Stevens v. Stevens, 52 Mass. 251

Stevens v. Stevens

52 Mass. 251 | Mass. | 1846

This case was decided at September term 1847.

Wilde, J.

The question now submitted to the decision of the court is, whether a parol license, from Stephen Stevens to Jonathan C. Stevens, would in law or equity justify the continuing of the dam, after the purchasing of the land by the plaintiffs. The authorities are conflicting, as to the legal *255effect of a parol license to do any act on the land of another. In the case of Tayler v. Waters, 7 Taunt. 374, and 2 Marsh. 551, it was decided that a beneficial license to be exercised upon land might be granted without deed, and without writing, notwithstanding the statute of frauds. Several cases were cited in support of that decision; one of which is Winter v. Brockwell, 8 East, 308, in which a license had been given to the defendant to put a sky-lighi over an open area above the plaintiff’s window, which area belonged to the defendant; and Lord Ellenborough decided that the license of the plaintiff having been acted upon, and expense having been incurred, it could not be recalled without offering to pay all expenses incurred under it. A similar decision was had in the case of Liggins v. Inge, 5 Moore & Payne, 712, and 7 Bing. 682; but the acts complained of, in both of these cases, were done on the land of the defendants, over which the plaintiffs had only an easement, which, it was held, might be relinquished without deed, and without writing. In the latter case, Lord Tin dal says, “ there is nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment.” These decisions are founded on the distinction between the waiver and extinguishment of an existing easement, by parol, and the creation of an easement de novo. A distinction is also made, in some of the-cases, between a personal privilege, which is not assignable, and an easement carrying an interest in the land. These distinctions are somewhat subtle, but are not material in the present case. See 3 Kent Com. (3d ed.) 452.

The defendants claim a permanent interest in the plaintiffs’ land, and this claim has been maintained by force, against the will of the plaintiffs; and there is no case in which it has been decided that such an interest can be created by parol. Such a decision would be against the express language of the statute of frauds.

In the case of Wood v. Lake, Sayer, 3, it was decided by a majority of the court, that a parol agreement, granting a license to stack hay on the land of the grantor for seven *256years, was a valid contract, notwithstanding the statute of frauds. This decision, Mr. Sugden says, “ appears to be in the very teeth of the statute which extends generally to all leases, estates and interests.” Sugd. Vend. (6th Amer. ed.) 100. It is said in that case, that “the agreement was only for an easement, and not for an interest in the land.” But the true ground of the decision appears to be, that the agreement was not within the words of the statute, not being an agreement for any “ uncertain interest in land.” If this was the ground of decision in that case, it would not be applicable to the provision in our Rev. Sts. c. 59, § 29, which is express, that “ all estates or interests in lands, created or conveyed without any instrument in writing, signed by the grantor or by his attorney, shall have the force and effect of estates at will only; and no estate or interest in lands shall be assigned, granted or surrendered, unless by a writing signed as aforesaid, or by the operation of law.” But it is perfectly well settled, in England, that no incorporeal right, in the nature of an easement, can be created or conveyed by a parol agreement; although a parol license may be an excuse for a trespass, till such license is countermanded; and that a freehold interest can be created or conveyed only by deed. The question was very fully considered in the case of Hewlins v. Shippam, 5 Barn. & Cres. 221, and 7 Dowl. & Ryl. 783. In that case, it appeared, by the pleadings, that the defendant had given a parol license to the plaintiff to construct a drain through the defendant’s yard, and to use the same as a means of escape for foul and waste water from the plaintiff’s premises, and that the defendant afterwards, and after the license had been acted upon and executed, and the drain constructed, revoked his license, and stopped up the drain; and it was held that he had a right so to do, as the right claimed by the plaintiff was an easement and incorporeal right, which lay in grant, and could not be created by parol. The same principle is laid down in sundry other cases. 4 M. & S. 562. 5 Barn. & Cres. 875. 2 Adolph. & Ellis, 696. 4 Mees. & Welsb. 538. Addison on Contracts, 88.

*257In Cook v. Stearns, 11 Mass. 533, it was decided by this court, that a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times, without his consent, is an important interest, which ought not to pass without writing; and that by St. 1783, c. 37, § 1, all interests in land, whether certain or uncertain, were but estates at will, unless the evidence of them existed in deed or writing. This decision is fully approved in the case of Mumford v. Whitney, 15 Wend. 384, where the cases are ably reviewed and discussed by Chief Justice Savage. The same decision is approved also by Williams, C. J. in Prince v. Case, 10 Connect. 375, who ably considers the cases and the principle on which they are founded. And in Maine, the case of Seidensparger v. Spear, 5 Shepley, 123, was decided on the same principle. We think it indeed very clear on the authorities, and on the express language of the Rev. Sts. c. 59, § 29, that the defendants’ claim of right to continue their dam, and to flow the plaintiffs’ land, cannot be maintained.'

As to the objection that this court, as a court of equity, ought not to interfere, but to leave the plaintiffs to their remedy at law, we are of opinion, that the plaintiffs’ right being fully established, they are entitled not only to the abatement of the nuisance, but to a perpetual injunction to prevent its renewal, and thereby to suppress multiplicity of suits and oppressive litigation; especially as the defendants have undertaken to maintain their supposed right by force, whereby the plaintiffs have been for a long time disturbed in the enjoyment of their just right of property.

This may be a hard case for the defendants, if, as they aver in their answer, their mill would be rendered useless by the removal of the dam in question ; but this would be their misfortune, as they do not appear to have any legal or equitable claim on the plaintiffs for compensation. Under the license from Stephen Stevens, the defendants have, for nine or ten years, as alleged in the bill, enjoyed the privileges allowed by the license; and they are not responsible for any acts done by them, in pursuance of the said license and permission, *258before the same was countermanded by the plaintiffs. They are therefore not liable to pay any expenses for removing the old dam; but for building a new dam, or repairing the old dam, after the license was countermanded by the plaintiffs, we think the defendants are clearly liable, and that the plaintiffs are entitled to have the same abated at the expense of the defendants.