This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
5 Inman v. Stamp, 1 Stark. 12; Edge v. Strafford, 1 Cromp. & J. 391; Porter v. Merrill, 124 Mass. 534.
§ 21. By far the most important questions, however, as to the essential features of a lease, within the statute, have arisen upon transactions having the form of a mere verbal license; and it will be useful to give a somewhat extended examination to the cases involving them. We shall probably be able to deduce from the English decisions a tolerably consistent doctrine in regard to these questions; but in some of our own States it must be confessed there has been a freedom exercised in the construction of the statute on this point, which seems to have gone far to unsettle established principles of the common law itself, as well as to confound the interpretation and defeat the policy of the Statute of Frauds.
§ 22. It may not be superfluous to call to mind some of the leading characteristics of licenses properly so understood. A mere license, whether written or verbal, conveys no interest in the land. It simply confers an authority to do a certain act or series of acts upon the land of another, and so long as it remains unrevoked it is a justification for all acts done in pursuance of it, and for which the party committing them would otherwise be liable in trespass or case. Moreover, when the license is to enter and remove certain property from the land, the licensee acquires a good title to the property so removed while the license continues in force, and may, upon the ground of the license, defend an action of trover by the previous owner. Such licenses, however, are in their nature mere personal privileges, not assignable by the licensee, not inuring to his representatives, and not binding upon the assignees or heirs of the estate in respect of which they are granted. So long as they remain unexecuted, they are revocable by the grantor; and they are ipso facto revoked upon the conveyance of his estate, and expire with the performance of the act or acts which they authorize to be done. These doctrines in regard to licenses as understood at common law, and in respect to which the Statute of Frauds has certainly made no change, are to be found in every text-book, and are so familiar and so firmly fixed that they have never in terms been questioned, even where their spirit has been most plainly invaded. But in the application of the rules that licenses, after execution, cannot be revoked, and that they justify acts done in pursuance of them, many practical difficulties have arisen. So long as the act or acts done are of a transitory nature, the rules may be applied without embarrassment, the very doing of the acts working a determination of the license. But if the act done be of a permanent nature, amounting to a continued occupation and enjoyment of another's land, we have at once to reconcile the principle that acts done in execution of a license are justified by it, and cannot be converted into wrongs by a revocation of the license afterwards, with the principle of common law that an easement of land or continuing privilege to make use of land in derogation of the proprietor's original rights, cannot be enjoyed without a grant by deed or a prescription which presumes a deed, and with the provision of the Statute of Frauds, that no estate or interest in land shall pass without writing.
1 The distinction is recognized and affirmed in Wells v. Kingston-upon-Hull, L. R. 10 C P. 402, which was a case concerning a contract for the dockage of a vessel.
§ 23. The confusion which has to a certain extent prevailed between licenses and leases appears to have had its origin in the case of Wood v. Lake, decided a few years after the Statute of Frauds was passed. A verbal license was given to stack coals on part of another's close for seven years, the licensee during that time to have the sole use of that part of the close. After the plaintiff had acted upon the license for three years, the defendant (his grantor) forbade him to stack any more coals there, and shut his gates. The court decided that the agreement amounted to a license only, and not to a lease, and was good for seven years, and the plaintiff had judgment1 The only authority on which this decision proplaintiff claimed was a license of this description and not an interest in land.1 This decision was never followed in England, and has in effect been overruled by subsequent cases, some of which it may be well to notice briefly in this place.
1 Wood v. Lake, Sayer, 3. The following report of this case, from the manuscript of Mr. Justice Burrough, is given in Wood v. Leadbitter, 13 Mees. & W. 838, and it seems well worth while to insert it here.
Case. "A parol agreement that the plaintiff should have liberty of laying and stacking of coals upon defendant's close, for seven years. Afterwards, defendant forbids plaintiff to lay any more coals there, and shuts up his gates. Defendant says, that plaintiff was but tenant at will. Qucere, if this was an interest within the description of the Statute of Frauds.
Serjeant Booth. This is but a personal license or easement. 1 Roll. Abr. 859, p. 4; Roll. Rep. 143, 152; 1 Saund. 321. A contract for sale of timber growing upon the land has been determined to be out of the statute. 1 Ld. Raym. 182. Vide the difference of a license and a lease. 1 Lev. 194. This must be taken only as a license, for that the coal-loaders also are to have benefit as well as plaintiff.
Serjeant Poole, for defendant. Question is, if any interest in land passed by the agreement; for, if interest passed, it is within the statute, ergo void, being for longer term than three years. Bro. License, p. 19; Thome v. Seabright, Salk. 24; Webb v. Paternoster, Poph. 151. A license to enter upon and occupy land amounts to a lease. The plaintiff was not confined to a particular part of the close, and might have covered the whole if he pleased, on that account it is an uncertain interest. The distinction of license to plaintiff and his coal-loader is nothing; he could not stack the coal himself, and it is merely vague. Easement may be of more value than the inheritance; ex. gr. way-leave