Swift, J.
When a man builds a house on the land of another, by a mere parol licence or contract, he is, as to the use of the land, a tenant at will. He cannot be viewed in the light of a trespasser; but in strict law, the house belongs to the owner of the soil ; who can, at any time, revoke the licence, and eject the tenant. Of course, the builder of the house, cannot maintain ejectment against I he owner of ihe land.
It has been contended, that the nature of such parol licence is an agreement that the house shall remain on the land, so long as it shall last ; and being executed in part, a court of law can carry it into effect. But I apprehend, that the real contract is, that the house shall continue on the land, during the pleasure of the owner of the land : At any rate, what is conclusive on this point, is, that if a parol licence, even when carried info effect, will give the builder a right to continue [469]*469iSie house, so long as it shall last, and to maintain ejectment for it, then real estate may he transferred by parol which is directly contrary to the statute.
The plaintiff’* case cannot lie stronger than this. Rut. suppose a man agrees to sell another a piece of land, puis him into possession, and the tenant builds a. house upon it, and the seller then refuses to execute a deed of conveyance ; •in such case, Hiere is no question but that, at law, the seller can bring his action of disseisin, and recover the possession of the land, notwithstanding the parol contract is in part executed ; and that the only remedy of the purchaser is in chancery.
Jndetd, in this case, there is no question, but that the owner of the land, can bring his action of disseisin, and turn the builder of the house out of possession. If this be so, then it follows, most conclusively, that the present action cannot be sustained.
Reeve, J.
If this case were to be considered independently of any positive laws, by which it is regulated, I apprehend, that no person could be at a loss how to decide the question.that has arisen in it. If the enquiry should be made of a man of sound understanding, unacquainted with the technical dogmas of legal science, what he thought of the right of a man to a house, which he had been at the espence of building on bis neighbour’s land, by his permission, it would never occur to him, that there was any qualification to this right. He would suppose, that it was the same right that lie might have to a house built by him upon his own land ; for in this case, the house came into existence, by means oflhe builder’s own honest industry ; and that he acquired the same right to it, that any person acquires to an article produced by his own skill and labour.
If A, should build a house on land, the property of no one; for instance, upon a desolate island, upon which he might be east ; his right to it, would be a perfect right: And if any person should attempt to deprive him of the possession, he might use all legal means to regain that possession. And [470]*470where (lie owner of land, lias abandoned the possession of it, with a licence tliaf another should occupy ii for a special purpose; as in (his case, to build a house upon ii ; it would seem to him, manifestly unreasonable, that the owner of the land,should disturb him in the possession of such house, or in any way prevent him from enjoying it. It would scon to him, that no man living ought to he indulged, with impunity, in preventing another from enjoying the fruits of his industry, when he, himself, consented, that he should build a house on his land, and which, by his permission, came into existence at the expence of the builder, being the product of his labour, and erected with the understanding, that lie alone should enjoy it. This would be a fraudulent and unreasonable act, oa the part of the owner of the land, e\ en if he should not attempt to convert the house to his own u»e, but should claim a right to compel the builder to remove it.
It would be difficult for this plain man to conceive, why the owner of the land should be indulged in this caprice, after having consented, that the builder should erect and enjoy the house, without molestation ; which, in most cases, would deprive the builder of the whole value of 11k house. In such a case, the builder would reason thus: You gave your free consent that I should build a house upon your own land, and never revoked that consent, but suffered the house to be finished ; and 1, therefore, became vested with a perfect, indefeasible right to the producl of my labour. And if the owner of the land should urge, that he had a good rigid to interrupt the enjoyment of the builder, because the land was his own, the answer to such a man would be, you permitted it to be done, and it is not reasonable that you should now wrongfully deprive me of the labour of my own hands, either by claiming the house yourself, or by obstructing me in the enjoyment of it. This claim would appear to he as unfounded, as if the owner of the land, should permit the builder of a house, to take timber from his land, for ¡he purpose of erecting a building, and the builder should erect il on his own land, and the owner of the timber should claim a right to take away the building, for the reason that the timber grew on bis land.
[471]*471The decision of a man possessing nothing but good sense, and a good conscience, 1 have no doubt, would lie in favour of the builder. And while he was declaring, that to his mind, the case was a very clear one, we will suppose him to he interrupted by some sage of the law, who teils him, Whatever of equity there is in jour case, it is nothing to the purpose : We are before a court of law ; and by the laws of the laud, a house is real propel fy, and cannot he conveyed hut by deed ; and that deed must he recorded ; and then reads to him our statute, which reipiii' s, that the sale of a house, as wcil as a sale of land, to lie recorded. [ think the plain man would foul no difficulty in answering the argument. He, douiitless, could say, that the rule of law could not apply to Ihc case in hand. The house did not exist. There was not even a parol conveyance. No act was done l>y the owner,of the land, except to grant permission, by parol, to build the house : But this was no conveyance. Will it be said, that there ought to have been a conveyance, after the house was built, to give the builder a title Í If this was necessary, it must be on the ground, that it was the property cf the owner of the land, by reason of its being built on his land ; that he had the same perfect legal right to it, as if he had built it himself ; and that it is a necessary legal result, that whoever owns the land on which a building may be erected, owns the building also.
'I'he court will not say, surely, that this is so, in the present case. It cannot be said, that if A. builds a house on R.’s land, and pays him a consideration for the privilege, that as soon as the house is finished, B. has as perfect a right to ii, as if lie had built it himself, unless it is a necessary legal result, or in other words, that there can be no case, in which the house is the legal property of one man, and the land, the property of another. Indeed, in the reasons given by the court, it does not seem to be their opinion, that ft. would obtain a perfect legal title, or indeed, any title, whatever, to the house. If he does, equity can never interfere to take it away from him, any more, than it could deprive him of the trees growing upon his land Let, then, the evi-[472]*472deuce be adduced, that B. permitted A. to build, and that he did build. And to this there can be no legal objection ; fot it is not claimed, that there was any parol conveyance ; and it must be admitted, on the reasoning of the court, that the equity of A.'s claim in iv be shew n. The court, then, cannot say, that by such means, tí, could obtain a legal title to the house ; unless, as I have before said, it results from a ñecos sary legal principle ; but it is not so, for no point is bettn understood, than that land may he conveyed away to one. with the exception of a house. All the land within certain bounds, including that on which the house stands, is conveyed ; but the house is excepted. But the house, if sold, must be sold by deed, for it is real property ; unios in case where the house is to be taken down ; in which case, it has been held, that the contract for the sale, is not within the statute of frauds and perjuries.
The rule, as laid down, and not controverted, is this ; certain land is sold, and a building is. excepted ; the land on which the building stands is conveyed, unless something appears in the deed, to the contrary. So, if a house is destroyed by fire, or decay of the land on w hich it stands, the loss must be sustained by the granice, not by tbe grantor. And real property, whatever it may lie, which is reserved though completely severed, by the exception, from Ihe land, remains real estate in the grantor ; a.-, when a bouse is excepted, the grantor owns the house, in fee ¡-implo, and the grantee owns the land beneath it, in fee ¿imple. So, where timber trees were excepted, it was held, that the grantee held the land, in fee simple, and that the grantor had a fee simple in the timber frees. So, where A. granted to tí. am! his heirs, timber trees, by deed, it «a, held, that tí. had a fee simple in alieno solo, as A. owned 1 he soil in fee simple, and B. the trees in fee simple. Anon. 1 Dyer, 19. where the whole dispute was, whether the words in the deed excepted the soil ; for if the soil was not excepted, that would pasi-to the grantee, although the thing reserved and slaudiim thereon, remained in the grantor. This accords with Coke's opinion, Co. Litt. 47.
[473]*473From these authorities, it appears, that one person may own the land, ami another, the house standing thereon, and shall have a fee simple therein. There was no necessity, therefore, of giving a deed after the house w as huilí : for, Ity building, it seems to be admitted, that the builder gained a title to it ; and that his title may he a title in fee, although the land on which it stands, is owned in fee by another.
This view of the subject, agrees, perfectly well, with our own practice, in the distribution of estates. Land is often distributed to one, and a l ouse to another. One chamber is often distributed to ,í,, ami another to li., and these are held by them in lee -imple, without any regard to the land, on which the home stands ; and when the house ceases to exist, they have no claim on the land ; unless we suppose, that the several owners of rooms in a house, hold them in severally, and are tenants in common of the laud on which the house stands. If they thus hold, it would be difficult to find a rule by which to ascertain their several proportions. But this cannot he the case; for when land is given to A. by a will, ail the laud pass, s within the hounds mentioned, with the buildiugs, unless the buildings are given to some other person ; if they are, it operates in favour of the devisee of the buildings, exactly as a grant of lands within certain bounds, with the exception of the buildings, does in favour of the grantor; but to no greater extent.
It is acknowledged, by all writers on the law relating to real property, that where a piece of land is excepted, file buildings on the land, are also excepted, though not named : and where there is a grant of certain lands, the buildings thereon pass, though not named ; bul if there is an exception of any thing else, as herbage or trees, nothing is excepted hut the thing named ; for if tin re is a grant of any tiling ⅜⅜ nothing passes but the thing named. So that if black-acre is devised to ,1.. on which a house stands, which house is devised to /Í., nothing passes to B, but the house; and the land on winch the house stands, together with the rest of black-acre, passes to 4. So there is not the least difficulty in the builder’s recovering the house, which is built by per[474]*474mission of the owner of the lam!, and the land remaining property of the original owner. If (lie land be claimed, on which the house is built, there must he a deed to pass it .⅜) ,)M,sen^ cag6:) the |and jg not claimed.
But it is claimed, that in this way, (lie owner of the land is deprived of the use of hi? freehold ; and that this cannot be, unless he makes a conveyance of it, by deed. This I deny, unless.it amounts to a grant in p/rprlvum. Why may not a man consent, that another shall ba\e such use of hi-. freehold, as to deprive himself of !he use of it. for a tinte Suppose A. is about to build a house near to the land, of B. and is desirous of occupying a part of Zi.’s lot, by placing upon it, materials for building, to which R. eon-cuts, and In covers li.'s land with brick, stone, Are., is not H. deprived ot the use of the land ? And was a d< ed n« treasury ? Was anj thing further necessary than parol evidence, to prove tin licence, and the acts done under it ? Has not the owner o', the materials for building, a perfect legal right to them ' And if interrupted in the possession, is he without remedy And has the owner of the laud, any greater right to inter rupt the possession of the builder, than any other man ? Tht common sense of every man, will answer these questions, ai I could wish them to be answered. It is not true, that tin owner of the land, is deprived of the use of it, by its being covered with materials for building ; and yet, no right ac ernes to the owner to possess, or remove them, or to inierrup the owner in the possession of them. If, then, the occupa fion of land, in the mariner supposed, gives the owner no right over these materials ; how comes it to pass, that when the materials are converted into a house, tha! there should be such a difference as is claimed 1 Deprivation of the use of the land, in oue case, does not make it necessary tha' there should be a deed, or even a memorandum, in willing, and in the other case, it: is claimed, that there must lie sunn memorandum, in writing. It is true, that the inconvcnienct will, probably, continue longer in the one case, Ihan in Ih.e other : But this makes no difference ; for if it was a ease within the law, which requires any writing, the case of cov> [475]*475wing the land with materials, oven for a short time, would as much require a writins, as the case of covering it with a house, lor a longer time. Il’any interest in the land, i#granted with the possession of it, there roust he a wiitten ins>ru-men t, in one case, as* well as in the other. There can be no parol lease, which will he binding, in such c.M‘, . ven tor a day.
Some have supposed, that, parol leases for a year, may be valid, according to the statute, which requires, that all leases for a longer time than a year, must be in writing, and recorded. The object of the statute, was, that leases should be recorded. But previous to this, the statute of frauds required, that every lease should be in writing, whether for a shorter, or longer time than a year. It was not intended, by this statute, to repeal the statute as to leases for one year.
To my mind, it is utterly impracticable, to make any distinction in the cases. If a man may, by licence, deprive himself of the use of his land, by suffering it to be covered with materials for building a house, he may, by suffering it to be covered with a house, ready built. This view of the subject is in perfect accordance with our ideas in relation to all analogous cases. A. is desirous of erecting a dam of a certain height, which will overflow the land of B., and injure it; A. obtains liberty of B. to raise it to that height; arid thus, A. covers the land of B. with water : Will not the licence justify A. ? After licence given, can B. interrupt A. in the enjoyment of his privilege ? is it necessary that B. should convey' the overflowed land to A., in order to confirm his right ? What difference exists between this case, and the case of the house 1 In the latter case, A. covered the land of B. w ith a house, by his permission : In the former case, he covered li'is land with water, by his permission. Shall A. have a right to enjoy the water thus covering the land, without interruption, and not a right to enjoy the house ? Where is the distinction in the two cases ? Whatever title the land can give the owner of it, to the house standing thereon, the same title is given to the water overflowing the land : And [476]*476if the law will protect A. in the enjoyment of the water, it will also protect him in the enjoyment of the house.
The idea that the owner of Sand cannot part with the use of it, except by conveyance, in writing, appears to be utterly without foundation. This position is clear, from the cases adverted to, which are directly in point. And it will be found, that in all analogous cases, the principles for which I have contended, are sustained.
Does not a man deprive himself of the use of his soil, when he sells the ground which may be dug, by the vendee, to any depth ? In this case, the law requires no conveyance by deed, nor even a memorandum, in writing. Is not a man as perfectly deprived of his soil, when he sutlers it to he removed, as when he suffers it to be covered, so that hi cannot use it? It is difficult to perceive the distinction.
Suppose for a valuable consideration, grants a licence to B. to build a house on his land ; accordingly, builds the house, and expends much labour and money in finishing it; A. then interrupts him in the enjoyment of it, enters it himself, and insists, that he has a rigid to enjoy it. At this conduct, every man’s reason revolts; and most assuredly, with such equity in his case, B. must prevail against the un-conscientious claims of A., uidtss there is some maxim of law, so stubborn, that it knows not how to j ield to common sense and conscience.
It has been objected, that ejectment does not furnish the proper remedy in this case. Tins, to me, is inconceivable. If A, enters the house of Jfi., and takes possession of it, and will not suffer B. to possess it; can there he any other more appropriate action to abtain possession, than ejectment ? The authorities, which shew, that this is the proper action, are numerous. It lies for a cottage, Hill v. Giles, Cro. Eliz. 318. Also, for a house. Royston v. Eccleston, Cro. Jac. 654. Also, for a chamber in a second story. Also, fora coal mine, where the owner of the mine did not own the soil : Though a man may have a rigid to a mine, say the court, without any right to the soil; yet, the mine being in a fixed place, the sheriff has a thing certain before him. [477]*477whereof to deliver possession. Comyn v. Kyneto, Cro. Jac. 150. II lies also, for a boilary of salt, where the owner has no interest in. the soil.
Where a room is distributed, and possession is taken, by a wrongdoer, what action ear. he invented, but ejectment ? For how is the real owner to get possession of his room, unless he can eject the intruder ? Is it supposed, that to bring ejectment, the owner of the house must own the land on which it stands ? That could not have been the case, in any of the cases put; for, if the land had been owned by the plaintiff, as welt as the building, it is not possible lo conceive, that any question could have been started ; and there could be no remedy in case of a sate of land, and an exception of the house; for the exception of the house, does not except the land.
1 have heard it suggested, that such house was not real property. Suppose this suggestion to be well founded, the exception would be a very singular one; for by the common law, ejectment can only be brought to recover lease-hold estates for years, which is personal property ; and because, in Comuclintt, the action is used to recover real estate, it is a strange conclusion that it cannot be brought to recover chatte-l* real. If 11. is in possession of a term for years, and C. ejects him, has B. no remedy ?
It is objected, that a licence to build a house on the land of another, is a grant of the profits of the land ; and that the profits of the' land are the land itself; and, of course, there must lie' a de:ed to convey the land, before the owner can be di\ este el of the right of possession. It will be remembered, that the' rule: alluded to, was settled law, long before the statute of frauds ; and I would ask the objector, was not a parol licence, by a parol lease for years, to take the profits of land, binding upon the lessor ? And was not the profits of lanel, as much the land then, as it is now ? And was not a deed as necessary then, as it is now, to convey land ? It could not, then, be understood, that the profit of land, was, in all cases, the land itself; for, if it was, there could never have been a parol lease of land; and thereby, a right to the profits. [478]*478But such was the law, for centum s. Such lessee could not only take the profits, hut «here a house wn= so lei, lie could eject every intruder, and even the owner of the I md in fee. And even now, since the statute of frauds, which requires, at least, a writing, to convey an interest in real property, nothing hut a parol lease is necessary, to take the profits, in such cases as are analogous to the present.
A parol licence to dig gravel, or to dig a quarry of stone, is amply sufficient : And are not the gravel and the stone, the profits of the land ?
The owner of the trees growing upon the land, may sell them by parol ; and the purchaser acquires an indefeasible property in them. Are not the trees, thus sold, the profits of the land ? And yet, a deed is not necessary to convey them.
If (lie owner of land suffers another to cover it with materials for building a house ; does he not deprive himself of the profits of his land, as effectually, in that case, as in this, by covering it with a building ? When the owner of land gives liberty to another, to cover it with water; is he not deprived of the profits, as much in that case, as in this ? What, then, is meant by the rule of law alluded to ? The answer is, that when a conveyance, or devise is made of the profits of land, inperpetuum, it amounts to a fee. In such case, the land can be of no service to any person, if another has a perpetual ownership of the profits. - So a conveyance of the profits of specific lands to a man and his heirs for ever, was, in point of law-, the same thing as a conveyance of the land : And at the time of the estabiishmenbof the rule, the profits might be taken by a mere lessee for years ; and after it became necessary that such lease should be in writing, the profits might be taken, under a lease at will, by the lessee, by a parol licence. And although the tenant at will is liable to be turned off the premises, by the owner of the land ; yet, the owner cannot deprive him of the crops, the fruit of his industry. In these, though growing upon the land, he has acquired a distinct interest from that of the owner of She soil; and any injury sustained by an invasion of his interest [479]*479therein, hv the owner of the soil, is redressed by an appropriate remedy.
Ho, where a house is built, by the permission of the owner of the land, the (milder acquires au interest therein, distinct from the owner of the soil; and if his right of enjoyment is interrupted, lie is entitled to Sus appropriate remedy.
in the present case, the licence is not a licence to take the profits of the land ; and, therefore, not so strong a case, as in tin; sale of timber trees: but it is a licence to cover the land with a building. The licence is not in perpetuum j it cannot, therefore, be considered as a grant of the land. The validity of a licence, under the circumstances of this case, has never before been questioned,
Trumbull and Baldwin, Js., concurred in this opinion.
New trial advised.