Houghtaling v. Houghtaling , 5 Barb. 379 ( 1849 )

By the Court, Pratt, P. J.

This was an action commenced in a justice’s court and removed from that court to the court of common pleas by plea of title to land. The declaration in the court beloxv was trespass quare clausum fregit; and a plea of title having been put in by the defendants, the cause xx'as tried upon that issue. It is now insisted on the part of the plaintiff below that the house xvas personal property, and that trespass would lie against the defendants for its destruction.

Perhaps the evidence was sufficient to establish that fact; but that was not the issue to be tried in the court below. The plaintiff complained of injury to his land; and the additional allegation that his personal property was destroyed was merely matter of aggravation. The gist of the action was the injury to the land; and unless the evidence sustained that allegation the plaintiff was not entitled to recover. (Howe v. Wilson, 1 Denio, 181. Rickets v. Solway, 2 Barn. & Ald. 363. 1 H. Black. 555. 4 Pick. 239.)

In a cause commenced in a justice’s court and removed to the common pleas by plea of title to land, the plaintiff’s proof should be confined to his declaration. If the plaintiff should be allowed to abandon his allegation of injury to land, and try an issue of injury to personal property, the defendant would lose his costs, although he should succeed in obtaining a verdict ; or if the plaintiff should succeed, he would get the benefit of the defendant’s bond, although if he had counted on such injury in the first instance the plea of title would not have been interposed, and no bond would have been necessary. We think the verdict cannot be sustained upon that ground.

The main question then is, whether the plaintiff below proved such an interest in the land as would enable him to maintain trespass against the general owner of the fee. This depends upon the question whether a parol license to build upon the land of another, and to occupy it indefinitely, is revocable. And upon this also depends the question whether the court erred in admitting the declarations of John Houghtaling, made in his lifetime. The admissions of a former owner of land in possession are good against those claiming under him only to prove facts which may be established by parol. If a parol license to build upon and occupy the land of another is, when executed, irrevocable, there is no reason why it may not be proved by parol admissions, or any other parol evidence; but when a title cannot be created by parol, parol admissions of the existence of such title are not admissible.

To return, then, to the main question. Upon examining the statute of frauds, (2 R. S, 151,) there does not seem to be room for a doubt that a parol license to build upon, and occupy, the land of another indefinitely, is absolutely void and confers no title whatever. Any other construction of the statute would render it nugatory. The grand remedial benefit derived therefrom, to wit, the prevention of frauds and perjuries, would be lost. In the case under consideration, without questioning the credibility of the witnesses, we cannot fail to see how easily, by a slight change of the language of the ancestor, a permission to erect a temporary house, for a temporary purpose, might be converted into a license to build and occupy indefinitely, and thus create an estate scarcely less than a fee. Yet, as plain as the language of the statute is, that no estate in land can be created by parol, there are cases both in England and this country which seem to favor a contrary doctrine.

We may pass by those cases cited by the plaintiffs’ counsel which hold that a license to do a particular act, or a series of acts, upon the land of another, without creating or affecting the interest in the land itself—such as a license to hunt—may be good by parol; (Taylor v. Waters, 7 Taunt. 374; 15 Wend. 392,) and also those cases which hold that a license to do an act on one’s own land, which may affect injuriously the air or light of another, cannot, when executed, be revoked ; at least without the payment of all expenses. (Webb v. Paternoster, Palmer, 71. Winter v. Brockwell, 8 East, 308. 4 Serg. & Rawle, 241. 7 Bing. 682.) There are some peculiar circumstances in these cases which may well control the decisions of the courts. But there are other cases which go much farther, and hold doctrines in the teeth of the statute; such as Wood v. Lake, (Sayre, 3,) where it was held that a parol license to stack coals on the land of another, for seven years, did not create an interest in the land, and was therefore valid; or Ricker v. Kelly, (Greenl. R. 117,) where it was held that a license to build a bridge on another’s land was good ; or Clement v. Durgin, (5 Greenl. 9,13,) where the same was held in relation to building a dam. (See also 7 Taunt. 374; 4 Mees. & Welsb. 538 ; 1 How. 405.)

But these cases are excrescences upon the law, and are completely repudiated, both in England and in this state. Sugden and Chitty both review all the cases with great ability, and show clearly that they are in direct opposition to the statute of frauds. (1 Sugden on Vendors, 91. 1 Chitty's Gen. Practice, 336 to 340. See also 4 East, 108 ; 5 B. & C. 221; 8 Id. 288; 11 Mass. Rep. 536; 3 Kent’s Com. 451; Miller v. Auburn & Syracuse R. R. Company, 6 Hill, 62; Mumford v. Whitney, 15 Wend. 380; Luce v. Carley, 24 Id. 451; 10 Conn. Rep. 375.) These authorities establish the rule in accordance with common sense and right reason. They hold that a parol license to do an act upon the land of another, which may affect that other in the exclusive use of his land, is creating an interest in the land, and is therefore within the statute of frauds and void.

But were we, in this case, to adopt the contrary position, and hold that it did not create an interest in the land, the plaintiff would still fail on the first ground; for, in that case, he would have no interest or title to be trespassed upon, and an action for breaking his close cannot be sustained. He has taken issue with the defendants upon his title to the land, and if he should succeed in showing that a license to build and occupy indefinitely did not create an interest in the land, he overthrows the foundation of his own action.

It is said that, at all events, the plaintiff was a tenant at will, and could not be put out of possession until a month’s notice to quit had been given. How this might have been had the plaintiff continued in possession it is not necessary to decide. By the proceedings before Judge Lawrence, had they been admitted in evidence, the defendants might have shown that the defendant Jane had actually obtained possession; in fact that did appear by the evidence, and it was not necessary to give the plaintiff, when he was actually out of possession, notice not to enter. Again; the proceedings before Judge Lawrence were proper evidence to show an actual revocation* of the licensé, and should therefore have been admitted.

The judgment of the common pleas must be reversed, and a venire de novo be awarded.