Howes v. Barmon

• Decision Date: 16 May 1905
• Citation: 81 P. 48,11 Idaho 64
• Parties: HOWES v. BARMON
• Court: Idaho Supreme Court

81 P. 48

11 Idaho 64

HOWES v. BARMON

Supreme Court of Idaho

May 16, 1905

LICENSE TO PASS OVER STAIRWAY-EASEMENT-STATUTE OF FRAUDS-EQUITABLE INTERPOSITION-SPECIFIC PERFORMANCE.

1. A license is a personal privilege to do certain acts upon the lands of another, but creates no estate therein, is revocable at will, and may rest in parol, while an easement is an estate in real property and its grant falls within the statute of frauds.

2. Where B. is erecting a two-story building and proposes to H & K., who own and occupy a two-story building on the adjoining lot, that he will build a stairway on the side of his building next to H. & K's building, and that they may use the same for ingress and egress to and from the second story of their building in consideration of H. & K. allowing B. to erect a porch on a five foot strip of a vacant lot adjoining the back end of B.'s building, and each party agrees thereto and enters upon the use so agreed upon, held that the permission to use such stairway does not amount to the grant of an easement, but constitutes a license only and is revocable by the licensor.

3. A court of equity will not grant the aid of specific performance where the party invoking its aid has not parted with any consideration or property, and no irreparable damage is suffered and no fraud is inflicted upon him, and where he is in statu quo at the time of the commencement of his action.

4. Unless the evidence be clearly to the contrary, a court will presume that a parol agreement to impress real property with a servitude was made with a knowledge of the provisions of the statute of frauds, and was therefore intended as a license only and not as an easement.

(Syllabus by the court.)

APPEAL from the District Court in and for the County of Shoshone. Honorable Ralph T. Morgan, Judge.

Plaintiffs commenced an action to enjoin the defendants from closing up a stairway in their building, and to restrain them from interfering with plaintiffs' right of passage there-over and to compel specific performance of a parol agreement for the grant of a perpetual easement for the use of such stairway. Judgment and decree were entered for the plaintiffs, from which defendants appealed. Reversed.

Reversed and remanded, with directions. Costs awarded to appellants.

Walter A. Jones and Samuel R. Stearn, for Appellants.

One who seeks to enforce a specific performance of a contract is bound to establish clearly and distinctly the existence of a contract and its terms. A court of equity will not decree specific performance of a contract if not clearly established. (Rice v. Rigley, 7 Idaho 115, 61 P. 290.) Plaintiffs claim that this was an easement. If we admit that it was, then they come within the rule that an easement cannot be created by parol. (Tiedeman on Real Property, sec. 600; 10 Am. & Eng. Ency. of Law, 2d ed., p. 412; Deeds v. Stephens (Idaho), 79 P. 77.) A license is an authority given to do some act or a series of acts on the land of another, without possessing an estate therein, and is revocable. (10 Am. & Eng. Ency. of Law, 2d ed., p. 407; 18 Am. & Eng. Ency. of Law, 2d ed., pp. 1127, 1146; Tiedeman on Real Property, sec. 653.) In Pifer v. Brown, 49 L. R. A. 497, will be found a note explaining the doctrine that a parol license from one lot owner in a town to another to pass a tile drain under the former lot for the purpose of draining the lot of the latter is revocable at the pleasure of such licensor, and that such license must be acquired by deed. (Wiseman v. Lucksinger, 84 N.Y. 3, 38 Am. Rep. 479; Cronkhite v. Cronkhite, 94 N.Y. 323; Crosdale v. Lanigan, 129 N.Y. 604, 26 Am. St. Rep. 551, 29 N.E. 824; Hathaway v. Yakima Water Co., 14 Wash. 469, 53 Am. St. Rep. 874, 4 P. 896.) In Bonelli Bros. v. Blakemore, 66 Miss. 136, 14 Am. St. Rep. 550, 5 So. 228, in giving a definition of "way," which is but another term for an easement, the following is quoted: "A 'way' is an incorporeal hereditament, for since livery of seisin could not have been made of it, at common law, it could only be created by deed or other writing. It is therefore said to lie in grant." (Greenleaf's Cruise on Real Property, title Deed "C," 4, secs. 35, 36.) But a right of way is an interest in lands and a grant by parol is obnoxious to the statute of frauds. (Thompson v. Gregory, 4 Johns. 81, 4 Am. Dec. 255; Richter v. Irwin, 28 Ind. 26; Hall v. McLeod, 2 Met. (Ky.) 98, 74 Am. Dec. 400; Kerr on Statute of Frauds, sec. 718; Walker v. Shackleford, 49 Ark. 503, 4 Am. St. Rep. 61, 5 S.W. 887; Hodkins v. Farrington, 150 Mass. 19, 15 Am. St. Rep. 168, 22 N.E. 73, 5 L. R. A. 209.) Parol license to do something on the licensor's land becomes irrevocable after expenditure of money on land on the faith of the license, and when the parties cannot be placed in statu quo; but where nothing has been done further than to pay a consideration, there is nothing in the way of restoring the parties to their original condition, and therefore of revoking the license. (Huff v. McCauley, 53 Pa. 203, 91 Am. Dec. 203: Wilson v. St. Paul M. & M. Co., 41 Minn. 56, 42 N.W. 600, 4 L. R. A. 378; Woodward v. Seely, 11 Ill. 157, 50 Am. Dec. 445; Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N.W. 149; Great Falls Waterworks Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 P. 966.)

W. W. Woods and R. N. Dunn, for Respondents.

This court has frequently passed upon and always affirmed the equitable power of the court in proper cases to grant specific performance of parol contracts for the sale of lands. Part performance take these cases out of the provisions of the statute of frauds. (Bowman v. Ayres, 2 Idaho 465, 21 P. 405; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Feeney v. Chester, 7 Idaho 324, 63 P. 192; Francis v. Green, 7 Idaho 668, 65 P. 362; Barton v. Dunlap, 8 Idaho 82, 66 P. 832; Flickinger v. Shaw, 87 Cal. 126, 22 Am. St. Rep. 234, 25 P. 268, 11 L. R. A. 134; Grimshaw v. Belcher, 88 Cal. 217, 22 Am. St. Rep. 298, 26 P. 84; Deeds v. Stephens, 8 Idaho 514, 69 P. 534.) It is a general proposition well sanctioned by law that contracts made by husband and wife, where possession has been delivered, will be specifically enforced. (Clayton v. Frazier, 33 Tex. 91; Womack v. Womack, 8 Tex. 397, 58 Am. Dec. 119; Dalton v. Rush, 22 Ex. 133.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

In this case the trial court entered a decree for the specific performance of a parol contract to grant a perpetual easement in a stairway maintained in appellants' building. The principal facts upon which the decree was entered are briefly as follows: In the month of November, 1899, the respondents, Howes & King, were the owners of lot 6 and the south one-half of lot 8 in block 21 in the city of Wallace, on which stood a two-story brick building, the ground floor of which was occupied by them as a store building and the second floor as a dwelling. About this time the appellants purchased the north half of lot 8, which adjoins the Howes & King property on the east, and began to erect a two-story brick building fifty feet square. Prior to this time Howes & King had maintained a back stairway to their building with the landing on the vacant lot purchased by the Barmons, and in passing from the street to and from their stairway they passed over this vacant lot. When the Barmons began to build they tore away the landing, and, of course, left Howes & King without any means of ingress or egress to and from the second story of their building. At this juncture the respondent Howes and the appellant Abraham Barmon had some discussion over the construction of a stairway by the Barmons and the future use thereof by Howes & King. Up to this time the Barmons had planned to build their stairway on the east side of their building. Howes and Barmon do not agree as to what conversation took place between them with reference to the stairway and the future use thereof, and we therefore quote from the finding of the trial court on that point. He finds "that during the time of the construction of said building these defendants offered to give the plaintiffs the use forever of the front stairway leading to the upper story of their said building and connecting with the upper story of the building so occupied by the plaintiffs and their families, for the consideration of a strip of land of five feet on the north part of the south one-half of lot 8, block 21, and plaintiffs agreed to said proposition." This finding of the court is followed by a finding that in the month of November, 1899, in pursuance of said contract, the plaintiffs went into the possession and use of the stairway, and the defendants at the same time went into the possession and use of the five foot strip off the north end of the south half of lot 8. This strip of land was contiguous to and immediately south of the Barmon premises, on which the building was erected. The record shows that after the conversation took place between Howes and Barmon, the plans for the Barmon building were so modified as to run the stairway up on the west side of the building and next to the Howes & King building instead of on the east side as originally planned. No written agreement of any kind was entered into, and after the building was completed the stairway was used by the Barmons and their tenants and also by Howes & King and their tenants. On the other hand, the Barmons, by means of posts, erected a porch five feet wide and fifty feet long (the full length of their building) to the second story of the building, and used that in connection with their residence in the second story of that building until a few days prior to the commencement of this action. Matters ran along in this manner until about the fourteenth day of ...