Willi ams, Ch. J.
The questions reserved are, whether the plaintiff could recover any thing; and if so, whether damages should be assessed upon the principle that he had a right to have the house remain on the land, or only had a right to remove it.
The plaintiff claims, that by putting the house upon the land of Case, by his consent, Prince remained the owner of it, with a right to have it remain there. It has been decided in Massachusetts and Maine, that the house^pp^Dther building remains the property of him who placed it there, and is personal property in him. Wells v. Bannister, 4 Mass. Rep. 514. Marcey v. Darling, 8 Pick. 283. Ashmun v. Wil[379]*379liams, 8 Pick. 402. 404. Curry v. Com. Ins. Co., 10 Pick. 540. Ricker v. Kelly, 1 Greenl. 117. In these states, it will be remembered, that they have no court of chancery with ordinary chancery powers. This court, however, in Benedict v. Benedict, 5 Day, 464. 467. seem to have adopted the ancient common law doctrine, that a fixed and permanent building erected upon another’s land, even by his license, became his property; but if, in its nature and structure, it was capable of being removed, and a removal was contemplated by the parties, it was personal estate in the builder; and where the license was improperly revoked, resort must be had to a court of chancery. As the defendant in this case has not claimed the property in the building to be his, but has taken it down, and left the materials for the owner, it does not seem to be necessary for us to inquire whether the doctrine held in Massachusetts, or that adopted by a majority of this court in the case above cited, is correct. We need only inquire whether if the plaintiff had a right to this building, the defendant was justifiable, under the circumstances of the case, in taking it down ; in Other words, whether the license to build, by Dudley Case, gave a right to Prince and his heirs and assigns, to keep this house in that place. Was it an interest assignable, transmissible to heirs, and liable to be sequestered for his debts ?
The plaintiff takes the affirmative of this proposition. He says, it is a license executed, and therefore irrevocable. As a general rule, that proposition is correct. But it cannot be true, when some other principle of law is to be violated, by such a construction. Thus, if a man authorize another to take away a certain dam, by which his land is flooded, and it is done, no attempt to revoke or alter its effect can be available. But it does not follow from this, that if a license was given to erect the dam on the land of another, and continue it there forever, the license to continue it would be irrevocable. If it did, it would be in the face of the statute which requires all conveyances of an interest in lands to be in writing. For a license, by which this. dam could be continued in this place forever, would be as effectual in that case as a deed for the same purpose ; and no case has been cited that goes this length. In Web v. Paternoster, Palm. 71. where license was given to put a stack of hay upon land, it was held, that it could not be countermanded, until after a reasonable time had elapsed. This [380]*380was, however, before the statute of frauds. In Winter v. Brockwell, 8 East, 308. where Lord Ellenborough recognized this principle, the plaintiff permitted the defendant to create a sky-light over his own premises, through which the plaintiff claimed a right to air and light; and Lord Ellen-borough held, that it was not countermandable, at least without placing the party in the situation in which he was before. In Tayler v. Waters, 7 Taun. 374. it was held, that a ticket to the defendant and his assigns, for twenty-one years, to visit the theatre, was not an interest in lands within the statute; and a case is there cited, ( Wood v. Lake, Sayer 3. S. C. Burrough’s MSS. p. 36.) that a license to stack coals on land for seven years, cannot be revoked in three years. The case of Liggins v. Inge, 7 Bingh. 682. (20 Serg. & Lowb. 287.) was also cited. The parties were both mill-owners on the same stream. The defendant cut down a bank on his own land and erected a weir, by consent of the plaintiff’s father, by which the water was diverted from the plaintiff’s mill. Finding an injury to result, notice was given to the defendant to raise the bankas before, and a suit was brought. The court held, that as the plaintiff’s father had in effect consented to this diversion of the water, he must be considered as having abandoned his right to have the water flow in that course, and could not complain. In these cases, it was held, that no interest was conveyed in the land ; and in the last case, the court intimate a very decided opinion, that if that was attempted, the conveyance would be void. In one case, it is said, that Lord Mansfield ruled, that if a man stood by, and saw another build on his land, he could not sustain an action of ejectment. 5 Term Rep. 556. This, however, has been sanctioned, it is believed, by no other judge. In Matts v. Hawkins, 5 Taun. 23. Gibbs, J. doubted it; and it was holden, by the court of King's Bench, that where a license was granted to erect a cottage, on land of the lord, and it was actually erected, this was not a license, but a grant which might be recalled immediately, a mere permission to occupy. The King v. Horndonon-the-hill, 4 Mau. & Selw. 562. And we know it is every day’s practice, in such cases, to resort to a court of equity for redress, which -would be entirely unnecessary, if Lord Mansfield’s opinion was considered as law. And in the case of Benedict [381]*381v. Benedict, 5 Day 469. Judge Swift says, in such case the only remedy of the purchaser is in equity.
This subject is treated by Parker, Ch. J., in the case of Cook v. Stearns, 11 Mass. Rep. 533, 538. in a most satisfactory manner. “ Licenses to do a particular act,” says he, “ do not, in any degree, trench upon the policy of the law, which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land, for a particular purpose, and to enter upon it, at all times, without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by the statute.”
But whatever might have been the effect of this between the parties, here third persons are interested. The defendant has purchased this estate, without any notice of the plaintiff’s claim. Had the plaintiff taken a deed from Dudley Case, and not recorded it, he could not have claimed against this defendant; and can he be in a better situation by a parol license than he would have been by a deed ? The policy of our law is, that titles to real estate shall appear upon record, so that all may in this way be informed where the legal estate is< But were this new mode of conveyance to prevail, incumbran-ces might frequently be found to exist, against which no vigilance could guard, no diligence protect.
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Willi ams, Ch. J.
The questions reserved are, whether the plaintiff could recover any thing; and if so, whether damages should be assessed upon the principle that he had a right to have the house remain on the land, or only had a right to remove it.
The plaintiff claims, that by putting the house upon the land of Case, by his consent, Prince remained the owner of it, with a right to have it remain there. It has been decided in Massachusetts and Maine, that the house^pp^Dther building remains the property of him who placed it there, and is personal property in him. Wells v. Bannister, 4 Mass. Rep. 514. Marcey v. Darling, 8 Pick. 283. Ashmun v. Wil[379]*379liams, 8 Pick. 402. 404. Curry v. Com. Ins. Co., 10 Pick. 540. Ricker v. Kelly, 1 Greenl. 117. In these states, it will be remembered, that they have no court of chancery with ordinary chancery powers. This court, however, in Benedict v. Benedict, 5 Day, 464. 467. seem to have adopted the ancient common law doctrine, that a fixed and permanent building erected upon another’s land, even by his license, became his property; but if, in its nature and structure, it was capable of being removed, and a removal was contemplated by the parties, it was personal estate in the builder; and where the license was improperly revoked, resort must be had to a court of chancery. As the defendant in this case has not claimed the property in the building to be his, but has taken it down, and left the materials for the owner, it does not seem to be necessary for us to inquire whether the doctrine held in Massachusetts, or that adopted by a majority of this court in the case above cited, is correct. We need only inquire whether if the plaintiff had a right to this building, the defendant was justifiable, under the circumstances of the case, in taking it down ; in Other words, whether the license to build, by Dudley Case, gave a right to Prince and his heirs and assigns, to keep this house in that place. Was it an interest assignable, transmissible to heirs, and liable to be sequestered for his debts ?
The plaintiff takes the affirmative of this proposition. He says, it is a license executed, and therefore irrevocable. As a general rule, that proposition is correct. But it cannot be true, when some other principle of law is to be violated, by such a construction. Thus, if a man authorize another to take away a certain dam, by which his land is flooded, and it is done, no attempt to revoke or alter its effect can be available. But it does not follow from this, that if a license was given to erect the dam on the land of another, and continue it there forever, the license to continue it would be irrevocable. If it did, it would be in the face of the statute which requires all conveyances of an interest in lands to be in writing. For a license, by which this. dam could be continued in this place forever, would be as effectual in that case as a deed for the same purpose ; and no case has been cited that goes this length. In Web v. Paternoster, Palm. 71. where license was given to put a stack of hay upon land, it was held, that it could not be countermanded, until after a reasonable time had elapsed. This [380]*380was, however, before the statute of frauds. In Winter v. Brockwell, 8 East, 308. where Lord Ellenborough recognized this principle, the plaintiff permitted the defendant to create a sky-light over his own premises, through which the plaintiff claimed a right to air and light; and Lord Ellen-borough held, that it was not countermandable, at least without placing the party in the situation in which he was before. In Tayler v. Waters, 7 Taun. 374. it was held, that a ticket to the defendant and his assigns, for twenty-one years, to visit the theatre, was not an interest in lands within the statute; and a case is there cited, ( Wood v. Lake, Sayer 3. S. C. Burrough’s MSS. p. 36.) that a license to stack coals on land for seven years, cannot be revoked in three years. The case of Liggins v. Inge, 7 Bingh. 682. (20 Serg. & Lowb. 287.) was also cited. The parties were both mill-owners on the same stream. The defendant cut down a bank on his own land and erected a weir, by consent of the plaintiff’s father, by which the water was diverted from the plaintiff’s mill. Finding an injury to result, notice was given to the defendant to raise the bankas before, and a suit was brought. The court held, that as the plaintiff’s father had in effect consented to this diversion of the water, he must be considered as having abandoned his right to have the water flow in that course, and could not complain. In these cases, it was held, that no interest was conveyed in the land ; and in the last case, the court intimate a very decided opinion, that if that was attempted, the conveyance would be void. In one case, it is said, that Lord Mansfield ruled, that if a man stood by, and saw another build on his land, he could not sustain an action of ejectment. 5 Term Rep. 556. This, however, has been sanctioned, it is believed, by no other judge. In Matts v. Hawkins, 5 Taun. 23. Gibbs, J. doubted it; and it was holden, by the court of King's Bench, that where a license was granted to erect a cottage, on land of the lord, and it was actually erected, this was not a license, but a grant which might be recalled immediately, a mere permission to occupy. The King v. Horndonon-the-hill, 4 Mau. & Selw. 562. And we know it is every day’s practice, in such cases, to resort to a court of equity for redress, which -would be entirely unnecessary, if Lord Mansfield’s opinion was considered as law. And in the case of Benedict [381]*381v. Benedict, 5 Day 469. Judge Swift says, in such case the only remedy of the purchaser is in equity.
This subject is treated by Parker, Ch. J., in the case of Cook v. Stearns, 11 Mass. Rep. 533, 538. in a most satisfactory manner. “ Licenses to do a particular act,” says he, “ do not, in any degree, trench upon the policy of the law, which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land, for a particular purpose, and to enter upon it, at all times, without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by the statute.”
But whatever might have been the effect of this between the parties, here third persons are interested. The defendant has purchased this estate, without any notice of the plaintiff’s claim. Had the plaintiff taken a deed from Dudley Case, and not recorded it, he could not have claimed against this defendant; and can he be in a better situation by a parol license than he would have been by a deed ? The policy of our law is, that titles to real estate shall appear upon record, so that all may in this way be informed where the legal estate is< But were this new mode of conveyance to prevail, incumbran-ces might frequently be found to exist, against which no vigilance could guard, no diligence protect. Our records would be fallacious guides ; and when we had gained all the information they could give, we should remain in doubt as to the title. It is much better to leave those who had ventured to rely upon the word or honour of another, to resort to that word or honour for their redress, J than to suffer a person who had resorted to the official register, to be defeated, by secret claims of this kind. The law cannot prefer the claims of those who take no care of themselves to those who have faithfully used all legal diligence. If a loss is to be sustained, it is more reasonable that he who has neglected the means the law put into his power should suffer, rather than he who has used those means.
It is said, however, that notice is to be implied, because Prince's possession was notorious. But of what was this notice ? That he was in possession ; and of nothing more. It did not prove, that he claimed title, or that he was other thgn [382]*382the tenant of the owner of the farm. The purchaser, finding the possession of the farm generally in the representatives of Dudley Case, and that the same was sold under an order of probate as the property of Case, was not bound to presume, that a corner of the lot occupied by Prince was claimed by him as his property. If he examined the records, they showed, that the whole farm had been conveyed since such occupation by Case as his own. And such an occupation is surely very slight evidence of title.
The actual notorious possession of real estate, by a bonajide purchaser, may, with other circumstances, be evidence against a purchaser or creditor, that he had notice of the conveyance when he purchased, and so that his purchase was a fraud upon such possessor. But here no other fact exists tending to shew any fraud upon him. Upon this simple fact no such inference can be drawn.
Perhaps, however, it is not necessary to consider even these questions, because the license given in this case is not of the character claimed. It was a mere personal privilege, given to Prince, the elder, and never extended to his heirs or assigns. Now, if Case had put this into a deed, and granted him a license to erect a house there, for his use, surely the most that could be claimed would be an estate there for his life. It would not be assignable or transmissible to heirs. When then this license is given by parol, it imports just what men unskilled would think it imported. A good understanding existing between these two men, and the owner of the land, being willing to have the other for a neighbour, instead of giving him a deed of land, which would authorize him to introduce any one he might choose, says, “ you may build a place for you to live in.” It is a personal privilege; and without saying whether it is countermandable at the will of the owner or not, we have no hesitation in saying, that it expires when he who is the object of it dies. The rule is, that “ a license doth not extend but to him to whom it is given, and cannot be granted over.” The King v. Newton, Bridg. 115. Howes v. Ball, 7 Barn. & Cres. 481. (14 Serg. & Lowb. 90.)
In the case of Jackson d. Hull v. Babcock, 4 Johns. Rep. 418. where one Goodrich gave a license in writing to one Hitchcock to build a house about the pool at New-Lebanon, and occupy it during his necessity or pleasure, and Hitchcock built a [383]*383small house, and occupied it seventeen years, and then sold it to one Cragie, the court held, that Hitchcock had only a personal license or privilege to inhabit, and had no title to the premises; and that his sale to Cragie put an end to this privilege.
Here, Prince, the father, not only sold to the plaintiff, but both he and Dudley Case are dead; and unless this is an interest assignable or transmissible to heirs, it is extinguished.
If the right was then extinguished, perhaps no notice to remove the building was necessary. JBut if it was, the ejectment which has been brought, the recovery under it, and the possession taken, are sufficient notice that the defendant intended to resume his rights. More than a year after possession was taken under the ejectment had elapsed, and the plaintiff did not remove the building. This surely was a reasonable time ; and the defendant had as good a right to take away the building from his premises as in the case of Web v. Paternoster, before cited, he had a right to turn his cattle into a field where he had allowed the plaintiff to stack his hay, and a reasonable time had elapsed for him to take it away. Palm. 71.
The remaining question is, has he done this in a reasonable and proper manner ? The house might have been worth more to the plaintiff, had it been removed without taking it to pieces; but the plaintiff had provided no place for it; and surely the defendant was not bound to provide one, nor could he be bound to incur that expense.
It is not shewn, that the defendant has been guilty of any wanton destruction of the property, or any unnecessary injury in taking it down. If not, and he had a right to remove it, it is not easy to see upon what principle he can be liable for any damages. Had he interfered with an attempt of the plaintiff to remove the building, a different question would have arisen. But as the plaintiff neglected, for so long a period, to make this attempt, the defendant was justifiable in removing it himself.
The superior court are therefore advised to enter up judgment for the defendant.
The other Judges were of the same opinion.
Judgment for defendant.