Robinson v. Thrailkill

• Citation: 110 Ind. 117,10 N.E. 647
• Parties: Robinson v. Thrailkill and others.
• Decision Date: 11 March 1887
• Court: Supreme Court of Indiana

110 Ind. 117

10 N.E. 647

Robinson

v.Thrailkill and others.

Supreme Court of Indiana.

March 11, 1887.

Appeal from circuit court, Howard county.

Cooper & Harness and C. N. Pollard, for appellants. Blacklidge & Bro., B. C. Moon, and Bell & Purdum, for appellees.

ELLIOTT, C. J.

The appellees claim to be the owners of a private right of way over the land of the appellants, and they base their claim chiefly on a parol contract made by the grantor of the appellees with the grantor of the appellants. The appellant's counsel are right in asserting that an easement is an interest in land, and that a contract creating such an interest is within the statute of frauds. Richter v. Irwin, 28 Ind. 26;Brumfield v. Carson, 33 Ind. 94;Davidson v. Nicholson, 59 Ind. 411; Browne, St. Frauds, (2d Ed.) § 232. If the claim of the appellees rested solely on the words of parol contract, there would be much more difficulty in the case; but it does not rest on the contract alone, for there was possession and user of the way. The complaint avers that the appellees' grantor, “immediately after the purchase of the said road, took possession and continuously used said road until he sold the said real estate to the plaintiffs, and that from the time of the purchase of said road the same was continuously used and occupied by all the owners of said land.” We think there is shown such a part performance as takes the case out of the statute. The contract is founded on a consideration, and rights have been acquired on the faith of it; so that, even if it should be regarded as a mere license, it must be deemed irrevocable, for a license founded on a consideration, when possession has been taken under it, cannot be revoked. Parish v. Caspar, ante, 109, (January 15, 1887;) Burrow v. Terre Haute, etc., Co., 107 Ind. 432, 8 N. E. Rep. 167, and cases cited; Simons v. Morehouse, 88 Ind. 391;Nowlin v. Whipple, 79 Ind. 481;Rogers v. Cox, 96 Ind. 157, 49 Amer. Rep. 152; Snowden v. Wilas, 19 Ind. 10. But the interest described in the complaint is more than a mere license, for the complaint avers that the road was purchased, and a purchase of the road vests in the purchaser an easement in the land. The appellees are therefore not mere licensees, but they are the owners of a dominant estate in the land of the appellants.

An easement in the lands of a married woman may be acquired without a deed. City of Indianapolis v. Kingsbury, 101 Ind. 200. This was so held under the law, and it stood before the act of 1881, and there can be no doubt that, under the provisions of that act, she may vest an easement without executing a formal deed. Ward v. Berkshire, etc., Co., 108 Ind. ---, 9 N. E. Rep. 361; Cupp v. Campbell, 103 Ind. 213, 2 N. E. Rep. 565. But we do not think it necessary to rest our decision on that principle, for there is a plainer reason for adjudging the complaint sufficient. That reason is this: Mrs. Adams, the grantor of the appellants, sold the land to them, and is not insisting upon the defense of coverture; and, as coverture is a personal defense, the appellants, having bought with...