Ferguson v. Spencer
| Decision Date | 25 November 1890 |
| Docket Number | 14,491 |
| Citation | 25 N.E. 1035,127 Ind. 66 |
| Parties | Ferguson v. Spencer |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Jan. 30, 1891.
From the Warren Circuit Court.
Judgment affirmed, with costs.
J McCabe and E. F. McCabe, for appellant.
J. W Sutton and W. L. Rabourn, for appellee.
The nature of the action, as disclosed by the pleadings, is not very well defined. It may be regarded as a suit to recover damages caused by interrupting the flow of an artificial stream through, or diverting it from, a tile drain through which water was supplied to the plaintiff's animals on her farm.
The merits of the case may be determined upon the following facts returned to the court in a special verdict. In 1884 the plaintiff, Mrs. Spencer, and the appellant, William Ferguson, were adjoining land-owners in Warren county, their farms being separated by a public highway running east and west on the division line. Their farms occupied such a relation that surface and spring water collected on and issuing from the defendant's land was discharged over and through a depression, with more or less defined banks, through a similar depression over and upon the plaintiff's land. In the year above mentioned the parties mutually agreed to construct a covered tile drain, of specified dimensions, to be laid at a given depth, each to construct the distance required, on his or her own land. In pursuance of this agreement the plaintiff, commencing at the highway separating her farm from that of the defendant, constructed a drain of the dimensions agreed upon of the length of forty rods, at a cost of over sixty dollars. The defendant at the same time constructed a similar drain on his land, connecting it with that built by the plaintiff at one end, and with an existing tile drain on his land at the other, thereby making a continuous drain over the lands of both, through which water flowed constantly. The drain thus constructed was beneficial to the plaintiff's farm, enhancing its value by affording her more perfect drainage than before, and by furnishing a constant supply of living water for stock on her farm, she having utilized the water by constructing a convenient watering place. In 1887 the defendant refused to continue the arrangement, and dug up some of the tiling on his own land, so as to disrupt the drain and diminish the supply of water, to the damage of the plaintiff.
The question is whether or not, after money had been expended in constructing the drain in reliance upon the agreement, either of the parties, without the consent of the other, could terminate the arrangement without becoming liable for any damage which might result?
The effect of the agreement, when acted upon by the parties, was to create mutual or cross-licenses in favor of each in the land of the other. Each was given a license from the other to make use of the other's land for the purpose of conducting water over it for a purpose supposed beneficial to his own land.
A license is defined to be an authority given to do some act, or a series of acts, on the land of another without possessing an estate therein. Cook v. Stearns, 11 Mass. 533 (13 Am. & Eng. Encyc. of Law, 539).
By means of the arrangement entered into the plaintiff obtained a license to connect the covered tile drain which she constructed with a similar drain constructed by the defendant, thereby affording her the means of draining or conducting water from springs and other sources on the defendant's land for the benefit of her farm. This is found to have been a valuable privilege, to obtain which the plaintiff expended money in reliance upon a mutual agreement entered into with the defendant. It is everywhere settled that a parol license to use the land of another is revocable at the pleasure of the licensor, unless the license has been given upon a valuable consideration, or money has been expended on...
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