Carter v. Harlan

Le Grand, C. J., delivered the opinion of this court.- Although the various questions presented by the respective-counsel were argued with great fullness and ability, in the view we have of the case, there is no necessity they should all be considered and decided by this court. There is an objection to the prayer offered on behalf of the defendants below that is perfectly conclusive of the case. Were it admitted, ex gratia argumenti, that such a right, as is claimed, to flow the land of the plaintiffs, could pass by a parol license, and that there was proof in the cause from which the jury could properly find such license, yet, the prayer is defective in this r it substantially requires some act of interruption to have been performed by some one or more of the owners of the property on which the water is backed, other ²⁷ than the institution of the suit or the sale of the locus in quo, since the dam under the assumed license was erected in 1828. Wc consider the license to raise the dam, if any such existed in 1828, as what is known as executory, as contradistinguished from an executed license, and as such revocable.

That the license relied upon in this case was revocable, is conceded by the counsel of the defendants, but he insists, that this revocation should have been a positive act accompanied by notice to the defendants. In this opinion we cannot concur. The dam was erected in .1828, and the license, if any, extended only to the fact of erection. When Harris, who was then the owner of the land, now belonging to the plaintiffs, disposed of and conveyed it away, such disposal and conveyance, ipso facto, by mere operation of law, amounted to a revocation of the license; and so likewise with all the subsequent sales of it, until the plaintiffs in this action became seized of it.

To use the language of Chief Justice Parker, in the case of Cook vs. Stearns, 11 Massachusetts, 536, “If the defendant had a license from the former owners of the plaintiff’s close, to make the bank, dam and canal in their land, this extended only to the act done, so as to save him from their action of trespass for that particular act; but it did not carry with it an authority, at any future time to enter upon the land. As to so much of the license as was not executed, it was