Albrecht v. Drake Lumber Co.

67 Fla. 310

• Court: Supreme Court of Florida
• Decided: March 31, 1914
• Status: Published

Opinion

Taylor, J.,

(after stating the facts) — Two questions are presented in this case: (1) Where the owner of land, without consideration, by parol, gives license to another to build, locate and construct a railroad on and across his land, and the licensee at great cost executes such license by constructing such railroad and puts it into actual operation for the purpose of transporting logs to his sawmill located upon other land, is- such license revocable at the will and pleasure of the licensor or of his grantee of the land who became such grantee after .the execution of such license?

(2) Is such grantee, who purchased the land subsequently to the construction and operation thereon of such railroad, in a position legally to object to the maintenance of such railroad on such land or to cause or have the same removed therefrom, or to obstruct its operation thereon ?

While there is conflict in the authorities as to the first of these two questions, yet the great weight and preponderance thereof are on the side of a negative answer thereto, and hold that a parol license, without consideration, to construct upon the land of the licensor any permanent structure, such as an irrigation ditch, a mill-dam or railway, can not be revoked at the licensor’s pleasure, where the licensee, in consequence of the license, at great cost has erected his mill, or constructed his railroad. See the leading case of Rerick v. Kern, 14 Serg. & Rawle, (Pa.) 267, as reported in 16 Am. Dec. 497, and numerous citations both pro and con in the copious notes to that case; Shaw v. Proffitt, 57 Ore. 192, 109, Pac. Rep. 584, 110 Pac. Rep. 1092; 26 Am. Cas. 63. In the case last cited it is held: “That an express oral license, becoming irrevocable by execution, by expenditures in perma,nent improvements in .reliance thereon, inuring to the benefit of the licensor, if relating to .the use or occupation of real estate, becomes an easement. The licensor’s attempted revocation of the express license, which has been executed by expenditure in permanent improvements by the licensee to the knowledge of the licensor, is a fraud, against which equity will relieve by estoppel.”

The second of these questions must likewise be anstvered in the negative. The appellant when he purchasd the. land took it with the burden of the railroad thereon and is not in position to object to its presence or to sue for or recover damages therefor.' Roberts v. Northern Pacific R. R. Co., 158 U. S. 1, 15 Sup. Ct. Rep. 756; Bennett v. Booth, 70 West Va. 264, 73 S. E. Rep. 909, 39 L. R. A. (N. S.) 618; Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 South. 381.

The court below correctly refused to dissolve the temporary injunction and the order appealed from is hereby affirmed at the cost of the appellant.

Shackleford, C. J., and Whitfield, J., concur. Cockrell, J., concurs in the result. Hocker, J., takes no part.