Buck v. Foster

• Decision Date: 27 April 1897
• Docket Number: 18,017
• Citation: 46 N.E. 920,147 Ind. 530
• Parties: Buck v. Foster
• Court: Indiana Supreme Court

46 N.E. 920

147 Ind. 530

Buck v. Foster

No. 18,017

Supreme Court of Indiana

April 27, 1897

From the Tippecanoe Circuit Court.

Affirmed.

B. W Langdon and W. R. Coffroth, for appellant.

John M LaRue, for appellee.

OPINION

Monks, J.

Appellant brought this action to recover damages for obstructing the flow of water and backing it upon his land and for a mandatory injunction to compel the removal of said obstruction. A demurrer to the fourth paragraph of complaint for want of facts was sustained. A trial of the cause upon the issues joined upon the other paragraphs of complaint resulted in a finding and judgment against appellant.

The only error assigned calls in question the action of the court in sustaining the demurrer to the fourth paragraph of complaint.

It appears from said fourth paragraph of complaint that appellant and one Randles, appellee's remote grantor, were owners of adjoining lands through which was a ditch to drain their lands, but which was inadequate for that purpose; that it was agreed between them that appellant should at his own cost and expense deepen, widen and straighten said ditch running through the lands of both parties in consideration of which appellant was to have the right thereafter to drain his land through said improved ditch, contemplated by said agreement, across the land of the adjoining owners; that said ditch was so deepened, straightened and widened over the land of both parties at the expense of appellant in labor and money to a substantial amount under said agreement, and was sufficient to completely drain said lands of both parties, and that said drainage was of great benefit to said lands; that appellant owned a right of way over appellee's land for the flow of surplus water through said ditch; that Randles sold and conveyed said real estate over which said ditch was constructed to one Bryant in 1888, who afterwards sold and conveyed the same to appellee. That appellee had notice of said ditch and the purposes for which it was used when he purchased said land. That appellee, in March, 1894, built a dam across said ditch where it enters upon his land and filled up the same below the dam and thereby backed up the water on appellant's land to his damage, etc.

It is well settled that a mere naked license to use the land of another is revocable at the pleasure of the licensor, but when the license has been executed and acted upon and expense incurred in reliance upon such license, it cannot be revoked without at least placing the licensee in statu quo. Parish v. Kaspare, 109 Ind. 586, 10 N.E. 109, and cases cited; Nowlin v. Whipple, 120 Ind. 596, 599, 22 N.E. 669 and cases cited; Ferguson v. Spencer, 127 Ind. 66, 25 N.E. 1035; Saucer v. Keller, 129 Ind. 475, 28 N.E. 1117.

In Ferguson v. Spencer, supra, this court said: "Where a license has been executed by an expenditure of money, or has been given upon a consideration paid, it is either irrevocable altogether, or cannot be revoked without remuneration, the reason being that to permit a revocation without placing the other party in statu quo would be fraudulent and unconscionable. * * * Where a license is coupled with an interest, or the licensee has done acts in pursuance of the license which create an equity in his favor, it cannot be revoked. East Jersey Iron Co. v. Wright, 32 N.J. Eq. 248."

It is alleged in the paragraph...