This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
- (a) General nature. A license in the law of land, is ordinarily a permission merely to do something on or to the detriment of the land of the giver of the license, the licensor. Occasionally it is a permission to interfere with an easement or profit a prendre belonging to the licensor. It creates a privilege in favor of the licensee. A license, it has been said, "passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it, had been unlawful; as, a license * * * to hunt in a man's park, to come into his house, are only actions which, without license, had been unlawful."15
12. Ante, chapter 11.
13. See, as to the distinction. Backhouse v. Bonomi, 9 H. L. Cas. 503; Pine v. City of New York, 112 Fed. 98; Gray v. Mcwilliams,
98 Cal. 161, 21 L. R. A. 593, 35 Am. St. Rep. 163, 32 Pac. 976; Scriver v. Smith, 100 X. V. 471, 53 Am. Rep. 224, 3 N.e 675. 14. Post, c. 13.
In so far as an easement involves, as it ordinarily does, the privilege of doing or not doing a certain class of act on or in connection with another's land, there is a superficial resemblance between an easement and the privilege created by a license. The distinction between such an easement and a license privilege lies primarily 16 in the fact that the licensee has a privilege and nothing more, while the holder of an easement have not only a privilege but also rights against the members of the community in general, including the owner of the land, that they refrain from interference with the exercise or enjoyment of the privilege.17 That a licensee, as such, has no right of action against a third person obstructing his exercise of the license privilege is, it is conceived, beyond question,18 in spite of occasional
15. Thomas v. Sorrel, Vaughan, 351; Wood v. Leadbitter, 13 Mees. & W. 837. See, to the same effect, Cook v. Stearns, 11 Mass. 533, 480; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479; Foster v. Browning, 4 R. I. 47, 67 Am. Dec. 505; Thoemke v. Fiedler, 91 Wis. 386.
The statement that a license "passeth no interest," is questioned by Professor Hohfield (See 27 Yale Law Jour, at p. 95) and properly so, it would seem, if we give to the indefinite term ' interest" the meaning of any advantage reciognized by the law.
16. See Professor Hohfield's admirable statement in this regard, in 27 Yale Law Journal at p. 66.
17. Post, Sec. 371.
18. See Whaley v. Laing, 2 Hurl. & N. 476, 3 Hurl. & N. 675; Hill v. Tupper, 2 Hurl. & C. 121; per Bramwell, B., Stockport Water Works Co. v. Potter, 3 Hurl. & C. 300; Heap v. Hartley, 42 Ch. Div. 461; Clapp v. Boston, decisions to the contrary.19 That he has no right of action against the landowner himself by reason of such an obstruction by the latter, is involved in the doctrine that a license is revocable and may be revoked by an act on the part of the licensor indicating an intention to revoke.20
A license may be to do any of an almost infinite variety of things on another's land. Thus, one may have a license to flood land,20a to erect buildings or other structures thereon,21 to pass on the land,22 to maintain a ditch,23 to cut timber,24 to use land for railroad
133 Mass. 367; Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001; Per Loring, J., in Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 70 N. E. 937; Elliott v. Mason, 76 N. H. 229, 81 Atl. 701.
"If a so called license does operate to confer an exclusive right capable of being protected against a stranger, it must be that there is more than a license, namely the grant of an interest or easement." Pollock, Torts (6th Ed.) 367.
19. Case v. Weber, 2 Ind. 108, is to the effect that one having a license to flow water through another's land has a right of action against a third person who obstructs such flow. In Paul v. Hazleton, 37 N. J. Law, 106, and Miller v. Greenwich, 62 N. J. Law 771, 42 Atl. 735, a right of action in favor of a licensee against a third person was sustained, on the theory that the licensee had, in those cases, the exclusive possession of the land, or of a part thereof. But a mere licensee never has, it seems, possession of the land. London & purposes.25 A very common form of license is a ticket of admission whereby one is permitted to enter on another's land to witness a spectacle, or for some similar purpose.26 A contract of lodging also, giving not an exclusive right to a part of the premises, but merely a right to enter thereon and use them for certain purposes, is in the nature of a license, and not a lease.27 Likewise, the permission, generally tacit, given to an employee or other person having business with the owner of land, to enter on the land for the purpose of transacting such business, creates the relation of licensor and licensee.28
N. W. Ry. Co. v. Buckmaster, L. R. 10 Q. B. 70; Taylor v. Caldwell, 3 Best & S. 826; Wells v. Kingston-upon-hull, L. R. 10 C. P. 402; Lightwood, Possession of Land, 19. One who has possession of land is a tenant, not a licensee. 1 Tiffany, Landlord & Ten, Sec. 7. If a licensee did have possession, his right of action against a third person would be based, not on his license, but on his possession, and the existence of the license would be immaterial as against others than the licensor.
20. Post, Sec. 349(d).
20a. Woodward v. Seely, 11 111. 157, 50 Am. Dec. 445.
21. Crosdale v. Lanigan, 129 N. Y. 604, 26 Am. St. Rep. 551; Malott v. Price, 109 Ind. 22; Eckert v. Peters, 55 N. J. Eq. 379, 36 Atl. 491.
22. Forbes v. Balenseifer, 74 111. 183.
23. Thoemke v. Fiedler, 91 Wis. 386.
24. Callen v. Hilty, 14 Pa. St. 286. See cases ante, Sec. 262, note 96.
- (b) No formality necessary. No formality is necessary to a license. It may be in writing or oral,29 or may be implied from the relations of the parties, or from the conduct of the landowner, as when he indicates an assent to the doing of certain acts on his land.30 So, a person, by opening a place of business, licenses the public to enter therein for the purpose of transact25. Beck v. Louisville, N. O. & T. R. Co., 65 Miss. 172; Harlow v. Marquette, H. & O. R. Co., 41 Mich. 336.