APPEAL
from Macon Circuit Court, HON. ANDREW ELLISON, Judge.
Reversed and remanded.
Statement
of case by the court.
This is
an action founded on the following petition:
" Plaintiff complains of the above named defendants, and
for his second amended petition states:
That
before and at the time of committing the injuries hereinafter
mentioned, the plaintiff was the owner and in the possession
of the following described real estate, being and situate in
the county of Macon and state of Missouri: Lot seventeen
(17), East Bevier, together with the improvements thereon
consisting of a dwelling house, well and other improvements.
That the defendants were possessed of the premises adjoining
plaintiff's said premises, upon which defendants erected
buildings and machinery for the purpose of digging and taking
out coal. That along and through the said premises of the
plaintiff was a creek or branch, which drained and carried
off the water from plaintiff's said premises. That in the
month of October, 1881, the defendants wrongfully erected a
dam across said creek to a great height, and ever since have
kept the same up, and obstructed and stopped the natural flow
of the water, causing a large pond of water, which flowed on
plaintiff's said premises, and which has ever since
remained thereon, to the great injury of plaintiff's said
premises, by causing the water to back up and rise over and
upon plaintiff's yard, and around plaintiff's
dwelling and into plaintiff's well, and so remaining
thereon and rendering his house uncomfortable and unhealthy
and greatly diminishing the value thereof to his damage in
the sum of two hundred and fifty dollars, for which he prays
judgment."
The
plaintiff further complaining of the said defendants, states
that he is, and at the time hereinafter mentioned was, the
owner and in possession of the following described property
being and situate in the county of Macon and state of
Missouri: Lot seventeen (17), East Bevier, together with the
improvements thereon. " That in the month of October
1881, the said defendants wrongfully erected a large pond of
water in the vicinity and adjoining plaintiff's premises,
which has ever since remained, to the injury and the nuisance
of the plaintiff, rendering plaintiff's house and
premises uncomfortable and unhealthy, and greatly diminishing
the value thereof, to the damage of plaintiff in the sum of
two hundred and fifty dolllars, for which he prays
judgment."
The
answer besides a general denial set up the following defence:
" Further answering, they say that in the summer of
1881, defendants then proposing to build a dam on their own
land, in a ravine running through their own land, near
Bevier, Macon county, Missouri, for the purpose of supplying
their steam engine, located near by; and then ascertaining
that the erection of such a dam or pond would back the water
up to and upon the southeast corner of plaintiff's lot,
described in the petition, which corner was four or five feet
lower than the balance of said lot, the defendants, acting
through their agent, informed plaintiff of their purpose to
build such pond, and that the water would back up to and upon
the corner of said lot, whereupon the plaintiff did then
grant to the defendants and gave them permission to back the
water upon the corner of his lot, and license and permission
to make the pond, and so back the water in the manner
proposed, with the further understanding and agreement
between plaintiff and defendants, that the defendants should,
at their own cost and labor, fill in earth around
plaintiff's well, which was located in said ravine, on
the southeast corner of his said lot, and raise the walls of
said well, and the platform over the same, in such manner as
to protect said well against the back water of said pond, to
all of which plaintiff consented and agreed, and told
defendant's agent to proceed with the work proposed. That
the defendants did, upon the faith of such license and
consent, at great expense and labor, in pursuance of such
agreement and license, fill in earth around plaintiff's
well, raised the wall of the well, some four feet high,
raised the platform over said well all in such manner as to
protect said well from the back water aforesaid. That said
pond was built by defendants upon the faith of said license
and agreement, and all done with the full knowledge and
consent of plaintiff."
Plaintiff replied by a general denial of the answer.
A trial
resulted in a verdict for plaintiff on each count in the
petition; one hundred and forty dollars, on the first, and
one hundred and sixty dollars on the second. A
remittitur of sixty-five dollars on the first count
was entered by plaintiff.
Defendants
appeal.
H.
LANDER, for the appellants.
I.
" A license to do a certain act, on the land of another,
does not convey any interest in the land, but simply a
privilege to be exercised on the land. It may be written or
oral. The statute of frauds does not apply to such license in
either case." 1 Sugden on Vendors (8 Am. Ed.) 177, note
1. An executed parol license to do acts upon lands, or to use
it, from the licensor, where the licensee has expended money
or labor on the faith of such license, is not revocable at
the will of the licensor. Baker v. R. R., 57 Mo.
255; Fuhr v. Dean, 26 Mo. 116; Buchanan v. R.
R., 71 Indiana 365; Beatty v. Gregory, 17 Iowa
129; Woodbury v. Parsly, 7 N.H. 237; Russell v.
Hubbard, 59 Illinois 335. But whether revocable or not,
in all cases such parol license is effectual to justify
everything done under it. Baker v. R. R., 57 Mo.
365; Goddard on Easements 471.
II.
Plaintiff having declared in tort, cannot recover on
contract. Harris v. R. R., 57 Mo. 308;
Hubbard v. R. R., 63 Mo. 68.
III.
The court erred in giving plaintiff's instructions. The
issue made by the pleadings, under these instructions was not
submitted the to jury. Ely v. R. R., 77 Mo. 34;
Wade v. Hardy, 75 Mo. 394; Jones v. Jones,
57 Mo. 138. And the court erred in refusing defendants'
instructions. The remedy was on contract. Hubbard v. R.
R., 63 Mo. 68.
V. The
damages are excessive, and the judgment is not sustained by
the law or the evidence. 3 Sutherland on Damages, 394-399.
SEARS
& GUTHRIE, for the respondents.
I.
Plaintiff sues for flooding his lot, and for creating a
nuisance. The answer is a general denial, and a license as
justification. Plaintiff granted a parol license, or bare
permission to overflow the corner of the lot in question, on
condition that they would protect the premises from
all damages thereby. The license is clearly conditional; and
is inoperative unless the condition is performed. Cooley on
Torts, 304; Pratt v. Ogden, 34 N.Y. 20; Freeman
v. Headley, 33 N.J. 523. There is no pretext that the
condition was...
