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SNOWDEN V. WILAS.

[19 INDIANA, 10.]

UNCERTAINTY IS NOT GROUND OF DEMURRER, UNDER INDIANA CODE OF PROCEDURE, but of a motion to compel the party to make his pleading more certain, unless the pleading be so uncertain as not to state intelligibly a substantially good cause of action or defense.

LICENSE TO ENTER Upon and OCCUPY LAND MUST BE SPECIALLY PLEADED, under the code, as well as at common law, or it cannot be given in evidence without consent, and consent will not be presumed.

RIGHT OF ONE TO OVERFLOW LAND OF ANOTHER IS EASEMENT, and an in. terest in real estate, and title thereto must be conveyed by grant, and established by proof of an actual grant, or of prescription, from which a grant will be inferred.

LICENSE TO DO ACT UPON LAND OF ANOTHER May be Given by Parol, if it does not involve an interest in real estate, or amount to an easement, and if coupled with an interest, especially if it be upon a consideration, it cannot be revoked.

FUTURE ENJOYMENT OF EXECUTED PAROL LICENSE, granted upon a consid. eration, or upon the faith of which money has been expended, will be enforced in equity, at all events, where adequate compensation in damages cannot be obtained; although, at law, a parol license is revocable as to future enjoyment, and is determined by a conveyance of the estate upon which it was to be enjoyed.

GRANTEES OF LAND ARE BOUND BY IRREVOCABLE LICENSE, when they pur. chase with notice; and in case of a mill and dam, the existing condition of things might be notice.

EQUITABLE RELIEF MAY BE GRANTED TO DEFENDANT IN LEGAL ACTION, in those states where law and equity are administered in the same court, if the pleadings present the necessary averments.

ACTION for damages. The facts are stated in the opinion.

D. O. Daily and L. P. Milligan, for the appellants.
John R. Coffroth, for the appellees.

By Court, PERKINS, J. This was a suit by Wilas and others against Snowden and others, to recover for damage done by overflowing land by means of a mill-dam.

The defendants demurred to the complaint for uncertainty. The demurrer was overruled.

Uncertainty is not a ground of demurrer under the code; but is a ground for a motion to compel the plaintiff to make his pleading more certain. Nevertheless, if a pleading be so uncertain as not to state intelligibly a substantially good cause of action or defense, it will be subject to demurrer for not stating a cause of action or defense.

In the case at bar, we think the complaint was subject to a motion for uncertainty, in not describing with sufficient particularity the given piece of land overflowed, but that it was

not so uncertain as to be subject to a demurrer for not stating intelligibly a cause of action.

On the overruling of the demurrer, the defendants answered. The answer contained the general denial and a special paragraph as follows:

The defendants admit the erection of the dam, etc., but say that it was erected by Daniel Frenderburg, in connection with a flouring mill, the two costing thirteen thousand dollars; that before said Frenderberg erected the dam and mill, he applied to Moses Wilas, the then owner of the land overflowed, the land now owned by the plaintiffs, for license to erect said mill and dam; that Wilas gave the license by parol, and upon the consideration of fifty dollars in cash paid, and the fact that the mill would be an advantage to him, as well as to the whole neighborhood in which he lived; that the height of the dam was specified, being the exact height of that built and maintained; that since the dam and mill had been erected, Frenderberg had sold and conveyed the same to the defendants; and the plaintiffs had obtained title from Wilas to the land overflowed.

The defendants prayed that their right to maintain the dam at its present height might be established, etc.

The court sustained a demurrer on this paragraph of the answer; the cause was tried upon the general denial, and the plaintiffs obtained judgment for a portion over seventy dollars.

It is insisted by the appellees that this court should not examine the question arising upon the ruling of the court below in sustaining the demurrer, because, they say, the entire merits of the action may have been tried upon the general denial; but in this they are mistaken. Leave and license must, under the code, as well as common law, be specially pleaded, to be admissible in evidence, unless by consent. Consent will not be presumed, in the absence of all facts tending to show it: See 7 Blackf. 108, 373.

We come, then, to the question, Did the special paragraph of the answer contain facts constituting a bar to the action? The right in one to overflow the land of another is an easement, an incorporeal hereditament, and it is an interest in real estate. Title to such easement is conveyed by grant, and established by proof of an actual grant, or by proof of prescription, from which a grant will be inferred. And if the mode of proof adopted be the showing of an actual grant, the grant must, at least, under the statute of frauds, be in writing, be by deed. This is the general rule in courts of law: Moore v. Sinks,

2 Ind. 257; Bell v. Elliott, 5 Blackf. 113: see Postlethwaite v. Payne, 8 Ind. 104; Wickersham v. Bills, Id. 387.

License, it may be here observed, to do an act upon the land of another, does not necessarily involve an interest in real estate, does not necessarily amount to an easement, and when it does not, it may be given by parol, and if coupled with an interest, especially if it be upon a consideration, it cannot be revoked. If one gives another license to go upon his land to shoot a single squirrel then existing and pointed out, that does not create an easement, and may be given by parol; and if the license go further, and include the right to take away, as the property of the licensee, the squirrel, when shot, it is coupled with an interest; and if given upon a consideration, at all events, it cannot be, at mere volition, revoked. But the right, in perpetuity, to one to hunt game upon a given tract of land of another, would be an easement, would involve an interest in real estate, and might be revocable under certain circumstances, if not under all, if given by parol. And, further, it may be remarked, licenses, whether revocable or not, excuse the licensee while acting under them, before revocation, and protect him from suits for acts done within the license: Bell v. Elliott, 5 Blackf. 113; Miller v. Auburn & S. R'y Co., 6 Hill, 61; Pierrepont v. Barnard, 6 N. Y. 279. Licenses cannot be revoked as to acts performed under them. The revocation is prospective, not retrospective: Wallis v. Harrison, 4 Mees. & W. 538.

Parol revocable licenses, it seems, also, are personal, cannot be assigned, and are determined without notice to the licensee by a conveyance of the property upon which they are to be executed: Ruffey v. Henderson, 8 Eng. L. & Eq. 305; 2 Am. Lead. Cas. 680; Gronendyke v. Cramer, 2 Ind. 382. Such are the principles which govern in courts of law.

But though a parol license, amounting in terms to an easement, is revocable as to future enjoyment at law, and is determined by a conveyance of the estate upon which it was to be enjoyed, this is not the rule in all cases in courts of equity. In these courts, the future enjoyment of an executed parol license, granted upon a consideration, or upon the faith of which money has been expended, will be enforced, at all events, where adequate compensation in damages could not be obtained. This will be done upon the two grounds of estoppel on account of fraud, and specific performance of a partly xecuted contract to prevent fraud. And in those states of the

Union where law and equity are administered in the same court, relief is afforded in any given suit where the pleadings present the necessary averments. And grantees, as well as the original parties, are bound, where they purchase with notice; and in a mill and dam, the existing condition of things might be notice to them of the equity: Foster v. Browning, 4 R. I. 47 [67 Am. Dec. 505]; Lacy v. Arnett, 33 Pa. St. 169; McKellip v. McIlhenny, 4 Watts, 317 [28 Am. Dec. 711]; Herick v. Kerr, 2 Am. Lead. Cas. 676; Angell on Watercourses, 359; Browne on the Statute of Frauds, 32; 3 Kent's Com. 452 et seq. See Kepley v. Taylor, 1 Blackf. 412. Within these authorities the second paragraph of the answer in this cause was good.

Another question we suggest, but do not decide. When statutes authorize land to be taken for public use, as for railroads and canals, etc., and provide a form of remedy, that form must be adopted by the injured party: Lafayette P. R. Co. v. New Albany R. R. Co., 13 Ind. 90 [74 Am. Dec. 246]. The taking of property for mill-dams is taking it for public use: Hankins v. Lawrence, 8 Black f. 266.

The present statute of Indiana on the subject of assessment of damages for property taken or injured for public use includes public works and mill-dams, and gives to the party injured, against the party taking or injuring, the right of redress in the mode prescribed by the statute: 2 Gavin & Hord, p. 312, subd. 9, p. 316, sec. 710. Why, then, is not a person. whose land is injured by a mill-dam not limited to the statutory mode of redress?

The judgment below is reversed, with costs; cause remanded for further action of the court below.

UNCERTAINTY Is Not Ground of Demurrer, under the Indiana code of procedure, but of a motion to compel the party to make his pleading more certain, unless the pleading be so uncertain as not to state intelligibly a substantially good cause of action or defense: Williamson v. Yingling, 80 Ind 383; City of Connersville v. Connersville Hydraulic Co., 86 Id. 236; Hart v. Crawford, 41 Id. 199; Lewis v. Edwards, 44 Id. 336; Williamson v. Yingling, 93 Id. 44, all citing the principal case.

EASEMENT CANNOT BE CREATED BY PAROL: See Hazelton v. Putnam, 54 Am. Dec. 158, and note collecting prior cases; Wynn v. Garland, 68 Id. 190; Fuhr v. Dean, 69 Id. 484; Hall v. McLeod, 74 Id. 400.

REVOCABLE NATURE OF LICENSES: See Hazelton v. Putnam, 54 Am. Dec. 158, and note digesting cases in this series; also Giles v. Simonds, 77 Id. 373, and note collecting other decisions: Burton v. Scherpƒ, 79 Id. 717. A license ls revocable: Mansur v. Haughey, 60 Ind. 368; but not as to acts done under

it; Owens v. Lewis, 46 Id. 519; Schoonover v. Irwin, 58 Id. 289; and a license coupled with an interest cannot be revoked: Rogers v. Cox, 96 Id. 158; so where a parol license is given, upon the faith of which money is expended by the licensee, the licenser is estopped from revoking the license, unless the licensee can be placed in statu quo: Lane v. Miller, 27 Id. 537; Hodgson v. Jeffries, 52 Id. 337; Buchanan v. Logansport etc. R'y, 71 Id. 267; Test v. Larsh 76 Id. 462; Gilmore v. Hamilton, 83 Id. 198; Simons v. Morehouse, 88 Id. 393, 394; Strosser v. City of Fort Wayne, 100 Id. 447; and see Ogle v. Dill, 61 Id. 442; Conduitt v. Ross, 102 Id. 169. The principal case is cited to the foregoing points; and see it cited in Miller v. State, 39 Id. 270, as very fully considering the power of revoking parol licenses.

GRANTEES OF LAND ARE BOUND BY IRREVOCABLE LICENSE when they purchase with notice: Simons v. Morehouse, 88 Ind. 395; Stephens v. Benson, 19 Id. 369; and in some cases the existing condition of things might be notice: Id.; both citing the principal case; see also Prince v. Case, 27 Am. Dec. 675, and note.

THE PRINCIPAL CASE IS ALSO CITED in Hazlett v. Sinclair, 76 Ind. 494, to the point that an easement is an interest in land; in Simons v. Morehouse, 88 Id. 393, to the point that a perpetual right of way over the land of an other is an easement; as is the right of a mill-owner to pond-water on another's land, and of one owner to use another's land for a sluice-way, or for drainage purposes: Brookville etc. Hydraulic Co. v. Butler, 91 Id. 138; in McCardle v. Barricklow, 68 Id. 358, to the point that the use and enjoyment of what is claimed as an easement must have been adverse, under a claim of right, exclusive, continuous, and uninterrupted, besides being within the knowledge and acquiescence of the owner of the estate over which the easement is claimed; and in Cool v. Peters Box etc. Co., 87 Id. 537, to the point that, as a general rule, a parol license is not assignable, because it is founded in personal confidence. It is further cited in Lane v. Miller, 22 Id. 105, as raising a question whether a party who is injured by the erection of a mill. dam should not be confined to the remedy given by statute; but see the opin ion in this case; and it is referred to in Keiper v. Klein, 51 Id. 322, in considering the question whether a conveyance of land, on which stood a building, depending for its light and air on windows therein, which over. looked adjoining land of the grantor, included a right of light and air through Buch windows.

JENKINS v. LONG.

[19 INDIANA, 28.]

FRAUD MUST BE SPECIALLY PLEADED UNDER CODE, although at common law it could be given in evidence under the general issue.

REPRESENTATION, TO BE FRAUDULENT, must be of a fact, and not an expression of opinion, must be false to a material extent, must be made under such circumstances that a party has a right to rely on it, and must be relied on.

ACTION on notes and a mortgage. The facts are stated in the opinion.

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