It is contended in this case that no license or permission can be given by parol to enter upon land and do the acts here named, and that any such license is within the statute of frauds.
This statute provides, that all leases, estates, or interest in land, made by parol, shall have the eifect of leases at will merely, and that “ no action shall be maintained upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum thereof, be in writing, and signed by the parties to be charged therewith, or signed by some other person thereunto lawfully authorized by writing.” 1 Laws N. H. 535.
This statute does hot prohibit a parol license for a qualified use of land, or to do certain acts upon land.
A license may extend to setting a building, or erecting a dam on land; digging a ditch and turning water across the same; permitting an individual to flow land; or to enter upon it, divert and use running water; neither of which would be within the statute of frauds. A license is defined by Chancellor Kent, in his Commentaries, to be “ an authority to do a particular act or series of acts upon another’s land, without possessing any estate therein. It is founded on personal confidence, and is not assignable, nor within the statute of frauds.” 3 Kent’s Com. (2d Ed.) 452.
Where a license is given, and entry made in pursuance of it, the individual entering is of course not a wrong doer. He cannot be regarded as guilty of a trespass, when he entered by express permission of the owner of the land, any more than the servant who enters on land while in the ordinary employ of his master and under his immediate direction, can be regarded as a trespasser.
That a license may be given, and the person receiving it act under it without being liable as a trespasser, until it has been revoked prior to suit, seems not to have been contested.
In the case of Mumford vs. Whitney, 15 Wend. 380, Mr. Chief Justice Savage held that a license was a mere authority to do a particular act, as to hunt, or fish, or erect a temporary dam, and conveyed no interest in land. Such license is executory, and may be revoked at pleasure ; but acts done under it, before the revocation, are no trespass. In Bridges vs. Purcell, 1 Dev. & Bat. 492, it is held that a mere license is revocable, but acts done under it until countermanded are lawful. And in Barnes vs. Barnes, 6 Verm. Rep. 388, it is held that a license to erect a building on another’s land cannot be revoked so entirely as to make the person who erected it a trespasser for entering and removing it after the revocation.
Licenses are conceded to be revocable where the party, on having such license countermanded, is left in statu quo. But it has been said that where the license becomes executed by an expenditure incurred, it is either irrevocable, or cannot be revoked without remuneration, on the ground that a revocation under such circumstances is fraudulent, and unconscionable. The cases of Liggins vs. Inge, 7 Bing. 682; Tayler vs. Walters, 7 Taunt. 373; Ricker vs. Kelley, 1 Greenl. 117; Clement vs. Durgin, 5 Greenl. 9; Woodbury vs. Parshley, 7 N. H. Rep. 237; Putney vs. Day, 6 Ditto
On the other hand, there are authorities in which the principle of these decisions is contested to a greater or less degree. 1 Johns. Chan. Ca. 143; Cook vs. Stearns, 11 Mass. 533; Bridges vs. Purcell, 1 Dev. & Bat. 492.
In the present case, there is no evidence of a revocation, either with or without remuneration ; and it is clear, without consideration of farther questions which might arise, that the plaintiff cannot on such a state of facts recover.
Nonsuit entered.