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the licenses which are given by the sale of tickets to theatres and other places of public amusement.'
In some cases where a license is revoked, it is of very little. importance whether the licensee is or is not protected against liability as a trespasser for what has been done under it, because such a liability is insignificant as compared with the loss
he must suffer by the license being withdrawn as to the [*307] future. The case of license to erect mill dams, and thereby flow the lands of proprietors above, is a suitable illustration; and in what we shall say further under this head we shall confine our attention to licenses of this sort. The hardship of permitting these to be revoked is so great in some cases that it is of great interest to know whether the licensee is not entitled to some protection against it.
The practical consequence of the withdrawal of such a license is this: that whereas the licensee in acting upon it has contemplated its permanent enjoyment, and has perhaps made large expenditures in reliance upon it, yet he must now not only abandon such enjoyment, but he must also destroy whatever has been erected under the license the continuance of which would require the license for its protection. When the license to flow lands is withdrawn, the dam which causes the flow must be removed. But the right of the licensor to revoke in these cases is recognized very generally and very fully. The statute of frauds does
Spalding. Archibald, 52 Mich. 365; Jenkins . Lykes, 19 Fla. 148; Heflin . Bingham, 56 Ala. 566. If a third person cuts the trees before revocation, the licensee may recover from him for the conversion. Cool v. Peters, &c., Co., 87 Ind. 531. A railway company which, by consent of the owner, is put in possession of a way over his land, with a covenant from him for further assurance, has a license coupled with an interest, and one which is not subject to revocation. New Jersey, &c., R. Co. v. Van Syckle, 37 N. J. 496. A mere parol license to build a track, though acted upon, is revocable. Nat. Stock Yds. v. Wiggins, &c., Co., 112 Ill. 334. Contra, Texas, &c., Co. v. Jarrell, 60
Tex. 267; Campbell . Ind. &c., R.
'Wood v. Lead bitter, 13 M. & W. 838; Burton v. Scherpf, 1 Allen, 133. In this last case it was decided that a ticket to a concert was a mere license, and might be revoked after the party had taken his seat, and he be put out, if he refused to go. But it has been intimated that tickets for particular seats give more than a mere license. Drew v. Peer, 93 Penn. St. 234.
2 See Wallis v. Harrison, 4 M. & W. 538; Cocker v. Cowper, 1 C. M. & R. 418; Mumford o. Whitney, 15 Wend. 380; Houston v. Laffee, 46 N. H. 505; Selden v. Delaware, &c., Co., 29 N. Y. 634; Foot v. New Haven, &c., Co., 23 Conn. 214; Morse v. Copeland,
not permit an interest in lands, except in a few cases-of which this is not one, to pass without deed. But a right to flow lands is, beyond any question, an important interest in the lands, and directly within the contemplation of the statute.' Says SAVAGE, Ch. J.: "If A. agree with B. that B. may build a dam upon the land of A., if it is to be permanent, or anything more than a mere temporary erection, such an agreement is not technically a license. The object of A. is to grant and of B. to acquire an interest which shall be permanent: a right not to occupy for a short time, but as long as there shall be employment for the water-power to be thus created. Can such an interest, such a right, be created by parol? As Mr. SUGDEN says of the case of
Wood v. Lake, 'It appears to be in the very teeth of [*308] the statute, *which extends generally to all leases, estates or interests. To decide that a right to a permanent occupation of the plaintiff's land may be acquired by parol, and by calling the agreement a license, would be in effect to repeal the
What relief, then, if any, can be given to the licensee without acting in the teeth of the Statute of Frauds, is the problem to which the courts have directed much attention. If they abide by the strict letter of the statute, the licensee will be remediless when the permission is recalled; for it must be impossible to give him protection without assuring him without deed an interest in lands which the statute says shall pass by deed only. But the statute has been adopted from forcible considerations of public policy; and it lays down what was meant to be an inflexible rule. It is scarcely too much to say that if parties are guilty of the folly of disregarding its provisions it was the intent of the statute that they should be left without redress. Neverthe
2 Gray, 302; Hall v. Chaffee, 13 Vt. 150; Kivett v. McKeithan, 90 N. C, 106; Johnson v. Skillman, 29 Minn. 95.
1 PARKER, Ch. J., in Cook v. Stearns, 11 Mass. 538. It is immaterial whether a license, as such, is in writing or oral: the protection is the same in each case, and the right to revoke the same where it is not coupled with an interest. It may also be inferred from
circumstances. See Batchelder v. Sanborn, 24 N. H. 474; Lakin o. Ames, 10 Cush. 198; Harmon v. Harmon, 61 Me. 222. A written agreement providing for perpetual flowage of lands is not a revocable license. Interest not permissive but absolute. Fitch v. Constantine, &c., Co., 44 Mich. 74. 2 Mumford . Whitney, 15 Wend.
less it is matter of every-day observation that parties do and will rely upon the word and honor of others in cases in which the statute admonishes them that nothing short of a formal instrument should be accepted; and that their confidence is frequently abused by those on whom they rely, who take advantage of the statute to shield themselves against responsibility for frands and other wrongs. And the law, in detestation of such conduct, appears to have been quite ready in many cases to seize upon any circumstances which could seem to form an excuse for treating the case as taken out of the purview of the statute, so as to permit the courts to give relief. And so many cases have thus been treated as exceptional, and under such variety of circumstances, that the complaint sometimes made-that the statute has been repealed by judicial legislation-seems almost justified.
Some courts have been inclined to hold that, after the license has been acted upon and considerable expenditures made, it should not be revoked without making compensation to the licensee. Other cases go still further, and hold that where the licensor has stood by and seen the licensee make large expenditures *in reliance upon his license, and which will [*309} be wholly or in great part lost to him if the license should be recalled, these facts are sufficient to create an estoppel in pais which will preclude him from revoking. They liken the case to that of a man who suffers his property to be sold as belonging to another without interposing his claim, or who, under any other circumstances, by keeping silence as to his own rights, induces another who is ignorant thereof, to take action which will be prejudicial if such rights are afterwards. asserted.
1 See Addison v. Hack, 2 Gill, 221; Rhodes v. Otis, 33 Ala. 578; Snowden . Wilas, 19 Ind. 10; Woodbury v. Parshley, 7 N. H. 237; Ameriscoggin Bridge o. Bragg, 11 N. H. 102; Sampson v. Burnside, 13 N. H. 264; Hall v. Chaffee, 13 Vt. 150.
See Swartz v. Swartz, 4 Penn. St. 353; Rerick v. Kern, 14 S. & R. 267; Lacy v. Arnett, 33 Penn. St. 169; Cumberland R. R. Co. v. McLanahan, 59
Penn. St. 23; Huff . McCauley, 53 Penn. St. 206; Sheffield v. Collier, 3 Kelly, 82; Cook v. Pridgen, 45 Geo. 331; Snowden v. Wilas, 19 Ind. 10; Lane o. Miller, 27 Ind. 534; Wilson v. Chalfant, 15 Ohio, 248; Ricker v. Kelly, 1 Me. 117; Russell v. Hubbard, 59 Ill. 335. Unless the licensee can be placed in statu quo, in Indiana the license is irrevocable. Campbell v. Ind., &c., R. R. Co., 110 Ind. 490;
There is a class of cases which, at first view, may appear to resemble those under consideration, and to which the doctrine of estoppel may with great propriety be applied; such, for instance, as the erection of a partition-wall which parties are to to enjoy in common, or the altering the route of a watercourse in which both parties are interested; but these, we think, are to be looked upon as being not so much agreements which give interests in lands as arrangements for the suitable and convenient apportionment or improvement of separate rights which are so connected or related that neither party can properly and fully enjoy his own without some common understanding.
For all such cases the law prescribes for the conduct of the parties some regulations; but there are no reasons to preclude their consulting their own interests or convenience in adding to or modifying these; and if they shall do so, it may be supposed it will generally be done without any understanding that interests in lands are being given or required. Therefore, if their arrangements are merely verbal the courts should not be over-nice in technical classification for the benefit of a party seeking to repu diate them. As has been well said, the acquiescence and consent
of the parties to such arrangements are in the nature [*310] of a *contract, which, when fulfilled by one party at his
cost and charge, must be obligatory upon both.3
If, however, the doctrine of estoppel can be so applied as to make a parol license create an easement, or subject lands to a servitude on the ground of expenditures made on the faith of it, it must be through some extension of that doctrine not as yet fully accepted. Estoppel is applied to prevent fraud; the party
Simons. Morehouse, 88 Ind. 391, Burrow. Terre Haute, &c., Co., 107 Ind. 432; Nowlin v. Whipple, 79 Ind. 481; but a license without consideration may be revoked before it is acted on. Williamson v. Yingling, 93 Ind. 42; Parish v. Kaspare, 109 Ind. 586. In Iowa, where money has been spent in making a mill race, the license is irrevocable. Decorah, &c., Co., v. Greer, 49 Ia. 490. Otherwise as to license to erect a building where
only the line stakes have been driven. Kipp v. Coenen, 55 Ia. 63.
1 Wickersham v. Orr, 9 Iowa, 253; Rawson v. Bell, 46 Geo. 19; Russell v. Hubbard, 59 Ill. 335; Wynne. Gar land, 19 Ark. 23.
2 LeFevre v. LeFevre, 4 S. & R.241; Rerick v. Kern, 14 S. & R. 267; Wil liams v. Earl of Jersey, 1 Cr. & Ph. 92, 3 MERRICK, J., in Pratt v. Lawson, 2 Allen, 275.
who has neglected to speak when duty or good faith required him to do so, being denied the privilege of asserting his rights afterwards, when to do so would work a surprise and a damage to the party deceived and misled by his silence. But it is difficult to say that one is deceived who, with full knowledge of the facts, has seen fit to rely upon a promise which the law in advance notifies him is void. If one owning land were to say to another, "This is my land, but if you will go on and occupy it I will never assert title thereto," it would be a plain perversion of the doctrine of estoppel to hold that he was afterwards precluded from claiming the land. He has deceived no one regarding the facts, and there is nothing to distinguish the case in its legal bearings from any other in which a party refuses to hold himself bound by a void promise. If, therefore, his pledge can be enforced by estoppel, any other promise made void by the Statute of Frauds, it would seem, might be enforced in the same manner.' The doctrine of estoppel is a very salutary one, but it will not do to apply it in cases where, though the party may not be acting. conscientiously, he is nevertheless only insisting upon the legal safeguards prescribed by law for the common protection of all. The rule is: "If one is silent when he should speak, justice will compel him to silence when he would speak.' It precludes the facts from being shown because not shown in season; but there is difficulty in applying it to cases where the action has been had. with full knowledge.
There is also considerable support for the doctrine, that the permission to flow after it has been acted upon may be enforced in equity on the same ground on which the courts of equity enforce parol contracts for the sale of land after there has been partial performance. Says Judge REDFIELD: "If [*311] such a license be given by parol, and expense incurred
on the faith of it, so that the parties cannot now be placed in statu quo, there would seem to be the same reason why a court of equity should grant relief as in any other case of part performance of a parol contract for the sale of land or any interest therein, i. e., to prevent fraud." In Pennsylvania it has been expli
'See Wright . DeGroff, 14 Mich. 164; Hayes o. Livingston, 34 Mich. 884.
2 WOOD, J., in Buckingham v.
Smith, 10 Ohio, 289, citing Wendell