Ricker v. Kelly

• Decision Date: 01 September 1820
• Parties: RICKER & AL. v. KELLY & AL
• Court: Maine Supreme Court

1 Me. 117

RICKER & AL. v. KELLY & AL

Supreme Judicial Court of Maine, Counties of Kennebec and Somerset

September, 1820

Trespass for cutting down and destroying part of a wooden bridge, the property of the plaintiffs. The defendants, in justification, pleaded that the bridge was erected on the land of Kelly, without his license and against his will, and that he removed it from his close as he lawfully might do.

The plaintiffs replied that on a certain day, in consideration of their promise to perform certain work and labour, & c. for Kelly, he gave them license and authority to erect a bridge on his land, and to have a right of way over the same to the bridge; --that by virtue of said license they erected the bridge; and that afterwards they performed the work and labour, & c. which they had promised him, and which he accepted in full discharge of their promise.

To this replication the defendants demurred in law; because the plaintiffs had not set forth any legal conveyance of title to them to build said bridge on the land of Kelly, nor to enter upon or pass over the land for any other purpose; and because it did not appear that said license was in writing, nor how long it was to continue in force.

Judgment for the plaintiffs.

Rice in support of the demurrer.

The replication does not shew a license in writing; without which the license is void by Stat. 1783. c. 37.

The plaintiffs claim an interest in land, but they do not show how they obtained it; which they ought to have done, that the Court might see whether it be good or not. Cook v Stearns, 11 Mass. 533. Pomfret v. Ricroft, 1 Saund. 321.

The action stands as if brought by the defendants against the plaintiffs for erecting the bridge without permission from the owners of the soil. It is by persons who have unlawfully built a bridge on another's land, against the owner of the soil, for pulling it down; and such an action, it will be readily agreed, cannot be supported.

Boutelle, for the plaintiffs.

The plaintiffs having erected the bridge at their own expense, the materials were their own, and they might remove them at their pleasure. Wells v. Banister, 4 Mass. 514. Taylor v. Townsend, 8 Mass. 411.

The license given by the defendants was not revocable after the bridge was erected. It stands on the ground of a part execution. Davenport v. Mason, 15 Mass. 92. Upon this authority the plaintiffs are justified in maintaining the bridge against the defendants. Having permitted its erection, they cannot now recall the license, it being already acted upon. The case at bar is as if the defendants had sued the plaintiffs for a nuisance, and is identical, in its principles, with Winter v. Brockwell, 8 East 308. Vid. Cook v. Stearns, 11 Mass. 533. Crosby v. Wadsworth, 6 East 602. Harrison v. Parker, 6 East 154.

OPINION

MELLEN, C. J.

It appears by the pleadings in this case, that the locus in quo belongs to the defendants; --that sometime before the trespass, they had, for a valuable consideration paid to them, licensed the plaintiffs, by parol, to enter into said close and erect the part of the bridge which the defendants removed.--It does not appear that this license was ever revoked, if revocable; nor that any notice was given to the plaintiffs to remove the bridge, prior to the removal of it by the defendants.--Under these circumstances, is the action maintainable?

The justice of the plaintiffs' claim for indemnity is very apparent.--But it is contended that no rights were conveyed to the plaintiffs by the license of the defendants because it was not in writing; that it is nothing more than a lease at will, according to the Statute of conveyancing. Stat. 1783. c. 37.--To this it may be replied, that a lease at will is good, until the will is determined; and the lessee's rights remain until that time.--This objection therefore cannot avail the defendants, because it does not appear that such lease was determined by the lessors before the removal of the...