82 Pa. 174 | Pa. | 1876
delivered the opinion of the court, October 9th 1876.
In the year 1862, John J. Thompson, the defendant below, was preparing to build a saw-mill on his land along Laurel run in Bald Eagle Valley, and had selected the site for its erection. Clement Beckwith, then the owner of the property now belonging to the plaintiff below, had laid out the village of Port Matilda, and urged the defendant to build the mill in the neighborhood of this village, at a point lower down the run than that originally selected. The defendant objected on the ground that his access to the railroad would be made difficult, and that he would be unable to dispose of the waste resulting from the manufacture of lumber. These objections were removed by an agreement finally made between the parties stipulating that the defendant should erect the mill near Port Matilda, should surrender a strip of land which Beckwith wanted to enable him to straighten his lines and to remove a small house he owned, and should saw Beckwith’s lumber at a dollar a thousand less than the current price; in consideration of which Beckwith agreed to give the defendant the right of way for a tramway to the railroad, and' the privilege of casting his sawdust into the stream which flowed for some distance over Beckwith’s property. This agreement was carried into effect. The mill was erected by the defendant, the tramway built on Beckwith’s land to the railroad, and the lumber of Beckwith was thenceforth sawed at the stipulated price. Beckwith took possession of the strip of land surrendered by the defendant and moved his house upon it. Throughout his lifetime he acquiesced in the deposit by the defendant of the sawdust and refuse from the mill, and took precautions to keep the stream clear by cutting away the drift caused by the accumulation of logs and refuse lumber in Bald Eagle creek along his land below the mouth
No essential facts relating to the original agreement or the acts of the parties under it were in dispute. The question submitted to the jury was “whether the injuries alleged to have been done to the land of the plaintiff were caused by the sawdust having been thrown into the stream by the defendant. If they were,” the court charged, “then the plaintiff is entitled to be compensated in damages for the injuries sustained.” The first assignment of error has not been pressed. The second error is assigned to that portion of the charge in which the court said: “ If the right acquired by Thompson from Clement Beckwith was a license, the death of Beckwith, which occurred prior to the commission of the acts complained of by the plaintiff, would have revoked it, and the right of Thompson to throw the sawdust into the stream would have been terminated. If it was an easement, it could not be created in any other way than by grant' or prescription. It is well settled that an easement cannot exist in parol, and as there has been no uninterrupted and exclusive user and enjoyment of said easement for a period of twenty-one years to give title by prescription, we are of the opinion that the defendant’s second ground of defence cannot prevail.” The jury were not permitted to ascertain what the exact character of the agreement between Beckwith and the defendant was. That was unnecessary if the legal view expressed by the court was sound throughout. But if they were in error in ruling that the death of Beckwith extinguished the defendant’s rights, it may be that the jury should have been instructed to decide whether the agreement had created an actual license, or had amounted only to a parol grant of an easement. There is nothing, however, in the exigencies of the case to require a present decision of the question. ' Treating the transaction as having conferred on the defendant a simple incorporeal right, and as having, for his benefit, subjected Beckwith’s land to a mere servitude, the ruling of the court was possibly right. Hess v. McCauley, 3 P. F. Smith 206, at least is an authority for the doctrine, that the grant of an easement, where no principle of estoppel is applicable, cannot rest in parol; that the grant is revocable even where a consideration has been paid, and that the remedy for a breach of the contract is by action. The material inquiry now is as to the accuracy of the instruction that, in any event, Beck-with’s death extinguished the defendant’s rights.
As a license, the authorities on the subject prove that it was irrevocable. In Le Fevre v. Le Fevre, 4 S. & R. 241, where a deed had been executed, conveying a right to a watercourse through the granted land by courses and distances, it was decided that a verbal agreement entered into between the parties for their mutual accommodation, altering the route of the watercourse, could be enforced provided the agreement had been carried into effect. In Rerick v. Kern, 14 S. & R. 267, it was held, that if a parol license be given, without consideration, to use the water of a stream for a sawmill, in consequence of which the grantee goes to the expense of erecting a mill, the license cannot be revoked at the pleasure of the grantor; and if he divert the water to the injury of the grantee, the latter may maintain an action against him. In delivering the opinion in that case, Judge Hibson said: “A right under a license, when not specially restricted, is commensurate with the thing of which the license is an accessory. Permission to use water for a mill, or anything else that was viewed as a permanent erection, will be of unlimited duration, and survive the erection itself, if it should be destroyed or fall into a state of dilapidation. Having had in view an unlimited enjoyment of the privilege, the grantee has purchased by the expenditure of money a right indefinite in point of
The same rule has been long, and it is believed uniformly, recognised in England. It was held in Taylor v. Waters, 7 Taunton 374, that a beneficial license to be exercised upon land may be granted without deed and without writing; and that a license to be exercised upon land for twenty-one years, granted for a valuable consideration, and acted upon, cannot be countermanded. The judge who delivered the opinion referred to Ward v. Lake, Sayer 3, as deciding that a license to stack coals on defendant’s close for seven years cannot be revoked at the end of three. The case of Liggins v. Inge, 7 Bing. 682, in its principles strongly resembles this. The plaintiff’s father, by oral license, permitted the defendants to lower the bank of a river, and make a weir above the plaintiff’s mill, whereby less water than before flowed to the mill. It was held, that plaintiff could not sue the defendants for continuing the weir. “We consider the license,” said Tin dal, C. J., in entering the judgment, “ to be simply an acknowledgment, on the part of the plaintiff’s father, that he wanted the water no longer for the purposes of his mill, and that he gave back again and yielded up, so far as he was concerned, that quantity of water which found its way over the weir which he then consented should be erected by the defendants. And we think after he has once clearly signified such relinquishment, whether by words or acts, and suffered other persons to act on the faith of such relinquishment, and to incur expense in doing the very act to which his consent was given, it is too late then to retract such consent, or to .throw on those other persons the burden of restoring matters to their former state and condition.” He said further: “ This is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like; which license, if countermanded, the party is put in the same situation as he was before it was granted; but this is a license to construct a work which is attended with expense to the party using the license; so that after the same is
The ground was taken by the plaintiff’s counsel at the argument that nothing was done by the defendant on the faith of the agree-, ment, and that the rule of the cases quoted could therefore have no application. It was said that “ Thompson proposed to build the mill at all events, and did build on his own land. The mill could be enjoyed as well and be of as much use to him at one place as at the other.” That is hardly so, for the change caused the very embarrassment in disposing of the mill waste against which it was the object of the agreement to provide. Suppose a man having selected a site for a building, changes it .and builds his house adjoining that of a neighbor at the latter’s invitation. In doing this he closes up the windows on one side of the neighbor’s house. Is it possible that at the neighbor’s death his heir or alienee may enforce the destruction of the builder’s house by setting up the doctrine of ancient lights ? Or suppose the offered use of a right of way were the-motive for the change. Could the neighbor’s heir or alienee oust the builder from the enjoyment of the right because he possessed by the agreement only an easement resting in parol grant ? In reference to the argument, it is enough to say that the defendant changed the location of his mill, and placed it where he did not want it, at the persistent instance of Beckwith; that his objections to the change were founded on the' inconvenience of access to the railroad from the new site, and the difficulty of disposing of the sawdust; and that the use of the land for the tramway, and the right to deposit the sawdust in thé stream offered by Beckwith, were the motives that induced him to consent. The same reason that would justify the revocation of the license to use the water, would justify the revocation of the lidense to maintain the tramway. The entire agreement has been executed, and every advantage he sought in making it having been gained by Beckwith, the rights derived by the defendant from it became absolute and irrevocable.
Judgment reversed and venire de novo awarded.