Lawrence v. Springer

• Decision Date: 08 August 1892
• Parties: LAWRENCE v. SPRINGER et al.
• Court: New Jersey Supreme Court

24 A. 933

49 N.J.E. 289

LAWRENCE

v. SPRINGER et al.

Court of Errors and Appeals of New Jersey.

Aug. 8, 1892.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by Charles L. Springer and William H. Springer against Ann Lawrence. From a decree for complainants, defendant appeals. Reversed.

Grey & Grey and S. H. Grey, for appellant.

A. W. Swackhamer and D. J. Pancoast, for respondents.

BEASLEY, C. J. The facts necessary to the intelligibility of the views to be expressed can be stated in a few words. There are three several tracts of land in the county of Gloucester lying along the Delaware river. A part of each of these consists of meadows that were injuriously affected by the flow of the tides, so that in the year 1851 commissioners were appointed under the act (Revision, 642) to enable the owners of meadows to improve the same. By force of that proceeding certain embankments, drains, and sluices were established, and an apportionment of the expense of constructing and maintaining them was duly made. That this course of law was and is legal no one disputes. Of the three tracts thus improved, the respondents, who were complainants in the court below, are at present the owners of the central one, and which is drained on one side through the property of the appellant, and on the other through that belonging to one Beckett, who is not a party to this suit. This being admittedly the legal situation, some years ago the respondents, being minded to reclaim other parts of their low lands, removed the bank on their property erected by the commissioners nearer to the river, so as to take in about 25 acres of additional meadow, and thereby at least doubled the acreage of their farm to be drained. By means of subsidiary drains laid in the superadded land thus reclaimed, they carried the water from it into the drains laid by the commissioners, so that thereby part of such water is carried and discharged through the property of the appellant, and the residue through that of Mr. Beckett, above named. The question, therefore, from this attitude of affairs, necessarily arose, by what right did the respondents burden the land of the appellant with the passage and discharge of this superadded water? It was undeniable, and was therefore admitted, that it was not, in any degree, by force of the action of the statutory commission, for it was the consequence of a radical alteration of that plan and adjustment. What the respondents claimed was and is an easement; that is, the right, in favor of their own lands, to discharge this water onto and through the lands of the appellant. There was no contention that they possessed a deed or writing granting to them such right, but their contention was that the appellant had orally consented to the imposition of this burden on her land, and that, in reliance on such assent, they had incurred certain expenses in erecting their bank and drains, and that, as a consequence, she would not in equity be permitted to recall her license. This view was sustained in chancery, and the appellant was enjoined from stopping the flow of this water over her land, as she threatened to do.

It will be observed that the injury thus supervening involves the difficult and troublesome problem as to what extent and under what circumstances will a court of equity disregard the well-established rules of the common law, as well as the plain provisions of the statute of frauds, in the establishment of a servitude of this kind. In the present instance the proposition upon which this decree has been founded is this: that a parol license, without any consideration money to the licensor, operating as a grant of an easement, is irrevocable in equity, when the licensee has gone to expenditures in the erection of structures on his own land in pursuance of such authority. In the sequel it will become requisite to consider how far this formula, even in its extremest latitude, will support the decree before us in its application to the facts of the case; but before approaching that inquiry it seems necessary, in order to avoid misconception on the subject, to consider whether the equitable principle thus propounded has any place, and, if so, to what extent, in the legal system of this state.

It has not been, and it cannot be, claimed that such a grant as the one in question cannot be enforced in a court of law. Such easements, being incorporeal, lie in part, and their creation requires an instrument under seal. Nor is it questioned, nor questionable, that a parol imposition of a servitude of this kind upon land is in flat contradiction of the statute of frauds. It is true, indeed, that in one class of cases, as is well known, courts of conscience have felt dispensed from putting in force the provisions of that act. This has been the course pursued where a parol agreement for the purchase of lands, or of some interest in them, bus been performed to the extent of possession having been taken in part execution of such contract. But, while this is the undeniable rule in equity, it should be ever borne in mind that its introduction has been regretted by the wisest judges. "The statute," says Lord Redesdale, "was made for the purpose of preventing perjuries and frauds, and nothing can be more manifest, to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would probably have been that few instances of parol agreements would have occurred. Agreements, from the necessity of the case, would have been reduced to writing; whereas it is manifest that the decisions on the subject have opened a new door to fraud." And these strictures are pointed with the emphatic declaration that "it is, therefore, absolutely necessary for courts of equity to make a stand, and not carry the decisions further." Lindsay v. Lynch, 2 Schoales & L. 4. And in the same vein, Judge Story (2 Eq. Jur. § 766) says that "considerations of this sort have led eminent judges to declare that they would not carry the exceptions of cases from the statute of frauds further than they were compelled to do by former decisions." To the same purpose are the criticisms of Chancellor Kent in Phillips v. Thompson, 1 Johns. Ch. 149, and of Chancellor Zabriskie in Cooper v. Carlisle, 17 N. J. Eq. 529.

That the exception to the statute must be greatly amplified, if it is to embrace and validate the parol contract in the present instance. Is entirely manifest. Indeed, it may be said that, after such an extension, it would scarcely be susceptible of further enlargement. When A. permits B. to build a house upon his land, the situation almost, necessarily implies the existence of some contract which is thus partly performed between them. To some extent, therefore, such a matter does not rest absolutely in parol, and the area of possible fraud or perjury is therefore thus circumscribed and hindered. But when B., from his own land, turns his water into the drains on the land of A., the situation does not imply a contract. On the contrary, the situation denotes simply a trespass. Consequently the existence and character of the contract, if one exists, is the pure creation of parol testimony. So wide would be the principle of such an impairment of the statute that it is difficult to see how it could be circumscribed. It would seem to be applicable to the creation of every species of easement; for maybe all rights of way, all rights to light and air, the right to discharge impure water or smoke and noisome smells, and other incorporeal rights of the same kind, could, In most cases, be established by the unassisted force of parol evidence. Plainly, the principle is of great consequence, and the question is whether it prevails in this state.

In responding to this question in the affirmative, the experienced and able vice chancellor who decided this case (21 Atl. Rep. 41) relied upon two recent opinions in the court of chancery as containing the equitable rule now applicable, and which has been already expressed, (Sumner v. Seaton, 19 Atl. Rep. 884; Brewing Co. v. Morton, 20 Atl. Rep. 286;) and in addition to these was cited the case of Water Power Co. v. Veghte, 21 N. J. Eq. 463. This last case was decided in this court, and rests upon satisfactory grounds, but its applicability in the present instance is not perceived. Then this court was called upon to test the equitable efficacy of a written license under certain conditions; now it is to pass upon an oral license under very different conditions. The language of the opinion must be construed with relation to the facts then under consideration. In the reported case the statute of frauds was not a factor influencing the determination, while on the present occasion it is one of prime importance. The two cases do not stand upon the same common basis.

The two English cases cited appear to be equally alien from our present subject. One of these is that of Duke of Devonshire v. Eglin, 14 Beav. 530, and it is entirely plain that the circumstances called for the application of a rule altogether unlike the one now in question. In his opinion in the present case, the vice chancellor describes this as an instance "of a parol license to maintain a water conduit across the licensor's land to supply a village with water;" but the fact that the equitable effect of such an unwritten authority, intrinsically considered, was not in any degree passed upon, appears to have escaped observation. In the reported case the answer admitted the agreement, and it was so found, the chancellor saying: "I am of opinion that the passages read from the answer show that there was a parol agreement to allow the water course to be made through the defendant's land in consideration of payment of a reasonable sum," and, consequently, works that had been built in reliance on such an admitted...