Wingard v. Tift

24 Ga. 179 | Ga. | 1858

Benning J.

By the Court. delivering the opinion.

Ought the Court to have dissolved the injunction ?

This depends upon, whether the equity of the bill, had been sworn off by the answer.

The answer says: “that some time during the year 1849, complainant granted and gave to defendant, and one Jesse Floyd, the right and privileges of putting into the waters of Flint river, on his pretended soil and bed of said stream, and lying opposite said lot of land, 324, as many fish traps, as defendant and said Floyd desired, without regard to the number thereof, kind, or manner of locating them, asking and requiring in consideration therefor, a mess of fish occasionally; ” and that during that year, the defendant (Wingard) and Floyd accordingly built a dam and put in traps.

[1.] This was a license to build a dam and put in traps, in 1849, not in 1857. There is nothing in the tertns of this license, to give to Wingard and Floyd, the right to renew the dam and traps ad infinitum, as often as they might be swept away by the waters. The dam and traps had been, twice or thrice, swept away before 1857, when the last renewal was about to be made, to prevent which the bill was filed.

[2.] Again, there is no dispute, that such a license is revocable, if its revocation does no damage to the person to* whom, it has been granted. Therefore if Tift had chosen to revoke this license, before the first dam and traps had been put in, he might have done so. In that case, the license could not have been the means of putting Wingard and Floyd, to any expense. So, Tift might revoke the license at any time after the dam and traps had been swept away, for then, things would stand just as they stood in the beginning. This Tift, once and again, did do. His forcible entry and detainer suit, brought in 1855, or 1S56, to prevent the renewal of the dam and traps — a renewal then first undertaken although they had then been swept away as long before as 1S52, was, itself, sufficient evidence of a revocation.

The present .bill of Tift, is further evidence of the same thing, and it was filed before Wingard had begun to put in the new dam and traps. Hall vs. Boyd & Campbell, 14 Ga. R. I.

This defence, then, set up in the answer, is not sufficient; and this, is the whole defence. The Court, therefore, was right in refusing to dissolve the injunction,

I must say too, that in my opinion, 'a verbal license is within the statute of frauds; and therefore, that, whether ¡acted upon or not, it is revocable at any time, at the option j of the licenser. And this, I think, is the clear result of the English cases, as they stand at present. See Wood vs. Leadbetter, 13 Mas. & W., 838; Cocker vs. Cooper 1, Cramp. M. & Ros. 418; Hewlans vs. Shippam, 5 B. & C. 222; Bryan vs. Whistler, 8 B. & C. 288; Wallis vs. Harrison, 4 M. & W. 538; Sug. Ven. P. 137.

The case of Sheffield vs. Collier, 3 Kelly, is, perhaps, not necessarily adverse to this vieAv. In that case, the two Colliers 'were joint tenants of the whole lot, each, therefore, by virtue of this tenancy, was rightfully in possession of the whole lot. The agreement between them, amounted to an agreement, to partition the land a certain way, such.a way as to give to one brother, the right to use the part that was to go to the other, for certain purposes. Here, was, at least, a plenty of consideration. Sheíñeld merely succeeded to the right, whatever it was, of the latter brother, becoming himself tenant. In such a case, it may, perhaps, he true, that an action of trespass would not lie.

And, then, there is the principle of contribution among joint tenants and tenants in common — a principle, which, perhaps, may have some hearing in such a case. .

Judgment affirmed.