Pitzman v. Boyce

Sherwood, P. J. The correctness of the view taken by the lower court is now to be examined. The question first to be determined in this case is whether the use was really adverse to the owne r, or was it merely permissive in its character. If permissive in its inception, then such permissive character being stamped on the use at the outset will continue of the same nature, and no adverse user can arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, can transform a subordinate and friendly holding into one of an opposite nature, and exclusive and independent in its character. Budd v. Collins, 69 Mo. 129; Estes v. Long, 71 Mo. 605; Wilson v. Lerche, 90 Mo. 473; Wilkerson v. Thompson, 82 Mo. 317. It is true that the cases just cited relate to adverse possession in the ordinary way; but the principle is the same in either case. Though the statute of limitations has no reference to easements, yet, where a party has enjoyed an easement for such length of time as to confer title to land from the true owner to a disseizor, this adverse enjoyment will in law establish the right to the easement as against the owner of the serviente state. Wood on Nuisances, sec. 704; House v. Montgomery, 19 Mo. App. 170; State v. Walters, 69 Mo. 463; State v. Wells, 70 Mo. 635; State v. Proctor, 90 Mo. 334. And such adverse user for the statutory period will give origin to the rebuttable legal presumption of a grant, even though the use in its inception was a trespass. Wood on Nuisances, secs. 704, 705. The circumstances of this case already detailed conspicuously show that the use in this instance was not adverse, but merely permissive. And long-con — 393 — tinued user is not sufficient in and of itself to establish an easement of the sort here claimed. To make the enjoyment of an easement adverse to the owner of the servient estate, the intent must exist to claim and enjoy the right adversely. In the absence of such intent and such claim, no adverse enjoyment will arise. The right, in this case, then, must be regarded as merely permissive — in short, a license. Now, from its very nature, a license is revocable; but the authorities are divided as to whether a license is revocable after it >has been executed, money expended, etc. Touching this point, an eminent author observes: “Some of the courts, indeed, deny the right of the (parol) licensor even to revoke the license, after outlay under it; resting the case on the ground of estoppel in pais, or treating the situation as equivalent to part performance of a parol agreement for the sale of an interest in real estate. But the better view, in presence of the statute of frauds,' appears to be that, so .far as the question of further enjoyment is concerned, the license may be revoked, though no action can be maintained against the licensee for what he has been induced or led to do. ‘Volenti non fit Ínfima.’” Bigelow on Estoppel [5 Ed.] 666-7. And a distinction is taken by the authorities between acts done on the licensor’s land, and those done on that of the licensee, the former being revocable, the latter not. Washburn on Easement & Servitude [3 Ed.] 25, 679; 1 Washburn on Real Property [5 Ed.] 672. The view of Bigelow as to what is the correct ■doctrine as to executed licenses, and as to their revocability evidently meets the approval of another text-writer of recognized authority, who touching this ■subject says: “Another class of cases where the license may be revoked is where the act- licensed to be — 394 — done is to be done upon the land of the licensor, and if granted by deed would amount to an easement therein. If such license be by parol, it may be revoked as to any act thereafter to be done, even though in order to enjoy it the licensee may have incurred expenses upon the premises of the licensor. Thus where A, by B’s license, laid an aqueduct across B’s land, who then revoked it, and cut off the pipe that conducted the water, the court, as a court of equity, refused to interfere, because B had a right to revoke the license at his-pleasure. And in another ease the licensee not only had laid an aqueduct, but dug a well to supply it upon the land of the licensor, and was without remedy,, though the licensor cut it off. In another, the licensee,, under a license to enter upon land, had expended money thereon and incurred expense on account of the same, and it was held revocable. “The importance of the principle involved in the foregoing propositions in respect to the power of a licensor to revoke his license, even though the licensee, acting under such license, may have incurred expense for which he can claim no remuneration, seems to render a review of some of the cases, where the question has been raised, proper by way of illustration. In one class of these, the licensee at a considerable expense cut a drain in the licensor’s land, by which the water of a spring flowed to his own land, and, after enjoying it some years, the licensor revoked the license and stopped it. The licensee was held to be without remedy. In another, the licensor gave the licensees permission to construct a culvert on their land, and thereby divert a current of water onto his land which they did at their own expense, and it was held to be revocable. In another, the license was to build a dam, or part of it, on the licensor’s land, for the purpose of working a mill belonging to the licensee. And in another the — 395 — license was to flow the licensor’s land for raising a head of water to work licensee’s mill. And in both the licenses were held revocable, without remedy to the licensee for the expenses incurred. * * * In another class of cases the license has been to erect and maintain a house on the licensor’s land, and, in some cases, the revocation has been before the building was completed, in others after it had been erected, and in both the builder was obliged to remove it without any right to claim compensation for loss.” 1 Washburn on Real Property [5 Ed.] pp. 665-6, and cases cited. The learned author then cites and quotes from adjudicated cases which hold a different view; but the rulings in those cases, as he shows, are evidently grounded on some earlier English cases, notably Taylor v. Waters, 7 Taunt. 384, the doctrine of which was exploded in Wood v. Leadbitter, 13 M. & W. 838, in an elaborate and able opinion by Alderson, B. The facts, on which the litigation was there based, were these: “The owner of land, on which was a stand for the spectators at a horse-race, sold a ticket to the plaintiff to enter and witness the race. Before the race was over, without any misconduct on the part of the plaintiff, or tendering him back the admission fee, the owner ordered him to leave the premises, and after-wards removed him; and it was held that his ticket was a mere license which was revocable.” In that case when illustrating his position, Baron Alderson said: “A mere license is revocable; but that'which is called a license is often something more than a license; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. * * * But where there is a license by parol, coupled with a parol grant, or pretended grant, of something which is incapable of ' being granted — 396 — otherwise than by deed, there the license is a mere license; it is not an incident to a valid grant, and it is, therefore, revocable. 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 * * * 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 watercourse to flow on the land of the licensee. In such a case there is no valid grant of the watercourse, 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 watercourse; and, if it did, then the license would be irrevocable. ’ ’ In this state Wood v. Leadbitter has been cited approvingly in Desloge v. Pearce, 38 Mo. 599. In that case, acting under a parol license, one at great expense had entered upon the land of another and excavated the same for minerals, and had remained there thus mining for over ten years, when the owner revoked the license, and the licensee was held without remedy. It is not believed that the cases of Fuhr v. Dean, 26 Mo. 116, and Baker v. Railroad, 57 Mo. 265, intend to declare any different rule. In the latter case there was something more than a mere parol license; it was a contract evidenced by a conveyance delivered in escrow to the agent of the — 397 — company granting the right of way, and to be delivered on compliance with its terms. “The doctrine of the revocability of licenses rests upon the familiar principle that a freehold interest in lands can only be created or conveyed by deed; and, as before stated, an easement in the land of another cannot be created, except by deed, or what is equivalent, — prescription.” 1 Washburn on Real Property, 670. In Stock Yards v. Ferry Co., 112 Ill. 384, the very clear distinction is taken between a mere parol license, followed by expenditures and improvements, and a parol contract for the sale of the land followed by like improvements placed upon the land on the faith of the parol contract being performed; and the holding is there made that in the latter case equity could intervene on the ground of part performance, but not in the former case, where no such basis, to-wit, a contract made, was in existence. And in that case it was aptly said: “To say that the license is irrevocable, because the thing permitted to be done necessarily involved the expenditure of money, would be going beyond the most extreme views on the subject, and make most licenses irrevocable. The practical effect of such a doctrine would be to .make most licenses conveyances of an interest in land by mere estoppel in pais. * * * Such a decision would establish the rule that all licenses founded upon a valuable consideration, or necessarily involving the expenditure of money, would be irrevocable, which would practically destroy the distinction between a license and a grant.” In Wolfe v. Frost, 4 Sandf. Ch. 90, it was forcibly said: That, if the doctrine of the irrevocability of an executed license maintained in some jurisdictions is law, “a parol license, executed or acted upon, is sufficient to pass an incorporeal hereditament; thus not merely repealing the statute of frauds, but abolishing — 398 — the rule of the common law that such an estate can only be conveyed by a deed.” See also Jamieson v. Millemann, 3 Duer, 255, and Fargis v. Walton, 107 N. Y. 398, and cases cited. G-uided by these authorities, it should be ruled that in the case at bar a mere parol license was given to the plaintiff, a license revocable at the pleasure of the licensor. But, if, on the other hand, the doctrine that an equity iá created where, under a parol license, money has been expended and improvements made, and, therefore, the powers of a court of equity may be invoked, and specific performance decreed, the plaintiff, in this instance, must fail of obtaining such relief for the additional reason that the expenditures and labor were done without any prior and distinct agreement, and without omy consideration. Parol agreements for the conveyance of land must not only be founded upon a valuable consideration, but the contract to be performed must be clearly defined by satisfactory testimony, and be accompanied by acts unequivocably referable to the alleged agreement.- There are no such constituent elements to be found in this case. Wiseman v. Lucksinger, 84 N. Y. 31. ' But one point remains to be discussed, and that is whether the plaintiff was entitled to any notice before the removal of his pipes. Under the authorities a reasonable time is allowed a lice usee in which to enter on the land of his licensor, and to remove whatever structures or improvements he has placed thereon. And, even in the case of a nuisance, as where one builds a house where another has a right of common, it has been held that, before the latter could forcibly abate the nuisance, it was his duty to notify the wrongdoer to remove it. Where a nuisance is merely permitted to exist, and the case not urgent, notice and an opportunity for its removal are necessary, and — 399 — should be afforded to the party creating the same, before resort had to more extreme measures. Wade on Notice [2 Ed.] sec. 480b. But none of those instances afford any illustration of the point in hand. Here there are no structures or improvements to remove, the sole question being whether without notice defendant could sever the connection between the sewer pipes on the land of plaintiff and those on the land of defendant, and we hold that ■she could, and that such removal was a revocation of the previously granted parol license. Therefore, judgment affirmed. All concur.