Cook v. Pridgen, Stapler & Dunn , 45 Ga. 331 ( 1872 )

McCay, Judge.

1. We think the authorities, taken all together, establish this proposition, that a permanent easement on the land of another is an interest in the land; and a parol license to enjoy such an easement is void under the Statute of Frauds: 4 East. R., 109; Hurlins vs. Shipman, 5 B. & C., 221. See also 8 B. & C., 298; 4 Ad. & Ell., 329.

There is, without question, some confusion in the authorities ; but we think the true distinction, which will reconcile most of them, is between a permanent right, one in its nature such that the parties must have contemplated its continuance, and a mere permission to do something on land, which, from the nature of the thing, is temporary only: 2 Hilliard, Abr. Am. L. Real Prop., 52; Angel on Water Courses, 286. Without doubt there are cases inconsistent with this view. But it will, we think, be found that, generally, these cases may be explained consistently with the distinction we have alluded to by considering the forum, whether at law or in equity, in which they have occurred.

A license even in writing is revokable. That is, if it show that it was the intent of the parties to give a mere license, and not a grant. In other words, a mere license is, in its nature, revocable; since that is the intent of the parties. If it be intended to be irrevocable, it is ordinarily a grant and must be in writing, or it is void at law by the Statute of Frauds.

But it does not always follow that a license is revocable at the will of the party giving the license. Even a temporary license must be considered as intended to continue until the objects of the parties are attained, as where even in Courts of law it has been held that a mere license to overflow land with water, by a dam for a saw mill, cannot be revoked during the continuance of the dam ; since it may fairly be presumed that the parties intended the license to last that long at least. But if the dam be destroyed, then, as the term of the license is out, it may be revoked, and this when the easement is a mere license, so that may be by parol. See Angel on Water Courses, section 293, and note, with authorities cited.

2. But, while at law an easement, in its nature permanent,' must as it is an interest in land be in writing, signed by 'the party owning the land to be burdened, equity will compel the specific performance of a parol contract for such an interest in land on the same principles as it will other parol contracts for the sale of land: 4 S. and R. 241; 4 Watts 317; 2 Equity Cases Ab., 523; 2 Atkyns, 391; 3 Cain’s Cases, 87. So that if one under a grant of an easement, though it be by parol, go into possession and make valuable improvments in pursuance of the grant, so that it would be a fraud upon the grantee to permit the Statute of Frauds to operate, equity will decree a title: Houston vs. Lafee, 46 N. H., 508. Here was a clear grant — the easement was in its nature permanent, a mill and dam of the character disclosed by the proof, must, in the nature of it, (not as a saw-mill or other structure necessarily temporary) be intended for a permanent investment, and in our judgment this permission was not a mere license but a grant for motives satisfactory to the grantor. The proof is, that the defendants acted upon the grant, went into possession, expended large amounts of money, and continued in possession for years.

3. Under our law, the defendant may set up, at law, any perfect equity — any right that needs nothing but a decree in chancery; and we think this was just such a case. We do not discuss the other questions made in the record, or pass upon them, as we think the case turns on the view of the law we have taken.

Judgment affirmed.