Hall v. Chaffee

13 Vt. 150

• Court: Supreme Court of Vermont
• Decided: January 15, 1841
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

We think the plaintiff’s title sufficient to maintain this action. Possession, with the consent of the owner, is sufficient. Hull v. Fuller, 4 Vt. R. 199. The Nutting lease limited the erections to those specified, and might have been avoided for non-fulfilment of this condition subsequent, either by the lessor, his heirs or assigns; but it could not be so avoided by the defendants, who are mere strangers.' If the lessor does not insist upon the condition, a mere stranger cannot. The deed from Bradley, too, although of the same date with the writ, will be presumed to have been first executed, and, of however short duration the plaintiff’s right may have been, it is sufficient. He is not obliged to delay a single hour. For while he delays, his forbearance is ripening the defendant’s intrusion into right.

The licence, upon which the defendants rely, we do not think can avail them. We do not doubt, that the authorities upon which the counsel for defendants base themselves, may be well founded. Doubtless a parol licence to flow water back upon land, when once executed, becomes irrevocable, to some extent, in equity, and this although it may be an interest in lands, &c. It is considered irrevocable upon the ground that there has been such part performance, as will justify a court of equity in compelling a conveyance of the right. How far such licence executed, could be enforced against a bona fide purchaser, without notice, (except from the use,) is more questionable.

But, in the present case, the licence, in its very terms, was absolutely revocable, at will. If Fletcher sustained any injury, and by this we can only understand legal injury, he reserved the right of revoking the license. If it caused no such injury, the defendants did not require it for their protection. So that the license amounted to just nothing. And we think that Bradley and Fletcher may well insist upon the very terms in which the license was given, that is, if it produced no injury. We should do manifest violence to the import of language, and all safe construction, to say that this condition signified any (considerable) injury. It is any, the least, injury, and we can make nothing more or less of it.

Note — by Redeield, J. — Since delivering the opinion of the court, in the above case, and writing out my opinion for the reporter, a late treatise, upon the subject of easements, has come to my hands, in which the cases upon the effect of a parol license to an easement in, or to the use of land, are collected, and very ably reviewed, both by the author of the text, and the American editor. Gale & Whately on the law of Easements, pp. 12, 31. Both the author and the editor obviously inclined to the view, as a corrollary, fairly deducible from all the cases, that such parol license is so far coun-termandable as to make the licensee a trespasser, for going upon the land, or liable to an action for continuing the use of the land, after the revocation, although not liable to any action for what had been done under the license, before revocation, which last proposition is in accordance with all the cases upon the subject. I have no doubt many cases, both English and American, may be found, and those of high authority, which either directly or incidentally recognize the doctrine, that a parol license to enjoy an easement, growing out of land, when once executed, becomes irrevocable, even at law, and the right thus acquired permanent. Taylor v. Waters, 7 Taunton, 374. Wood v. Lake, Saye, 3. S. C. Burrough’s Mss. p. 36. Webb v. Paternoster, Palmer, 71. Winter v. Brockwell, 8 East. 308. 14 Serg. & R. 267. 4 id. 241. But I apprehend the just weight of authority, both English and American, in' regard to the rights of the parties at law, is, that such license is within the statute of frauds, and, unless in writing, countermandable at will, even when executed, so as to make any further enjoyment of the easement a ground of action. If such a license be given by pa-rol, and expense incurred upon the faith of it, so that the parties cannot now be placed in statu quo, there would seem to be the same reason why a court of equity should grant relief, as in any other case of part performance of a parol contract for the sale of land, or any interest therein, i. e. to prevent fraud. Such is the view expressed by the court in Prince v. Case, 10 Conn. R. 375. So also in Benedict v. Benedict, 5 Day, 469. But this point is not here decided.

Judgment reversed, and new trial granted.