House v. Montgomery

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 170
• Parties: CHRISTIAN HOUSE, Respondent, v. JOSEPH MONTGOMERY. Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 170

CHRISTIAN HOUSE, Respondent,

v.JOSEPH MONTGOMERY. Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 9, 1885.

APPEAL from Andrew Circuit Court, HON. HENRY S. KELLEY, Judge.

Reversed and remanded.

Statement of case by the court.

This was a suit brought before a justice of the peace. Upon a trial and judgment in the justice's court, an appeal was taken by the respondent to the circuit court, where, upon a trial, judgment was had in favor of the respondent. Appellant, after an unsuccessful attempt to get a new trial in said court, brings the case to this court by appeal.

The statement of cause of action filed before the justice of the peace was as follows:

“Plaintiff states that on the fourteenth day of August, A. D. 1882, the said plaintiff was the owner and in the possession of the following described land in the county of Andrew and state of Missouri, to-wit, the northeast quarter of the southeast quarter of section number five, in township number sixty-one, of range number thirty-five, and that defendant, on said fourteenth day of August, 1882, while plaintiff was so possessed of said land, unlawfully entered upon said land and voluntarily threw down the fences on said land at the southeast corner and at the southwest corner of the same, and left said fences down, the same not leading into defendant's own inclosure, against the form of the statute. That plaintiff sustained damage by reason of said fences having been thrown down by defendant, by injury to the materials of said fences, and labor of replacing the same, in the sum of two dollars, and by plaintiff's cattle escaping from his said inclosure and straying, in the sum of five dollars. Plaintiff asks judgment for the sum of fourteen dollars, being double the amount of damages sustained by said fences having been thrown down, and also for the sum of five dollars, by virtue of section 3922, Revised Statutes of Missouri.”

The court gave for plaintiff the following instructions:

“1. If the parties to this cause entered into a verbal agreement, about 1872, that defendant should have a passway over plaintiff's land by building a fence to separate said way from plaintiff's field, this would not give defendant any interest in plaintiff's land, but only a license to pass over the same so long as plaintiff permitted him to do so, and if the jury believe from the evidence that plaintiff, prior to August 14, 1882, revoked said license and closed up said passway, and notified defendant thereof, and defendant, after receiving said notice, threw down the fences that plaintiff had put up across said passway, the jury must find for plaintiff such damages as the evidence may show he sustained by reason of such fence having been thrown down, and also the sum of five dollars penalty, provided the fence so thrown down and left down belonged to plaintiff, and did not lead into the defendant's own inclosure.”

“2. If the parties to this cause made an arrangement about 1872, by which plaintiff agreed to let defendant pass over his land to get from said defendant's house to the Maryville road, and in pursuance of said agreement defendant built a fence about twenty feet from the south line of plaintiff's land, across said land, and made a lane between said fence and the south line of plaintiff's land, and used the same by passing over it at pleasure, this would not be such adverse possession of plaintiff's land by defendant as would give defendant any title or interest in said land by any lapse of time, however long.”

C. F. BOOHER and WILLIAM HEREN, for the appellant.

I. A parol license, when acted upon and executed, amounts to a grant and is irrevocable. And when the parol license is coupled with an interest, or is necessary to the possession or enjoyment of a right or title arising from the act or contract of the person who creates the license it is also irrevocable. Baker v. C., R. I. & P. Ry. Co., 57 Mo. 265, and cases therein cited.

II. The authorities lay it down that even a customary right to do anything on the land of another, acquiesced in by the owner, is adverse to the rights of the owner. Knowles v. Dow, 22 N. H. 387. “To constitute such adverse possession, all that is necessary is that it should be accompanied with a claim of right” (of course with the knowledge of the owner). 2 Aikens 266; 23 Pick. 141; 9 Metcalf 395.

III. It clearly appears by the evidence in this case that more than ten years had elapsed after building the fence by defendant, and opening and taking possession of lane or passway by defendant, and the giving of notice to defendant by the plaintiff; and ten years' adverse possession by defendant, barred the right of action of the plaintiff. Renick v. Kern, 14 Serg. & Rawle (Pa.) 267; authorities supra in No. II.

IV. The court erred in refusing the instructions prayed by defendant, numbered first and second, as to the license being irrevocable, and as to adverse posssession, since they fairly presented the law of this case. Wilson v. Chalfant, 15 Ohio 248; Picker v. Kelly, 1 Greenleaf 117; Rindge v. Baker, 57 N. Y. 209; Putney v. Day, 6 New Hamp. 430; Baker v. R. R., 57 Mo. 265; 14 Serg. & Rawle, supra.

SANDERS & MERCER and D. REA, for the respondent.

I. A parol license to pass over land may be revoked at any time. Furhn v. Dean, 26 Mo. 116; Deluge v. Pearce, 38 Mo. 288; Wash. Real Prop. (4 Ed.) 632, and cases cited; Wingard v. Tift, 24 Georgia 179. And this though it has been constructed at expense of the licensee. Exparte Colum. 1 Cow 168; Kimball v. Yates, 14 Illinois 464; Dodge v. McClintock, 47 New Hamp. 383; Owen v. Field, 12 Allen (Mass.) 457.

II. Possession of lands under a parol license is not adverse to the grantor. Luce v. Carley, 24 Wend. (N. Y.) 457; Baker v. Mellish, 10 Vesey Jun. 544; 6 Wait's Actions, etc., 452, and cases cited.

III. This case is entirely dissimilar to that of Baker v. R. R. (57 Mo. 266). In that case there was an agreement on the part of Baker to give a deed on the performance by the company of its part of the contract, and the contract was meant to be an absolute conveyance of the right of way.

IV. Defendant does not show that he would suffer any loss or injury by the revocation of the license, and, therefore, there can be no estoppel. Furhn v. Dean, 26 Mo. 116.

ELLISON, J.

The evidence is undisputed that defendant was licensed to go over plaintiff's land if he would build a quarter of a mile of fence along one side of the way and thereby also enclose plaintiff's field. That with this understanding defendant did build the fence and afterwards with plaintiff's consent and undoubtedly because of his having the use of the way, he plants a hedge fence and cultivates it for some years. Defendant's evidence shows that he used the way for more than ten years continuously.

The case then involves the question of license and the power to revoke on the part of the licensor, as well as, incidentally, the question of estoppel and easement.

A license to occupy or use the land of another is revocable at the pleasure of the licensor. This is a principle well understood and often repeated in the adjudicated cases, as well as by the different authors.

There is more in this case, however, than a mere license; there is action on the part of the licensee, upon the faith of the license and under the eye of the licensor.

He expends labor and money by reason of, and in consideration of having been given the license. In such case the better rule is, though it is not universally so held, that there is an equitable estoppel against the licensor. Swartz v. Swartz, 4 Barr. 353; Cumberland Ry. Co. v. McClanahan, 59 Pa. St. 23; Sheffield v. Collier, 3 Kelly 82; Cook v. Pridgen, 45 Ga. 331; Same v. Miller, 27 Ind. 534; Russell v. Hubbard, 59 Ill. 355; Moses v. Sanford, 2 Lea (Tenn.) 655.

In Russell v. Hubbard, supra, a party was about to begin the erection of a frame building on a lot adjoining a brick building. He was told by the adjoining owner that if he would put up a brick house he might use the brick wall of the house already up for the purpose of attaching his building. The proposition was accepted. The court says that though the license to use the wall might be revoked prior to its execution it could not afterwards. “Money had been expended on the faith of the license, and a different and more expensive building erected. While ordinarily, it might be true that a parol license of this character is not transmissible, may be revoked at pleasure, and extinguished by alienation of the land, yet where money or labor has been expended, the law will interpose and protect the license. The revocation under such circumstances would be fraudulent, and compensation in damages would afford no adequate redress. In such case the execution of the parol permission would supply the place of writing, and take the case out of the statute of frauds. It would be the boldest fraud to allow this permission to be revoked.”

In the case of Swartz v. Swartz (4 Barr. 353), Chief Justice Gibson, in speaking of an argument of similar import to the one made here, says: “One fallacy of the argument, is the assumption of the right to treat the agreement as a parol conveyance of an interest or estate in the land, instead of a license to use it in a particular way without disturbing the title of the owner as a trustee. That such a license is binding, without part execution by delivery of possession, is shown by Renick v. Kern (14 Serg. & Rawle 267), on which a parol license to divert water from its ancient course for the use of a saw mill, was held to be irrevocable after the expenditure of money or labor on the basis of it. The principle of the case is, that the revocation would be a fraud, and that to prevent it a chancellor will turn the owner of the soil into a trustee ex maleficio.”

Where acts have been done by one party, upon the faith of a license given by another, the latter will be estopped from revoking it, even if the exercise of the right...