Dorsey, J.,
delivered the opinion of this court.
The only question, discussed by the appellant’s counsel, and on which the opinion of this court was called for, on the first bill of exceptions was, whether, as the plaintiff had not located the patents and title papers of his land upon plots returned to the court, under a warrant of re-survey issued for that purpose, he could give such patents and title papers in evidence to the jury, and prove, that the grievance complained of, was perpetrated by the defendant in respect of those lands.
In an action relating to lands, if the defendant does not see fit to take defence on warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy between the parties. Without such plots he may read his title papers in evidence to the jury; prove his [226] possessions under them, and show by oral or other testimony the injury he complains of; and for which he seeks indemnity.
The case of Medley vs. Williams, et al., Lessee, the only case relied on by the appellant as sustaining his position, bears no resemblance to the case now before us. There, defence was taken on warrant, and locations made, and this court held that a title paper, of which there was no location, could not properly be offered in evidence; on the well established principle of correspondence between the pleadings and the proof. But here, no warrant of survey being required by either plaintiff or defendant, no plots or locations could be made in the cause. The county court, therefore, are exempt from the error complained of in the first bill of exceptions.
But the county court, we think, erred in rejecting the testimony offered by the appellant in his second bill of exceptions. The plaintiff having offered the testimony stated in the first bill of exceptions, showing the diversion of the stream from its natural channel, on his land, where it was accustomed to flow; the defendant offered evidence to show, that the diversion of the water complained of, was made on the lands of the defendant, above the lands of the plaintiff, and, that it was rather a benefit than an injury to his lanílg^, and that it was made in virtue of a verbal agreement, entered into by the plaintiff and defendant; by which, it was agreed, that the defendant might make the diversion, as now complained of, for the purpose of working a mill, to be erected by the defendant on his own land; if he, the defendant, would allow the plaintiff the use of a wagon road, from the lands of the plaintiff, over the lands of the defendant. That, in pursuance of the agreement, the plaintiff used the said road; and the defendant, at an expense upwards of $4000, (encouraged so to do by the plaintiff,) erected the said mill; which mill was of no value, without the said privilege of diverting the water, as “Aforesaid. That the plaintiff made no objection to the diverting of the stream of water, till shortly after the completion of the mill; when the plaintiff demanded of the defendant a large pecuniary compensation for the use of the water; and that the dam, erected on [227] the defendant’s land for the diversion of the same, should be abated; and, that the aforesaid conduct of the plaintiff was fraudulently designed, for the purpose of extorting money from the defendant. Upon the objection of the plaintiff’s counsel, the court refused to permit the aforegoing facts to go to the jury: and in so doing, we think, the county court were clearly in error. If admissible for any purpose, the court was not authorized in rejecting the testimony. In mitigation of damages it was surely admissible; but it was admissible, as evidence, upon other grounds, and for other purposes. For even conceding, what we by no means admit to be true, that the aforementioned agreement did not confer on the defendant a privilege or license, to divert and use the water which the plaintiff could not, at pleasure, countermand; yet, as the defendant had done no act towards diverting the water from its accustomed flow, over the lands of the plaintiff, since the countermand, he could not, by such countermand, be rendered a wrong doer, ab initio; or be made responsible in damages for acts done upon his own land, and with the express permission and authority of the plaintiff himself. If ever the maxim, “volenti non fit injuria,” was applicable to any case, it must be conclusive on this.
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Dorsey, J.,
delivered the opinion of this court.
The only question, discussed by the appellant’s counsel, and on which the opinion of this court was called for, on the first bill of exceptions was, whether, as the plaintiff had not located the patents and title papers of his land upon plots returned to the court, under a warrant of re-survey issued for that purpose, he could give such patents and title papers in evidence to the jury, and prove, that the grievance complained of, was perpetrated by the defendant in respect of those lands.
In an action relating to lands, if the defendant does not see fit to take defence on warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy between the parties. Without such plots he may read his title papers in evidence to the jury; prove his [226] possessions under them, and show by oral or other testimony the injury he complains of; and for which he seeks indemnity.
The case of Medley vs. Williams, et al., Lessee, the only case relied on by the appellant as sustaining his position, bears no resemblance to the case now before us. There, defence was taken on warrant, and locations made, and this court held that a title paper, of which there was no location, could not properly be offered in evidence; on the well established principle of correspondence between the pleadings and the proof. But here, no warrant of survey being required by either plaintiff or defendant, no plots or locations could be made in the cause. The county court, therefore, are exempt from the error complained of in the first bill of exceptions.
But the county court, we think, erred in rejecting the testimony offered by the appellant in his second bill of exceptions. The plaintiff having offered the testimony stated in the first bill of exceptions, showing the diversion of the stream from its natural channel, on his land, where it was accustomed to flow; the defendant offered evidence to show, that the diversion of the water complained of, was made on the lands of the defendant, above the lands of the plaintiff, and, that it was rather a benefit than an injury to his lanílg^, and that it was made in virtue of a verbal agreement, entered into by the plaintiff and defendant; by which, it was agreed, that the defendant might make the diversion, as now complained of, for the purpose of working a mill, to be erected by the defendant on his own land; if he, the defendant, would allow the plaintiff the use of a wagon road, from the lands of the plaintiff, over the lands of the defendant. That, in pursuance of the agreement, the plaintiff used the said road; and the defendant, at an expense upwards of $4000, (encouraged so to do by the plaintiff,) erected the said mill; which mill was of no value, without the said privilege of diverting the water, as “Aforesaid. That the plaintiff made no objection to the diverting of the stream of water, till shortly after the completion of the mill; when the plaintiff demanded of the defendant a large pecuniary compensation for the use of the water; and that the dam, erected on [227] the defendant’s land for the diversion of the same, should be abated; and, that the aforesaid conduct of the plaintiff was fraudulently designed, for the purpose of extorting money from the defendant. Upon the objection of the plaintiff’s counsel, the court refused to permit the aforegoing facts to go to the jury: and in so doing, we think, the county court were clearly in error. If admissible for any purpose, the court was not authorized in rejecting the testimony. In mitigation of damages it was surely admissible; but it was admissible, as evidence, upon other grounds, and for other purposes. For even conceding, what we by no means admit to be true, that the aforementioned agreement did not confer on the defendant a privilege or license, to divert and use the water which the plaintiff could not, at pleasure, countermand; yet, as the defendant had done no act towards diverting the water from its accustomed flow, over the lands of the plaintiff, since the countermand, he could not, by such countermand, be rendered a wrong doer, ab initio; or be made responsible in damages for acts done upon his own land, and with the express permission and authority of the plaintiff himself. If ever the maxim, “volenti non fit injuria,” was applicable to any case, it must be conclusive on this.
But, regarding this license as countermandable, upon what terms is the plaintiff to be restored to his former rights? Can he require of the defendant to be at the expense, and endure the labor, of removing structures lawfully erected, and by the express authority of the plaintiff? The manifest injustice of such a requisition, is an answer to the question. How, then, is the plaintiff to be restored to rights which he is authorised to demand? By doing justice to the defendants: by tendering to him the expense which he has incurred, under the This principle was announced in the case of Winter vs. Brock* we.ll, 8 East, 308. "'Where an action being brought for a private nuisance, by the erection of a sky-light over the defendant’s open area; at the trial, the defence set up was, that the area, which belonged to the defendant’s house, had been enclosed and covered by a sky-light, in the manner stated, with [228] the express consent and approbation of the plaintiff, obtained before the enclosure was made; who, also, gave leave to have part of the frame work nailed against his wall. But, sometime after it was finished, the plaintiff objected to it; and gave notice to have it removed. But Lord Ellenborough “was of opinion, that the license given by the plaintiff to erect the skylight, having been acted upon by the defendant, and the expense incurred, could not be recalled, and the defendant made a wrong-doer: at least, not without putting him in the same situation as before, by offering to pay all the expense which had been incurred in consequence of it; and, under this direction, the defendant obtained a verdict.” In this case in East, there was no consideration given for the license; and the nuisance, by which the plaintiff suffered from the acts done under it, was a serious one; and yet, Lord Ellenborough subsequently, on a motion for a new trial, after stating that he had looked into the books on the point, reiterates the doctrine that he had before laid down, except as to tender of expense to be made to the defendant; and states, that in one of the cases to which he refers, “Haughton J. lays down the rule, that a license executed is not countermandable; but only when it is executory.” The testimony offered by the appellant in the case before us, is not only admissible, but is, if believed by the jury, a conclusive bar to the right of action of the appellee. Such was the decision in the case, (almost identical with the present,) of Liggins vs. Inge, 7 Bingham,, 682, reported in 20 Eng. C. L. Rep. 290; and to that effect arp the cases above referred to by Lord Ellenborough. And Kezick vs. Kern, 14 Serg. & Rawls, 267. The opinion now given, is not, as was urged in the argument for the appellee, in conflict with the decision of this court, in the case of Hays vs. Richardson, 1 Gill & Johns. 866. There the right, claimed under an instrument of writing, not acknowledged and recorded, agreeably to the registry laws of the State, was a right of way over the lands of the person intending to grant it, and was an use, thereof, to the extent of the right asserted; and came within the very terms of the act of Assembly for the enrolling of conveyances, viz: that “no [229] manors, lands, tenements, or hereditaments whatever, within this province, shall pass, alter, or change from one to another, whereby the estate of inheritance or freehold, or any estate for above seven years, shall be made or take effect in any person or persons, or any use thereof to be made, &c.,” unless the conveyance be executed, acknowledged, and recorded, in the manner therein prescribed. But, in the case before us, the appellee passed to the appellant no estate or interest in his land, or any use thereof. He simply agreed to abandon the use of the water, in the manner in which it had been accustomed to flow on his land. And the moment the abandonment was consummated by the execution of the license, the right of the appellee to the use of the water, as it formerly flowed in its natural channel, became extinct; it was no longer appurtenant to his land; and he, thenceforth, held it as if no such privilege or appurtenance had ever belonged to it. And this view of the subject, in no wise, contravenes the prominent object of our enrolment laws, the protection of purchasers. When a purchaser views the land he desires to acquire, he sees it divested of its water right, and contracts for it accordingly: so that no injustice is done him.
We are not to be understood in what we have said, as countenancing the idea, that a written grant, unacknowledged and unenrolled, of a power similar to that conferred by the license in this case, but which power had not been executed, would be operative and effectual to bar a subsequent bona fide purchaser, for a valuable consideration without notice, claiming the water right naturally incident to the lands he had purchased. To interpose such a bar, in such a case, we think the same conformity to the provisions of our registry laws is necessary, that would be required if land were the subject of the conveyance.
The doctrine, insisted on in the argument of the counsel for the appellant, that an oral contract, of no validity under the statute of frauds, would obtain such validity, and would enable a party to maintain an action upon it at law, if he could prove that the opposite party perpetrated, or designed to per[230] petrate, a fraud, when he entered into the contract. A replication, charging such fraud to the defendant, in an action at' law, instituted on such a contract, would be no answer to the defendant’s plea of the statute of frauds. If a party on whom such a fraud has been committed, has relief any where, it must be sought in a court of equity; at law it cannot be obtained.
Assenting to the opinion of the court, on the first bill of exceptions, but, dissenting from its refusal to admit, in evidence, the testimony offered by the appellant in the second bill of exceptions, we reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.