"

In Hatch v. Dwight, it was declared, upon the same principle, that if a mill-site, unoccupied, be abandoned by the owner, evidently with an intent to leave it unoccupied, it would be unreasonable that the other riparian proprietors, above and below, should be prevented, by fear of suits, *452 from making a profitable *use of their sites.

(11.) Of rights by license.

The law is solicitous to prevent all kinds of imposition and injury, from confidence reposed in the acts of others; and a

662, in which the doctrine of dedication of property to public uses was largely and learnedly discussed, it was held not to be essential that the right to use the property, so dedicated, should be vested in a corporate body. It may exist in the public, and have no other limitations than the wants of the community at large. And if buildings be erected on, or grants made of part of the land so dedicated, by the party making it, such acts would not disprove the dedication, or affect the vested rights of the public. I should apprehend that the last proposition must be taken with some qualifications, for the fact might raise the question, as a matter of evidence, whether the property was ever legally vested in the public, or irrevocably dedicated to it; and if it had been, whether non-user by the public, and an adverse claim by the original owner, might not, in the lapse of time, bar the public; for in this country time may create a bar to the sovereign's right. Thus, by the New-York Revised Statutes, vol. ii. 292, the people are not to sue or implead any person, in respect to lands, by reason of any right or title, unless the right or title accrued within twenty years before suit brought, or the people had received the rents and profits within twenty years, the case of liberties of franchise excepted. There is a similar provision in the Revised Statutes of Massachusetts, part 3. tit. 5. c. 119. sec. 12. It was held, in Willoughby v. Jenks, 20 Wendell, 96, that to give a title in the occupant of a lot, bounding on a street dedicated to the public, to the soil, usque filum viæ, the street must have been accepted by the public as such. Until such acceptance the street remains the property of the original proprietor, subject to the easement of right of way of purchasers of lots adjoining the street. (1)

There has been considerable discussion of the question, whether there may be a partial dedication of a highway to the public, as for foot passengers, or for horses and not for carts, or for carts except those carrying coal. The better opinion would seem to be, that the public must take secundum formam doni, and that the dedication may be definite, not only as to time, but as to the mode of use. Lethbridge v. Winter, 1 Campb. 263, note. Marquis of Stafford v. Coyney, 7 Barnw. & Cress. 259. Gowen v. Phil. Ex. Co. 5 Watts & Serg. 141. Poole v. Huskinson, 11 Meeson & Welsby, 827.

17 Mass. Rep. 289.

(1) In an able opinion in a late case, it was considered that the dedication was not complete without evidence of acceptance on the part of the public. Commonwealth v. Russell, Law Reporter, March, 1849, p. 505. See The State v. Carver, 5 Strobh. R. 217. Simons v. Cornell, 1 Rh. Isl. R. 519.

parol license to do an act, on one's own land, affecting injuriously the air and light of a neighbour's house, is held not to be revocable by such neighbour after it has been once acted upon and expense incurred. Such a license is a direct encouragement to expend money, and it would be against conscience to revoke it, as soon as the expenditure begins to be beneficial. The contract would be specifically enforced in equity. Such a parol license to enjoy a beneficial privilege is not an interest in land within the statute of frauds. If, however, a parol license be granted for a temporary purpose, as the permission to erect a dam, it has been held to terminate with the decay of the dam, as the purpose of the license has then been fulfilled. In Liggins v. Inge, the court distinguished between licenses which, when countermanded, leave the party in statu quo, and licenses for the construction of buildings and works, which are not revocable.

The modern cases distinguish between an easement and a license. An easement is a liberty, privilege or advantage in land without profit, existing distinct from an ownership of the soil. A claim for an easement must be founded upon a grant by deed or writing, or upon prescription, which supposes one, for it is a permanent interest in another's land, with a right at all times to enter and enjoy it. But a license is an authority to do a particular act, or series of acts, upon another's

• Webb v. Paternoster, Palmer's Rep. 71. 2 Eq. Ca. Abr. 522. Short v. Taylor, cited ibid. Winter v. Brockwell, 8 East's Rep. 308. Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241. Rerick v. Kern, 14 ibid. 267. Bridges v. Blanchard, 3 Neville & Manning, 691. Wood v. Manley, 11 Adolph. & Ellis, 34. Liggins v. Inge, 7 Bingham, 682. Ameriscoggin Bridge v. Bragg, 11 N. H. Rep. 102. But in Cocker v. Cowper, in 1 Crompton, Meeson & Roscoe, 418, it was held, that a verbal license was not sufficient to confer an easement in another's land, and that it was revocable, though acted upon. It has also been decided that a license in writing, without deed, to hunt on the grounds and fish in the waters of the grantor, was void. Bird v. Higginson, 4 Neville & Manning, 505. So, a license to erect a building on another's land, cannot be revoked so entirely as to make the person who erected it a trespasser for entering and removing it after the revocation. Barnes v. Barnes, 6 Vermont Rep. 388. See post, note (1,) p. 453.

b Hepburn v. M'Dowell, 17 Serg. & Rawle, 383. A parol license to enjoy an easement is countermandable whilst it remains executory. Wallis v. Harrison, 4 Meeson & Welsby, 538.

7 Bing. Rep. 682.

d Prentiss, Ch. J., Pomeroy v. Mills, 3 Vermont, 279.

land, without possessing any estate therein. It is founded in personal confidence, and is not assignable, nor within the statute of frauds. This distinction between a privilege or easement, carrying an interest in land, and requiring a writing within the statute of frauds to support it, and a license *453 which may be by parol, is quite subtle, and it *becomes difficult, in some of the cases, to discern a substantial difference between them. The case of Wood v. Lake,b which held a parol agreement for the liberty to stack coal upon any part of the close of another, for seven years, to be valid, was questioned at the time by Mr. Justice Foster, and it has been since forcibly attacked by Sir Edward B. Sugden, in his Treatise of the Law of Vendors and Purchasers, and was questioned also in 1 Johnson's Ch. Rep. 143; and yet that case has been recognised, and the doctrine of it sanctioned, by Lord Ch. J. Gibbs, in Tayler v. Walters. The decision in Cook v. Stearns narrows the limits assigned to a parol license. while, on the other hand, the cases of Ricker v. Kelley, and Clement v. Durgin,f seem to approach and favour the more questionable doctrine in Wood v. Lake.s

* Prince v. Case, 10 Conn. R. 375. Kerr v. Connell, Berton's N. Brunswick Rep. 151. Woodbury v. Parshley, 7 N. H. Rep. 237. Mumford v. Whitney, 15 Wendell, 380. S. P., where it was held, that such a license by parol was valid, but that a parol agreement to allow a party to enter and erect a dam for a permanent purpose, was void within the statute of frauds, for it was a transfer of an interest in the land. If we understand the license, said Ch. J. Savage, as it is defined here in the text, there is no difficulty on the subject. It is a mere authority to do a particular act, as to hunt, or fish, or erect a temporary dam, and conveys no interest, and the license is executory, and may be revoked at pleasure; but acts done under it before the revocation are no trespass.

A power reserved in a lease of revoking an easement is valid, and the revocation affords no ground for a claim in damages to the lessee. Bacon's Maxims, Reg. 4. Ex parte Miller, 2 Hill's N. Y. R. 418.

b Sayer's Rep. 3.

• P. 56. 3d London edit.

7 Taunton, 373.

11 Mass. Rep. 533.

1 Greenleaf, 117. 5 Ibid. 9.

It was held, in Bridges v. Purcell, 1 Dev. & Battle's N. C. Rep. 492, that a parol license to overflow one's land by a mill-pond could be revoked, and at all events it ceased with the life of the grantor. Mr. Justice Gaston, who gave the opinion of the court, was disposed to question the doctrine on this subject, in the cases of Liggins v. Inge, Webb v. Paternoster, and Tayler v. Walters; and he held, that the decision in Wood v. Lake was clearly wrong. A mere parol license

*III. Of offices.

*454

Offices are another species of incorporeal hereditaments, and they consist in a right, and correspondent duty,

is revocable, though acts done under it, until countermanded, are lawful. This was the amount of the reasoning in the case in North Carolina. Beidelman v. Foulk, 5 Watts, 308. Couch v. Burke, 2 Hill's S. C. Rep. 534. S. P. See, also, Hall v. Chaffee, 13 Vermont R. 150, to the S. P. The case of Tayler v. Walters is considered as decidedly overruled by the case of Hewlins v. Shippam, 5 B. & Cress. 221, and Cocker v. Cowper, 1 Cr. M. & Ros. 18. See, also, Gale & Whatley's Treatise on Easements, 13-46, where all the authorities on parol licenses are collected, and the effect of them well considered. But an interest in land once passed cannot be revoked. Jackson v. Buel, 3 Johns. Rep. 298. In the case of Wood v. Leadbitter, 13 Meeson & Welsby, 838, this vexatious subject of license in respect to land was greatly discussed, and the four cases of Webb v. Paternoster, Wood v. Lake, Tayler v. Walters and Wood v. Manley, were very critically examined in the judgment delivered by Baron Alderson. The case of Tayler v. Walters was pointedly condemned, and the case of Webb v. Paternoster was so replete with confusion as to be of no weight. The authority of all those cases is very much disturbed. The conclusion at which the court arrived was, that a right to enter and remain on the land of another for a certain term could be created only by deed, and that a parol license to do so was revocable at any time. A right of common, or right of way, or right in the nature of an easement, could only be granted by deed. A mere license passes no interest, but a license coupled with an interest was not revocable. (1)

On the subject of easements and aquatic rights, I have derived much aid and facility in my researches, from the three valuable treatises of Mr. Angell, which treat of water-courses, of tide-waters, and of the rights acquired by adverse enjoyment for twenty years. In those essays the author has faithfully collected the law and authorities applicable to the subject, and accompanied his digest of them with free and judicious criticism. The disturbance of incorporeal rights, relative to partition walls, foundations of buildings, the diversion of water, obstruction of lights, &c., amounting to nuisances, are also well and fully discussed in Gibbons on the Law of Dilapidations and Nuisances, c. 10. In the propositions of the English parliamentary commissioners on the subject of real property, it was submitted, that adverse enjoyment during twenty years of any profit or easement, in or over the soil of another, should be prima facie evidence of a right, but one liable to be rebutted by proof that the owner had been under disability, or that the land had been under a lease, or that there was a life interest therein; but such proof was not to be open to the lessee or tenant for life. The adverse enjoyment for sixty years was to be conclusive evidence of a right, without regard to the disabilities of

(1) In Wolf v. Frost, 4 Sandf. Ch. R. 73, it was held, that although a party licensed may have expended money on his own land, solely on the faith of the license, that fact would not prevent the licensor revoking the license without making any compensation.

It has been held in several late cases, that licenses, revocable in their nature, upon the faith of which money had been expended, cannot be revoked. Addison v. Hack, 2 Gill's R. 221. Wilson v. Chalfaut, 15 Ohio R. 248. In Sampson v. Burnside, 13 N. Hamp. Rep. 264, the question was considered doubtful. See, also, Branch v. Doane, 17 Conn. R. 402. See ante, p. 452, note (b). See, also, King v. Whitcomb, 7 Barb. S. C. Rep. 263.

to execute a public or private trust, and to take the emoluments belonging to it.a Offices, in England, may be granted to a man in fee, or for life, as well as for years, and at will.b In the United States, no public office can properly be termed an hereditament, or a thing capable of being inherited. The constitution, or the law of the state, provides for the extent of the duration of the office, which is never more permanent than during good behaviour. Private ministerial offices only can be classed as hereditaments, and I do not know of any such subsisting among us. It would not be consistent with our manners and usages, to grant a private trust or employment to one, and his heirs, in fee; though I do not know of

the parties, or the state of the title to the land. The non-user of any profit or easement in or over the soil of another during twenty years, was to be prima facie evidence of its extinguishment, but liable to be rebutted. I should have apprehended that all those propositions, except the sixty years' provision, were already part of the English law, and that it was useless to have proposed them.

* Finch's Law, 162. The right to exercise a public office is as much a species of property as any other thing capable of possession, and the law affords adequate redress when the possession of it is wrongfully withheld. Wammack v. Holloway, 2 Alab. R. N. S. 31.

b 2 Blacks. Com. 36.

• In Hoke v. Henderson, 4 Dev. N. C. Rep. 18, 19, it was decided that a clerk's office, which was held during good behaviour, and many other public offices, were, under certain limitations, the subject of property, like every other thing, corporeal or incorporeal, from which men can earn a livelihood. And if another should unlawfully usurp the office, the owner might have an action for damages for the expulsion, and a mandamus to restore him to the possession and emoluments of the office. (1) In the able and elaborate opinion delivered by Judge Nicoll, in the case of The State v. Dews, R. M. Charlton's Georgia Rep. 397, it was held, that public officers in this country were public agents or trustees, and had no proprietary interest or private property in their offices beyond the constitutional tenure and salary (if any) prescribed; and that official rights and powers flowing from their offices might be changed at the discretion of the legislature, during their continuance in office. The custody of a jail, for instance, it was held, might, without the violation of any constitutional right, be taken by statute from the sheriff, and vested in the city corporation.

(1) Where the Constitution provides for the appointment to an office in a particular manner, the legislature cannot create a new office for the performance of the same duties, and direct the appointment to be made in a different manner. Warner v. The People, 2 Denio's R. 272. Public offices are not incorporeal hereditaments, and their prospective emoluments are not property, and may be reduced and regulated by law, except in cases in which the Constitution has expressly forbidden it. Conner v. The Mayor, 1 Selden R. 285.

All agreements to pay for aid or influence in procuring an appointment to office, it seems, are void. Gray v. Hook, 4 Comst. R. 449.