We now come to the fourth class of promises, enumerated by the 4th section, viz-any contract, *or sale of lands, tenements, or hereditaments, or any interest in or concerning them.
These words, you will observe, are exceedingly large, comprehending not merely an interest in land itself, but any interest concerning it.1 And the main questions to the promisor is not within the statute: Basford v. Pearson, 9 Allen, 387; Holland v. Hoyt, 14 Mich. 238; Calhoun v. Atchinson, 4 Bush, 261.-S.
(l) Countess of Montacute v. Maxwell, 1 Str. 236; 1 P. Wins. 618; Tweddle v. Atkinson, 30 L. J. (Q. B.) 265.
(m) lb.; s. v. Randall v. Morgan, 12 Ves. 73.
(n) Barkworth v. Young, 26 L. J. (Ch.) 153; Hammersley v. Be Biel, 12 C. & Fin. 45.
1 An oral promise to pay presently the price of lands conveyed at the time which have arisen have accordingly been-Whether particular contracts, falling very near the line, do or do not concern land, so as to fall within these terms. Thus it was held in Crosby v. Wadsworth (o), that an agreement conferring an exclusive right to the vesture of land (i. e., a growing crop of mowing grass), during a limited time and for given purposes, is a contract for sale of an interest in, or at least concerning lands; and for the non-performance of which, if made by parol, an action cannot be maintained. In Tyler v. Bennett (p), an agreement that the plaintiff should be allowed to take water from a particular well was held to concern land, and to require a writing.1 On the other hand, in Evans v. Roberts (q), where the plaintiff had sold to the defa) 6 East, 602; Carrington v. Roots, 2 M. & W. 248. (p) 5 A. & E. (31 E. C. L. E.) 377. (q) 5B.&C. (11 E. C. L. B.) 829.
1 So of a right of permanently overflowing the land of another: Harris v. Miller, 1 Meigs, 153, or erecting a permanent mill-dam : Stevens v. Stevens, 11 Metc. 251; Thompson v. Gregory, 4 Johns. 81.-R.
So a right to dig and carry away ore: Riddle v. Brown, 20 Ala. 415; Briles v. Pace, 13 Ired. 279. [A leasehold interest in an oil well has been held to be within the act: Henry v. Colby, 3 Brewster, 175; and also in a Salt well: M'Dowell v. Delap, 2 Marsh. 33.] An agreement not to claim damages for flowing one's land, if the other party will erect a dam and mill, is not the conferring of any right, interest or easement in land, but only a waiver of claim for pecuniary damages, and need not be in writing: Smith v. Goulding, 6 Cush. 154. The right to overflow another's land by a mill-dam is an interest in land which cannot pass by parol: Carter v. Harlan, 6 Md. 20. A license by the owner of a fee of a highway: Brown v. Galley, Hill & Den. 308; Hall v. M'Leod, 2 Metc. (Ky.) 98. So a license to flow lands: French v. Owen, 2 Wis. 250. So a right to maintain a dam on the land of another: Moulton v. Faught, 41 Me. 298; Trammell v. Trammell, 11 Rich. 471. No deed or other writing is necessary to convey the interest of the owner of a building standing on another's land: Keyser v. School District, 35 N. H. 477. A license to insert beams in the wall of a house is not within the statute: McLarney v, Pettigrew, 3 E. D. Sm. 111. So an agreement to take a certain annual compensation for damages occasioned by flowing land by a mill-dam: Short v. Woodward, 13 Gray, 86. So the grant of a right to float logs on a stream: Rhodes v. Otis, 33 Ala. 578.-s.
Fendant a growing crop of potatoes, this was decided not to be a sale of any interest in or concerning land. It was contended, that, as the potatoes were deriving nourishment and support from the soil, and would have passed as part of the land by a conveyance of it, an interest in them must at all events be taken to concern land; and *great reliance was placed on the decision in Crosby v. Wadsworth, which I have already cited; where a growing crop of grass was sold and was to be mowed by the vendee, and the sale was held to fall within the statute, and to require a writing. However the Court held that that case was distinguishable. "Although," said Mr. Justice Holroyd, " the vendee might have had an incidental right by virtue of his contract to some benefit from the land while the potatoes were arriving at maturity, yet I think he had not an interest in the land within the meaning of this statute: he clearly had no interest so as to entitle him to the possession for any period, however limited, for he was not to raise the potatoes. Besides, this is not a contract for the sale of the produce of any specific part of the land, but of the produce of a cover of land. The plaintiff did not acquire by the contract any interest in any specific portion of the land; the contract only binds the vendor to sell and deliver the potatoes at a future time at the request of the buyer, and he was to take them away."
With regard to this case, it is worth while to observe, that though, according to the decision of the Court, the contract did not fall within the 4th section, as the sale of an interest in or concerning lands, yet it would clearly fall within the 17th, to which, before the conclusion of these Lectures, I shall have occasion to advert, as being a sale of *goods and chattels; but no point arose upon that section, because one shilling had been paid as earnest money, which is one of the modes of satisfying the provisions of the 17th section.
The result of these cases, and of the many others which have been decided on the subject, is thus stated in Williams' Saunders (r) : It appears to be now settled, that, with respect to emblements or fructus industriales (i. e., the corn and other growth of the earth, which are produced, not spontaneously, but by labour and industry), a contract for the sale of them while growing, whether they are in a state of maturity, or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of any interest in land, but merely for the sale of goods: Evans v. Roberts (s); Sainsbury v. Mathews (t). And it will make no difference whether they are to be reaped or dug up by the buyer or by the seller: Jones v. Flint (u).1 The true question is, whether, in order to effectuate the intention of the parties, it be necessary to give the buyer an interest in the land, or whether anland-held within the statute: Bowman v. Conn, 8 Ind. 58. Coals and the right to dig them is an interest in land : Lear v. Chouteau, 23 111. 39. As to growing timber see Hutchings v. King, 1 Wall. 53; Byassee v. Reese, 4 Metc. (Ky.) 372; Kingsley v. Holbrook, 45 N. H. 313; Huff v. McCauley, 53 Pa. St. 206. As to growing crops see Marshall v. Ferguson, 23 Cal. 65; Webster v. Zielly, 52 Barb. 482.-s.