Clapp v. City of Boston

W. Allen, J. The only question presented by these exceptions is, whether the petitioner can recover damages for the interference by the respondent with the use of the well and hydraulic ram situated on the land of Lewis. The right granted by Olmstead to Ballord was to maintain the then existing well and ram, and, if this easement was not extinguished by the location of the highway through the land and the consequent abandonment of the easement by the petitioner, it could not be changed by him to a different place on the same parcel of land. The case finds that the well and ram were placed by the petitioner, where they were situated when interfered with by the respondent, by virtue of a parol license from Lewis, who had acquired the title of the land from Olmstead. This gave the petitioner no estate or right in the land. It was a permission by the owner, which excused acts done under it which without it would be unlawful; and which was revocable, not only at the will of the owner, but by his death, or by alienation or demise of the land by him, and by whatever should deprive him of the right to do the acts and to give permission to do them. When the respondent took the land of Lewis, it took from him the right to do the acts upon the land which he had licensed the petitioner to do, and the right to license the doing of them; and the license given by him was thereby determined. The license by Lewis passed no estate or right in the land out of him which could be reserved to the licensee when the respondent took the land, or on account of which Lewis’s damages for such taking could be reduced. When the respondent took the land, the right to maintain upon it the hydraulic ram was in Lewis, and not in the petitioner; and, in using the land for the purpose 369 for which it was taken, no right of the petitioner was interfered With, and no damage was done to his property. Cook v. Stearns, 11 Mass. 533. Cheever v. Pearson, 16 Pick. 266. Drake v. Wells, 11 Allen, 141. Exceptions overruled.