Baltimore & Hanover Railroad v. Algire

Robinson, J., delivered the opinion of the Court. This is an action of trespass quare clausum fregit against the appellant for running its trains over the land of the appellee, and the main question is whether a license under which the company entered on the land, and upon the faith of which it expended large sums of money in the construction of its road, can be set up as a defence in a Court of law to the action ? And this depends upon whether a right of way can be acquired in this State by a license upon the faith of which the way has been constructed ? Sec. 1, Art. 24, of the Code, provides that no interest in or concerning land for a term exceeding seven years, shall be transferred, otherwise . than by deed duly executed and recorded.

Under this statute it was decided so long ago as Hays vs. Richardson, 1 G. & J., 366 , that a right of way was an interest in land, which could not be created, except in the mode and manner prescribed by the statute. In that case the plaintiff constructed the road, and huilt a bridge under a license in writing from the owner of the land, and it was held that no action would lie against a subsequent owner for obstructing the road. But while admitting this to be so in regard to an ordinary way, it was argued that in a case like the one now before us, where a railway company has made large expenditures in the construction of a permanent way under a license of the owner, the latter ought not to be permitted to revoke it, and that such a defence is available at law as well as in equity. Were this a question to be ³²¹ decided purely on equitable principles, there might be some force in this contention.

But this is an action at law, and the rights and liabilities of the parties must be determined by the well settled rules of law. For the protection and security of titles, the Legislature has said that certain formalities must be observed in the transfer of interests in real estate. The law in this respect was well known to the appellant, and besides its charter pointed out in precise terms, how and in what manner a right of way might be acquired. Disregarding, however, all this, the appellant has seen fit to construct its road under. a bare license of the owner of the land.

But a right of way being an interest in land, such an interest could not, as we have said, be created by a license, the effect of which was merely to make the acts of the ^licensee lawful, which otherwise would have been unlawful. And now when the owner revokes the license thus granted, a right incident to the ownership of the land, we are asked to say the appellant has acquired an interest in land under the license, unaffected by the act of revocation, — and this, too, in the face of the statute which •declares that an interest in land cannot be transferred •otherwise than by a deed executed and recorded. To hold that a right of way is an interest in land which cannot be created, except by deed ; and yet that a licensee may continue to use and enjoy it against the revocation of the license itself, is to give to a license, the effect and operation of a grant by deed. Cases may be found, it is true, in which the defence now relied on has heen held to be a good defence, even in- actions at lavo.

Some of these cases proceed on the ground that where one has induced another, either by express consent or acquiescence, to incur expense in the erection •of permanent works, he will not be permitted to deprive the licensee of the benefits of such expenditure, by reason of want of a complete legal title. In other words, such con ³²² duct on the part of the licensor, operates as an estoppel in pais. Other cases proceed on the principle exercised by Courts of equity in the specific performance of parol contracts in regard to the sale of land, and give to a license thus executed the force and effect of a contract. LeFevre vs. LeFevre, 4 S. & R., 241; McKellip vs. McIlhenny, 4 Watts, 317; Rerick vs. Kern, 14 S. & R., 267.

In McKellip vs. McIlhenny, Kennedy, J., said, “Wherever a party has induced another upon the faith of his promise, though verbal, to expend his money or labor, for which he can only be remunerated by the enjoyment of the thing so promised, equity will compel the promisor to give such deed or writing as shall be requisite to secure the promisee in the perfect enjoyment of what was' promised. But here, where we have no Court of equity to compel such a thing to be done, it will be considered in our Courts of law as actually done, and the grantee protected in the enjoyment of the thing promised accordingly.” And in the still later case of Huff vs. McCauley, 53 Penna., 206, Strong, J., after reviewing the decisions in