this country, concludes with the decided declaration that "this rule is undoubtedly opposed to the common-law doctrine concerning licenses, as it prevails in England and in most of the American States." In this view I concur, and shall conclude this succinct examination of the subject with the remark that, if the principle that licenses of this character are to be, under the conditions in question, treated as irrevocable, the same principle, if logical reasoning is to be maintained, would, of necessity, have to be extended so as to control most of the regulations of the statute of frauds, etc. If a parol license, inefficacious by force of the act, should be rendered efficacious by reason of a losing part performance on the side of the licensee, it would be difficult to refuse on a like ground to apply a similar quality to a sale of goods equally within the statutory condemnation. Suppose A, a merchant, should by parol purchase a cargo of merchandise of B, to be delivered at a certain day, and trusting in such agreement of sale should, to the knowledge of B, proceed at great expense to procure a vessel and prepare it for the voyage, would such sale be enforceable either at law or in equity? In snch case it would not be pretended that by reason of part performance and great loss, a practical equity would arise; and yet how, in point of principle, is such supposed case distinguishable from that of one of these licenses after part performance by the licensee? The fact is that a statute that renders legal the revocation of certain classes of contracts is founded on the theory that, while by its force great losses will many times fall upon promisees, nevertheless such losses must be endured by such sufferers in order that the mass of the community shall be protected against worse disaster. When the legislature has declared that in general, with respect to certain subjects, there is great danger of fraud and perjury, if parol evidence be received, how is it competent for a court to declare there is no such danger in particular instances of such subjects? What reason can be assigned why in the present case this appellant should not be protected against the danger of fraud or perjury, which the statute assumes is imminent in such cases? My general conclusion is that servitudes cannot be imposed upon land by parol transaction, except to the extent above indicated, as evidenced by the ancient decisions in the English chancery, and that our own courts should not extend that limit. But, whatever views may be entertained by others on this subject, it is still, as it seems, demonstrably clear that the decree before this court cannot be sustained. Whether the broad rule adopted in the court below, or the narrow one just indicated, be applied for present purposes, the result must be the same, for the proofs do not make either rule effective in favor of the respondents. Nothing is clearer or more settled than that, in all cases in which any court has validated an incumbrance imposed upon land by force of a parol contract, such contract has been required to be proved to the point of demonstration, and that the repudiation of it would work irreparable injury. Both these essentials are wanting to the affair before the court. In the first place, there was no such proof as that just indicated, as to the existence of the alleged license. Such fact was attempted to be proved in two ways: First, by showing an express consent to the easement by the agent of the appellant; and, second, by the circumstance that the appellant saw the structures building on the respondents' land and remained silent. On the first head it is insisted that the son of the appellant, being her agent, gave the license in question. But the testimony in this particular is conflicting, and leaves the matter in much doubt. The son of the appellant explicitly denies that he consented to the use of the appellant's land as claimed. This denial is controverted by one of the respondents, who is supported in some degree by the other. The preponderance of proof, if it exist, is but slight, and indubitably falls far short of that measure of evidence which in these cases has always been deemed requisite. According to Prof. Pomeroy, on such occasions as this the most "certain and unmistakable evidence" is inexorably demanded, and it is manifest that this requirement is not fulfilled by the above stated evidential contradictions that are nearly in equipoise. Also, on the assumption that the agent of the appellant granted the license in question, still the case of the respondents is fatally defective, because it clearly appears that their expenditures were not made in reliance upon such license. In the entire line of cases on this subject it is believed that in no instance has relief ever been extended to a licensee who has failed to show that he has incurred large expenses in the confidence that his license would not be revoked. In the instance in hand the license that is set up was given when the entire work on the respondents' land was, in the language of the vice chancellor, "nearly finished," so that the expenses afterwards incurred were plainly trivial. Under such circumstances, it has never been claimed, nor can it be reasonably claimed, that there is even a colorable basis for the respondents' bill; for, if they did not make their outlays because of the assurances or promises of the appellant, how is it that the latter is to be estopped from asserting her legal rights? But, further, even if the foregoing considerations should be waived, the respondents' case is, as it is deemed, wholly defective; for, if we assume that the son of the appellant gave the license in question, it is plain that such grant was nugatory, for in that respect the son was not the agent of his mother. Nothing can be clearer than this latter proposition, for the entire proof of agency consisted in a statement made by the son in an affidavit annexed to the answer of his mother in this case, "that he had been her agent for more than 20 years in the conduct of the business relating to her meadow lands," and, in his answer to a question when examined as a witness, that he had had the oversight of the farm." This is the entire evidence with regard to this agency and its scope, and it is therefore confidently believed that no one versed in the law will assent, when the situation is pointed out, that such an authorization enabled the son to impose on his mother's land a permanent servitude for the benefit of her neighbor. This fatal imperfection in the case of the respondents appears to have engaged attention in the court below; but, as the defect does not reside in mere technical considerations, but in the fundamental equities of the case, it cannot now be overlooked. The respondents are clearly disentitled to the right which they assert, unless such right was conferred upon them by the appellant. It is not pretended that they had any personal communication with the appellant herself. Their entire claim is that her son, in express terms, conferred upon them the right in question, and, as is now shown, it is made to appear that the son was destitute of all legal power to do such act. No force whatever is left in their case, either in law or in equity. The subject seems too plain for discussion. It is quite common to commit farm lands to the management of superintendents, and to judicially declare that such general authorizations confer upon such agents the power to create easements in the lands so put in their charge would introduce a doctrine that would be in the highest degree both impolitic and novel. In our opinion, according to the proofs before us, this son of the appellant had no more right to impose this servitude on his mother's land than he would have had to mortgage it for the convenience of one of her neighbors. As to the suggestion that the appellant saw this work progressing and encouraged, by her silence, such expenditures, and is therefore equitably estopped from making her present contest, the answer is that, assuming that the result thus asserted would ensue from such conduct, we think it clear that the proofs before us do not lay any foundation for the contention. There is not a particle of direct evidence to evince that the appellant knew that this work was being done, and the only indirect evidence to that effect is that the house in which she lived was within about half a mile off, so that if she had looked she would have seen what was going on. At the time of the trial it appeared that the appellant was over 80 years of age, and was infirm in body. It is not pretended that her attention was called to the subject, so that it is only by way of a conjectural inference that she can be charged with a knowledge that the embankments in question were erecting; and, to impute such knowledge to her, what does it signify? If we say she saw her neighbor putting up certain banks on his own property, how did that act intimate to her that it was his purpose, as a necessary incident to the work in progress, to invade her own property? From the evidence it appears that it was at least practicable to drain this newly reclaimed land directly into the river, without bringing any part of its water onto the property of the appellant. Can it be said, therefore, that it is reasonable to infer that, looking at these improvements at the distance of half a mile, she must have known what was in the mind of the respondents with respect to a system of drainage? But, further than this, even if she had at the time been informed that it was in contemplation to subject her property to the servitude of being used as a drain for these reclaimed meadows, nevertheless she plainly would not have been chargeable with a knowledge that it was their purpose to accomplish such end without her consent and without legal procedure. We shall presently see that the respondents had the option of establishing a drain over the land of the appellant in a mode entirely legal, or, as they have done, in a mode entirely tortious. Consequently it would be most unreasonable to say that the appellant must have been prescient that they would adopt, not the lawful, but the tortious, method, and that thereby, impliedly, she sanctioned such trespass. We think it incontestible that the appellant did not, reading the case in the evidence before us, give the license in dispute, nor was her conduct such that the respondents had the right to infer that she had done so. As a last consideration, it is proper to say that, if we were to adopt the doctrine prevailing in those jurisdictions already alluded to, that these parol licenses are legal and irrevocable, and were to postulate that the license in this instance was given by the appellant, and that the respondents have, in good faith, expended their moneys in reliance upon it, nevertheless it would not seem to us that the respondents would have even the semblance of a stable footing in this case. The reason of this conclusion is this: that the principle that has been supposed to justify the interference of equity in this class of cases is that without such aid the licensee would sustain irreparable loss. This is the fundamental consideration infusing with a supposed equity every decision of this class. It is not observed that any court has ever interfered in any instance, unless upon the ground to protect the licensee from considerable and inevitable damage. This essential feature is wanting in the instance now in hand. The revocation of this assumed license could not operate disastrously to the interests of the respondents. The remedy was in their hands. All they had to do was to apply under the meadow act, and they would have obtained in substance, all the relief that has been afforded them by the force of the present decree. There was, on their own showing, no necessity to call a court of equity to their aid. Their remedy at law was complete. It has never heretofore been claimed that a parol license of this nature can be sustained and enforced in a case in which its revocation will work no essential damage to its possessor. The decree should be reversed, with costs to the appellant in both courts. CHAPTER XX. TITLE BY ORIGINAL ACQUISITION INCLUDING ACCRETION, ADVERSE POSSESSION, STATUTE OF LIMITATIONS, ESTOPPEL, ABANDONMENT. Nebraska v. Iowa, 143 U. S. 359. Goodard v. Winchell, 86 Iowa, 71; 52 N. W. 1124. Mission of Immaculate Virgin v. Cronin, 143 N. Y. 524; 38 N. E. 964. Smeberg v. Cunningham, 96 Mich. 378; 56 N. W. 73. Garibaldi v. Shattuck, 70 Cal. 511; 11 P. 778. Accretion and Avulsion Distinguished. Nebraska v. Iowa, 143 U. S. 359. Opinion by Mr. Justice Brewer. This is an original suit, brought in this court by the State of Nebraska against the State of Iowa, the object of which is to have the boundary line between the two States determined. |