Woodward v. Seely

11 Ill. 157

Opinion

Opinion by Mr. Justice Trumbull :

Footnotes

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This bill was filed to restrain the defendants from prosecuting certain actions which they had commenced, and perpetually to enjoin them from instituting others, to recover damages for the overflow of their lands; the complainants alleging that said overflow was by the license and.permission of the defendants, and occasioned by the erection of a mill-dam upon their own land, which they had been at great expense in constructing. None of the actions at law had been disposed of, when the bill was filed, though several were then pending, and the defendants were continuing to commence them at intervals of every few daysA °

Canrthis bill be maintained ? We think not. There is no instance in which a bill of peace, where the parties were not numerous, has been sustained, to prevent multiplicity of actions at law, before the rights of the parties have been settled in a Court of law. The principle that a party cannot come into equity to enforce his rights, when he has a full and complete remedy at law, is too familiar to require the citing of authorities to support it. The license in this case, if valid and effectual, constitutes a complete defence at law,; and until that defence has been established, and the defendants continue after-wards to harrass the complainants by vexatious suits, chancery has no jurisdiction in the matter. Eldridge vs. Hill, 2 John. Ch., 281; West vs. Mayor, &c., New York, 10 Paige, 539. But admitting that chancery has jurisdiction, and thatthe complainants have established by proof, the granting of a parol license to overflow the land of the defendants, as they insist—the evidence of which is by no means satisfactory—are they entitled to the relief sought? We are aware that there is some conflict in the authorities, as to the effect of a parol license to enter upon the lands of another; that a distinction has been drawn between an easement or privilege in land, and a license or authority to do something upon land, and that different Courts have arrived at opposite conclusions, as to the necessity of a writing, to take cases out of the statute of frauds, while professing to found' their decisions upon the same authorities. In this state the question is new, and we feel at liberty, in the conflict of authorities, to settle it upon principle, and what we believe to be the true interpretation of the statute, without attempting to examine and explain the numerous cases upon the subject of parol licenses, which have been so often reviewed and commented* upon by the various Courts, both of this country and England.

What then is a license? Simply the permission to do something which, without such permission, would have been unlawful. It matters not whether granted by deed or by parol; as a mere license, it is always revocable at the will of the licensor, but when coupled with an interest, and executed, it is irrevocable, and this constitutes the distinction between revocable and irrevocable licenses. In the books, this is illustrated by the case where a man authorized another to hunt in his park, and carry away the deer which he should kill.*' Here is a license todmnt, coupled with a grant or right to carry off the deer, and is,TOerefore, irrevocable when acted upon, and the deer killed, until they are carried away, if in a reasonable time; but a mere license to hunt in one’s grounds, whether by deed or by parol, is revocable at any moment. When the license is coupled with an interest in land, or of such a character that the interest could not pass by parol, then a writing is essential to the creation of the interest, otherwise no interest passes. In this case, the license, while unrevoked, authorized the complainants so to erect their dam as to overflow the land of defendants, and released them from the damages, to which they would otherwise have made themselves liable in so doing, but did it give them the right to overflow the lands of the defendants, and deprive them of their use perpetually and forever? If so, the license certainly carried with it an interest in the land, and if the grant of the interest was valid, the license became irrevocable. But can such an interest be granted by parol? To hold that it could, would, to use the language in 1 Sugden on Vendors, 80, be “in the very teeth of the statute,” which declares that every contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, shall be in writing. If one man can acquire by parol, the right so to use another’s land as to render it useless to the owner, it will be but taking a short and easy step, and going very little further, to hold that he may acquire the title itself, by parol; for of what avail is it to a man to have the naked title to a piece of land, which he cannot use, but which, in spite of him, anothw has the right to keep forever covered with water ?

A right of way, it is said, cannot be granted by parol, but must e founded upon a deed, or writing, or presumption which preupposes one, and it is difficult to conceive how the right to pass over the land of another should constitute an interest in it, incapable of being granted by parol, while the right to cover it with water constitutes no such interest. In our judgment, a license perpetually to overflow the land of the defendants would create an interest in it, and, therefore, could not be granted byparol ; consequently, the license in this case carried with it no interest, and was revocable at the will of the party granting it. The defendants have chosen to revoke it, and thereupon the complainants became liable for any subsequent overflow of the land. It makes no difference that the complainants may have acted upon the parol license, and erected valuable buildings, which will become worthless in case the license is revoked: before acting so imprudently, they should have' acquired permission by deed to overflow the land of the defendants. Nor can the complainants call upon a Court of Equity to enforce the license, upon the ground that they have made valuable improvements, and expended their money, relying in good faith upon it. It is not like the case of a parol purchase of land, where the purchaser contracts to pay the value of the land, enters into possession, and makes valuable improvements, when a Court of Equity will compel the vendor, who has received the purchase money, to make a title to the land; and Courts have some times regretted that the statute should so far have been departed from, as to allow parol contracts for the sale of lands, even under such circumstances, to be enforced. To enforce the license in this case, where nothing was ever paid or agreed to be paid the defendants, for the privilege of flowing their land, and where no improvements have been made upon, or possession taken of it, except by covering it with water, would be a still farther departure from the statute, by extending a doctrine, originally of doubtful propriety, and which, if it were a new question, would now perhaps be settled otherwise. A reference to a few modern decisions, analagous in principle, is all that is deemed necessary in support of the views we have expressed. The case of Wood vs. Leadbbtter, decided in the Court of Exchequer in 1845, and reported in 13 Meeson & Welsby’s Rep., 837, is the mostrecent English decision upon this subject that has come to our notice. In that case, the plaintiff had purchased a ticket of the proprietor of the Doncaster race course, for which he paid a guinea, and which was understood to entitle him to come into the stand and enclosure surrounding it, and remain there every day during the races. While in the enclosure, he was requested by the defendant to leave, and upon his refusing to comply, the defendant, by the direction of the proprietor of the race course, turned him out, and for so doing the plaintiff brought suit. The Court, after reviewing most of the cases upon the subject of parol licenses which had been decided in England, came to the conclusion, that a right to come and remain for a certain time upon the land of another, could be granted only by deed ; and that a parol license to do so, though money be paid for it, is revocable at any time, and without paying back the money. Consequently, it was held that the plaintiff could not recaver, though he had in nowise misbehaved, and that his having paid a valuable consideration for going on the stand, made no difference. The cases of Fentiman vs. Smith, 4 East, 107; Rex vs. Horndon on the Hill, 4 M. & Sel., 565; Hewlins vs. Shippam, 5B. & C., 222; Bryan vs. Whistler, 8 B. & C., 288, and Wallis vs. Harrison, 4 M. & W., 538, are referred to as sustaining the decision in the case of Wood vs. Leadbetter. In Gale & Whatley’s Law of Easements, 29, the result of all the decided cases is stated to be, “ that a man may, in some cases, by parol license, relinquish a right which he has acquired in addition to the ordinary rights of property, and thus restore his own and his neighbor’s property to their original and natural condition; but he cannot by such means impose any burden upon land in derogation of such ordinary rights of property; as for instance, a parol license will be valid for building a wall in front of his ancient windows, while a similar permission to turn a spout on his land, from a neighboring house, will be invalid and revocable.” Tested by the law as here stated, the license in this case was clearly invalid, as it did impose a burden upon the land of the defendants, in derogation of what ordinarily belonged to it, and there can be no difference in principle, whether water is turned upon the land of another by means of a spout or a mill-dam. In the United States there are numerous cases to the same effect. Cook vs. Stearns, 11 Mass., 533; Stephenses. Stephens, 11 Met., 251; Thompson vs. Gregory, 4 John., 81; Miller vs. Auburn and Syracuse R. R. Co., 6 Hill, 61; Mumford vs. Whitney, 15 Wend., 381. The cases of McKilliss vs. Mcdhaney, 4 Watts, 317, and Woodbury vs. Parshby, 7 N. H., 237, and upon which plaintiff’s counsel principally relies, are admitted to lay down a doctrine in conflict with the views we have expressed; hut those cases are entitled to the less weight as they were both decided upon the authority of cases which have either been expressly overruled, or else do not sustain the conclusions they were cited to establish. Especially is this so as to the cases of Webb vs. Paternoster, Palmer, 71; Wood vs. Lake, Sayer, 3; and Taylor vs. Waters, 7 Taunton, 374; all of which are overruled, or shown to be without authority, by the decision in the recent case of Wood vs. Leadbetter.

The decree of the Circuit Court is affirmed.

Decree affirmed.

Mr, Justioe Catón haying been of counsel, did not sit at the hearing of this cause.