Page images

These definitions, like most short definitions, are incomplete. A license may be to do some act, without going on the land of another, which will interfere with the owner's possession, enjoyment, or control; and a license may result from approval of acts of the licensee after they are done, as well as from permission previously given. Verling K. Hart, by his desert-land entry of June 9, 1879, acquired the right of possession of a tract of land, including that upon which the town of Buffalo was afterwards built. As he told several parties, be could give them no title under that entry. He could, however, waive his possessory right, if he chose to do so, and give them permission to enter upon his “claim," occupy portions of the land, and build there. The question is, Did he do it? and if so, did such permission inure to the benefit of this complainant, and to what extent? The solution of these questions requires an examination of the evidence.

A. J. McCray testifies that he conversed with Hart in March or April, 1881. Said to Hart that he supposed they were building a town on his (Hart's) land, or what would be his land; that a few of them had gone ahead and started a little burgh, not knowing what the future would be, or wbere a title was to come from. Asked Hart if Snyder was his author. ized agent. Hart said Snyder was his authorized agent, and that he would abide by what Snyder did; and that if what few men were there made a little burgh, he would do all he could to assist them in improving the property, and that they should have titles at a nominal figure when he was able to convey to them. At this time complainant was not at Buffalo; neither was Burgegg. McCray told this to a number of the settlers. He also talked with Hart on the subject in the fall of 1882, and Hart then expressed himself as greatly surprised and pleased at the progress the town had made, and again assured him that the people would have no difficulties in procuring titles as soon as he could convey them. By this time both complainant and Burgess were there, and had erected improvements. John A. Fischer talked with Hart upon the subject repeatedly in 1881 and 1882. Hart told him he would like to see people come to Buffalo and settle, and if he (Fischer) could influence parties or friends on the railroad to come, he would be glad if they would settle there and make a town; that mechanics, blacksmiths, shoemakers, or all good people that would locate there he would give a lot, after the town was laid out properly, for very little expense. In an. Bwer to the question whether this was generally known, Fischer says: “Yes, sir; it was known. Most everybody expected the first settlers had their lots for nothing. ....I think the expenses were attached to recording. The people had to stand that, as I understood from Colonel Hart." George W. Munkers, probate judge and treasurer, talked with Hart at Buffalo in the fall of 1882, and asked “the price of ground." Hart declined to give any positive answer, as he had not title, but answered that the price would be very nominal." Mun. kers says: “He conveyed the idea to me that the parties first building he was willing to encourage them, for a nominal sum for the land. There is no testimony conflicting with this, but other testimony which corroborates it. None of these declarations of Hart's were confidential. They were not personal to the parties to whom they were made. Hart's assurances to McCray were for the men who built a burgh; to Fischer, in favor of mechanics, and all good people who would come and settle there; to Munkers, in favor of those first building. The understanding of Hart with his partner, Snyder, and which was made public, was for the benefit of those who should have buildings in the limits of the town when the survey should be made.

These matters were all made public, and were intended to be made public, and were intended to influence the people generally. They were not confined to people at or near Buffalo at the time. Hart requested Fischer to make them known on the railroad, a great distance away, and influence people to come and settlo at Buffalo. E. U. Snyder, sheriff of the county, and partner and agent of Hart at and before the location of the town of Buffalo, states the situation fairly and fully. He says: “In the years 1879 and 1880 we were strongly opposed to any one building on this claim, but after we were satisfied there would be a town built, and came to the conclusion to survey and plat the same, it was agreed and understood by us that all parties that had buildings on lots at the time of the survey should have the lots at a small price; the amount I don't think was mentioned." He cannot fix the exact time when this was first made public, but it was talked over about a couple of years before Hart's death (February 17, 1883), and made public from that time. It was generally understood. He told a number of persons himself. No plainer invitation to occupy ground and to erect buildings thereon, prior to the proposed survey, could be made. The intention to include as beneficiaries all who should build prior to the proposed survey could not be made plainer. It was also an approval of the erection of the buildings already there. The declarations of Hart, and the agree ment between Hart and his partner and agent, Snyder, in favor of the settlers, were made public, and were intended to reach and influence others besides those to whom the declara. tions were directly made. The substance of them became known to complainant. He got his information, as he says, from the oldest citizens. He, with them, was content to take his title through Hart, if Hart perfected his title, of which there was some doubt. If he did not, they still had the resource open of proceeding under the town-site law. It became known to complainant that Hart expressed himself as glad to see buildings put up. The public declarations of Hart, and his conduct, were admissions that the settlers were not trespassers; that they were rightfully there, with his pero mission and approval. He did not treat the settlers as trespassers. He made them welcome. He assured them of his good-will and of his approval of their occupation and im. provement of the proposed town site, and of his assistance in the future. It is not material that he did not talk to each individual personally. His language was general. He talked to a few for all. When he saw the town in the fall of 1882, the improvements of Burgess, and part of the improvements of Metcalf, were there. Hart did not stop to inquire who the men were who had built the town, but expressed his gratification with what had been done. Such declarations and conduct come under the head of unsolemn admissions as classified and defined by Greenleaf: "Those which have been acted upon, or have been made to influence the conduct of others, or to derive some advantage to the party, and which cannot afterwards be denied without a breach of good faith": 2 Greenleaf on Evidence, sec. 27. Again: "Admissions, whether of law or fact, which have been acted upon by others, are conclusive against the party making them, in all cases between him and the person whose conduct he has thus influenced. It is of no importance whether they were made in express lan. guage to the person himself, or implied from the open and general conduct of the party; for in the latter case the implied declaration may be considered as addressed to every one in particular who may have occasion to act upon it. .... The latter class comprehends not only these declarations, but also


that line of conduct by which the party has induced others to act, or has acquired any advantage to himself": 2 Greenleaf on Evidence, sec. 207. The conduct of Hart, as well as his language, was an admission that the settlers were rightfully in possession of their improvements, and with his approval and consent. The evidence that the settlers in Buffalo, prior to his death, erected and held possession of their improvements with his knowledge and approval and consent, is abundant and satisfactory. There is no evidence to the contrary. There is nothing to show that he ever revoked this license. A simple license may be revoked by the licensor at any time. It is revoked by his death. It is also revoked by a sale of the realty involved. But in neither case does its revocation undo what has been done under it, or make that unlawful which was lawful when it was done. The license given by Verling K. Hart to occupy and improve the town site of Buffalo was revoked by his death, which occurred February 17, 1883. Any holdings taken possession of after that time cannot be protected by that license. But any taken before that time may be, if other facts warrant it; and value able improvements placed upon portions of the land before that time by virtue of such license were placed there lawfully. So far there can be no question. Then, what was the effect of such occupation and improvement under that license?

The subjects of license and easement have been fruitful sources of litigation. There has been a difficulty recognized in distinguishing between the two. "An easement,” says Mr. Angell, in his able treatise on watercourses (p. 316), “it has appeared, is a liberty, privilege, or advantage in land, without profit, and existing distinct from the ownership of the soil; and it has appeared, also, that claim for an easement must be founded upon a deed or writing, or upon prescription which supposes one. . . A license, on the other hand, is a bare authority to do a certain act, or series of acts, upon another's land, without possessing any estate therein; and, it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either

This definition of a license, as well as of an easement, is adopted by Chancellor Kent (3 Kent's Com. 452), and is expressly recognized by the most approved English and American authorities: Thompson v. Gregory, 4 Johns. 81; 4 Am. Dec. 255; Mumford v. Whitney, 15 Wend. 380; 30

party die.

Am. Dec. 60; Cook v. Stearns, 11 Mass. 533; Miller V. Auburn etc. R. R. Co., 6 Hill, 61; Fitch v. Seymour, 9 Met. 462; Haye v. Richardson, 1 Gill & J. 868; Fentiman v. Smith, 4 East, 109; Hewlins v. Shippam, 5 Barn. & C. 221; Thomas v. Sorrell, Vaughan, 351; Wood v. Leadbitter, 13 Mees. & W.843. While it has been uniformly held that a parol license, while it remains executory, may be revoked at pleasure (Cook v. Stearns, 11 Mass. 533; Mumford v. Whitney, 15 Wend. 380; 30 Am. Deo. 60; Fentiman v. Smith, 4 East, 109; Angell on Watercourses, 319, 324), yet when executed, whether it is revocable, and if so, bow far, and to what extent, has been a question fraught with much difficulty, and respecting which different courts of the highest respectability have held very differently: Hazelton v. Putnam, 3 Pinn. 108; 54 Am. Dec. 158.

The first part of this definition applies to a mere naked license without consideration. Such a one has been con. sidered as founded on personal confidence, and not assignable, and revocable at the will of the licensor. But the cases are numerous of licenses founded upon valuable consideration, where the motive of personal confidence, if it existed at all, is a very subordinate one. The material question is, whether permission to go upon the land of the licensor, and do any act or series of acts there, was actually given, either expressly or by implication. In this case we have seen that such permission was given, and that the occupation and improvement of the property was ratified by the language and conduct of Hart, the licensor, after considerable expenditures had been made by the licensees, Metcalf and Burgess. As already stated, the general doctrine of the common law has always been, and is now, that a simple parol license is revocable at the will of the licensor, and is revoked, ipso facto, by the transfer of the realty by the licensor, or by his death, or by an assignment of the license. The conflict of authority al. ready mentioned is principally among the common-law courts. Courts of chancery have not developed nearly so much conAict. But even the law courts hold with much unanimity that a license by parol, as well as written, when coupled with an interest, becomes irrevocable, except in cases where such irrevocability would conflict with some other rule or principle or policy of the law. In such cases there is a conflict of opinion in courts of the highest respectability as to which rule should give way. The rule under consideration is laid down by the supreme court of the United States (opinion by

« PreviousContinue »