance was not adverse, but merely permissive. And long-con
The right, in this case, then, must be regarded as merely permissive — in short, a license. Now, from its very nature, a license is revocable; but the authorities are divided as to whether a license is revocable after it >has been executed, money expended, etc. Touching this point, an eminent author observes: “Some of the courts, indeed, deny the right of the (parol) licensor even to revoke the license, after outlay under it; resting the case on the ground of estoppel in pais, or treating the situation as equivalent to part performance of a parol agreement for the sale of an interest in real estate. But the better view, in presence of the statute of frauds,' appears to be that, so .far as the question of further enjoyment is concerned, the license may be revoked, though no action can be maintained against the licensee for what he has been induced or led to do. ‘Volenti non fit Ínfima.’” Bigelow on Estoppel [5 Ed.] 666-7.
And a distinction is taken by the authorities between acts done on the licensor’s land, and those done on that of the licensee, the former being revocable, the latter not. Washburn on Easement & Servitude [3 Ed.] 25, 679; 1 Washburn on Real Property [5 Ed.] 672.
The view of Bigelow as to what is the correct ■doctrine as to executed licenses, and as to their revocability evidently meets the approval of another text-writer of recognized authority, who touching this ■subject says: “Another class of cases where the license may be revoked is where the act- licensed to be
“The importance of the principle involved in the foregoing propositions in respect to the power of a licensor to revoke his license, even though the licensee, acting under such license, may have incurred expense for which he can claim no remuneration, seems to render a review of some of the cases, where the question has been raised, proper by way of illustration. In one class of these, the licensee at a considerable expense cut a drain in the licensor’s land, by which the water of a spring flowed to his own land, and, after enjoying it some years, the licensor revoked the license and stopped it. The licensee was held to be without remedy. In another, the licensor gave the licensees permission to construct a culvert on their land, and thereby divert a current of water onto his land which they did at their own expense, and it was held to be revocable. In another, the license was to build a dam, or part of it, on the licensor’s land, for the purpose of working a mill belonging to the licensee. And in another the
The learned author then cites and quotes from adjudicated cases which hold a different view; but the rulings in those cases, as he shows, are evidently grounded on some earlier English cases, notably Taylor v. Waters, 7 Taunt. 384, the doctrine of which was exploded in Wood v. Leadbitter, 13 M. & W. 838, in an elaborate and able opinion by Alderson, B. The facts, on which the litigation was there based, were these: “The owner of land, on which was a stand for the spectators at a horse-race, sold a ticket to the plaintiff to enter and witness the race. Before the race was over, without any misconduct on the part of the plaintiff, or tendering him back the admission fee, the owner ordered him to leave the premises, and after-wards removed him; and it was held that his ticket was a mere license which was revocable.”
In that case when illustrating his position, Baron Alderson said: “A mere license is revocable; but that'which is called a license is often something more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. * * * But where there is a license by parol, coupled with a parol grant, or pretended grant, of something which is incapable of ' being granted
In this state Wood v. Leadbitter has been cited approvingly in Desloge v. Pearce,
In the latter case there was something more than a mere parol license; it was a contract evidenced by a conveyance delivered in escrow to the agent of the
In Stock Yards v. Ferry Co.,
In Wolfe v. Frost, 4 Sandf. Ch. 90, it was forcibly said: That, if the doctrine of the irrevocability of an executed license maintained in some jurisdictions is law, “a parol license, executed or acted upon, is sufficient to pass an incorporeal hereditament; thus not merely repealing the statute of frauds, but abolishing
G-uided by these authorities, it should be ruled that in the case at bar a mere parol license was given to the plaintiff, a license revocable at the pleasure of the licensor. But, if, on the other hand, the doctrine that an equity iá created where, under a parol license, money has been expended and improvements made, and, therefore, the powers of a court of equity may be invoked, and specific performance decreed, the plaintiff, in this instance, must fail of obtaining such relief for the additional reason that the expenditures and labor were done without any prior and distinct agreement, and without omy consideration. Parol agreements for the conveyance of land must not only be founded upon a valuable consideration, but the contract to be performed must be clearly defined by satisfactory testimony, and be accompanied by acts unequivocably referable to the alleged agreement.- There are no such constituent elements to be found in this case. Wiseman v. Lucksinger,
' But one point remains to be discussed, and that is whether the plaintiff was entitled to any notice before the removal of his pipes. Under the authorities a reasonable time is allowed a lice usee in which to enter on the land of his licensor, and to remove whatever structures or improvements he has placed thereon. And, even in the case of a nuisance, as where one builds a house where another has a right of common, it has been held that, before the latter could forcibly abate the nuisance, it was his duty to notify the wrongdoer to remove it. Where a nuisance is merely permitted to exist, and the case not urgent, notice and an opportunity for its removal are necessary, and
But none of those instances afford any illustration of the point in hand. Here there are no structures or improvements to remove, the sole question being whether without notice defendant could sever the connection between the sewer pipes on the land of plaintiff and those on the land of defendant, and we hold that ■she could, and that such removal was a revocation of the previously granted parol license. Therefore, judgment affirmed.