Kivett v. McKeithan

• Decision Date: 28 February 1884
• Citation: 90 N.C. 106
• Court: North Carolina Supreme Court
• Parties: A. J. KIVETT and wife v. A. A. MCKEITHAN.

90 N.C. 106

A. J. KIVETT and wife

v.A. A. MCKEITHAN.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Fall Term, 1883, of HARNETT Superior Court, McKoy, J.

Verdict and judgment for plaintiff; appeal by defendant.

Messrs. R. P. Buxton and W. E. Murchison, for plaintiff .

Messrs. W. A. Guthrie ard?? J. W. Hinsdale, for defendant .

SMITH, C. J.

In the year 1877, the plaintiff, at an expenditure of several thousand dollars, caused a valuable mill for grinding and sawing to be built on the waters of Little river, in Harnett county, and a dam across the stream extending to the opposite shore, and upon land belonging to the defendant. The latter gave his verbal consent to the construction of an embankment upon his land not to be more than one foot in height; but this not being sufficient to raise the requisite head of water, it was in fact made one foot and a half higher than the limit, and in this condition, without complaint, the mill was operated for several years. Some six or more months before February, 1882, the defendant withdrew his consent to the further use of his land in this manner, and gave notice to the plaintiff thereof, requiring him to level the dam and remove the obstruction. This was not done, and, accordingly, in that month the defendant proceeded to demolish so much of the structure as projected over and upon his premises. For the injury to the property consequent upon this act of the defendant, the present suit was soon afterwards instituted.

It is needless to consider the series of rulings of the court to which the defendant excepted during the progress of the trial, and which appear in the record, since most if not all of them depend upon the result of an inquiry into the lawfulness of the defendant's conduct in destroying, after notice of revocation of the license, the structure resting upon his own land. If he had the right to do this, the action cannot be maintained; if he had not, he is answerable in damages.

The instructions imparted to the jury proceed upon the legal proposition that the defendant had authority to remove so much of the dam as exceeded in height the limits of the license, but no portion that was within these limits, and the jury were accordingly directed to ascertain to what extent the embankment had been disturbed, and to render a verdict as they should find the fact to be. In other words, the law is declared to be that, after the plaintiff's large outlay in putting up the mill upon the faith of the defendant's consent and its continuance, the defendant could not, at his own will, terminate the license and entail large consequent loss upon the plaintiff without being exposed to the latter's claim for compensatory damages.

We do not concur in this general proposition that a parol license, even when supported by a valuable consideration, and still less when voluntary, relating to land, cannot be recalled by the owner without incurring liability to the party to whom it is given, where notice of the withdrawal is given and a reasonable opportunity is afforded for the removal of any structures, fixtures or improvements which may have been put there by him. The acquirement of any interest in land by consent or contract not in writing, is directly within the prohibition of the statute of frauds, as interpreted and enforced in this state in numerous adjudications.

We do not recognize the doctrine which prevails...