Mosher v. Cook United, Inc.

405 N.E.2d 720, 62 Ohio St. 2d 316, 16 Ohio Op. 3d 361, 1980 Ohio LEXIS 749

Opinions

Per Curiam.

Because appellant either elected to waive, or failed to make other arguably relevant legal challenges, we are confronted here with but one proposition, that being whether appellant, as a business invitee, possessed an irrevocable license to remain on appellee’s premises so long as he behaved in an orderly manner. Our answer is that he did not possess such a privilege.

A license has been defined by this court as “an authority to do a particular act or series of acts upon another’s land, without possessing any estate therein.” Rodefer v. Pittsburg, O. V. & C. Rd. Co. (1905), 72 Ohio St. 272, 281, citing Wolfe v. Frost, 4 Sanford’s Chancery 72. One who possesses a license thus has the authority to enter the land in another’s possession without being a trespasser. Rodefer, supra. The parties do not dispute that appellant’s initial presence on appellee’s property was authorized by virtue of a license. The conflict concerns the revocability of the license.

Footnotes

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* If the license was revocable at the will of appellee, appellant became a trespasser at the point of revocation and his basis for relief is unfounded.

5 Restatement of Property 3133-34, Section 519, speaks to revocation of licenses. That section provides:

“(1) Except as stated in Subsections (2), (3) and (4), a license is terminable at the will of the possessor of the land subject to it.

“(2) In the termination of the license of one who has entered upon land under a license, the licensee must be given a reasonable opportunity to remove himself and his effects from the land.

“(3) A license coupled with an interest can be terminated only to such an extent as not to prevent the license from being effective to protect the interest with which it is coupled.

“(4) A licensee under such a license as is described in § 514 [dealing with licenses analogous to easements] who has made expenditures of capital or labor in the exercise of his license in reasonable reliance upon representations by the licensor as to the duration of the license, is privileged to continue the use permitted by the license to the extent reasonably necessary to realize upon his expenditures.”

Appellee was, therefore, entitled to revoke appellant’s license for any purpose, reasonable or not, unless any of subsections (2) through (4) were applicable. The record is clear that none of these subsections were applicable. Accordingly, upon the theory propounded by appellant before this court, appellee was legally justified in demanding that appellant leave the premises. Since appellant has failed to establish a basis for relief, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, C. J., Herbert, W. Brown, P. Brown, Sweeney and Holmes, JJ., concur. Hofstetter, J., dissents. Hofstetter, J., of the Eleventh Appellate District, sitting for Locher J.

Some authorities include revocability at will within the definition of a license. See 3 Powell on Real Property, Paragraphs 427, 428; Greenwood Lake & P. J. Railroad Co. v. N. Y. & G. L. Railroad Co. (1892), 134 N.Y. 435, 440, cited in Rodefer, supra, stating that “[a] license is a personal, revocable, and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein.” (Emphasis added.) We treat revocability here as but a characteristic of licenses rather than as a condition to finding that a license in fact exists, in order to avoid circular reasoning in light of appellant’s concession that a license is involved in this cause.