
    Heiskell v. Cobb.
    1. Equitable Estoppel. C. having verbally agreed that H. might erect a mill dam which flooded a part of C’s land, and having himself not only encouraged H. to build the mill, but actually assisted in the erection of the dam by working for H. upon it, and having for years acquiesced in the use of the mill dam, is together with his privies in estate estopped from complaining of the erection of the dam and the consequent flooding of the land.
    2. Statute oe Limitations. Yerbal permission to erect and use a mill dam upon another’s land, coupled with more than seven years continuous and adverse holding, is a good defense to a suit for the possession of the premises.
    FROM LOUDON.
    Appeal from Chancery Court at Loudon, November Term, 1871. O. P. Temple, Ch.
    C. T. Cates, for complainant.
    The complainant, Heiskell, used and enjoyed the water in the dam uninterruptedly for seven years before the respondent undertakes to disturb his use and enjoyment by a diversion of the water, therefore he has a right to the easement or incorporeal hereditament which the respondent Cobb can not disturb. That a title to an incorporeal hereditament may be supported by an unterrupted enjoyment for the period limited by statute for the barring of an action of ejectment, see Angelí on Watercourses, pp. 354, 355. The disability of heirs at the death of the ancestor will not stop the running of the statute of limitation in case of adverse possession commenced in the life-time of the ancestor. 3 Head, 161. n
    Again, discarding all discussion in regard to the statute of limitations and the rights of complainant by virtue of his long use and enjoyment, yet complainant has a right to the uninterrupted use and enjoyment of his water power by virtue of the parol license given him by Sylvester Cobb, and the acts and doings of Heiskell thereunder, and such a right as is recognized by courts of equity, and will be protected by the timely interposition of its remedial process.
    In the case of the Androscoggin Bridge v. Bragg, 11 Hew Hampshire, 102, cited in 1 Sugden on Vendors, p. 108, it is held that a license to build and maintain a bridge upon the land of another may be proved by parol. In that case the court say “ a license to an individual to do an act beneficial to him, but requiring an expenditure upon another’s land, is held not to be revokable after it has once been acted upon. Such a license is a direct encouragement to expend money, and it would be against conscience to revoke it as soon as the expenditure begins to be beneficial. A license to erect a dam upon another man’s land is of this description.”
    If 'one enters upon the land of another by virtue of a parol license, given for a consideration, and erect fixtures, such license becomes irrevocable. Such license executed gives the right of possession to control, repair and protect the fixtures against the owner of the fee. Wilson v. Qhalfant, 15 Ohio, 248.
    
      If the owner of land to be overflowed by the erection of a mill-dam consent to its erection, or after it has been built, with a full knowledge of the consequences arising therefrom, acquiesce therein till his death, this amounts to a parol privilege or license to overflow his land, which can not be revoked. Caldwell v. Knott, 10 Yerg., 209-212. Whereupon the faith of a verbal contract or parol license to erect a mill-dam and flow back the water upon the land of another, a party has erected his dam and raised the water, and when in addition and upon the faith of that parol license, has erected mill-property and costly and valuable machinery, in that event a court of equity will interfere in behalf of the party so erecting and putting the mill-property and machinery in operation, and restrain by injunction the party giving the license, or those in privity with him, from doing any act that will injure or destroy the water-power and privilege so granted by parol contract. Angelí on Watercourses, p. 510; JReriek v. Kerr, 14 S. & Rawle (Penn.), 267, cited at length in note to Angelí on Watercourses, 512-514, Perkins’ Ed.
    Courts of equity act in personam and upon the consciences of the parties to a suit before them, and where, in consequence of a parol license, money has been expended, possession taken, and improvements made by one party, the conscience of the other party is bound by the acts of the party so expending his money and improving upon the faith of the parol contract or license, and the court will restrain the party granting the license or his privies from inter-ferring with the other in the enjoyment of his improvements.
    McGiNley & Hood, for Cobb.
    A verbal authority to overflow the land of another by mill-dam, ceases with the life of the person giving it. See Angelí on Watercourses, see. 303.
    An agreement to overflow the land of another is within the statute of frauds, and is void if not in writing and signed by the party. See Harris v. Hiller, 1 Meigs, 158; Angelí on Watercourses, sec. 296.
    A permissive occupation of a right of way or easement, or a permissive occupation of the land of another, could never ripen into a grant. See Angelí on Watercourses, sec. 216.
    A party has a right to the use of the water on his own land so as not to injure the land-owner above or below. Angelí on Watercourses, see. 95, and note and authorities there cited.
   NichoIiSON, C. J.,

delivered the, opinion of the court.

In 1853 J. M. Heiskell was the owner of a tract of land of 131 acres, situated on Baker’s Creek in Blount county, on which was a mill operated by an undershot wheel. He desired to improve the capacity of his water-power and the character of his machinery by obtaining his power from an overshot instead of an undershot wheel. To do this it was necessary to erect a dam across the creek about four hundred yards above his mill, but at that point he owned the land on but one side of the creek, the other bank being •owned by Sylvester Cobb. He applied to Cobb for permission to use his bank of the creek in making his new dam. Cobb not only gave his consent, but •encouraged him to do so, and assisted him in work both on the dam and the race. At the time Heis-kell agreed with Cobb that if Cobb should at any lime desire him to put up machinery for a carding machine on the creek, Heiskell was to let him have a site on his land between the new dam and the mill-house.

In pursuance of this verbal agreement Heiskell erected the dam, made his race, and changed his machinery to run with an overshot wheel. The building of .the dam caused the water to flow back upon Cobb’s hind somewhat more than it did when the old dam at the mill was in existence. Cobb lived three years after the building of the dam, making no complaint of any damage, acquiescing in the permission he had given to erect the dam on his bank, and being satisfied with the arrangement. Upon his death, in 1856, the title to his land descended to his minor heirs, none of whom set up any objection to the existence of the dam; although, in 1868, it had been repaired by Heiskell, and a few feet moi’e of their bank used in lengthening the wing of the dam. But most of them sold and conveyed their interest to E. S. Cobb, one of the heirs, who now owns the land. He set up no complaint as to the dam of Heiskell until about 1867, when he determined to erect a saw mill and to run it. by drawing the water from Heishell’s dam, carrying it by a race to his machinery, and discharging it back into the creek through Heiskell’s •land, returning it below Heiskell’s dam. This bill was filed by Heiskell, alleging the facts stated, and •obtaining an' injunction against the proposed withdrawal •of the water from his dam. The injunction was granted.

Thereupon E. S. Cobb filed his answer and cross bill, in which he admitted the main allegations in Heiskell’s bill, but insisting that he was not bound by the parol license given by his father to erect the ■dam, charging that by the throwing the water back his land was overflowed and damaged, and that the machinery of a carding machine which he had erected since the filing of the bill was interfered with, and praying for relief against the nuisance created by Heis-kell’s dam, and claiming damages, etc.

Proof was taken on both sides, and upon the hearing the Chancellor gave Heiskell the relief prayed for, and dismissed the cross bill of Cobb. Prom this decree Cobb has appealed. The material allegations of the bill are well sustained by the proof. It is clearly shown that the dam was erected with the full consent of Sylvester Cobb, the then owner of the land; that he contributed his own work in building the dam and making the race, and that down to his death, in 1856, he continued to accpiiesce in the existence of the dam. It is further shown that after his death, and down to 1867, none of the heirs of Sylvester Cobb made any objection to the appropriation o.f the land used in the erection of the dam. The proof makes out a continuous adverse possession and appropriation of the land and of the water of the creek of fourteen or fifteen years. The claim of Heiskell, though originally by parol license, and therefore permission, was a claim for himself, and not in subordination to Sylvester Cobb or his heirs, but his occupancy and claim to the use of the dam and the water was strictly adverse to all others.

Heiskell relies upon this adverse possession for more than seven years as conferring upon him such a defensive or possessory title as authorizes him to claim the relief prayed for. It is apparent that Heiskell’s possessory right is established by the proof, whether the term be extended from 1853, when the dam was built, or from 1856, when Sylvester Cobb died. In the latter case the bar of seven years had become perfect before the act of the Convention in 1865 in suspending the operation of the statute from May', 1861, to January 1, 1867, was adopted. Whether tife-permission or license was revoked by the death of Sylvester Cobb is an immaterial question, as the bar was complete by reason of adverse possession of more than seven years, whether we count from the time the license was given by Cobb in 1853, or from his death in 1856. But it is well settled that as the statute commenced running against Sylvester Cobb it would continue to run against his heirs, and would be perfected into a bar by adding the time elapsing during the life-time of Cobb to that elapsing after his death, provided there was no revocation before the expiration of the seven years. Such was the case here. Angelí on Waters, secs. 210, 239.

It follows that although Heiskell could not acquire an easement in the land and water by mere operation of the parol license, yet by reasón of his adverse possession of seven years he acquired ' such a right as would enable him to defend his possession at law, and to protect it in equity against invasion.

But his claim to relief rests upon another ground which is equally conclusive. It is fully proven not only that the new dam was built by the license of Sylvester Cobb, but that he stood by, encouraged and assisted him in expending his labor and money in making valuable and permanent improvements upon the faith of the license. . This furnishes a clear case for the application of the doctrine of equitable estoppel, which is in operation not only against Cobb himself, •but his privies. Angelí on Watercourses, 516 to 521.

We are, therefore, of opinion that there is no error in the decree of the Chancellor, and affirm it with costs.  