Long v. Buchanan

"VVeisel, J. delivered the opinion of this Court. The appeal in this case is by one of three co-defendants in an action of trespass guare clausum fregit, the verdict and judgment being against him alone. The only exception in the case is to the granting by the Court below of the plaintiff’s prayers, and the refusal to grant the second, third and fourth prayers of the defendants. The first and third prayers of the plaintiff, in our judgment, were correctly granted. The second need not be passed upon, as Simon Long was not affected by the verdict and judgment. The principal defence was the leave and license pleaded in the second plea. The three prayers of the defendants, refused by the Court below, present this to our considera [516] tion ; and it is contended that the evidence adduced by the defendants and relied upon to support them, not only proved the license, but disclosed the fact that it was coupled with an interest that rendered it irrevocable ; and if so, the prayers contained correct propositions of law, and should have been granted by the Court. It appears by the defendants' proof that the plaintiff had agreed with the defendant, Simon Long, not simply to sell him the corn, but to put it in her crib for him, for measurement, from which he was privileged to take it; that the corn was to be settled for by a credit upon a mortgage he held against her, and a receipt so given, and that a larger price was paid for it than the then current prices in the market; that the corn was placed in the crib and the said Simon invited to go for it or had notice to take it away at his pleasure. This state of facts, if proved to the satisfaction of the jury, would constitute a license coupled with an interest or grant which rendered it irrevocable. Care must be taken not to confound this case with those of a class, in which the license, though coupled with an interest, is nevertheless of a revocable nature, and would furnish no justification to the licensee for acts done after revocation. These are cases where the interest partakes of the realty, or is of such a nature as to require for its validity a deed, or a compliance with the Statute of Erauds, as an easement, right of way, or other interest in, upon, or out of the land itself. Of this class is the case of Wood vs. Leadbitter, 13 Mees. & W., 838, cited by the counsel on both sides in the argument. It was very fully considered by the Court of Exchequer, and all the English cases ably reviewed by Baron Alderson in the opinion delivered in it. The note to the case in Hare and Wallace’s Edition, points to the leading American decisions, to which we may add the cases of Hays vs. Richardson, 1 Gill & J., 366, and Addison vs. Hack, 2 Gill, 221, as bearing upon the question. Erom these we [517] deduce these principles, that a license, according to C. J. Vaughan, “ properly ["passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful which without it had been unlawful;’’ as a license to hunt in a man’s park or to come into his house. But a license to hunt in a man’s park arid carry away the deer killed to his own use, or to cut down a tree and carry it away the next day, is something more than a mere license ; so far as the taking away of the deer killed or the tree cut down, it is a grant. A mere license is revocable. But where it is connected with a grant, the party who has given it cannot in general revoke it, so as to defeat the grant to which it was an incident. In all cases of a license by parol where the grant is of a nature capable of being made by parol, the license is irrevocable. But where the license by parol is coupled with a parol grant of something which is incapable of being granted otherwise than by deed or by compliance with a statutory, requirement, there the license is a mere license, because the grant annexed to it wants legal validity ; and like all mere licenses, it is revocable. These distinctions are clearly illustrated in the following extract from the opinion referred to. “Thus, a license by A. to hunt in his park, whether given by deed or by parol, is revocable ; it merely renders the act of hunting lawful, which, without the license, would have been unlawful. If the license be, as put by Chief Justice Yaughan, a license not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a license annexed to come on the land: and supposing the grant of the deer to be good, then the license would be irrevocable by the party who had given it; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol license to come on my lands, and there to make a water course, to flow on the land of the licensee. In such a [518] case there is no valid grant of the water course, and the license remains a mere license, and therefore capable of being revoked. On the other hand, if such a license were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the water course ; and if it did, then the license would be irrevocable.” Wood vs. Leadbitter, 13 M. & W., 845. The case of Wood vs. Manley, 11 Ad. & Ellis, 34, cited and relied on by the appellant, is one coupled with an interest, grantable by parol, and irrevocable. The hay in question had been sold by the plaintiff’s landlord under a distress for rent, and the conditiqns of the sale were that the purchaser might leave it on the close until Lady Day, and come in the meantime on to the close, and from time to time as often as he should see fit, and remove it. To these conditions the plaintiff assented, but, before the day, locked up the close to prevent the ingress of the purchaser and the removal of the hay. The defendant, the purchaser, broke open the gate and carried away the hay. He obtained the verdict under the instructions of Erskine, Justice, on the ground that the license was irrevocable. On a motion to set aside the verdict, on the ground that the license was revocable and revoked, the Court of Queen’s Bench refused to grant a rule; and Baron Alderson adds, (p. 853,) we think, quite rightly. This was a case not of a mere license, but of a license coupled with an interest. The hay, by the sale, became the property of the defendant, and the license to remove it became, as in the case of the tree and the deer, put by G. J. Vaughan, irrevocable by the plaintiff, and the rule was properly refused. The case was analogous to that of a man taking my goods, and putting them on his land, in which case I am justified in going on the land and removing them. Vin. Abr. Trespass (H) a 2, pl. 12 ; and Patrick vs. Colerick, 3 M. & W., 483.” [519] See also 1 Cowen, 568, ex parte Coburn ; and 6 Verm., 388, Eli Barnes vs. Lewis Barnes. (Decided 19th July, 1867.) In the case of Moats vs. Witmer, 3 Gill & J., 118, the plaintiff recovered because the defendant entered and carried off both grain and straw from the premises, when he was entitled only to enter and thrash the grain there, carry off the grain and leave the straw. If he entered with the intent (to he found by the jury,) to carry away the grain in the straw and thrash it off the premises, his right of ingress and egress no longer protected him, and he stood in the predicament of any other trespasser. We think the case under consideration cannot be distinguished from that of Wood vs. Manley, followed in its principles by the other cases referred to, if the facts relied upon by the defendants as to the character of the license were found by the jury, and that the same law is applicable to it. The prayers of the defendants, that were refused by the Court below, presented this hypothesis of the case, and it was not necessary that they should refer to the facts, relied upon by the plaintiff, to prove a revocation of the license, for, notwithstanding them, (the license upon the defendant’s hypothesis being irrevocable,) the plaintiff would not be entitled to recover, if the others stated were found to exist. Nor is there anything in them to conflict with the first, prayer of the plaintiff. These prayers ought therefore to have been granted, and we must reverse the judgment. Judgment reversed, with leave to the plaintiff to taJce out a procedendo.