Kelsey v. Bertram

Mr. Justice McBride delivered the opinion of the court. A careful consideration of the testimony satisfies us that defendant agreed that plaintiff might construct his canal through the premises in question and through or under a portion of the mill, and that, relying upon this license, plaintiff has constructed the ditch to the extent claimed in the complaint, and expended a large amount of money thereon. Many authorities hold that, even under such circumstances, a parol license is revocable, unless a consideration was paid or given therefor; but such is not the rule in this State. Bowman v. Bowman, 35 Or. 279 (57 Pac. 546) ; Curtis v. La Grande Hydraulic Water Co., 20 Or. 34 (23 Pac. 808: 25 Pac. 378: 10 L. R. A. 484) ; McBroom v. Thompson, 25 Or. 559 (37 Pac. 57: 42 Am. St. Rep. 806). In Curtis v. La Grande Hydraulic Water Co., 20 Or. 34 (23 Pac. 808: 25 Pac. 378: 10 L. R. A. 484), Justice Lord says: “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.” [566] In Ewing v. Rhea, 37 Or. 583 (62 Pac. 790: 52 L. R. A. 140: 82 Am. St. Rep. 783), this doctrine is reiterated; but the court draws a distinction between a license by-acquiescence, which begins in trespass, and a. license by parol agreement, holding that a license of the character first mentioned is revocable, even after the expenditure of money in improving property under a belief that the uninvited use relied upon will never be interrupted. See, also, McPhee v. Kelsey, 44 Or. 193 (74 Pac. 401: 75 Pac. 713); Brotan v. Gold Coin Mining Co., 48 Or. 277 (86 Pac. 361); Falls City Lumber Co. v. Watkins, 53 Or. 212 (99 Pac. 884); Shaw v. Proffit, 57 Or. 212 (109 Pac. 584: 110 Pac. 1092). We therefore conclude that defendant, having by a parol agreement authorized plaintiff to construct his ditch across the land in question and through or under his mill, is estopped from revoking such permission after plaintiff has, in pursuance of it, expended a large sum of- money in constructing it. Affirmed: Rehearing Denied.