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.
1 Wood v. Leadbitter, 13 Mees.. & W. 838; affirmed in Ruffey v. Henderson, 21 L. J. (Q. B.) 49. And see McCrea v. Marsh, 12 Gray (Mass.) 211; Burton v. Scherpf, 1 Allen (Mass.) 133. Purcell v. Daly, 19 Abb. N. C. (N. Y.) 301. But see Drew v. Peer, 93 Pa. St. 234; McGowern v. Duff, 12 N. Y. 680.
2 Rex. v. Horndon-on-the-hill, 4 Maule & S. 565; Fentiman v. Smith, 4 East, 107; Bryan v. Whistler, 8 Barn. & C. 288; Wallis v. Harrison, 4 Mees. & W. 538; Rex v. Standon, 2 Maule & S. 461; Bird v. Higginson, 6 Ad. & E. 824; Ruffey v. Henderson, 21 L. J. (Q. B.) 49. Sir Edward Sugden, in a note to p. 96 of his Treatise on Vendors and Purchasers, cites Winter v. Brockwell, 8 East, 308, and Wood v. Manley, 11 Ad. & E. 34, as having followed Wood v. Lake. But, with great deference, this must be an oversight. The former case was a mere case of extinguishment of an easement by express permission of the party entitled to it, accompanied by corresponding acts on his part; such as is always admitted to be binding in view both of the common law and of the statute. Stevens v. Stevens, 11 Met. (Mass.) 251; Dyer v. Sanford, 9 Met. (Mass.) 395; Ang. Waterc. 351. The latter relates to an entirely different rule; namely, that a parol license, coupled with an interest, is irrevocable. See post, § 27 a.
§ 27. Cases of licenses coupled with an interest in a chattel differ from mere licenses in that, whether executed or not, they are absolutely irrevocable. Such licenses are said to be created when the owner of land sells chattels or other personal property situated upon the land; for the vendee thereby obtains an implied license to enter on the premises and take possession of and remove the property. "In such cases, the license is coupled with and supported by a valid interest or title in the property sold, and cannot be revoked. So, too, if the owner of chattels or other personal property, by virtue of a contract with, or the permission of, the owner of land, places his property on the land, the license to enter upon it for the purpose of taking and removing the property is irrevocable."1 It may be doubted whether privileges of this sort depend upon the giving, either actually or by implication, of any license; they seem rather to be rights incident to the property in the chattel, which pass with the title as essential to the enjoyment of the thing bought, and not to depend upon any permission that may be given or withheld by the vendor. Furthermore, they are irrevocable, whether acted upon or not.
1 For further illustrations see Davis v. Townsend, 10 Barb. (N. Y.) 333; People v. Goodwin, 5 N. Y. 568; Whitaker v. Cawthorne, 3 Dev. (N. C.) 389; Dillion v. Crook, 11 Bush (Ky.) 321; Pierpont v. Barnard, 6 N. Y. 279; Greeley v. Stilson, 27 Mich. 153; Marsh v. Bellew, 45 Wise. 36; Sovereign v. Ortmann, 47 Mich. 181; Spalding v. Archibald, 52 Mich. 365; R. & D. R. R. v. D. & N. R. R., 104 N. C. 658. A license to hunt in another's land (referred to in Cook v. Stearns as passing no estate), coupled with the right to take away the game killed on any part of it, is however held to give an interest in land, and to require writing. Webber v. Lee, L. R. 9 Q. B. 315.
2 Cook v. Stearns, 11 Mass. 533. The doctrine here laid down is manifestly opposed to the spirit of Wood v. Lake, but from the difference in phraseology between the Massachusetts and the English Statutes of Frauds, it was not necessary in terms to repudiate that decision. See Stevens v. Stevens, 11 Met. (Mass.) 251. It is proper to note also a little latitude of expression in Cook v. Stearns, namely, that "licenses which amount to granting an estate for ever so short a time are not good without deed." There are, of course, many estates which, so far as the Statute of Frauds is concerned, may be granted by simple writing without deed.
§ 27 a. There is another class of privileges, affecting real property, that may not be revoked, although granted by parol. When the owner of a dominant estate gives parol permission to the owner of the servient estate to do, upon his own land or that of a third person, acts of so decisive and conclusive a nature as to indicate and prove the intent of the licenser to abandon his easement, such parol permission cannot be revoked.2 The rule in one of its bearings is well stated in the case of Curtis v. Noonan,3 where the court says: "An easement in real estate can be acquired only by deed, or by prescription which presupposes a deed; but it may be destroyed or extinguished, abandoned or renounced, in whole or in part, by a parol license granted by the owner of the dominant tenement, and executed upon the servient tenement." The same doctrine holds, however, whether the right abandoned be a natural right or an easement, and whether the license be executed upon the servient tenement, or, as was the case in Curtis v. Noonan, upon that of a third person.1 Privileges of this sort differ from mere licenses in not being intended as justifications of acts done on the grantor's land. The granting of the permission is regarded by the law as showing an abandonment, either in whole or in part, of the only right which would otherwise be infringed. After such an abandonment, the licenser can no longer be injured by what has been done, and consequently can no longer object to its continuance. But the permission given may be such as, by its terms, to exclude any idea of abandoning or abridging the right. The case of Wood v. Edes, decided by the Supreme Court of Massachusetts, is an instance. It appeared that the permission there given amounted to a mere license during the grantor's pleasure, with sufficient notice that no other would be granted, and a bill to enjoin the revocation of the permission was dismissed, the court holding that if, under such circumstances, the grantees incurred expenses, the value of which to them would depend upon the continuance of the license, they acted at their own risk.2
1 Giles v. Simonds, 15 Gray (Mass.) 441; Poor v. Oakman, 104 Mass. 309; Wood v. Manley, 11 Ad. & E. 34; Whitmarsh v. Walker, 1 Met. (Mass.) 313; Erskine v. Plummer, 7 Greenl. (Me.) 457; Parsons v. Camp, 11 Conn. 525. The license must be given by one having authority to give it: Nelson v. Garey, 114 Mass. 418; and the entry under it must be peaceable: Churchill v. Hulbert, 110 Mass. 42. A license to one who has been tenant, to enter and remove a house or fixtures which it is agreed he shall have, is also good without writing. Dubois v. Kelley, 10 Barb (X. Y.) 496.