Poughkeepsie Gas Co. v. Citizens' Gas Co.

Gilbert, J. : The trial court found that the pipe in question was laid at the request of Eastman, the owner of the premises over which the same ran, at the plaintiff’s expense, and that it was understood and agreed between the plaintiff and Eastman that the pipe should belong to the plaintiff. These findings are sustained by the evidence. Indeed it is not disputed that the plaintiff owned the pipe at the time it was laid. The only pinpose of it was to conduct a supply of gas to buildings erected upon Eastman’s land, to be furnished by the plaintiff The transaction amounted to a license from Eastman to the plaintiff to eutor upon and use the land for the purposes mentioned. It is perfectly valid, although resting in parol. The statute of frauds does not apply to an executed parol license. (1 Wash. R. P., 399; Mumford v. Whitney, 15 Wend., 381; Wolfe v. Frost, 4 Sand. Ch., 77; Babcock v. Utter, 1 Keyes, 397.) The undisputed facts rebut the idea that the parties intended that the property of the plaintiff in the pipe should be divested by an annexation thereof to the freehold. No doubt the license mentioned could be revoked by Eastman, or by his grantees, and perhaps a conveyance by Eastman of the locus in quo would be per se á revocation. But the latter point was not suggested on the argument, nor does it appear that the convey217 anees put in evidence include the site of the pipe. Until revoked the license remains in force. It does not appear that either Eastman or either of his grantees have at any time notified the plaintiff of a revocation of the license. Nor did the employment of the defendant by some of Eastman’s grantees to supply gas to their houses operate as a revocation, or authorize the defendant to use the plaintiff’s pipe. The defendant’s interference with and use of the pipe was a simple invasion of the property of the plaintiff, and was therefore illegal. The judgment should be affirmed, with costs. Pratt, J., concurred ; BARNARD, P. J., not sitting. Judgment affirmed, with costs.