in the execution of a parol license, is a revocation thereof: Lockhart v. Geir, 54 Wis. 133. Such license is revoked by an appropriation of the land to any use inconsistent with its enjoyment: Simpson v. Wright, 21 Ill. App. 67. A parol license to a partnership to mine and raise ore on the land of another is revoked by a dissolution of the partnership before the license is acted upon. Barksdale v. Hairston, 81 Va. 764. A verbal license to erect a dam and fishtraps may be revoked at any time after they are swept away by the water. and before they are renewed: Wingard v. Tift, 24 Ga. 179. If an aqueduct, erected under a parol license, has so decayed from exposure to the water or otherwise as to have to be rebuilt, to be of any value, the licensor may revoke the license, and put an end to the rights of the licensee: Allen v. Fiske, 42 Vt. 462.

Revocation of Executed License. At common law, a parol license to be exercised upon the land of another creates an interest in the land, is within the statute of frauds, and may by revoked be the licensor at any time, no mat ter whether or not the licensee has exercised acts under the license, or expended money in reliance thereon. In many of the states this rule prevails, while in others the licensor is deemed to be equitably estopped from revok. ing the license, after allowing the licensee to perform acts thereunder, or to make expenditures in reliance thereon. These two lines of cases cannot be reconciled; for one of them holds that an interest in land cannot be created by force of a mere parol license, whether executed or not, while the other declares that where the licensee has gone to expense, relying upon the license, the licensor may be estopped from revoking it, and thus an easement may be created. The former line of cases, it seems to us, is founded, upon the bet ter reason. They decide that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is revocable, at the option of the licensor, and this, although the intention was to confer a continuing right, and money has been expended by the licensee upon the faith of the license. Such license cannot be changed into an equi table right on the ground of equitable estoppel: Crosdale v. Lanigan, 129 N. Y. 605; 26 Am. St. Rep. 551; Johnson v. Skillman, 29 Minn. 95; 43 Am. Rep. 192; Cronkhite v. Cronkhite, 94 N. Y. 323; Beck v. Louisville etc. R. R. Co., 65 Miss. 172; St. Louis Nat. Stock Yards v. Wiggins etc. Co., 112 Ill. 384; 54 Am. Rep. 243; Tanner v. Volentine, 75 Ill. 625; Collins Co. v. Marcy, 25 Conn. 239; Wilson v. St. Paul etc. R'y Co., 41 Minn. 56; Wood v. Michigan etc. R. R. Co., 90 Mich. 334. A parol license to do a certain act or series of acts on the land of another does not convey any interest in the land, but simply a privilege to be exercised thereon, and although the statute of frauds does not, strictly speaking, apply to such a license, it is in all cases revo cable, so far as it remains unexecuted, or so far as any future enjoyment of the easement is concerned, at the will of the licensor, even when the licensee has expended money upon the land of the licensor upon the faith of such license: Houston v. Laffee, 46 N. H. 505; overruling many earlier New Hamp shire cases, and followed in Batchelder v. Hibbard, 58 N. H. 269, where it was said: "The more recent decisions of this state, and the weight of authority, are to the effect that a mere license of this character is always revocable at the will of the licensor, so far as any further enjoyment of the privilege is concerned." In Crosdale v. Lanigan, 129 N. Y. 604-610, 26 Am. St. Rep. 551, the court said: "There has been much contrariety of decision in the courts of different states and jurisdictions. But the courts in this state have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licen

see before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right, and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements easily misunderstood. It gives security and certainty to titles, which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral agreements for the sale of land is clearly defined and well understood, and is indisputable; but to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed should be observed, than to leave it to the chancellor to construe an executed license as a grant, depending upon what, in his view, may be equity in the special case." A parol license to do an act upon the land of another which may affect the owner in the exclusive use of his property creates an interest in the land, is within the statute of frauds, and revocable at the will of the licensor: Houghtaling v. Houghtaling, 5 Barb. 379.

"

Examples. — In those jurisdictions where the above rule prevails, a parol license to a railroad company to enter upon land and construct its road is revocable at the will of the land-owner: Wood v. Michigan etc. R. R. Co., 90 Mich. 334. The owner of land across which a drain is maintained by virtue of a mere parol license may revoke the license, and proceed to use his land as though the drain were not there, without giving notice to the licensee: Wilson v. St. Paul etc. R'y Co., 41 Minn. 56. The right to flood the land of another, either by the drippings from the roof of a building or otherwise, is an interest in the land, and a verbal license giving such right is within the statute of frauds, and may be revoked at any time: Tanner v. Volentine, 75 Ill. 624. So a parol license to erect upon the land of another an addition of a substantial kind to a building is a grant of an interest in land within the statute of frauds, and revocable at the will of the licensor, though expenditures have been made by the licensee: Collins Co. v. Marcy, 25 Conn. 238. A mere parol license to construct a railway track over the land of another is within the statute of frauds, as creating an interest in land by parol, and it cannot be enforced in equity even after large expenditures of money made on the faith of it. Hence when a party, under a mere verbal license, enters upon the land of another, and constructs a railway track over it without objection on the part of the owner of the land, but without any agreement for compensation or as to the duration of the easement, the landowner will not be estopped in equity from revoking the license, even after money has been expended in building the road. The licensee cannot claim that he has been misled or deceived by the licensor, as he must have known that such license was revocable: St. Louis Nat. Stock Yards v. Wiggins Ferry Co., 112 Ill. 384; 54 Am. Rep. 243. So a parol agreement to allow one railway company to extend its track on the right of way of another company, for the purpose of making a connection, is a mere license, revocable at the will of the licensor, and cannot operate as an estoppel, although the licensee has entered and made valuable improvements: Richmond etc. R. R. Co. v. Durham etc. R. R. Co., 104 N. C. 658. A verbal license to enter upon land for the purpose of constructing a railroad track, not coupled with an interest in the land, may be revoked at will by the party granting it. A right to come upon the property of another and remain there an indefinite time can

be granted only by deed; and when the license is by parol, it may be revoked at any time, even if money is paid for it, and expense incurred in erecting buildings or other permanent improvements on the premises: Hetfield v. Central R. R. Co., 29 N. J. L. 571. A parol license to enter and work a mine on the land of another is a protection against trespass for acts done under it before revocation, but it is revocable at the will of the licensor, as it creates an interest in land within the meaning of the statute of frauds: Desloge v. Pearce, 38 Mo. 588; Kamphouse v. Gaffner, 73 Ill. 453; Wheeler v. West, 71 Cal. 126. A parol license to pass over the land of another is revocable at the will of the party giving it: Kimball v. Yates, 14 Ill. 464; Parish v. Kaspare, 109 Ind. 586; Maenner v. Carroll, 46 Md. 193; Marston v. Gale, 24 N. H. 176. Such license may be revoked although a money consideration has been paid for it: Duinneen v. Rich, 22 Wis. 524 (*550); and it may be revoked by putting the land to any use inconsistent with the enjoyment of the license: Simpson v. Wright, 21 Ill. App. 67. A verbal license by the owner of land to erect thereon a dam which shall flood it is revocable at the pleasure of such owner or his grantee: Brown v. Woodworth, 5 Barb. 550; Stevens v. Stevens, 11 Met. 251; 45 Am. Dec. 203; Clute v. Carr, 20 Wis. 559 (*531); 91 Am. Dec. 442. Such license, whether voluntary or supported by a valu able consideration, may be revoked by the owner withont incurring liability in damages, after notice given and reasonable opportunity to remove im provements erected thereunder: Kivett v. McKeithan, 90 N. C. 106. Verbal license to dig a ditch upon the land of another for the purpose of drainage is revocable at the will of the licensor: Hitchens v. Shaller, 32 Mich. 496; Totel v. Bonnefoy, 23 Ill. App. 55; 123 Ill. 653; 5 Am. St. Rep. 570; Stoddard v. Filgin, 21 Ill. App. 560. So a parol license given by a land-owner to lay an aqueduct through his land may be revoked at will, and a court of equity will not interfere to aid the licensee in the assertion of his right: Owen v. Field, 12 Allen, 457; Allen v. Fiske, 42 Vt. 462. So a parol agree. ment for the use of the water of a spring on the land of another is a mere license, revocable at the pleasure of the person granting it, or of his heirs or grantees: Cronkhite v. Cronkhite, 94 N. Y. 323; Taylor v. Gerrish, 59 N. H. 569.

On the other hand, quite a

License, when Irrevocable- Equitable Estoppel. respectable number of cases directly oppose the doctrine herein before stated. They are based on the ground of equitable estoppel, and maintain that when the licensee has entered under a parol license, and expended large sums of money or made valuable improvements, relying upon the continuance of his license, the licensor will not be allowed to revoke the license at will, because this would work a fraud on the licensee. These cases determine, in effect, that the license, so acted upon by the licensee, creates an interest in the land amounting to a grant of a right or easement which the licensor cannot in equity revoke, or, as some cases hold, cannot revoke until he has made due compensation to the licensee for his expendi. tures incurred in reliance upon the continuance of the license. In other words, a parol license to use the land of another is not revocable at the pleasure of the licensor when it is given upon a valuable consideration, or money has been expended on the faith that it is to be perpetual or continuous. It is then irrevocable altogether, or cannot be revoked without remuneration, the reason being, that to permit a revocation without placing the other party in statu quo, would be fraudulent and unconscionable; and when the license has been so far executed that its revocation would work a fraud, actual or constructive, upon the licensee, equity will restrain such revoca.

tion, although its continuance results in an easement upon the lands of the licensor in favor of the licensee: Curtis v. La Grande etc. Co., 20 Or. 34; Gibson v. St. Louis Agricultural etc. Ass'n, 33 Mo. App. 165; School District v. Lindsay, 47 Mo. App. 134; Nowlin v. Whipple, 120 Ind. 596; Morton Brewing Co. v. Morton, 47 N. J. Eq. 158; Saucer v. Keller, 129 Ind. 475; Pierce v. Cleland, 133 Pa. St. 189; Southwestern R. R. v. Mitchell, 69 Ga. 114; Harrison ▼. Boring, 44 Tex. 255; Clark v. Glidden, 60 Vt. 702; United States v. Baltimore etc. Co., 1 Hughes C. C. 138; Baker v. Chicago etc. R. R. Co., 57 Mo. 265; Lane v. Miller, 27 Ind. 534; Miller v. State, 39 Ind. 267; Snowden v. Wilas, 19 Ind. 10; 81 Am. Dec. 370; Messick v. Midland R'y Co., 128 Ind. 81; Campbell v. Indianapolis etc. R. R. Co., 110 Ind. 490. A parol license to one to enjoy a permanent privilege upon the land of another is an interest in the land, and within the statute of frauds; but if the licensee, in pursuance of the license, proceeds to make large investments, equity will decree specific performance of the license, on the ground that part performance has taken it out of the operation of the statute of frauds, and that the licensor is equi tably estopped from revoking it: Cook v. Pridgen, 45 Ga. 331; 12 Am. Rep. 582; Rawson v. Bell, 46 Ga. 19.

Illustrations. — A parol license to lay an aqueduct to a spring of water on the land of another is irrevocable during the existence of the aqueduct, and a court of equity, on the ground of equitable estoppel, will protect the licensee in the use of the aqueduct, and will grant an injunction restraining the owner of the spring from interfering with the aqueduct until its decay, for a revocation of the license would operate as a fraud: Clark v. Glidden, 60 Vt. 702. A license to throw waste from a mill into a stream flowing through the land of the licensor, such license being obtained under an executed verbal contract founded upon a sufficient consideration, is irrevocable by the licensor or those claiming under him: Thompson v. McElarney, 82 Pa. St. 174. A parol license to float spars down a private stream, obtained for a valuable consideration, cannot be revoked by the grantor when the licensee, having acted upon it, would be injured by the revocation. In such case the doctrine of estoppel in pais applies: Rhodes v. Otis, 33 Ala. 578; 73 Am. Dec. 439. When a railroad company, under parol license from the owner of land, takes possession of the ground necessary for a right of way, and expends money in the construction and maintenance of its line of road thereon, the license cannot be thereafter revoked: Campbell v. Indianapolis etc. R. R. Co., 110 Ind. 490; Messick v. Midland R'y Co., 128 Ind. 81; Harlow v. Marquette etc. R. R. Co., 41 Mich. 336. A parol license, granted for a valuable consideration, to erect a mill-dam, by which the lands of the grantor are overflowed, when executed, or when money has been expended on the faith of it, is irrevocable without remuneration on equitable principles: Southwestern R. R. v. Mitchell, 69 Ga. 114; Olmstead v. Abbott, 61 Vt. 281; Lacy v. Arnett, 33 Pa. St. 169. So a verbal license to erect a dam upon another's land, or to convey water from a stream running through the land of another for the purpose of erecting and conducting a mill, is irrevocable, after the party to whom the license is given has executed it by erecting the mill, or otherwise expended his money upon the faith of the license: Lee v. McLeod, 12 Nev. 280. A parol license to build a dam and lay pipes for the purpose of diverting water is, when executed, irrevocable, so long as the dam and pipes remain for the purpose for which they were constructed at the point of diversion orally agreed upon: Curtis v. La Grande etc. Co., 20 Or. 34. A verbal license to enter the land of another, and put a tile ditch thereon, is irrevocable after the licensee has expended money and labor on the faith of

the license: Saucer v. Keller, 129 Ind. 475. So a license to construct and maintain a ditch on the land of another for the purpose of draining the land of the licensee is irrevocable after it is acted upon, although it rests wholly in parol, and though unforeseen injuries result to the licensor and his grantee from the construction and use of such drain: Hodgson v. Jeffries, 52 Ind. 334; and the licensor may be held liable in damages for digging up the drain on his land, and thus terminating the license: Ferguson v. Spencer, 127 Ind. 66. When a party has erected and maintained gates at his own expense upon the faith of a parol agreement that he is to have a perpetual easement to pass over the land of another, and the agreement has been acted upon and fully acquiesced in by the parties for thirty years or more, the license is irrevoca ble: Nowlin v. Whipple, 120 Ind. 596. So a parol grant of a right of way, based upon a valuable consideration, and followed by the use of the way for sixteen years without objection, cannot be revoked: Nowlin v. Whipple, 79 Ind. 481. A parol sale of personal property, as a house not annexed to land, by the owner of real estate, which can only be removed by entry thereon, is a license to enter upon the land for the purpose of removing the personal property purchased, and such license is irrevocable: Rogers v. Cox, 96 Ind. 157; 49 Am. Rep. 152. When one owner gives verbal permission to an adjoining owner to attach a brick building in the course of erection to the house wall of the former, the license is revocable at any time before it is acted upon; yet after its execution, by the expenditure of money in the erection of the new building, as induced by the permission, the license is irrevocable, on the ground of equitable estoppel: Russell v. Hubbard, 59 Ill. 335. License as Extinguishment of Easement. — A license resting in parol to do that upon the licensee's own land which prevents the further enjoyment by the licensor of an easement in the land, when executed, is irrevocable, and the effect is to extinguish the easement; for it is a well-established rule of law that an easement may be extinguished, renounced, or modified by a parol license granted by the owner of the dominant tenement and executed by the owner of the servient tenement: Boston etc. R. R. Co. v. Doherty, 154 Mass. 314; Morse v. Copeland, 2 Gray, 302; Curtis v. Noonan, 10 Allen, 406.

CONTEMPTS

O'ROURKE v. CLEVELAND.

[49 NEW JERSEY EQUITY, 577.]

COUNSEL FEES AS PUNISHMENT. — Payment of counsel fees cannot be imposed upon a party as punishment for his contempt of court. CONTEMPTS-VOID JUDGMENT. - A judgment requiring a party found guilty of contempt of court to pay costs and a counsel fee, and to await fur. ther punishment in the pleasure of the court, is void.

CONTEMPTS.

PUNISHMENT FOR CONTEMPT OF COURT cannot be broken up into portions. The judgment inflicting it must be entire and final for the particular contempt.

John W. Taylor, for the appellant.

Joseph D. Bedle, for the respondent.

REED, J. O'Rourke had been enjoined by the court of chancery from blasting rocks by the use of explosives in such