Hodgkins v. Farrington
| Decision Date | 05 September 1889 |
| Parties | HODGKINS et al. v. FARRINGTON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse, Jr., and C.S. Hamlin, for plaintiffs.
W.B French, for defendant Farrington.
In 1841 the premises of the plaintiffs were owned by Robert Burr, and those of the defendant by Noah Blanchard. On August 1st of the same year the boundary line between their respective lots was established by a straight line that "ran through the center of the brick wall separating the two houses, and by the north-easterly side of a wall separating the two yards." The brick garden-wall which separated the two yards was 54 feet in length and 8 inches thick, with the exception of a 12-foot section, which was 12 inches thick. Ten inches of the 12-foot section was on the plaintiffs' land, and 2 inches on that of the defendant the remainder of the garden-wall being wholly on plaintiffs' land. In September, 1871, Robert Burr having deceased, his widow and son were his executors with power to mortgage, sell, or lease his real estate. By the will of Robert Burr, Mrs. Burr was the owner in fee of one-third of this parcel of real estate, having a life-estate in the other two-thirds, the fee in which was in his children. It was agreed orally by Robert Burr, the younger, and his mother that James W. Merriam, who then owned the Blanchard estate, and who desired to extend his building, might top out the garden-wall and let his timbers into the same as thus built up, but that it must remain a part of the Burr estate. Burr supposed, although no agreement to this effect was shown, that Merriam would line the old wall four inches in width on his own land, and, although he might on inquiry have ascertained, did not in fact know that Merriam did not make the wall twelve inches in width for its length, and thus carry it up. It does not appear that Burr was in any way intentionally deceived by Merriam as to this matter, who under-pinned and carried up the garden-wall to the requisite height, (a part of his extension being four stories in height,) and inserted his timbers therein, adding nothing to the width of the wall on his own land.
The defendant Farrington claims title through several mesne conveyances from Merriam. The deed to him, the mortgage, and the lease to Johnson, who was also made defendant, exclude in their description all that portion of the wall alleged by plaintiffs to be his, nor has either of them repaired or interfered with the wall, except by allowing the timbers to remain where they were inserted therein. We cannot perceive that the defendants can have any higher rights to this matter than those of licensees. Even if the Burrs, by their authority as executors, or Mrs. Burr, by her ownership in fee of one-third of the estate, and her life-tenancy in the other two-thirds, could have created an interest in the real estate, they did nothing which could bind the Burr estate, or subject it to an incumbrance when it became the property of another. A paramount right to hold another's land subject to a particular purpose, to enter upon it or maintain structures upon it without the consent of the owner, is an important interest in the land, which cannot pass without the formalities required by the statute. Rev.St. c. 59, § 29; c. 74, § 1. A parol license to do any act on the land of another does not trench upon the policy of the law, which requires that contracts respecting any title or interest in real estate shall be by deed or in writing. It gives the licensee no estate or interest in the land. It excuses acts done which would be trespass, or otherwise unlawful. It is revocable, not only at the will of the owner of the property on which it is to be exercised, but, by his death, by alienation or demise of the land by him, and by whatever would deprive the original owner of the right to do the acts in question, or give permission to others to do them. Cook v. Stearns, 11 Mass. 533; Stevens v. Stevens, 11 Metc. 251; Clapp v. Boston, 133 Mass. 367.
To the rights of licensees the defendants are entitled. Before there had been any alienation of the land by the Burrs the structure of their grantor was completed. It has been maintained during the successive changes of title, without any objection by the respective owners of the plaintiffs' estate to the additional erection on the wall or its use as a support to defendant's building, until very shortly before the bringing of this bill the plaintiffs notified the defendant to remove the timbers resting on their land. The plaintiffs, when they purchased knew the situation of the wall, and the support of the defendant's timbers therein, and that the wall, with the exception of the two inches of the twelve-foot section, was on their land. Under these circumstances, before the defendants could be treated as trespassers, they were entitled to know that the permission received or assented to by former proprietors was withdrawn, and that they could no longer rely on any license. That which a licensee has already done does not become unlawful by the revocation of the license, if it be an act done on the premises of the licensor, as if he has erected a structure thereon; but he loses his right to continue to maintain it. The erection of the super-structure on the wall, in the case at bar, built by defendant's grantor, and the insertion of...
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