citly held that "expending money or labor in consequence of a license to divert a water-course, or use a water-power in a par ticular way, has the effect of turning such license into an agree ment that will be enforced in equity;" and the decision, as appears by the context, and also by subsequent cases, is not based upon any distinction between licenses which are to extinguish and those which are to create an easement or servitude, but is ap plicable to both.' The same doctrine is held in Indiana; and in both these States it is held that, inasmuch as they have no court with full equity powers, they will give the licensee the necessary protection when he is proceeded against at law.

One serious difficulty encountered in putting these cases on the ground of specific performance, is that the right to the easement cannot be made complete without a grant, and the licensee has not stipulated for a grant, or understood that one was to be given. When the court undertakes to decree specific performance, it seeks to carry out the contract of the parties as nearly as may be possible; but to treat the license as a contract in these cases, it would seem to be necessary to add a new stipulation and then proceed to enforce it. With this exception the case does not differ from those in which equity is in the daily practice of administering this relief. But it may well be said that in any case of a parol contract relating to lands, it is the particular right or

privilege promised that the parties have in view rather [*312] *than the means or instrument by which it is to be created or given, and the court will only be adapting the proper means to the end at which the parties aimed, if it shall direct a legal assurance to be executed. If relief be given by awarding a perpetual injunction against disturbing the enjoyment

case out of the statute. Lee v. McLeod, 12 Nev. 280. There can be no specific performance if the license is revoked before licensee's entry. Ellsworth. South. Minn., &c. Co., 31 Minn. 543.

1 Rerick v. Kern, 14 S. & R. 267. 2 Compare Le Fevre v. Le Fevre, 4 S. & R. 241; Strickler v. Todd, 10 S. & R. 63; McKellip v. McIlhenny, 4 Watts, 317; Wheatley v. Chrisman, 24 Penn. St. 298; Campbell v. McCoy, 31 Penn. St. 263; Dark v. Johnston,

33 Penn. St. 164; Lacy . Arnett, 33 Penn. St. 169.

Snowden. Wilas, 19 Ind. 10; Lane v. Miller, 27 Ind. 534.

4 See the cases above cited. Also, Wetmore v. White, 2 Caines' Cas. 87; and the dictum of GRIDLEY, J., in Pierrepont. Barnard, 6 N. Y. 290, 304. Also, what is said by AMES, J., in Foster . Browning, 4 R. I. 53; Hallo. Chaffee, 13 Vt. 150; Prince ®. Case, 10 Conn. 375.

5 See Stephens v. Benson, 19 Ind.367;

of the license, the same end would be reached and the licensor at the same time would only be held to the exact terms of his promise.1

Assuming the case to stand on the same footing as a parol contract for the purchase of lands, the permission to flow must obviously be regarded as something more than a mere license. It could not properly be treated as a personal privilege merely, but must be considered as pertaining to the mill property, so as to pass with it on a sale. And the death of the licensor or licensee, or the sale of the servient tenement, or the decay of the dam, would not revoke it. This is the view that has been taken in Pennsylvania and Indiana. And the licensee, then, after moneys expended, would have all the rights of a purchaser in possession under a parol contract, among which would be the right to justify and defend his possession in the courts of law, until his right was terminated by such steps as would be necessary in the case of the occupation of lands under such parol

contracts.

All that is above said is as applicable to a license for any other purpose as to a license for flowing lands."

*3. The third class of licenses comprehends those cases [*313] in which the law gives permission to enter a man's pre

mises. This permission has no necessary connection with the owner's interest, and is always given on public grounds. An in

In

Huff. McCauley, 53 Penn. St. 206; Prince . Case, 10 Conn. 375. Houston v. Laffee, 46 N. H. 505, which overrules the early New Hampshire cases-which held a license on which large expenditures had been made was not revocable-it seems to be plainly intimated that the licensee would be entitled to some equitable redress.

The right at law to revoke a license acted upon with expenditure of moneys is fully recognized in Owen v. Field, 12 Allen, 457; Clute v. Carr, 20 Wis. 559; Hetfield v. Cent. R. R. Co., 29 N. J. 571; Druse v. Wheeler, 29 Mich. 439; Selden v. Delaware, &c., Canal Co., 29 N. Y. 634; Foster v. Browning, 4 R. I. 47;

Houston v. Laffee, 46 N.H. 505: Carleton. Redington, 21 N. H. 291; Kamphouse . Gaffner, 73 Ill. 453; Miller v. Tobie, 41 N. H. 84; Marston v. Gale, 24 N. H. 176; Ru_gles v. Lesure, 24 Pick. 187. See Cobb v. Fisher, 121 Mass. 169.

2 Lacy v. Arnett, 33 Penn. St. 169; Rerick v. Kerr, 14 S. & R 267; Thompson v. McElarney, 82 Penn. St. 174; Snowden v. Wilas, 19 Ind. 10. And see Mumford v. Whitney, 15 Wend. 380.

See Kamphouse v. Gaffner, 73 Ill. 453. License to build a bridge whose abutments are on one's land is revocable. Maxwell v. Bay City, &c., Co., 41 Mich. 453; contra, Moses v. Sanford, 2 Lea, 655.

stance is where a fire breaks out in a city. Here the public authorities, and even private individuals, may enter upon adjacent premises as they may find it necessary or convenient in their efforts to extinguish or to arrest the spread of the flames. The law of overruling necessity licenses this, and will not suffer the owner of a lot to stand at its borders and exclude those who would use his premises as vantage ground in staying the conflagration. Indeed, it sometimes becomes necessary to destroy whole blocks of buildings to stop the spread of a fire, and the sufferer, instead of looking to the officials who command it or the parties who execute their commands, must seek redress at the hands of the State itself and accept what the State awards.' So, if a highway is out of repair or obstructed, a traveler having occasion to make use of it may lawfully pass upon the adjoining premises, carefully avoiding any unnecessary injury. So the statutes which permit lands to be taken for public purposes may provide for prelimi

nary surveys, in order to determine the necessity for any [*314] particular *appropriation, and in thus providing, they li

cense an entry upon the lands for the purpose. So administrative officers are licensed by the law to enter upon private premises when necessary in the discharge of their duties.

A more common instance of a license given by the law is where an officer has process, in the service of which it becomes neces

'Darlington . New York, 31 N. Y. 164; New York . Lord, 18 Wend. 126; Stone v. New York, 25 Wend. 157; Surocco v. Geary, 3 Cal. 69; American Print Works o. Lawrence, 21 N. J. 257; S. C. 23 N. J. 9, 590; McDonald v. Red Wing, 13 Minn. 38. As to the right to enter to make defense against public enemies, see British Cast Plate Co. v. Meredith, 4 T. R. 797, per BULLER, J.; Boulton v. Crowther, 2 B. & C. 703.

2 Absor v. French, 2 Show. 28; Taylor v. Whitehead, Doug. 749: Bullard v. Harrison, 4 M. & S. 387; Campbell v. Race, 7 Cush. 408; Williams v. Safford, 7 Barb. 309; Hedgepeth Robertson, 18 Tex. 858; Morey v. Fitzgerald, 56 Vt. 487; Irwin v. Yeagar, 37 N. W. Rep. 136 (Ia.). The rule is

.

not the same in the case of a private way. Taylor v. Whitehead, Doug. 749; Williams v. Safford, 7 Barb. 309; Boyce . Brown, 7 Barb. 80; Holmes . Seeley, 19 Wend. 506. Though if the private way is obstructed by the owner of the adjoining land, it would be justifiable to pass over his land to avoid the obstruction. Kent v. Judkins, 53 Me. 160. Haley. Colcord, 59 N. H. 7; see Carey v. Rae, 58 Cal. 159; Leonard €. Leonard, 2 Allen, 543; Farnum . Platt, 8 Pick 339.

Walther v. Warner, 25 Mo. 277; Mercer v. McWilliams, Wright (Ohio), 132; Fox v. W. P. R. R. Co., 31 Cal. 538; Bloodgood v. Mohawk, &c., R. R. Co., 14 Wend. 51; S. C. 18 Wend. 9.

sary to enter upon private grounds or into private buildings. In general an officer may go wherever a man is, in order to make service of process upon him. The limitation of the right is expressed in that familiar maxim of the law which recognizes every man's house as his castle. The meaning is, that every man's dwelling is sacred against any unlicensed intrusion, and he may close and defend it not against private persons merely, but against the ministers of the law also. The privilege of the castle, however, is in the outer walls only; if the outer door is found open, the officer may enter for any lawful purpose, and having entered, he may, if need be, break open inner doors to make or complete a service. Even the outer doors may be forced for the purposes of an arrest for treason, felony, or breach of the peace, or to serve a search warrant which particularly specifies the building entered as the one to be searched, or to dispossess the occupant when another, by the judgment of a competent court, has been awarded the possession.' In these cases the privilege must yield to the demands of public justice.

The privilege does not in any degree depend upon the character of the building except in this, that it must be the man's habitation. It may even be the part of a house only, as where one building was occupied by many persons who had their separate apartments opening into a common hall, those of the plaintiff communicating with the hall by several doors. Says MERRICK, J.: “The apartments occupied by the plaintiff constituted, in and of themselves, a complete habitation for himself and for his family. He had the sole and exclusive use and possession of them as completely as if they stood separate and apart from everything else, and were in any other distinct structure. The privilege which the law allows to a man's habitation clearly *ought to attach to apartments so situated. It [*315] arises from the great regard which the law has for every man's safety and quiet, and, therefore, it protects him from those inconveniences which must necessarily attend an unlimited power in the sheriff and his officers in this respect. And this reason shows that the principle of law which gives protection to dwelling houses has no reference whatever to their quality, construction, or magnitude, but is solely for the purpose of insuring the quiet, convenience and security of those who inhabit and dwell

Semayne's Case, 5 Co. 91; Yelv. 29; S. C. Smith Lead, Cas, 213.

in them. Domestic security and peace would be equally disturbed by violence in breaking the doors and forcing an entrance into a dwelling, whether it should consist of the entire portions of the building or of separate and distinct apartments within it.

"Nor can the fact that there were several doors leading from the common passage-way into the different apartments occupied by the plaintiff lead to a different conclusion. For, although it was said by Lord Mansfield, in Lee v. Gansel,' that the having of four outer doors would lead to the grossest absurdity, since the greatest house in London has but one, that is not the manner in which, according to our prevailing habits and inodes of living, our dwelling houses are here constructed. Many might, undoubt edly, be found here having four, and it would perhaps be difficult to find a house of any moderate degree of pretension which has less than two outer doors. While all the doors leading into any of the apartments occupied by the plaintiff are closed, each of them may be considered and must be treated as an outer door. They are all necessary to protect the habitation from the intrusion of those who have no license to enter it. Whether an officer who had lawfully passed through one of them might afterward, for the purpose of completing the service of his process, treat the others as inner doors, need not now be considered, because no such question arises upon the facts reported. The complaint against the defendant is confined to the breaking open of one of the doors before he had obtained an entrance to any of that portion of the building which was in the exclusive ocen pation of the plaintiff.

"The defendant contends that the door constructed and used

for closing the entrance from the street or public high[*316] way into *the common hall or entry of the building, is to be considered the only outer door of the plaintiff's dwelling house; that is to say, that his house consisted of the apartments occupied by him, and of the hall and entry used by him as a passage way in common with the tenants of all the other parts of the building. But this latter fact is by no means shown. On the contrary, these appear to have constituted no part of his tenement. He had an easement in them only in common with others, who all equally enjoyed the like privilege for the purpose of gaining access to their respective tenements." *

1 ' Cowp. p. 1.

2 Swain . Mizner, 8 Gray, 182.