Clark v. Glidden

• Decision Date: 02 October 1888
• Citation: 15 A. 358,60 Vt. 702
• Parties: SARAH K. CLARK v. J. Q. A. GLIDDEN AND OTHERS
• Court: Vermont Supreme Court

15 A. 358

60 Vt. 702

SARAH K. CLARK v. J. Q. A. GLIDDEN AND OTHERS

Supreme Court of Vermont

October 2, 1888

GENERAL TERM, OCTOBER, 1887.

BILL IN CHANCERY. Heard on the pleadings and a special master's report, September Term, 1886, POWERS Chancellor. Decree for the oratrix; and that the injunction be continued in force during the existence of the aqueduct.

The decree of the chancellor is affirmed, and cause remanded under a mandate that the injunction remain in force so long as the present aqueduct lasts, with the right in the oratrix and her heirs and assigns, during that time, of repairing the same as may be necessary to keep it usable, but not with the right of making any repairs that shall in any just sense amount to a renewal of the aqueduct itself, on condition that the oratrix pay the defendant an annual rental of three dollars while the aqueduct continues, including three dollars for each year since it was laid.

S C. Shurtleff, for the defendants.

OPINION

TYLER

The material facts reported by the master are, that the oratrix and defendant owned adjoining farms in Cabot; that the oratrix was about to lay an aqueduct from a small and insufficient spring on her farm to her farm buildings, when she had a conversation with the defendant, in which he told her there was a good chance for her to take water from a large spring on his farm, about the same distance from the oratrix's buildings as her own spring. The defendant was making no use of the water and told the oratrix that it was not benefiting him and she might take it if she wanted it. The master finds that the parties understood they had made an agreement by which the oratrix was to take water from the defendant's spring, but that they misunderstood each other as to the terms of the agreement, the oratrix supposing she was to have the water for nothing, while the defendant understood that she was to pay him at least nominal rent, so that she would not acquire title by possession. No sum or price was named as rent. The oratrix had a ditch dug for her aqueduct, but before having the logs laid she saw the defendant again, and told him she would like some kind of a writing from him, but he, understanding that she desired a deed, declined to give it, saying that she required no writing, and that she could take the water just as well without as with one. The oratrix then had the aqueduct laid one hundred rods of which ran through lands of the defendant. After the logs were laid the pressure of the water upon them was found so great that for a portion of the distance they had to be taken up and iron pipes laid in their stead. All this was done with the defendant's knowledge and consent. The entire expense of the aqueduct was four hundred dollars. The defendant constructed a fence around the spring for its protection and permitted the oratrix, without objection, to use the water for the space of three years when he notified her that she must pay something for the use of the spring to prevent her getting title by possession. She replied she had already got it and refused to pay anything, whereupon the defendant cut off the water, which was the cause of this suit. It is further found that before the suit was brought the defendant conveyed his farm to the other two defendants, who are his sons, and who took the title thereto with full knowledge of the oratrix's claim to a right in the spring. It is also found that the right to take the water and to have the spring properly fenced by the defendant, together with a right to enter upon defendant's land to repair the aqueduct is worth fifty dollars, or an annual rental of three dollars; also, that the taking of the water by the oratrix was of no benefit or advantage to the defendant.

The oratrix put in her aqueduct and incurred large expense about the same, not as a trespasser, but by the defendant's license. It is insisted by her that the license, having been executed on her part, was either irrevocable or could only be revoked after she had received the full benefit of her expenditure. The defendant, on the other hand, claims that the right to the water of the spring was an interest in the realty, and that the doctrine that executed licenses are irrevocable is confined to those cases in which no interest in land passes, and to licenses that are given on a valuable consideration.

A license is defined to be an authority given to do some act or a series of acts on the land of another without passing any interest in the land. Cook v. Stearns, 11 Mass. 533; 1 Wash. Real Prop. 398. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a specific purpose, not inconsistent with a general property in the owner; a right which one proprietor has to some profit, benefit or beneficial use, out of, in or over the estate of another proprietor. Pomeroy v. Mills, 3 Vt. 279; 2 Wash. Real Prop. 25.

The grant of an easement does not pass the realty to the grantee. It conveys an interest in the realty, it is true, but that interest consists of a right of use, like a way over land or a right of aqueduct or drainage through it, while the general property remains in the grantor. It is well settled that an easement must pass by deed or by prescription, while a mere license to do a particular act or a series of acts on the lands of the licensor may be by parol; and yet Washburne, page 398, says that a license may be, and often is, coupled with a grant of some interest in the land itself.

It is apparent that the distinction between an easement and a parol license cannot always be maintained either in respect to the extent of the privilege or its duration. In Kent's Com. vol. 3, page 592, it is said that the distinction is quite subtle, and that it becomes difficult in some of the cases to discern a substantial difference between them.

The defendant's spring of water was a part of his realty, and the right claimed by the oratrix is a right in the realty, together with an easement from the spring through the defendant's land to her own land. The question therefore is whether this license, resting wholly in parol, had any validity; whether it was revocable at any time at the defendant's option, even after the licensed act had been fully executed by the oratrix.

It is clear that an interest in land cannot be conveyed by parol, nor can an easement be created except by deed; Angell on W. C. ss. 168-173; that licenses which in their nature amount to the granting of an estate for ever so short a time are not good without deed; Cook v. Stearns, supra; Hewlins v. Shippam, 5 B. & C. 221; 7 Dowl. & R. 783; and that a parol license, which, if given by deed, would create an easement, is revocable, although executed by the licensee. As was said by PARKER, Ch. J., in Cook v. Stearns, "A permanent right to hold another's land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by the statute."

The defendant's counsel relies upon the above authorities and upon the statement of the law in Gould on Waters, s. 323, that, "The more recent decisions and the weight of authority are to the...