Ricker v. Kelly, 1 Me. 117

Ricker v. Kelly

1 Me. 117 | Me. | 1820

Mellen C. J.

It appears by the pleadings in this case, that the locus in quo belongs to the defendants ;—that sometime before the trespass, they had, for a valuable consideration paid to them, licensed the plaintiffs, by parol, to enter into said close and erect the part of the bridge which the defendants removed.—It does not appear that this license was ever revoked, if revocable ; nor that any notice was given to the plaintiffs to remove the bridge, prior to the removal of it by the defendants.— Under these circumstances, is the action maintainable ?

The justice of the plaintiffs’ claim for indemnity is very apparent.—But it is contended that no rights ivere conveyed to the plaintiffs by the license of the defendants because it was not in writing; that it is nothing more than a lease at will, according to the Statute of conveyancing. Stat. 1783. c. 37.—To this it may be replied, that a lease at will is good, until the will is determined ; and the lessee’s rights remain until that time.—This objection therefore cannot avail the defendants, because it does not appear that such lease was determined by the lessors before the removal of the bridge.

Again it is contended by the defendants that as the plaintiffs claim an interest in the close, wilhin the meaning of the Statute *119of frauds; and the proof of this interest not being in writing, the permission of the defendants to the plaintiffs to enter upon the close and build said bridge, and enjoy a right of way over the close, to the said bridge, is void and ineffectual. In support of this objection, the counsel for the defendants has cited the case of Cook v. Stearns, 11 Mass. 533. We consider that, case as materially different from the case at bar. In the case of Cook v. Stearns the defendant claimed a permanent interest in the plaintiff’s close, and a right to maintain the bank, dam, &c. and at any time to enter on the land to make necessary repairs ;—and such a right the Court decided could not pass without deed or writing. In the present case the plaintiffs placed their own materials in the form of part of a bridge, on the defendants’ land by their express consent; and if a right of way over the close to the bridge did not pass by parol, still the defendants had no right to seize and carry away the plaintiffs’ property and destroy its value. As well might the owner of a ship-yard, permit another to build a ship in it: and when the ship was on the stocks, cut it in pieces and carry it away with impunity.—Again, in Cook v. Stearns, the license relied upon by the defendant was never given by the plaintiff Cook, but bjr the former owners of the land ; and it did not appear that Cook ever assented to and ratified such license, or ever knew' of it. In the present case the license was given by the very persons who have violated it, to the prejudice of the plaintiffs.—So far, at least, as regards the building of the bridge, the authority given by a license is good and sufficient, according to the decision in that case, and the authorities there cited. The license stated in the replication was to do a particular act; it was not intended to give a right to hold the defendants’ land,—to enter upon it at all times, and exercise dominion over it. Such an interest the Statute requires should be passed by some writing. In Cook v. Stearns, the defendant claimed an easement without any deed or writing, and without prescription.—Such a claim the law does not sanction.—Not so in the present case.

But if the case before us should not be considered as presenting the question whether the defendants’ permission is. in in technical language, a license and operating as such ; still, the counsel for the plaintiffs contends that it may operate as con*120veying a right to build the bridge, and a right of way ; and is not within the Statute of frauds: inasmuch as the contract set forth in the replication was executed on both parts:—the consideration was received, and the bridge was built.—In support of this principle, the cases of Davenport v. Mason, and Winter v. Brockwell have been cited ; and they support the principle' ad; vanced.—In fact (there are numerous decisions establishing the distinction between agreements executory and agreements executed in whole or in part.—The Statute of frauds is applicable to the former, but not to the latter,

We are all of opinion that the replication is good and sufficient and that there must be

Judgment for the plaintiffs.

See acc. Buckmaster v. Harrop, 7 Ves. jr. 341. Gunter v. Halsey, Ambl. 586. Earl of Aylesford’s case, 2 Str. 783. Pyke v. Williams, 2 Vern. 455 Lacon v. Mertins, 3 Atk. 1. Wetmore v. White, 2 Caines’ Ca. 87.