Clute v. Carr

Downer, J. The appellant alleges that the circuit court erred in giving the following instruction to the jury: “If Doty either owned the land or was agent having authority to do so, and encouraged the building of the mill, and agreed to flow-age, and the water has not been raised above the height that he gave permission to raise it, plaintiff cannot recover, unless [533] it Ras been, raised since' it passed from the ownership of Doty or his principal. A parol or oral license or permission is sufficient.” A license is an authority to do some one act or series of acts, on the land of another, without passing any estate in the land. Cook v. Stearns, 11 Mass., 536; Mumford v. Whitney, 15 Wend., 390; 3 Kent’s Com., 452. The instruction was to the effect that a permanent right to overflow the land of the plaintiff could be created by license or permission. This would be giving it all the effect of a deed or grant, provided it had once been acted on. And the respondent contends that such is the doctrine of courts of equity. We think, however, that the weight of authority is against him; and that the doctrine that a license executed is irrevocable, must be confined to those licenses under which, when executed, it cannot be claimed that any estate ox interest in lands passed ; as a license to go upon land and cut and remove trees, or to pass over it, or hunt. See authorities above cited; also French v. Owen, 2 Wis., 250. It follows that the instruction was erroneous. By the Cowrt. — The judgment of the circuit court is reversed, and a venire de novo awarded.