Thoemke v. Fiedler

• Citation: 91 Wis. 386,64 N.W. 1030
• Parties: THOEMKE v. FIEDLER ET AL.
• Decision Date: 08 November 1895
• Court: Wisconsin Supreme Court

91 Wis. 386

64 N.W. 1030

THOEMKE

v.FIEDLER ET AL.

Supreme Court of Wisconsin.

Nov. 8, 1895.

Appeal from Waukesha county court; M. S. Griswold, Judge.

Action by Albert Thoemke against Michael Fiedler and another for a mandatory injunction to compel the removal of obstructions in a drainage ditch. From a judgment of dismissal, plaintiff appeals. Affirmed.

The plaintiff is the owner of the E. 1/2 of the N. W. 1/4 of section No. 32 in township No. 7 N., of range No. 17 E. In 1855 these premises were owned by one Johan Falkheimer, who conveyed them to the plaintiff in 1874. The defendant Fred C. Fiedler is the owner of the S. W. 1/4 of the said N. W. 1/4. In 1855 these premises were owned by the defendant Michael Fiedler, who conveyed them to the defendant Fred C. Fiedler in 1893. One Caspar Shelhorn owned the W. 1/2 of the S. W. 1/4 of said section. In the year 1855 the persons owning the said several tracts of land desired to construct a main ditch upon Shelhorn's land, through which all their lands could be drained. There was already a ditch upon Michael Fiedler's land, which needed only to be opened into the proposed new ditch on Shelhorn's land. There was a marsh or pond hole on Falkheimer's land, which could be connected with the ditch already on Fiedler's land by a lateral ditch. So it was agreed that Falkheimer should pay one-fourth of the expense of making the ditch upon Shelhorn's land, and should have the right to make and maintain a ditch across Fiedler's land to drain his pond hole into Fiedler's ditch. This agreement was oral merely, and was never reduced to writing. But it was carried out by all the parties. Falkheimer paid one-fourth of the expense of making the ditch on Shelhorn's land, and made his ditch across Fiedler's land. This ditch was kept open by Falkheimer and the plaintiff until the year 1878, when Fiedler closed it, against the protest of the plaintiff, and it has ever since remained closed. This action is for a mandatory injunction requiring the defendants to reopen the ditch, and for damages. There was a finding and judgment for the defendants, from which the plaintiff appeals.Ryan & Merton, for appellant.

George W. Bird, for respondents.

NEWMAN, J. (after stating the facts).

The oral agreement under which the ditch across the defendants' land was made did not create an easement in the lands. An easement is a permanent interest in the lands of another, with a right to enjoy it fully and without obstruction. Such an interest cannot be created by parol. It can be created only by a deed in writing, or by prescription. But this agreement did have the effect of a parol license. A license creates no estate in lands. It is a bare authority to do a certain act or series of acts upon the lands of another. It is a personal right, and is not assignable. It is gone if the owner of the land who gives the license transfers his title to another, or if either party die. So long as a parol license remains executory it may be revoked at pleasure. So an executed parol license, under which some estate or interest in the land would pass, is revocable. Otherwise title would pass without a written conveyance, “in the teeth of the statute of frauds.” Nor is such a license made irrevocable by the fact that a valuable consideration is paid for it, or because expenditures have been made on the faith of it. None of these propositions are doubtful, upon the authorities. Washb. Easem. (4th Ed.) 28, 431, par. 14; 6 Am. & Eng. Enc. Law, 141, and cases cited in note 3; Hazleton v. Putnam, 3 Pin. 107;French v. Owen, 2 Wis. 250;Clute v. Carr, 20 Wis. 531;Lockhart v. Geir, 54 Wis. 133, 11 N. W. 245;Johnson v. Skilman, 29 Minn. 95, 12 N. W. 149;Olson v. Railroad Co., 38 Minn. 479, 38 N. W. 490;Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co., 51 Minn. 304, 53 N. W. 639;Woodward v. Seely, 11 Ill. 157;Wiseman v. Lucksinger, 84 N. Y. 31;Cronkhite v. Cronkhite, 94 N. Y. 323;Eckerson v. Crippen, 110 N. Y. 585, 18 N. E. 443;White v. Railway Co., 139 N. Y. 19, 34 N. E. 887.

Nor could the use of the ditch ripen into an easement by prescription, by adverse use, so long as the use exists and is exercised under the license. For in that case it is permissive and not adverse. Cronkhite v. Cronkhite, supra; Wiseman v. Lucksinger, supra. The use can become adverse only after revocation. Eckerson v. Crippen, supra.

Nor can the parol agreement be enforced in equity by way of specific performance. The terms of the contract between Falkheimer and Fiedler respecting the ditch are unknown, except that Falkheimer was to have the...