Blaisdell v. Portsmouth, Great Falls & Conway Railroad , 51 N.H. 483 ( 1871 )

Sargent, J.

The argument of the plaintiff, that no consent to enter upon land for the purpose of building a railroad could be effectual, or of any avail, imless the right to enter by strict compliance with all the requirements of the statute had been acquired, is not well founded.

One man can give to another permission or license to make a railroad or dig a canal on his land, just as well as to make & private way or dig a ditch. '

And it matters not whether the party wishing to build or to dig has a charter, or an act of incorporation, or any' other authority to doit, or whether he have pursued one course or another previously to obtaining the land-owner’s consent or license.

The license which he thus obtains of the land-owner is a sufficient authority' for all acts done upon said land within the scope of the license, and will so continue until it is revoked ; and nothing more is needed as % license to justify the building of a railroad on land of another than to build a barn or fence.

The demurrer to this plea of license and the joinder in demurrer raise the question whether the facts set forth in this plea in bar amount to a justification of the alleged trespass complained of.

The plea does not claim any title to the land, or aiiy interest or easement in the soil. The defendants only claim a license from Brackett. But a license does not convey any right "or estate in the land, and amounts to nothing more than an excuse for an act which would otherwise be a trespass. Cook v. Stearns, 11 Mass. 537, 538.

If any right or easement in the soil were claimed, then, the law requiring that such right must be by deed, the defendants should have pleaded their deed or other conveyance, so that the court might see whether it was a lawful conveyance of the-right or not. Id., 536, 537.

Where no deed is averred, or other instrument in writing, which would convey an interest in land, it is to be presumed that the authority relied on is only by parol, a mere permission or license.

. Such parol licenses may be in writing, or verbal; but there is no distinction between the two, if the writing has not the legal requisites to make it a deed or grant of real estate. Dodge v. McClintock, 47 N. H. 383, was a case of a license in writing, but, not amounting to a deed or grant, was held to be merely by parol. So in this case it makes no difference whether the license was verbal or written, — it is pleaded as a license, and not as a deed; and therefore we inquire whether, from the facts stated in the plea, such license is an answer to the plaintiff’s case ? If the license liad been given by this plaintiff to these defendants directly, it would be a good answer tp this action of trespass if it had not been l’evoked, and standing on demurrer would be well enough. But in this case, the plea a'dmits that Brackett, who is alleged to have given the license, is dead, and that the plaintiff holds his estate; and no license is alleged from the plaintiff.

The plea also admits that the party or company, to whom the original license was given, has sold out to these defendants since the alleged license was given, and no license to these defendants, directly, is claimed to have been given by any one. When the title in the land passed from Brackett to this plaintiff, the license which is here pleaded was revoked and terminated, and the assignment, of the railroad to these defendants, by those, to whom the license was first granted, also terminated the license, as it was a mere personal privilege, and incapable of assignment. Cowles v. Kidder, 24 N. H. 379, 380.

There can be no prescription or adverse possession in this case: whatever is held under a license cannot be held adversely. Dodge v. McClintock, ante;—see, also, Carleton v. Redington, 21 N. H. 291; Marston v. Gale, 24 N. H. 176; Houston v. Laffee, 46 N. H. 507.

Demurrer sustained.