Thoemke v. Fiedler, 91 Wis. 386

Thoemke v. Fiedler

91 Wis. 386 | Wis. | 1895

37ewmaií, J.

The oral agreement under which the ditch across the defendants’ land was made did not create an easement in the land. An easement is a permanent interest in *390the lands of another, with a right to enjoy it fully and without obstruction. Such an interest cannot be created by parol. It can be created only by a deed in writing, or by prescription. But this agreement did have the effect of a parol license. A license creates no estate in lands. It is a bare authority to do a certain act or series of acts upon the lands of another. It is a personal right, and is not assignable. It is gone if the owner of the land who gives the license transfers his title to another, or if either party die. So long as a parol license remains executory it may be revoked at pleasure. So an executed parol license, under which some estate or interest in the land would pass, is revocable. . Otherwise title would pass without a written conveyance,, “in the teeth of the statute of frauds.” Nor is such a license made irrevocable by the fact that a valuable consideration is paid for it, or because expenditures have been made on the faith of it. None of these propositions are doubtful, upon the.authorities. Washb. Easem. (4th ed.), 28, 431, par. 14; 6 Am. & Eng; Ency. of Law, 141, and cases cited in note 3; Hazel-ton v. Putnam, 3 Pin. 107; French v. Owen, 2 Wis. 250; Chute v. Carr, 20 Wis. 531; Lockhart v. Geir, 54 Wis. 133; Johnson v. Skillman, 29 Minn. 95; Olson v. St. P., M. & M. R. Co. 38 Minn. 419; Minneapolis Mill Co. v. M. & St. L. R. Co. 51 Minn. 304; Woodward v. Seely, 11 Ill. 157; Wise-man v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 N. Y. 323; Ekerson v. Crippen, 110 N. Y. 585; White v. Manhattan P. Co. 139 N. Y. 19.

Nor could the use of the ditch ripen'into an'easement by prescription, by adverse use, so long as the use' exists and is exercised under the license. Eor in that case it is permissive and not adverse. Cronkhite v. Cronkhite, 94 N. Y. 323; Wiseman v. Lucksinger, 84 N. Y. 31. The use can become adverse only' after revocation. Eckerson v. Crippen, 110 N. Y. 585.

Nor can the parol agreement be enforced in equity by *391way of specific performance. The terms of the contract between Ealkfieimer and Fiedler respecting the ditch are unknown, except that Falkheimer was to have the privilege of draining his' lands through such ditch across Fiedler's lands. The case is entirely hare of evidence showing whether such privilege ivas intended to be perpetual or limited in duration. It is well settled that a court of equity will not enforce specific’ performance of a parol agreement to convey lands, or an interest in lands, when any of the essential terms of the agreement are left in doubt. Hazelton v. Putnam, 3 Pin. 107; Knoll v. Harvey, 19 Wis. 99; Combs v. Scott, 76 Wis. 662; Schmeling v. Kriesel, 45 Wis. 325; Eckel v. Bost-wick, 88 Wis. 493. Mor unless the party entitled moves promptly. The license was revoked in -1878. During all the time since the plaintiff has delayed bringing his .action to enforce specific performance. It is well settled that laches • or unreasonable delay in bringing suit will defeat an action for specific performance of a contract. Combs v. Scott, 76 Wis. 662, and cases cited on page 668; Rogers v. Van Nortwick, 87 Wis. 414. Where one party gives notice to the other that he will not perform it,-acquiescence in this by the other party (not being in possession), by a comparatively brief delay in enforcing his right by an appeal to the courts, will be a bar. McDermid v. McGregor, 21 Minn. 111; Simpson v. Atkinson, 39 Minn. 238; Eastman v. Plumer,A.§ N. H. 464.

There is no ground upon which the plaintiff’s action can be sustained.

By the Court.— The judgment of the county court of Waukesha county is affirmed.