Woodbury v. Parshley

7 N.H. 237 | Superior Court of New Hampshire | 1834

By the court.

Richardson, C. J.

The first question to be settled in this case, is, whether parol evidence was admissible to prove a licence to flow the plaintiff’s meadow ?

This question has been settled on sound and satisfactory principles. It is now held, that the statute of frauds does not apply to a parol agreement for an easement for seven years in the lands of another, such as a right of way, or a'privilege of placing 'goods'upon land, or a license lo he exercised upon land. ' ■ -

Thus'in Taylor's v. Waters. 7 Tannton, 374, it was held, that a license to attend a. theatre for twenty-one years might be given without writing. The license is a privilege, to be exercised upon the land, and not an interest in the land. - ■

So in Webb vs. Paternoster, Palmer, 71, a parol licence to lay a stack of hay on land for a reasonable time, was held to be valid. ■

And in Winter vs. Brockwell, 8 East, 308, a parol license to put a sky-light over the defendant’s area, which impeded the light and air from coming to the plaintiff’s dwelling-house through a window, was valid.

In Liggins vs. Inge, 7 Bingham, 682, the plaintiffs father, by oral license, permitted the defendant to lower the bank of a river, and make a weir above the plaintiff ‘s mill, whereby less water than before flowed to the plaintiff’s mill, it was held that the plaintiff could not sue the defendant for continuing the weir.

There are many other cases on the subject. 11 Mass. B. 533 ; 1 Cowen 243 ; 4 East 107 ; 4 M. & S. 562.

In this case, the license gave the defendant no right in the land ; it amounted at most only to a privilege to be exercised upon the land.

The evidence was clearly admissible.

But it is said the jury were misdirected.

The dam was erected by the defendant aiAis 'own expense, with the assent of the plaintí&iaf*the benefit of both.: For if the water could be sold for more than the expense, the plaintiff was to have his share of the price.

And here the first question is, whether under these circumstances the license was revocable at the will of the plaintiff?

The defendant had incurred expenses in erecting the dam. The license had been executed and acted upon. From the nature of the case, the defendant had a right to maintain the dam until he had had a reasonable time to dispose of the right to the water ; and until such reasonable time had elapsed the license was irrevocable. Certainly the plaintiff could not revoke it without tendering to the defendant the expenses that had been incurred in the project. The law on this point is well settled. 8 East, 308, Winter vs. Brockwell; 7 Bingham 682, Liggins vs. Inge ; 7 Taunton 374, Taylor vs. Waters.

Whether a reasonable time had elapsed, to give the defendant an opportunity to dispose of the right to the water, need not be decided. For admitting it had, the revocation imposed upon the defendant no obligation to remove the dam. As it had been erected for the benefit of both, a revocation of the license might give the plaintiff a right to enter and remove the obstruction, if it proved injurious to him. 9 Mass. R. 316, Hodges vs. Raymond. But it certainly imposed no duty upon the defendant. He had made no contract to remove the dam, if the water was not sold. The expense of removing the dam ought in justice to fall on all for whose benefit it was erected. On this point. Liggins vs. Inge, 7 Bingham 682, is a direct authority.

It is clear, then, that the action was not in law maintainable upon the facts in the case : and whether the directions to the jury in other respects were right or wrong, the verdict is right, and there ought to be judgment on the verdict.

Judgment on the verdict.