I. Nature of a license.
1. In General.
II Massachusetts, 533. - 1814. [Reported herein at p. 480.] 1
2. How a License Differs from a Leasehold Interest.2
3. How a License Differs from an Easement.
134 New York, 435. - 1892.
[Reported herein at p. 472.]
4. Executed and Executory Licenses.
11 Massachusetts, 533.- 1814.
[Reported herein at p. 480.]1
1 See also G. L. & P.J.R. R. Co. v. N. Y. & G. L. R. R. Co., supra, p. 472; IIuff v. McCauley, supra, p. 76, and the cases reported below. As a license does not properly give an interest in the land, but merely furnishes a defense for an which would otherwise be a trespass, the subject may seem out of place in this "Part." However, its superficial resemblance to an estate at will and the fact that a few states treat it as an "interest" under certain circumstances may justify its treatment here. - Ed.
3 A leasehold gives the exclusive possession of the land to the lessee as against the lessor. See cases reported herein. - Ed.
II. How a license may be given.
1. In Express Terms or by Implication. Foster, J., in
51 New Hampshire, 217. - 1871.
The substance of the defendant's attempted justification is, not merely that, as assistant postmaster, an officer and agent of the United States government, - the agent and servant also of his immediate principal, Gilchrist, the postmaster, an officer and agent of the government. - he committed the acts charged in the declaration, solely and necessarily in pursuance of his right and duty; but, also, that his entry upon the premises and removal of the personal property were justified by the license and permission given by the plaintiff to his principal, Gilchrist, and that the assault upon the plaintiff was committed in self-defense, and was accompanied with no unnecessary force. He also attempts to justify his entry into the building, by insisting upon the right of a citizen to enter a public post-office for the purpose of getting his mail-matter, alleging that he went there for that purpose, making his errand known to the plaintiff.
We will first consider the subject of the license given by the plaintiff to Gilchrist, - bearing in mind that upon demurrer, all the allegations of the defendant are to be regarded as established facts.
It appears, then, that with full notice on the part of the plaintiff of the appointment and qualification of Gilchrist and the defendant as postmaster and assistant postmaster, and special information from Gilchrist that he proposed and intended to go to the post-office room on the thirtieth of July, "and then and there remove and take away therefrom the furniture, articles, and other things belonging to said post-office, and remove the same to another building," the plaintiff then and there "assented thereto, and gave his consent, license, and permission that said Gilchrist might and should take away and remove said furniture, articles, and things, as aforesaid." It also appears that the defendant was employed by Gilchrist, and acted under his direction, in the attempt to take possession of and to remove the property, and that his assistance was necessary for this purpose. * * *
The plea alleges that the plaintiff "gave his consent, license, and permission that said Gilchrist might and should take away and remove" the public property.
"A license is express where, in direct terms, it authorizes the performance of a certain act, - as where a man who owns a dam authorizes his neighbor to draw water from it to his mill; in this case the licensee has a right to enter the premises to get the water.'' 2 Bouv. Inst. 567. A bare parol license, though without consideration, will furnish a justification for an act which would otherwise be a trespass. Marston v. Gale, 24 N. H. 177; Batchelder v. Sanborn, Ibid, 479; Rawson v. Morse, 4 Pick. 127.
Such a license, though ordinarily regarded as personal, extending only to the party to whom it is expressly given, will nevertheless apply to and protect the agents and servants of the licensee, whenever from the circumstances it can be presumed that there was an implied license to such persons, - "as where a license is given to a man to remove a weighty matter, which requires the assistance of several other persons." 2 Bouv. Inst. 568. A license to a man to remove a bank safe would imply a license to as many servants of the licensee as should be requisite for his assistance. A license necessarily implies the right to do everything without which the act cannot be done. Taylor's Land and Ten. § 766; Curtis v. Galvin. 1 Allen, 217.
The plea in this case is conclusive upon this fact, and establishes the license to the defendant. It alleges that Gilchrist requested the defendant to assist him, and that "it was necessary and proper, in order that said Gilchrist should be able to have sufficient force conveniently and properly to take away and remove said furniture, articles, and things from said post-office room as aforesaid, that he should then and there be aided and assisted by the defendant."
Undoubtedly a bare license is revocable before it is executed; but there are licenses which are irrevocable, though they relate to an entry upon and the occupation of land or real estate, and are by parol; "as where, for instance, the license is directly connected with the title to personal property which the licensee acquires from the licenser at the time the license is given, whereby the license is coupled with an interest. Thus, where one sells personal chattels on his own land, and, before a reasonable time to remove them, forbids the purchaser to enter and take them, it was held to be a license which he could not revoke within such reasonable time. Nettleton v. Sikes, 8 Met. 34; Wood v. Manley, I I Ad. & E. 34; Parsons v. Camp, 11 Conn. 525; White v. Elwell, 48 Me. 360; 1 Washb. Real Prop. *4o1.