Walkup v. Evans

1 Cal. Unrep. 231

• Court: California Supreme Court
• Decided: November 6, 1865
• Docket: No. 707
• Status: Published

Opinion

SAWYER, J.

There was no error in excluding the testimony offered and rejected. It would not have constituted a defense if admitted, and was, therefore, immaterial. And for the same reason there was no error in refusing to allow defendants to amend their answer. They did not propose to show any agreement between plaintiff and defendants, but public declarations of plaintiff not even claimed to have been made to defendants or acted on by them.

Judgment affirmed.

We concur: Sanderson, C. J.; Currey, J.; Rhodes, J.

SHAFTER, J.

In Foot v. New Haven & Northampton Co., 23 Conn. 233, the plaintiff gave the defendants license to erect a culvert on their land to turn a current of water over his land, which the defendants did at their own expense, and the license so given was held to be a revocable one.

In Jamieson v. Millemann, 3 Duer (N. Y.), 255, the plaintiff was lessee of land, of which the defendant had the reversion, and gave the defendant license to enter and erect an ice-house on the same. After he had partly completed it, the plaintiff forbade his entering, and thereby revoked the license. It was held that he might do so without tendering any amends to the defendant for the moneys he had expended. And see Cook v. Stearns, 11 Mass. 533; Cowles v. Kidder, 4 Fost. (N. H.) 364, 57 Am. Dec. 287; Stevens v. Stevens, 11 Met. 251, 45 Am. Dec. 203; Mumford v. Whitney, 15 Wend. (N. Y.) 380, 30 Am. Dec. 60, and Coleman v. Foster, 37 Eng. L. & Eq. 489. These cases are all based upon the principle that neither a freehold interest nor an easement in lands can be created except by deed or prescription. A license will protect the licensee against damages resulting from acts done under it but furnishes no defense to a bill filed to restrain him as to the future, I concur in the judgment.