Johnson v. Skillman

• Decision Date: 08 April 1882
• Citation: 12 N.W. 149,29 Minn. 95
• Parties: JOHNSON v SKILLMAN AND ANOTHER.
• Court: Minnesota Supreme Court

29 Minn. 95

12 N.W. 149

JOHNSONvSKILLMAN AND ANOTHER.

Supreme Court of Minnesota.

Filed April 8, 1882.

Appeal from judgment of district court, county of Goodhue.

Williston & Hall, for respondent.

Wilson & Skillman, for appellants.

VANDERBURGH, J.

The parol agreement set forth in the decision of the trial court created no easement in the land of plaintiff, but took effect as a parol license only. A license creates no estate in lands. It is a mere power or authority founded on personal confidence, not assignable and revocable at pleasure, unless subsidiary to a valid grant, to the beneficial enjoyment of which its exercise is necessary, or unless executed under such circumstances as to warrant the interposition of equity. This is the result of the best-considered cases. The doctrine of the early cases, which converted an executed license into an easement, is now generally discarded as being “in the teeth of the statute of frauds.” And, referring to these decisions, Mr. Chitty says, concisely: “However a court of equity might, under strong circumstances, interfere by injunction and decree a conveyance, it is clear that such a doctrine at law is not tenable.” 1 Gen. Pr. 339.

The cases of Ricker v. Kelly and Carrick v. Dugin, 1 and 5 Greenl., cited by defendant's counsel, have now little following, and the case of Rerick v. Kern, 14 Serg. & Rawle, 267, also relied on, which was an action at law for damages in favor of the licensee, is followed in but few states. 5 Barb. 283; 3 Duer, 261; Washb. Easem. 24.

A simple reference to some of the more important cases, in support of the views herein expressed, will suffice. Cook v. Stearns, 11 Mass. 536;Mumford v. Whitney, 15 Wend. 380;Wolf v. Frost, 4 Sandf. Ch. 72; Foot v. Railroad Co. 23 Conn. 214; Bridges v. Purcell, 1 Dev. & Ball, (N. C.) 492; Hazelton v. Putnam, 3 Pin. (Miss.) 120; Woodmand v. Seely, 11 Ill. 163; Wood v. Leadbetter, 13 M. & W. 837; Wiseman v. Lucksinger, 84 N. Y. 31. In cases where the license is connected with a valid grant, as of chattels or fixtures, upon the land of the licensor, susceptible of being removed, it is subsidiary to the right of property, and irrevocable to the extent necessary to protect the licensee, and saves to him the right of entry -the right of possession following the right of property. Nettleton v. Sykes, 8 Metc. 35; Heath v. Randall, 4 Cush. 196; Wood v. Leadbetter, supra;) but where it is sought to couple with a licensee a parol grant of an interest in the realty,-the attempted grant being void,-the transaction remains a mere license. Wood v. Leadbetter. A license is, of course, always a protection for acts done under it, and before revocation. Pierpont v. Barnard, 2 Seld. 279. In cases, however, of what are sometimes called negative easements, which are extended on the land of the licensee, a different rule prevails; as, where a man has an easement of light and air upon or over an adjacent lot, he may abandon the same, and license the erection by his neighbor of a building, which shall extinguish right, and the license become irrevocable. Morse v. Copeland, 2 Grey, 302; Goddard, Easem. 472. Nor is it material that a mere license is or is not in writing, or upon a consideration.

In Jackson v. Babcock, 4 Johns. 418, there was a sealed instrument, and in Wiseman v. Lucksinger, 84 N. Y. 31, there was both a writing and a consideration; but both were held licenses, and revocable. In such cases the question is one of interpretation as to the intent of the parties as evidenced by the writing, and, as Chancellor Kent remarks, the distinction between an easement and a license is sometimes quite subtle. And so, in a suit in equity brought to confirm rights and assure an interest, as upon a part performance of a parol agreement alleged to be taken out of the statute of frauds, (and otherwise void as a grant, but valid as a license,) the question of interpretation of the terms of the agreement, and the intent of the parties, becomes a material one in the case. Jackson v. Railroad Co. 11 Am. Leg. Reg. 374.

In the case before us the license has been revoked by the change in title, with notice, however, to grantee sufficient to bind him as to defendant's equities. As to equitable relief the affirmative is devolved upon the defendants to establish their right to it as claimed in the answer. The grounds upon which this is administered, whether it be for specific performance or be based...