
    Elisha Wilson and others vs. Robert Chalfant.
    If one enter upon the land of another by virtue of a parol license, given for a consideration paid, and erect fixtures, trespass will lie against the owner of the land for destroying them.
    A parol license executed, is irrevocable.
    A license to erect fixtures upon the land of another, executed, gives the right of possession to control, repair and protect the fixtures against the owner of the fee.
    What is the nature and extent of the estate or interest in him who erects the fixtures — query Í
    
    This suit comes into this Court by a Writ of Error to the Court of Common Pleas of Perry County.
    The original action was trespass, brought into the Common Pleas by an appeal from a justice of the peace. In the Common Pleas, the plaintiffs in error were declared against by the defendant in error, plaintiff in the court below, for breaking and entering the close of the defendant in error, on the 1st day of November, 1842, with a continuando, and with force and arms, in the township of Hopewell, &c., tearing down, breaking to pieces, damaging, demolishing and destroying divers, to wit, two abutments of a milldam of the defendant in error, erected by him across a watercourse called Jonathan’s Creek, for the purpose of supplying a certain sawmill with water, &c., of the value of $50, &c. This is the first count.
    In Bank.
    Dec. Term, 1846.
    The declaration contains a second count in trespass, for destroying one abutment of a certain milldam, the property of the defendant in error, of the value of $50, &c., &c., without any averment, in express terms of the breach of the close.
    
    The plaintiff in error plead: The general issue to both counts, liberum tenementum, and that' the said abutment, so demolished, was upon the freehold of the plaintiffs in error.
    The replication now. assigns the locus in quo, specially, and avers that the plaintiff in error, for a valuable consideration, a part of which was paid, agreed to permit the defendant in error .to abut a milldam upon his land, and in pursuance of this agreement, and with the consent of the plaintiff in error, he entered and erected the abutment on the land of the plaintiff in error, and that plaintiff in error afterwards broke and entered the close on which the abutment was so erected with his consent, and demolished it, &c. This replication was demurred to, and the demurrer overruled ; and, thereupon, the defendant rejoined, averring the contract set up in the replication was by parol, without any note or memorandum in writing, and, therefore, void, under the statute for the prevention of. frauds and perjuries. ■
    To this rejoinder, the defendant in error demurred.
    The Court of Gommon Pleas sustained the demurrer to the rejoinder, which disposed of this special issue, and the cause was submitted to a jury in the Common Pleas, at the November term, 1845, on the general issue of not guilty, by all the plaintiffs in error, and verdict and judgment for the defendant in error.
    
      A bill of exceptions was taken during the trial, from which it appears that the defendant in error gave to the jury evidence tending to show that the defendant in error had constructed the abutments, mentioned in the pleadings, on the soil and freehold of one of the plaintiffs in error, Elisha Wilson, by the parol license and consent of the said Elisha, given for a consideration agreed upon between the parties, and that the said abutment had been maintained from the 4th day of September, 1838, until the time of the alledged trespass, when the plaintiff in error, E. Wilson, with the other plaintiffs in error, by his orders, destroyed the same; and the evidence being closed, the counsel for the plaintiffs in error asked the Court to instruct the jury, that'if the act complained of,was done by the plaintiffs in error, on the freehold of said E. Wilson, by himself and by his orders, and if the defendant in error had no other right than what was conferred by a parol license to construct the abutment thereon, and the construction and maintenance thereof, for the term aforesaid, and if there • was no written paper ornóte, in writing, evidencing said license, the defendant in error could not maintain the action; which instructions the Court refused to give, but, on the contrary, charged the jury, that, on those facts, the action would lie, and they ought to find for the defendant in error. To this, charge of the Court, the counsel for the plaintiffs in error excepted.
    Several errors are assigned:
    1. That the declaration is insufficient.
    2. That the Court erred in overruling the demurrer to the defendant in error’s replication.
    3. In sustaining the demurrer to the plaintiffs in error’s rejoinder.
    4. That the Court erred in not instructing the jury as prayed, and in the instructions given.
    
      T. Ewing, for the Plaintiffs in Error, contended— ’
    First: ’That Chalfant acquired no right to the locus in quo, by the parol license, the same being void under the statute of frauds, and that he was himself a trespasser in erecting the abutment; and,
    Second: That even if the grant were binding and valid, as conveying an easement, the action was misconceived; it should have been case instead of trespass quare clausum fregit. He relied upon the case of Miller v. Auburn and Syracuse Railroad Company, 6 Hill’s Rep. 61, and the cases there cited.
    
      P. Van Trump, for Defendant.
    That a parol contract relating to lands, executed, can be enforced, has been decided or recognized’ so often as no longer to be an open question. The Ohio cases are, Wilbur v. Paine, 1 Ohio Rep. 151; Buck v. Waddle, 1 Ibid. 357 ; Waggoner v. Spick, 3 Ibid. 292; Moore v. Beasley, 3 Ibid. 294; Reed v. McQrew, 5 Ibid. 375.
    A parol license is also recognized by courts, and, when executed, is not coiintermandable. Winter v. Brockwell, 8 East Rep. 508; Webb v. Paternoster, Poph. 151; Rerick v. Kerr, 14 Serg. & Rawle. Rep. 267; Lefevre v. Lefevre, 4 Ibid. 241; McKellip v. Mcllkenny, 4 Watts’ Rep. 317; Gay v. Bartlett, 20 Pick. Rep. 186; 7 N. H. Rep. 237; 7 Bing. Rep. 682. ■
    The contract being a binding one, and the right of Chalfant under it such an one as the law sanctions, it is necessary, to his full enjoyment of it, that the interest of Chalfant in the abutment should be regarded and protected as an exclusive freehold interest. This being so, of course, trespass lies for an injury to it, such as this. This view of the case is sustained by the following authorities: 2 Johns. Rep. 22; 8 Ibid. 220; 18 Pick/ Rep. 385.
   Wood, C. J.

Whether the declaration, as originally filed in this case, was sufficient to maintain this action, is now of no moment. The new assignment in the replication, places it before the Court, as to the whole cause of action, in trespass quare clausum fregit. In such case, the gist-of the action is the breach of the close', and other wrongs laid are merely in aggravation of the damages.

The other assignments, all of them, may be considered as presenting, substantially, the same question, whether there was a breach of the close of the defendant in error..? Whether the locus in quo was merely the right of the defendant in error • to an easement in E. Wilson’s land, or a freehold, it would not aid us, in this-case,.to inquire; but had he, in plain English, a right of possession, as against the owner in ■ fee, or a wrong doer ? This is necessary, or the .action fails.. It is argued, that ' the license being by parol, and no note or memorandum in > writing, it is void and does not authorize an entry under it. If this be so, it follows, that the defendant in error was. himself a trespasser, in .the entry and erection which he made on the land ■ of the plaintiff in error, E. Wilson; was liable to'an action, and, if sued, his license could not have been pleaded in bar. 'On this subject, the decisions of the judicial tribunals.of our-sister States differ ; 6 Hill’s Rep. 61; 4 Watts’ Rep. 317 ; 4 Serg. & Rawle Rep. 241; 10 Johns. Rep. 426. But in Ohio, we think it. can, at this day, be hardly considered as an open question. Part performance of parol contracts, especially when the non-execution would operate as a fraud'on the rights of the vendor, have repeatedly been enforced in equity, and a parol license executed has been held to be irrevocable, in numerous instances upon the circuit, at law. A license to ditch and flow water through a race, to. dam a stream and set back water on the plaintiff’s land, are instances within my own knowledge, where a license executed was held to be irrevocable, and a bar both-in trespass and in case. . In the case at bar, the license was executed and' consideration paid, and as the defendant in error had the right to make the abutment, it follows, as incident to that right, that he acquired the lawful possession of the locus in quo for that purpose, and the right of egress and regress to keep it in repair and control it, so long as it remains for the purpose, at least, for which -it was constructed. This right of possession is"exclusive, and may be maintained against the owner of the freehold, at law, and trespass .against him for any wrongful invasion of such possession, in our opinion, lies. The Court were, therefore, right in overruling the demurrer to the replication, and in sustaining the demurrer to the rejoinder,, and, also, in the charge given, and refused to be given to the j™7-

. Judgment Affirmed.

Birchard, J., doubte.d whether the parol license.was not void, under the provisions of the act for 'the prevention of frauds and perjuries.  