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.
2 Dyer v. Sanford, 9 Met. (Mass.) 402.
3 Curtis v. Noonan, 10 Allen (Mass.) 406.
§ 28. We have seen that licenses to do acts of a temporary or transient nature upon the grantor's land confer no interest in the land. But where the act licensed is of such a character that the licensee cannot perform it without actually holding and occupying the licenser's land for the purpose, the permission must be in writing, as the transaction is in effect a lease of the premises to that extent. Of this nature is a license to erect and maintain a dam by which water is flowed back upon the grantor's land, to dig and carry away ore, etc.1 In some States, however, such licenses have been held to be good without a writing, and upon the ground that the permission was, after all, only to do a series of acts upon the grantor's land.2 But it would seem that, under such an interpretation of a license, any lease whatever for any length of time might be verbally created by merely giving to it the form of a license.
1 Winter v. Brockwell, 8 East, 308; Liggins v. Inge, 7 Bing. 682; Davies v. Marshall, 10 C. B. n. s. 97; Stevens v. Stevens, 11 Met. (Mass.) 251; Morse p. Copeland, 2 Gray (Mass.) 302; Vechte v. Raritan Water Power Co., 21 N. J. Eq. 475.
2 Wood v. Edes, 2 Allen (Mass.) 578.
§ 29. This violent interpretation of a license to do a particular act or series of acts on another's land has been in several cases carried so far as to hold that a parol permission to place permanent erections upon the land itself was valid and binding, and that the owner of the land could not afterwards remove them without committing a trespass.1 It is clear, however, that the weight of authority in both countries is against such a doctrine. As was said by Swift, J., in Benedict v. Benedict, where a man built a house on the land of another under a mere parol license: "If a parol license, even when carried into effect, will give the builder a right to continue the house so long as it shall last, and to maintain ejectment for it, then real estate may be transferred by parol; which is directly contrary to the statute." 2 And in a case in New York, the Supreme Court, speaking of Wood v. Lake, and of two cases in Maine, Ricker v. Kelley, and Clement v. Durgin, which are among those to which we have just referred, declared that they held doctrines in the teeth of the statute, and were excrescences upon the law.3 The later decisions in Maine and New Hampshire have greatly shaken the authority of the cases thus criticised, and are in accordance with the law as generally laid down.4
1 Mumford v. Whitney, 15 Wend. (N. Y.) 380; Brown v. Woodworth, 5 Barb. (N. Y.) 550; Brown v. Galley, Hill & D. (N. Y.) 310; Moulton v. Faught, 41 Me. 298; Yeakle v. Jacob, 33 Pa. St. 376; Trammell v. Trammell, 11 Rich. (S. C.) 471; French v. Owen, 2 Wise. 250; Carter v. Harlan, 6 Md. 20; Collins Co. v. Marcy, 25 Conn. 239; Riddle v. Brown, 20 Ala. 412; Pitman v. Poor, 38 Me. 237; Bridges v. Purcell, 1 Dev. &B. (N. C.) Law, 492; Woodward v. Seely, 11 111. 157; Hall v. Chaffee, 13 Vt. 150; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 131; Bennett v. Scutt, 18 Barb. (N. Y.) 347; M'Kellip v. Mlhenny, 4 Watts (Pa.) 317; Desloge v. Pearce, 38 Mo. 588; Duinneen v. Rich, 22 Wise. 550; Cayuga Railway Co. v. Niles, 13 Hun (N. Y.) 170; Ganter v. Atkinson, 35 Wise. 48. In a case in Michigan, where there had been exclusive possession of lands by flowage for several years, resting on a parol license at a regular rent reserved, those facts were held to be evidence to justify a jury in finding that the "license" was really a parol lease for an indefinite time, but good as a lease from year to year till terminated by notice. Morrill v. Mackman, 24 Mich. 279; Hamilton Co. v. Moore, 25 Fed. Rep. 4; Hammond v. Winchester, 82 Ala. 470; Meetze v. Railroad Co., 23 S. C. 2.
2 Clement v. Durgin, 5 Greenl. (Me.) 9; Woodbury v. Parshley, 7 N. H. 237; Sampson v. Burnside, 13 N. H. 264. And see Sheffield v. Collier, 3 Kelly (Ga.) 82.
§ 30. The ground upon which the cases holding these extreme doctrines have been placed is that, by the doing of the act in question, the license became executed and consequently irrevocable. It would be enough to say that the framers of the Statute of Frauds never could have contemplated so obvious and simple an evasion of its provisions as would follow from such an application of the rule in regard to licenses. But, in point of fact, the license being, as was before suggested, continuous in its operation, cannot be said to be capable of execution by any one act. In some of the cases it seems to be admitted that it may be revoked after such inchoate execution, on paying or tendering to the licensee the expenses he has incurred therein.1 The better doctrine, however, seems to be that, although there may be a sum due the licensee for expense or damage, payment or tender of the sum is not a condition precedent to a right to revoke.2
1 Ricker v. Kelley, 1 Greenl. (Me.) 117; Ameriscoggin Bridge Co. v. Bragg, 11 N. H. 109; Wilson v. Chalfant, 15 Ohio, 248; Sullivant v. Comm'rs of Franklin Co., 3 Ohio, 89; Russell v. Hubbard, 59 111. 335; Lee v. McLeod, 12 Nevada, 280.
2 Benedict v. Benedict, 5 Day (Conn.) 468.
3 Houghtaling v. Houghtaling, 5 Barb. 383, per Pratt, P. J. See Cook v. Stearns, 11 Mass. 533; Stevens v. Stevens, 11 Met. (Mass.) 251; Miller v. Auburn and Syracuse R. R. Co., 6 Hill (N. Y.) 61; Hays v. Richardson, 1 Gill & J. (Md.) 366; Wright v. Freeman, 5 Harr. & J. (Md.) 467; Clute v. Carr, 20 Wisc. 531; Fryer v. Warne, 29 Wisc. 511.
4 Moulton v. Faught, 41 Me. 298; Pitman v. Poor, 38 Me. 237; Houston v. Laffee, 46 N. H. 505; Dodge v. McClintock, 47 N. H. 383.
§ 31. In some of the earlier decisions, both English and American, the licensee was protected against revocation, on the ground that the licenser was estopped to revoke a license on the faith of which the licensee had incurred expense; but it is now well settled that the doctrine of estoppel does not apply, inasmuch as the licensee is bound to know that his license was revocable, and that in incurring expense he acted at his own risk and peril. Courts of equity also have repeatedly declined to interfere on this ground.3
1 Ameriscoggin Bridge Co. v. Bragg, 11 N. H. 109; Clement v. Durgin, 5 Greenl. (Me.) 9.
2 Jamieson v. Millemann, 3 Duer (N. Y.) 255. And see Houston v. Laffee, 46 N. H. 505; Fryer v. Warne, 29 Wisc. 511. A licensee has a reasonable time after revocation to remove his property from the grantor's land. Cornish v. Stubbs, L. R. 5 C. P. 334; Mellor v. Watkins, L. R. 9 Q. B. 400.
3 Babcock v. Utter, 1 Abb. (N. Y.) App. Dec. 60. See Hetfield v. Central R. R. Co., 29 N. J. L. 571; Owen v. Field, 12 Allen (Mass.) 457; Wingard v. Tift, 24 Ga. 179. In Pennsylvania, where the common-law courts have equity powers, a different rule seems to prevail; although, in a late case in that State, the court, while recognizing the obligations of previous decisions, says: "The courts of this State have gone beyond the rules of common law, and beyond the rulings of courts of equity elsewhere." Strong. J., in Huff v. McCauley, 53 Pa St. 206. A similar statement is made in Jamieson v. Millemann, 3 Duer (N. Y.) 255. See the following Pennsylvania decisions: Rerick v. Kern, 14 Serg. & R. 267; M'Kellip v. M'llhenny, 4 Watts, 317; Swartz v. Swartz, 4 Pa. St. 353; Le Fevre v. Le Fevre, 4 Serg. & R. 241. See also Lane v. Miller, 27 Ind. 534; Cook v. Pridgen, 45 Ga. 331; Williamston & Tarboro R. R. Co. v. Battle, 66 N. C. 540; Cumberland Valley R. R. Co. v. McLanahan, 59 Pa. St. 23; National Stock Yards v. Wiggins Ferry Co., 112 111. 384. But see Tufts v. Copen, 37 W. Va. 623; Flickinger v. Shaw, 87 Cal. 126.
§ 31 a. Wherever a verbal agreement is made by which an interest in another's land is to be acquired, whether it be in form a license, or a contract for an interest in land, and upon the faith of that agreement the party taking it enters into possession, and makes improvements, or otherwise so changes his condition that equity will hold him entitled to a decree affirming his right, or enjoining his grantor's interference with it, such equity is a good defence at law to an action by the grantor, e. g. trespass, interfering with the grantee's possession and enjoyment, in those States where equity is administered by courts of law.1
1 Petty v. Kennon, 49 Ga. 468; Russell v. Hubbard, 59 111. 335; Tanner v. Volentine, 75 111. 624; Dillion v. Crook, 11 Bush (Ky.) 321; Simons v. Morehouse, 88 Ind. 391; Robinson v. Thrailkill, 110 Ind. 117. See Flickinger v. Shaw, 87 Cal. 126.