Garrett v. Bishop

Opinion by Mr. Justice Moohb. [352] 1. It is contended that a parol license cannot be revoked after it has been executed' by the licensee, who, relying upon the faith of the privilege conferred, has expended money in making valuable permanent improvements. The principle contended for assumes that the outlay of money in making such improvements is equivalent to the payment of a valuable consideration for the license, which, having been executed, becomes irrevocable, and is converted into an agreement which equity will enforce, upon the theory that the licensor, having encouraged the improvements which have been made upon the faith of the license, is estopped by his conduct from asserting his strict legal rights. The leading case in support of this principle is Rerick v. Kern, 14 Serg. and R. 267, (16 Am. Dec. 497,) in which it appears that Kern, being about to erect a sawmill on a branch known as the right-hand stream, found a better location on the left-hand stream, and, having obtained Rerick’s permission, built his mill on the latter stream, which, without the aid of water from the right-hand stream, would have been wholly insufficient to operate the mill. No deed was executed or any consideration paid for the privilege; but, after Kern, in consequence of the permission, had put his mill in successful operation, Rerick revoked the license by removing the dam. which was built to divert the water. It was there held that the license, in consequence of the improvement, became irrevocable, Gibson, J., in delivering the opinion of the court, saying: “But a license may become an agreement on valuable consideration, as where the enjoyment of it must necessarily be preceded by the expenditure of money; and when the grantee has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable consideration. Such a grant is a direct encouragement to expend money, and it would be against all con [353] science to annul it as soon as tbe benefit expected from the expenditure is beginning to be perceived. ” The editors of the American Decisions, in their notes to this case, (16 Am. Dec. 497,) after an exhaustive citation of decisions upon the question, say: “From the foregoing review of case law, it will be seen that the doctrine of the principal case, though not recognized in some of our state courts, is, nevertheless, expressive of the law as administered in the majority of them; and that the preponderance of recent judicial opinion is in harmony with the views of Judge Gibson.” The rule announced in the Pennsylvania case was adopted by this court in the case of Curtis v. La Grande Water Company, 20 Or. 34, (10 L. R. A. 404, 23 Pac. 808, 25 Pac. 378,) in which Lord, J., in commenting on the principle contended for, said: “An executed license is treated like a parol agreement in equity; it will not allow the statute to be used as a cover for fraud; it will not permit advantage to be taken of the form of the consent, although not within the statute of frauds, after large expenditures of money or labor have been invested in permanent improvements upon the land, in good faith, upon the reliance reposed in such consent. To allow one to revoke his consent when it was given or had the effect to influence the conduct of another, and cause him to make large investments, would operate as a fraud, and warrant the interference of equity to prevent it.” The execution of a parol license, while relying on the faith of it, supplies the place of a writing, and takes the case out of the statute of frauds, (Lee v. McLeod, 12 Nev. 280); but, while the agreement under which the licensee has acted may be proved by parol, (Le Fevre v. Le Fevre, 4 Serg. and R. 241, 8 Am. Dec. 696,) the evidence of it should be clear and convincing, and show a permission to do the particular act which has been accomplished, or some participation in its execution by the [354] owner of the estate or easement affected thereby: McBroom v. Thompson, 25 Or. 559 (42 Am. St. Rep. 806, 37 Pac. 57). The evidence shows an agreement between the parties in relation to the construction of the ditch; that the plaintiff’s husband, as' her agent, assisted in locating its course across her land; that she furnished a team and plow with which to do a part of the work; and that the completion of the ditch for the purpose of irrigating her lands, and the defendants’ reliance upon the faith of the agreement, while making permanent improvements on their mining claim, constitute the consideration for the license, which, having been executed, cannot now be revoked. 2. The next question to be considered is whether equity will enjoin the use of the defendants’ ditch, when its banks are liable to break, thereby causing the water to overflow the plaintiff’s meadow. The defendants allege in their answer that their agreement to keep the ditch in repair formed a part of the consideration for the permission to construct it, and hence they are bound to exercise due care in the management of the ditch, and for any neglect in that respect they will be liable for any injury in excess of the ordinary consequences that might result therefrom. The rule is well settled that where one, in the execution of judicial process, abuses the license conferred upon an officer by law, he becomes a trespasser ab initio; but where one, under express authority of the licensor, exceeds or abuses the privilege conferred, he is only liable for the excess: Jewell v. Mahood, 44 N. H. 474 (84 Am. Dec. 90). The defendants having entered the plaintiff’s premises by her express agreement, cannot be trespassers, but would be liable in an action at law for any neglect of duty or abuse of their privilege. When the nature of the trespass is such as to lead to a multiplicity of actions, or the injury goes to [355] the destruction of the estate in the manner in which it is enjoyed, or the trespass cannot be adequately compensated in damages, and the remedy at law is plainly inadequate, equity will grant relief by injunction: Smith v. Gardiner, 12 Or. 221 (53 Am. Rep. 342, 6 Pac. 771); Mendenhall v. Harrisburg Water Company, 27 Or. 38 (39 Pac. 399). The plaintiff knew the character of the soil along the side of the hill where the ditch was dug, and must have known its banks were, for a time at least, liable to break. The evidence shows that such soil soon becomes compact by means of water flowing in ditches, and that recurrences of the injury complained of are not to be apprehended. The injury does not, in our judgment, tend to the destruction of the estate, and only amounts to a mere trespass when the banks of the ditch break; and the damage sustained in consequence of the occasional overflow cannot be irreparable, and must be susceptible of pecuniary compensation in an action at law. If it appeared that plaintiff’s land was liable to constant overflow from this source, necessitating a multiplicity of actions to compensate the injury, or that the water for any length of time stood upon the meadow, thus tending to a destruction of the estate in the manner in which it was used, equity would by injunction restrain the further use of the ditch; but, there being no evidence of the defendants’ inability bo respond in damages, for which the law side of the court furnishes an adequate remedy, it follows that the decree must be reversed, the injunction dissolved, and the suit dismissed, and it is so ordered. Reversed.