Foster v. Browning

Ames, C. J. This is a motion for a new trial, on the ground of misdirection of the jury, by the judge trying the cause, in matter of law. It appears that he, in substance, charged the jury, that if they were satisfied that Elisha Watson, the former owner of the locus, ox, so-claimed, servient estate, had licensed by parol, Abiel T. Browning, his heirs and assigns, as owners or occupiers of the farm appurtenant to which the right of way was claimed, or so-claimed dominant estate, forever-«to use the way, and Browning had expended moneys in opening and building the way on the faith of the license, that the license thereby became irrevocable at law by Watson, or by the plain-. tiff, as his successor in title to the locus, at least, unless the moneys so expended had been first paid back or tendered to Browning; and that notwithstanding any proof that there might be of revocation of the license, unaccompanied by such payment or tender, it afforded a full defence to one of the defendants, as the tenant, and to the other, as the servant of the tenant, of Browning, against the trespasses complained of in using the way licensed, and in casting down walls built by the plaintiff in obstruction of the same. *51 We are all of opinion that the learned judge erred in this direction, to the jury, and that, consequently, a new trial of the cause must be awarded. The revocability of a mere license to enter upon and use the lands of the licensor, whether the license be by deed or by parol, is an ancient well-settled doctrine of the common, law. A license of this sort, as such, is revocable in its very nature, without regard to the solemnities with which it is executed. If, however, the right intended to be granted was a fixed, and especially if a- perpetual easement in lands of another, as a right of way or the like, to one and his heirs, or to one, his heirs and assigns, as owners of a certain estate, it never was the subject of a license, properly so called, but of a grcmt, and could be proved or maintained at the common law, only by the production of the sealed instrument entitled a grant, or by prescription or long use which supposes such an instrument. But even if this were questionable at the common law, it is settled here, by the statute of this state, (Dig. 1844, p. 257,) entitled “ An act regulating conveyances of real estate,” which provides by its first section, “ that no estate of inheritance or freehold, or for a term exceeding one year, in lands or tenements, shall be conveyed from one to another by deed, unless the same be in writing, signed, sealed, and delivered by the party making the same; ” and which further provides, in substance, by the second section, that such conveyances shall be void, except between the parties and their heirs, unless also acknowledged and recorded. The word “ tenements,” in the first section of this statute, by its own force, includes every thing which may be holden, and so, things incorporate, though they do not lie in tenure. Co. Lit. 6 a. 3 Kent’s Com. 401, 4th ed. That this word is thus inclusive, in the sense in which it is used in the statute, is evident from the* second section, which, in reference to the same subject-matter, adds the word “ hereditaments,” — the words of that section being, “ lands, tenements, or hereditaments.” The last word, says Coke, “ is the largest word of all in that kind; for whatever may be inherited is an hereditament, be it corporeal! or incorporeall, reall or personall, or mixt.” Co. Lit. 6 a. We know not upon what pretence a court of law can hold, *52 against such a statute, a parol conveyance of a perpetual easement in land good, because a consideration therefor has passed from the grantee to the grantor ; or, to use the language of the common law improperly in application to such, a conveyance, that a license of this sort is irrevocable, when executed by expenditures made upon the faith that the license will not be revoked, even though it be added, unless such expenditures • be first repaid or tendered. Decisions to that effect may undoubtedly be found; but we may say of them, as was said by Mr. Sugden, referring- tó the statute of frauds, of one of them, (Wood v. Lake, Sayer, 3,) “ that they are in the very teeth- of the statute.” 1 Sugd. Vendors, 97, 7th Am. ed. The more recent English cases of Wood v. Ledbitter, 13 Mees. & Welsb. 838, in the court of exchequer (1845); of Taplin v. Florence, 3 Eng. Law & Eq. R. 520, in the court of common pleas (1851); and of Ruffey v. Henderson, 8 Eng. Law & Eq. R. 305, in the queen’s bench (1851), show that the law is well settled in England in accordance with the views which we have taken; and the opinion of the court, in Wood v. Ledbitter, delivered by Baron Alderson, quite exhausts the whole doctrine on the subject of licenses. The current of authority in this country sets with equal strength in the same direction, as may be- seen by referring, amongst others, to -the cases of Cook v. Stearns, 11 Mass. 537 ; Ruggles v. Lesure, 24 Pick. 190; Claflin v. Carpenter, 4 Metc. 583; Nettleton v. Sikes, 8 Metc. 54; and Stevens v. Stevens, 11 Metc. 251, in Massachusetts; — to Ex parte Coburn, 1 Cowen, 570; Miller v. Auburn R. R. Co. 1 Hill, 61; Mumford v. Whitney, 15 Wend. 380 ; and Houghtailing v. Houghtailing, 5 Barb. Sup. Ct. R. 379, in New York; — to Prince v. Case, 10 Conn. 375, in Connecticut; — to Barnes v. Barnes, 6 Verm. 388; and Leland v. Gasset, 17 Verm. 403, in Vermont; —to Den v. Baldwin, 1 Zabriskie, 390, in New Jersey; — to Hays v. Richardson, 1 Gill & Johns. 366, in Maryland; — to Clinton v. McKenzie, 5 Strobh. 36, in South Carolina ; — and to Woodward v. Seely, 11 Ill. 157, in Illinois. In Maine, New Hampshire, Pennsylvania, and Ohio, and perhaps in some other states, the exploded doctrine of some of the earlier English cases is still maintained at law upon equita *53 ble grounds of estoppel, and part-performance of a parol contract, which certainly from their inherent justice would commend themselves to our attention as a court of law, had we not full powers as a court of equity to do justice in a proper case of this sort when applied to on that side of the court. In the recent case of Weeden v. Babcock, in this county, this court, sitting in equity, by way of perpetual injunction of a suit at law, specifically enforced a parol contract for the exchange of one private way for another, upon the equitable ground that the contract had been performed by the party applying, and, the way having been given up for the purpose of a railway track, and having been thus extinguished, because the applicant could not be placed in the situation in which he was before performance on his part. We do not-doubt our ability to do full justice in like cases requiring our aid as a court of equity; and we deem it much safer that equities of this sort, often to be nicely adjusted, and sometimes demanding mature consideration, should be administered, through ‘appropriate and flexible remedies, on that side of the court, than by the rougher and less discriminating intervention of a jury, and, scantily as they must be, in the unyielding forms of the common law. The motion for a new trial in this case is in general terms, and if granted as asked, will open to the jury who are to try the cause all the issues which are made up in it. We were asked, however, by the applicant for a new trial, at the argument, inasmuch as a prescriptive right of way appurtenant to the farm of Abiel T. Browning in whose right the defendants justify, is pleaded, and has been found against them, to limit the new trial to the plea of license, and allow the verdict to stand as to the plea first named. This would be, in effect, to order a judgment to be entered up against the defendants, except so far as the mere question of the amount ofi damages is concerned. Now, although it is true that in granting new trials we are expressly empowered by statute to grant them under such restrictions and conditions as we may prescribe, (Dig. 1844, pp. 89,90,) and it is not unusual, at least when they are granted for causes not involving any fault of the court, to impose proper conditions upon the applicant, in the way of costs, or even of *54 limiting the issues, or points under the general issue, to be opened to him in the new trial, (Hutchinson v. Piper, 4 Taunt. 555. Thwaites v. Salisbury, 7 Bingh. 437. Baxter v. Nurse, 6 Mann. & Grang. 940-942. Winn v. Columbian Ins Co. 12 Pick. 287, 288. Robbins v. Townsend, 20 Pick. 351. Allen v. Mapes, 20 Wend. 633, 634,) or. to grant them, unless the other party-releases an excess of damages, or does some other justice in the cause, and so to impose a condition upon him, if he would prevent the new trial, (Stephenson et al v. Mansony, 4 Ala. 317, 318,) yet where, as in this case, the ground upon which the new trial is granted is an error of the court, it, at least, is not customary to impose any conditions upon the applicant, unless indeed, the court has acquired a right so to do by his previous consent. Baxter v. Nurse, sup. Tuttle v. Gates, 11 Shepley’s R. 395, 397, 398 ; but see Robbins v. Townsend, sup. We are not aware, however, of a practice anywhere, which authorizes the court to fix any terms whatever upon the party against whom the application is made, unless by way of an alternative, which he must accept or endure the new trial. Certainly it was never known that the party applying could have the issues found against him opened, whilst those in his favor were to stand against his adversary, who asked no indulgence and received none in return from the court, when it was employed merely in correcting its own error. At all events, no such practice has been known in this state, and this is not a case which appeals to our discretion to introduce it. The plaintiff has thus far disclosed no equities which aid him in obtaining from ufe advantages in his pursuit of the defendants. He stands upon the strict law, to which he is entitled, and we are not disposed to abridge the chances of the defendants in successfully resisting this action upon any of the issues which the record as originally made up opens to them. A new trial generally is therefore awarded.