Forde v. Libby

• Decision Date: 16 November 1914
• Docket Number: 777
• Citation: 143 P. 1190,22 Wyo. 464
• Parties: FORDE ET AL. v. LIBBY ET AL
• Court: Wyoming Supreme Court

143 P. 1190

22 Wyo. 464

FORDE ET AL. v. LIBBY ET AL

No. 777

Supreme Court of Wyoming

November 16, 1914

ERROR to the District Court, Laramie County; HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

William C. Kinkead, for plaintiffs in error.

The alleged oral contract was too indefinite and uncertain to be enforced in equity. It is also unenforceable because within the statute of frauds. Libby and Hinrichs had nothing more than a license revocable at pleasure, and it was revoked upon the sale of portions of the lots. The grantees could not be bound by the oral agreement in the absence of definite notice thereof prior to their purchase. The trial court failed to distinguish between an easement and a license. An easement in a right of way over the lands of another is an interest in the real estate burdened thereby, and the effect of the decree complained of is to give to the defendants in error a perpetual easement, and, therefore, a permanent interest in the premises of plaintiffs in error respectively. The agreement was not taken out of the statute of frauds by any recognizable equity. Title to such an easement as that claimed must be acquired by grant and established by proof thereof, or by proof of prescription by which a grant may be inferred; and the grant must, under the statute of frauds, be in writing. (Snowden v. Wilas, 19 Ind. 13; 20 Cyc 297). It is not contended that one who pays money or suffers damage relying upon an oral contract to convey real estate is not without remedy. But the contract itself is not enforceable and the remedy is only such as arises upon an implied contract to return the money or pay the damages. (20 Cyc. 216; Cook v. Stearns, 11 Mass. 533; Howes v. Harman, 81 P. 48; Crosdale v. Lanigan, 129 N.Y. 604, 29 N.E. 824, 26 Am. St. 551). As to the right to revoke a parol license, see: Bigelow on Estoppel, (5th Ed.) pp. 666, 667; Wood on the Statute of Frauds, Sec. 10; 13 Ency. Law, 550; Piper v. Brown, 43 W.Va. 412, 49 L R. A. 497; Lawrence v. Springer, 49 N. J. Eq. 289, 31 Am. St. 702; Mill Co. v. Ry. Co., (Minn.) 53 N.W. 641; Water Works Co. v. Ry. Co., (Mont.) 54 P. 967. That an easement must be founded upon an instrument in writing or prescription, see: Ins. Co. v. Haskett, 67 P. 446; Stewart v. Stevens, (Colo.) 15 P. 786; Thoemke v. Fiedler, (Wis.) 64 N.W. 1030; Huber v. Stark, (Wis.) 102 N.W. 12. And although large sums of money may have been expended under a parol license the owner may revoke the license. (St. Louis &c. Co. v. Ferry Co., (Ill.) 54 Am. Rep. 243; Brightman v. Hicks, 108 Mass. 248; Errickson v. Crippen, (N. Y.) 18 N.E. 443; Bohrnstedt v. Scharen, (Ore.) 119 P. 337; Lewis v. Patton (Mont.) 113 P. 745; United Mer. R. & I. Co. v. American Co., 128 N.Y.S. 666; Ewing v. Rhea, (Ore.) 52 L. R. A. 140; Archer v. Ry. Co., (Mont.) 108 P. 571; Oil Co. v. Yazoo & Co., (Miss.) 47 So. 468; 25 Cyc. 646). Both deeds of conveyance described the full lots without excepting the alleged right of way, and the grantees had the right to assume that they were getting absolute title to the entire premises. Good faith did not require that they inquire as to the nature of the intended easement. All that was required of them, under the circumstances, was that they be free from fraud, and have an honest belief that, by their deeds, they became the true owners of the premises thereby conveyed. (Bank v. Hudson, 111 U.S. 66; Winters v. Haines, 84 Ill. 585). Inquiry would have developed only that there had been an oral agreement to use the strip of land jointly as a right of way, and there is nothing in the case to show that it was not for the personal benefit of the parties to the contract, or that their relations thereto were not reciprocal or revocable upon the destruction or ceasing of the interest of the parties to the contract. The contract had nothing to do with the title to the land, but it was a personal matter between the parties thereto.

Ray E. Lee, for defendants in error.

All questions as to the sufficiency of the pleadings, the proper joinder of parties, and causes of action, and objections to evidence, are abandoned by the failure of plaintiffs in error to discuss them in their brief. (Riordan v. Horton, 16 Wyo. 363). Although the effect of the oral contract was merely to grant a license, such license was irrevocable. (Metcalf v. Hart, 3 Wyo. 343; Gustin v. Harting, 20 Wyo. 1, 121 P. 523). The oral contract was definite and specific as to the location of the alley and the amount of land to be embraced in it, and, therefore, it was not uncertain except possibly as to the period during which it should remain in force. But there can be no question as to the duration of the contract, license, or easement, whatever it may be called. The alley was created for the purpose of rendering the middle portion of lots one and two as redivided, accessible and useful. The lots were to be used for residence purposes, and that use was to be permanent. Hence the parties to the contract must have intended the alley to be as permanent as the use and occupancy of the lots. A suit for injunction is the proper method of testing the right of plaintiffs to keep the alley open. (Powers v. Heffernan, 16 L. R. A. (N. S.) 523; Croke v. Bank, 70 P. 229; Coleman v. Butt, 130 Ala. 266; Jay v. Michael, 92 Md. 198; Wheeler v. Gilsey, 35 How. Pr. (N. Y.) 139; Manbeck v. Jones, 190 Pa. St. 171; Shields v. Titus, 46 O. St. 544; Newell v. Sass, 142 Ill. 104; Haight v. Littlefield, 24 N.Y.S. 1097; Nash v. Ins. Co., 127 Mass. 91; Downing v. Corcoran, 87 S.W. 114; Smith v. Young, 160 Ill. 163; Flaherty v. Fleming, 3 L. R. A. (N. S.) 461; Calvert v. Weddle, 44 S.W. 648; Driscoll v. Smith, 184 Mass. 221; Lathrop v. Elsner, 93 Mich. 599; McCann v. Day, 57 Ill. 101; Pomeroy's Eq. Juris. Sec. 1341). An easement in lands may be created by parol agreement for a consideration which has been executed. (Champion v. Munday, 85 Ky. 31; Gilmore v. Armstrong, 48 Neb. 92; Hammond v. Schiff, 100 N.C. 161; Harrison v. Boring, 44 Tex. 255; Lee v. McLeod, 12 Nev. 280; Newcombe v. Royce, 44 Neb. 323; Rawson v. Bell, 46 Ga. 19; Rindge v. Baker, 15 Am. Rep. 475; Robinson v. Thrailkill, 110 Ind. 117; Smith et al. v. Garbe, 20 Ann. Cas. 1209; Snowden v. Wilas, 19 Ind. 10; Tufts v. Copen, 37 W.Va. 623; Tynon v. Despain, 43 P. 1039; Wickersham v. Orr, 9 Ia. 253; Wynn v. Garland, 19 Ark. 23; Cooper v. Colson, 1 Ann. Cas. 997; Flickinger v. Shaw, 25 P. 268; Roberts v. Templeton, 3 L. R. A. (N. S.) 791; 20 Cyc. 303; 10 Ency Law, (2nd Ed.) 412; 29 id. 830; Metcalf v. Hart, 3 Wyo. 513; Gustin v. Harting, 121 P. 522). A contract between owners of adjacent parcels of land made for the mutual benefit of the two estates, where what is done on one estate is in consideration of that done on the other, and it is for the mutual benefit of the two estates, is enforceable in equity after it has been executed, except as to making the conveyances. (Pifer v. Brown, 49 L. R. A. 513; Ewing v. Rhea, 52 L. R. A. 140). Equity has ample power to mould a decree that will accomplish substantial justice. (Metcalf v. Hart, 3 Wyo. 533). The evidence clearly establishes the fact that the alley was used for the purpose for which it was opened until that use was interfered with by plaintiffs in error. Both of the plaintiffs in error were notified by the physical conditions existing at the time of their purchase that the private alley was in existence and used, and they had notice by reason of the deed to the plaintiff in error Forde. As to what is sufficient notice of an easement, see: Brown v. Kemp, 81 P. 236; De Luze v. Bradbury, 25 N. J. Eq. 70; Ellis v. Bassett, 128 Ind. 118; Kripp v. Curtis, 11 P. 879; McCann v. Day, 57 Ill. 101; Pierce v. Cleland, 133 Pa. 189; Robinson v. Thrailkill, supra; Randall v. Silverthorn, 4 Pa. 173; Znamanacek v. Jelinek, 69 Neb. 110; Cook v. R. R. Co., 40 Ia. 451; Hodgson v. Jeffries, 52 Ind. 334; McDougall v. Lane, 64 P. 864; Ingals v. Plamondon, 75 Ill. 118.

SCOTT, CHIEF JUSTICE. POTTER, J., and BEARD, J., concur.

OPINION

SCOTT, CHIEF JUSTICE.

This action was commenced in the District Court of Laramie County by James Libby and William E. Hinrichs, as plaintiffs, against L. Harold Forde and Dallas L. Kepler, as defendants, to restrain and perpetually enjoin them from interfering with and obstructing an alleged private way between and along the line between lots two (2) and three (3) of block 258 of the City of Cheyenne, according to the recorded plat thereof. During the trial Stockwell, upon application and showing that he had succeeded to the interest of Hinrichs, was substituted as a party plaintiff. Upon trial the court found and entered its decree in favor of Libby and Stockwell. Forde and Kepler made separate motions for a new trial and severally bring the case here on error.

According to the city plat the north half of block 258 consists of lots 1, 2, 3 and 4, facing to the north on 21st street, lot 1 being the most easterly and bounded on the east by Pebrican Street, while lot 4 is the most westerly and is bounded on the west by Seymour Street. It will be observed that lots 2 and 3 adjoin and are inside lots. Each lot is 66 feet wide and 132 feet long, running from 21st Street south to the city alley, which runs east and west. It is alleged in the petition that in 1905 Fred H. Andre, Nicholas J. Laverents Mary Laverents and Paul Laverents, who owned lots 1 and 2, and James Libby, who owned lots 3 and 4, as so platted, agreed that if Libby would vacate and set aside the east five feet of lot three (3) the Laverents and Andre each for the portion owned by him or her would set aside and vacate the west five feet of lot two (2) of said block for use as a private alley. Thereafter, Nicholas J. Laverents made...