[*303]

*Lawful license to enter one's premises may be given either, 1. Impliedly by the owner; 2. Expressly by the owner; 3. By the law.

Implied Licenses. Every retail dealer impliedly invites the public to enter his shop for the examination of his goods, that they may purchase them if they see fit; the mechanic extends the like invitation to those who may have occasion to become his customers; the physician and the lawyer invite them to their respective offices, and so on. But the invitation is limited by the purpose; it would be an abuse of the implied license, and a trespass, if one, instead of visiting a dealer's shop for the purposes of the business carried on there, were to assemble his associates there for some political or other purpose, for which the shop had not been thrown open. No doubt one may visit another's place of business from no other motive than curiosity, without incurring liability, unless he is warned away by placard or otherwise. So every man, by implication, invites others to come to his house as they may have proper occasion, either of business, of courtesy, for information, etc. Custom must determine in these cases what the limit is of the implied invitation. In the case of young children and other persons not fully sui juris an implied license might sometimes arise when it would not in behalf of others. Thus, leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the same

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2

'Gowen v. Phila. Exchange Co., 5 Watts & S. 141, 143.

2 It is no trespass to enter upon a man's premises to obtain settlement of a debt, even though it be not yet due. Lehman v. Shackleford, 50 Ala. 437. Nor to enter to make a tender of a debt; but there is no license to stay to insist on an acceptance. Breitenbach. Trowbridge, 31 N. W. Rep. 402 (Mich.) The servants of a wife who has been divorced from her husband for his fault may peaceably enter afterward to remove her goods

from the husband's premises. Kallock v. Perry, 61 Me. 273.

3 Kay . Pennsylvania R. R. Co., 65 Penn. St. 273. A husband has an implied license to come upon station grounds to meet his wife who is coming on a railroad train. McKone . Mich. Centr. R. R. Co., 51 Mich. 601.

Keefe v. Milwaukee, &c., R. R Co., 21 Minn. 207. Compare Wood v. School District, 44 Iowa, 27; Mangan v. Atterton, L. R. 1 Exch. 239; Powers. Harlow, 53 Mich. 507, and see cases, p. *683 notes, post.

implication should arise. So dogs may be impliedly invited upon lands by exposing meat which is apparently abandoned.'

*So one who has an easement in the lands of another is [*304] licensed to enter upon such lands whenever it becomes

necessary to repair or protect it. And in a previous chapter many cases are enumerated in which one, by implication of law, is licensed to enter upon the land of another to remove property which he purchased while it was there, or which was left there under express license, or taken there wrongfully, and in some other cases.

It

Express License. Where one gives to another authority to enter upon his lands to do a certain act or succession of acts, without at the same time granting to him any interest in the land itself, this is a license, whether given by parol or in writing. may be given on condition, in which case it is inoperative, unless the condition is performed. It is personal as between the parties, and cannot be assigned by the licensee, and is revoked by a sale of the land by the licensor. If not acted upon within a reason

'One who baits traps on his premises for dogs is liable to their owner for their value if they are killed in consequence. Townsend v. Wathen, 9 East, 277.

See Prescott v. Williams, 5 Met. 429. So is the lessor of premises when by the lease it is his duty to repair. Saner v. Bilton, L. R. 7 Ch. D. 815.

See ante, p. 51. And as to license to enter burial lot to remove monument. Fletcher o. Evans, 140 Mass. 241. If one's beasts escape from him upon the adjoining premises, when he is driving along the highway with due care, he may lawfully enter to reclaim them. Goodwin v. Cheveley, 4 H. & N. 631. But he must take them out through the proper openings. If he lets down the fence for the purpose, when he might take them through a gate, he may be a trespasser. Gardner v. Rowland, 2 Ired. 247. If one marks what he

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claims as his boundary he licenses his neighbor to cut timber or grass up to the line, though it be not the true one. Parks v. Pratt, 52 Vt. 449; Clark v. Dustin, 52 Vt. 568.

4 Mumford . Whitney, 15 Wend. 380; Freeman v. Headley, 33 N. J. 523.

5 Carleton. Redington, 21 N. H. 291; Jackson v. Babcock, 4 Johns. 418; Ruggles v. Lesure, 24 Pick. 187.

Drake v. Wells, 11 Allen, 141; Houx. Seat, 26 Mo. 178; Carter v. Harlan, 6 Md. 20; Groendyke v. Cramer, 2 Ind. 382; Mendenhall v. Klinck, 51 N. Y. 246; Estes v. China, 56 Me. 407; Dark v. Johnson, 55 Penn. St. 164; Prince v. Case, 10 Conn. 382; Winne v. Ulster Co. &c., Inst., 37 Hun, 349; Maxwell v. Bay City, &c. Co., 41 Mich. 453; Cox v. Leviston, 63 N. H. 283; Jenkins v. Lykes, 19 Fla. 146. Perhaps it would be equally correct to say that the license had terminated by the hap

able time it is presumptively recalled;' if it is acted upon, the licensee assumes the obligation to observe due care, and to negligently do nothing upon the land that shall be injurious. In general, the licensor assumes toward the licensee no duty, but

to refrain from acts willfully injurious, except, perhaps, [*305] when he *had received a consideration for the license, or where his own business was such as to render the enjoy ment of the license dangerous, in which case the license would impose upon him the obligation of additional care. A license is

not to be extended by construction, and therefore a license for the erection of a bridge will not extend to and license the rebuilding of the bridge after the original structure has passed away.' So a license is always subject to revocation before it has been executed, but not afterward. By this is meant that the license accompanies and justifies every act done under it, but is subject at any moment to be put an end to as to any act contemplated by it but not yet performed.' The exceptions to this general right to revoke a license embrace those cases where the licenses are coupled with an interest. By this is meant, not the interest the licensee has in doing the act permitted, but a legal interest conveyed to him in connection with the license, and to the enjoyment of which the license is essential. If, for example, one man sells to another cattle then depasturing on his grounds, the right transferred in the cattle *supports the [*306] implied license to enter upon the grounds to take them

their road, an obligation of additional care. Kay v. Pennsylvania R. R. Co., 65 Penn. St 269; Taylor v. Del., &c., R. R. Co., 113 Penn. St. 162; Byrne

. New York, &c., R. R. Co., 104 N. Y. 362; Davis v. Chicago, &c., Ry Co., 58 Wis. 646, and cases cited; Virginia, &c., R. R. Co. v. White, 5 S. E. Rep.573 (Va.); Troy v. Cape Fear, &c., Ry Co., 6 S. E. Rep. 77 (N. C.) But such permission does not amount to an invitation, and the company is liable only if the injury is wanton or willful. Wright v. Boston, &c., R. R. Co., 142 Mass. 296.

1 Hall v. Boyd, 14 Geo. 1; Gilmore ♥. Wilbur, 12 Pick. 120; Ameriscoggin Bridge v. Bragg, 11 N. H. 102; Gardner. Rowland, 2 Ired. 247. The same is true in the case of dams erected under license. See Cook v. Stearns, 11 Mass. 533.

2 Houston v. Laffee, 46 N. H. 505; Dodge . McClintock, 47 N. H. 383; Batchelder o. Hibbard, 58 N. H. 269; Chynoweth . Tenney, 10 Wis. 397; Kimball. Yates, 14 Ill. 464; Allen . Fiske, 42 Vt. 462; Woodward v.

Seely, 11 Ill. 157; Druse v. Wheeler, 22 Mich. 439; S. C. 26 Mich. 189; Randal v. Elder, 12 Kan. 257; Giles . Simonds, 15 Gray, 441; Cook v. Stearns, 11 Mass. 533; Clute v. Carr, 20 Wis. 531. It is a complete protection as to everything done under it before revocation. Wood v. Leadbitter, 13 M. & W. 838; Rawson v. Morse, 4 Pick. 127; Giles v. Simonds, 15 Gray, 441; Marston v. Gale, 24 N. H. 177; Fuhr v. Dean, 26 Mo. 116; Owens v. Lewis, 46 Ind. 489; Van Deusen v. Young, 29 N. Y. 9; Freeman v. Headley, 32 N. J. 225. Recovery may be had for injury suffered by licensor after a revocation. Lockhart v. Geir, 54 Wis. 133. An oral license to open a street may be revoked before it has been acted on. Turner v. Stanton, 42 Mich. 506.

See Wood v. Manley, 11 Ad. & El. 34; Barnes v. Barnes, 6 Vt. 388; Parsons v. Camp, 11 Conn. 525; Whitmarsh v. Walker, 1 Met, 313; Giles v. Simons, 15 Gray, 441; White v. Elwell, 48 Me. 360; Lewis v. McNatt, 65 N. C. 63.

away, and makes it irrevocable.' But it is to be observed of this case that the license contemplates a temporary use of the land only; not to have any permanent enjoyment of it; if it contemplated anything further, it might be revoked, though no revocation could take from the purchaser his interest in the cattle, or preclude his right to remove them. So if one license another to erect and occupy a building upon his land, and he erects it accordingly, the law recognizes the license so far as to protect his right in the building; and though permission to occupy may be recalled, this will not preclude the licensee going upon the land afterwards to take the building away.' But a license cannot be coupled with an interest in the lands, unless created by deed, or by such other instrument as is sufficient to convey such an interest under the Statute of Frauds. Therefore, rights of way, sales of growing trees, permission to flow lands permanently, or to carry water over or pipes under the land of another, are mere licenses, and revocable as such, unless created or made by deed.

One who has sold property by conditional sale, and who, when the condition is not complied with, enters peaceably the house of the vendee, with assistance, to take the property away, is not a trespasser for so doing, though the property is not found, it being furniture for use there. Walsh v. Taylor, 39 Md. 592.

2 Barnes v. Barnes, 6 Vt. 388; Smith v. Benson, 1 Hill, 176; Dubois v. Kelley, 10 Barb. 496; Ricker v. Kelly, 1 Me. 117; Schoonover v. Irwin, 58 Ind. 287. But where one, without permission, has put up buildings on the land of another, whereby they become the property of the landowner, and he then obtains the landowner's parol consent to their removal, this consent is a mere license, and may be revoked before it has been carried out. Foster v. Mabe, 4 Ala. 402; Gibbs v. Estey, 15 Gray, 587; Madrgan v. McCarthy, 108 Mass. 376; Shell v. Haywood, 16 Penn. St. 523.

See Washb. Real Prop. B. 1, C. 12, § 2. If a lessee of a parcel has by necessity a license to cross another

And so are

parcel of a lessor's land in order to reach the demised parcel, his license is coupled with an interest and is irreVocable while the lease is in force. Powers . Harlow, 53 Mich. 507. Otherwise as to the use of way if there is access from a road, though it is less convenient. Motes v. Bates, 74 Ala. 374. As to license to drain, see Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 N. Y. 323; see also Wilkins v. Irvine, 33 Ohio, St. 138; to bury, Rayner v. Nugent, 60 Md. 515. A sale of growing trees may or may not be a sale of an interest in lands. If it is a sale of the trees, to be taken as they stand by the vendee, it is a sale of the realty; but if it is a sale of the timber when the trees are cut, it is a sale of personalty, and may be valid without deed. See cases collected, Owens v. Lewis, 46 Ind. 489; S. S. 15 Am. Rep. 295. A parol sale of standing timber oper ates as a license to protect purchaser as to anything done under it prior to its revocation, and the title to timber actually cut before revocation passes.