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.
Lee, C. J. If this be a lease, as it is argued, it is within the statute, and void for not being in writing. No answer as yet is given to the case in Popham, where the stacking of hay, which is similar, was determined to be a license. The word uncertain, in the statute, means uncertainty of duration, not of quantity. License was not revocable, and there is no case to show this to be considered as a lease.
Dexnison, J. This seems not to be an interest, so called, in the language of the law; although easements, in general speaking, may be called interests. Had the plaintiff such an interest as to have maintained a clausum fregit? Certainly not. If a man licenses to enjoy lands for five years, there is a lease, because the whole interest passes, but this was only a license for a particular purpose.
Foster, J. These interests, grounded upon licenses, are valuable, and deserve the protection of the law, and therefore may, perhaps, have been within the intention of the words of the statute. Desired further time for consideration; stood over.
N. B. - Afterwards, upon motion for judgment the last day of fesses to rest is Webb v. Paternoster, decided previously to the enactment of the statute.1 This was a case of license to the plaintiff to keep his hay in a certain close until he could sell it; and it having been there two years, it was held that a reasonable time for selling it had elapsed. This seems to have been really the sum of the decision. Indeed, there are indications in the report that the license was, in point of fact, under seal, and therefore in conformity with the requirements both of the common law and of the statute, if it can be said to have any bearing whatever upon the latter.2
§ 23 a. Upon the authority of these two cases, that of Tayler v. Waters was decided in the Common Pleas, in the year 1815. That was an action against the doorkeeper of an opera house, for preventing the plaintiff from entering during a performance. The plaintiff had come into possession, by purchase, of a silver ticket entitling the holder to admission to the house for twenty-one years, and had been allowed by the proprietors, by virtue of the ticket, to attend the house for fourteen years. It was objected that the right claimed was an interest in land, and, being for more than three years, could not pass without a writing signed by the party or his agent authorized in writing, and that the person who, as agent of the proprietors, had originally granted the ticket in question to the first holder was not so authorized. It was further insisted that such an interest, being an easement, could only pass by deed. Chief Justice Gibbs referred to Wood v. Lake, and Webb v. Paternoster, as abundantly proving that a license to enjoy a beneficial privilege on land might be granted without deed, and, notwithstanding the Statute of Frauds, without writing, and held that what the the term, and gave judgment for the plaintiff. Foster non-dissenti-ente."
The case will also be found reported in Palm. 71; Godb. 282; Poph. 151; Rol. 152; Noy, 98.
1 Poph. 151.
2 See this case commented on in Wood v. Leadbitter, 13 Mees. & W. 847, cited § 24.
§ 24. In Hewlins v. Shippam, the plaintiff, at considerable expense, made a drain over the defendant's land, by his verbal permission. The defendant afterwards stopped up the drain, and the plaintiff brought his action. Bayley, B., delivered the judgment of the court, holding that, although a parol license might be an excuse for a trespass till countermanded, a right and title to have passage for the water for a freehold interest required a deed to create it; and that, as there had been no deed in this case, the present action, which was founded upon a right and title, could not be supported.2 Cocker v. Cowper was an entirely similar case, and therein it was said that Hewlins v. Shippam was conclusive to show that an easement to have water running upon another's land could not be conferred by parol.3 In a later instance in the Court of Exchequer, where Webb v. Paternoster and Tayler v. Waters were cited to the point that there might be an irrevocable license to be exercised upon land, Parke, B., remarked: "It certainly strikes one as a strong proposition to say that such a license can be irrevocable, unless it amounts to an interest in land, which must therefore be conveyed by deed.4 The latest and what must be regarded as the decisive case in England on this subject is Wood v. Leadbitter, in the Court of Exchequer, in 1845. The plaintiff had a ticket for which he paid a guinea, admitting him to the grand stand of the Doncaster races, and was in the enclosure upon the strength of his ticket, when the defendant, by order of the steward of the races, turned him out, and without paying back the price of the ticket. It was held that a right to come and remain for a certain time on the land of another, as was the right claimed by the plaintiff, could be granted only by deed, and that a parol license to do so, though money were paid for it, was revocable at any time and without paying back the money.1
1 Tayler v. Waters, 7 Taunt. 374.
2 Hewlins v. Shippam, 5 Barn. & C. 221.
3 Cocker v. Cowper, 1 Cromp. M. & R. 418.
4 Williams v. Morris. 8 Mess. & W. 488. See Dorris v. Sullivan, 90 Ala. 279.
§ 25. Indeed, with the exception of Tayler v. Waters, the decision in Wood v. Lake, establishing a parol lease under the name of a license, does not appear to have ever been affirmed in England, and its principles have been repudiated in a long series of cases in addition to those just cited.2
§ 26. The distinction between such licenses to be exercised upon land as may be well granted by parol, and such as amount to leases and require a writing, is thus stated by Parker, C. J., delivering the judgment of the Supreme Court of Massachusetts, in the case of Cook v. Stearns, in 1814. "A license is technically an authority given to do some one act or series of acts on the land of another, without passing any estate in the land, such as a license to hunt in another's land, or to cut down a certain number of trees. These are held to be revocable while executory, unless a definite term is fixed, but irrevocable when executed."1 "Such licenses to do a particular act, but passing no estate, may be pleaded without deed. But licenses which in their nature amount to granting an estate for ever so short a time are not good without deed, and are considered as leases, and must always be pleaded as such. The distinction is obvious. Licenses to do a particular act do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act which would otherwise be a trespass. But a permanent right to hold another's land for a particular purpose, and to enter upon it at all times without his consent, is an important interest which ought not to pass without writing, and is the very object provided for by our statute." 2