Some days after the interview * * * the defendant addressed a letter to the plaintiff, in which * * * he said: * * * "I have thought the matter over seriously, put myself in your place, so to speak, and decided to give you two feet asked for to build your wall on." * * *
This case was tried and decided upon the theory that the plaintiff had a license from the defendant to build the wall on his land, which, when executed, became in equity irrevocable. It was not claimed on the trial, nor is it now claimed, that there was any contract on the part of the defendant to sell the land occupied by the wall to the plaintiff, which, by reason of part performance, equity will enforce. The claim and the finding is that the license to enter upon the defendant's land, when acted upon by the plaintiff, conferred upon him a right in equity, in the nature of an easement, to maintain the wall on the defendant's lot. If this claim is well founded, there has been created, without deed and in violation of the statute of frauds, an interest in the plaintiff and his assigns in the land of the defendant, impairing the absolute title which he theretofore enjoyed, and subjecting his land to a servitude in favor of the adjacent property. It is quite immaterial in result that this interest claimed, if it exists, is equitable and not legal. An encumbrance has been created upon the defendant's lot, and his ownership, to the extent of such interest, has been divested.
We are of opinion that this judgment is opposed to the rule of law established in this State. There has been much contrariety of decision in the courts of different States and jurisdictions. But the courts in this State have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements, easily misunderstood. It gives security and certainty to titles, which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land, is clearly defined and well understood, and is indisputable; but to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed should be observed, than to leave it to the chancellor to construe an executed license as a grant, depending upon what, in his view, may be equity in the special case. There are several circumstances in the present case which render the enforcement of such a jurisdiction a dangerous precedent. The only license claimed is contained in the letter of April 13th. The language is: "I have decided to give you the two feet you asked for to build your wall on." How far the wall was to extend, its character, or how it was to be built, is not stated. Referring to the previous interview to which the letter alludes, the evidence of the plaintiff of what was said at the interview leaves the whole matter indefinite and uncertain.
He testifies that neither the description, dimensions and character of the proposed wall were spoken of. The testimony of the defendant is to the contrary, but perhaps it is to be assumed that the trial judge adopted the testimony of the plaintiff.
Upon the case made by the plaintiff upon the letter and the prior conversations, if it was a contract, it is difficult to see how it could be enforced in equity. The cases are decisive that equity will only enforce a parol contract for an interest in land when the contract is definite and certain in all its parts. The extent of the injury which will be suffered unless equity intervenes is also an element to be considered when its extraordinary jurisdiction is invoked. Here the amount expended by the plaintiff in reliance upon the license was comparatively small. The most reasonable inference is that the plaintiff confided in the good faith of the defendant as his security that the wall would be permitted to remain. It does not appear that anything was said as to the time it should be maintained. It is claimed that the wall was built for the benefit of both parties. This is founded on the assumption that the defendant's excavation removed the natural support of the plaintiff's land, and subjected him to liability. But this would not take the case out of the statute nor authorize the interference of equity to enforce the license as a grant in equity. The same element of common benefit is found in the case of Cronkhite v. Cronkhite, 94 N. Y. 323.
The trial judge refused to find the facts as to the effect which would have followed from the defendant's excavation in case the plaintiff's land had continued in its natural state. He tried and decided the case on the theory that the license when executed became irrevocable. In this we think he erred. The cases of
Mumford v. Whitney, 15 Wend. 380; Wiseman v. Lucksinger, 84 N. Y.
31; and Cronkhite v. Cronkhite, supra, are, we think, decisive of this action.
127 Indiana, 66. - 1890.
Mitchell, J.- The nature of the action, as disclosed by the pleadings, is not very well defined. It may be regarded as a suit to recover damages caused by interrupting the flow of an artificial stream through, or diverting it from, a tile drain through which water was supplied to the plaintiff's animals on her farm.
The merits of the case may be determined upon the following facts returned to the court in a special verdict. In 1884 the plaintiff,