Holt v. City of Montgomery

• Decision Date: 16 October 1924
• Docket Number: 3 Div. 668
• Parties: HOLT v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

102 So. 49

212 Ala. 235

HOLT v. CITY OF MONTGOMERY.

3 Div. 668

Supreme Court of Alabama

October 16, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for breach of contract by Dan S. Holt against the city of Montgomery. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Ludlow Elmore and Arthur B. Chilton, both of Montgomery, for appellee.

GARDNER J.

Appellant sued appellee for the breach of a certain written contract recovering a judgment for the full amount sued for, the trial court having given at his request the affirmative charge with hypothesis in appellant's favor. A motion for a new trial was filed by the defendant, and upon consideration of this motion the trial court granted the same and set aside the judgment theretofore entered, and from the judgment of the court granting the motion for a new trial the plaintiff has prosecuted this appeal.

Counsel for appellant treat the case as if count 4 alone appeared in the complaint, and consider that the result of this appeal turns upon a proper construction of the contract made an exhibit to this count. This contract appears in full in the report of the case.

Plaintiff insists that this contract properly construed is in fact a lease of his gravel pit, and that the minimum amount of gravel which the defendant agreed to purchase constitutes rent, while the defendant urges that it was merely a sale by the plaintiff to the defendant of a certain quantity of gravel at a given price, with license to the defendant to go upon the land for the purpose of removing the gravel.

Licenses are often granted upon such terms and conditions and upon considerations which ally them so closely to leases, that it is frequently difficult to distinguish between them. A mere license, as that term is generally used, is revocable at pleasure (17 R.C.L. 576; Riddle v. Brown, 20 Ala 412, 56 Am.Dec. 202), but when coupled with an interest, may lose the quality of revocability. 17 R.C.L. 581. In this latter authority, on page 582, it is said:

"That while a license coupled with an interest is irrevocable, this doctrine, although unquestionably correct in a qualified sense, can only be considered as applicable to the temporary occupation of the land, but confers no right or interest in the land itself."

The distinction between a lease and a license appears to be very well stated in a quotation found in Stinson v. Hardy, 27 Or. 584, 41 P. 116, as follows:

"A lease is a contract for the possession and profit of land by the lessee, and a recompense of rent or increase to the lessor, and is a grant of an estate in the land. *** A license is an authority to do some act or series of acts on the land of another, for the benefit of the licensee, without passing any estate in the land; and when the license is to mine upon the land of another, the right of property in the minerals, when they are severed from the soil, vests in the licensee."

The above authority, with that of Massot v. Moses, 3 S.C. 168, 16 Am.Rep. 697, contains a very full discussion with a review of the authorities upon this subject and the distinction here involved.

One of the principal tests in determining whether or not the contract is to be interpreted as a lease or a license is whether or not it gives exclusive possession of the premises against all the world, including the owner, in which case a lease is intended, or whether it merely confers a privilege to occupy under the owner, thereby indicating a license. 25 Cyc. 640. See, also, Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am.St.Rep. 368.

Upon the question of exclusive right, it was said in Massot v. Moses, supra, that:

"Grants of a right to enter the lands of the grantor and sever therefrom and appropriate its products or mineral contents, are subject to a presumption not applicable to the case of a sale of personalty, that the grantor did not intend to exclude his own proprietary right to a concurrent enjoyment with the licensee of the power granted. *** The presumption, indeed, demands some positive evidence of an exclusive intent, but does not influence the force of the evidence of such intent."

Of course, the intent to exclude the grantor may appear by necessary implication of the language used, and the nature of the consideration. As to the latter, however, it has been held that the fact that the grantee is bound to pay for the substance appropriated by him, according to the quantity realized at an agreed rate, whether in kind or in money, does not of itself disclose an intent to exclude the grantor. In Stinson v. Hardy, supra, the court points out other considerations which have had material bearing upon the question of construction of contracts, as to whether or not they were intended as a lease or a license, among them that the consideration mentioned was single for the entire subject conveyed by the title, as in Caldwell v. Fulton, 31 Pa. 475, 72 Am.Dec. 760. Another test is there stated to be "whether the grantee has acquired any estate in the land in respect to which he may maintain ejectment." Still another important fact given consideration in that authority was the absence of words of grant or demise from the agreement, which, it was held, would...