
    Le Fevre against Le Fevre and others.
    In Error.
    
      Monday, May 25.
    UPON a writ of error to the Court of Common Pleas of Lancaster county it appeared, that this was an action of trespass vi et armis, brought by the plaintiff in error against , -, , ’ F , , - j ■ • the defendants, for cutting and destroying a conduit used by him for supplying his tanyard with water, and preventing the water from flowing into the tanyard, through f, ° r , c F3 . F 0 the said pipe, for the space of three weeks ; in consequence of which the tanyard was deprived of the use of the water J r which ought to have flowed through the said pipe.
    (fence is ad Parol e prove, that after the exeof a a water course throughthe gl.ante(i ]an<j, hy courses and distances, a verbal agreement was entered into beplrtlesfor their mutual tion, altering course; pro-agreement hacheen car-effect
    The pleas were not guilty and justification.
    The plaintiff gave in evidence a deed, dated October 12, 1793, from Joseph Le Fevre, one of the defendants, and wife, to Adam Le Fevre, for an acre and an half of land for a tan-yard, with the right of conveying the waters of a stream running through the adjoining lands of the grantor, into the premises which were granted, for the purpose of supplying a tanyard intended to be erected thereon, and of laying pipes through these lands for the conveyance of the water; describing the route of the water course, by courses and distances. • He then gave in evidence a deed dated June 23, 1796, from Adam Le Fevre and wife to Daniel Aspenshade, conveying the same premises, together with the water right. Articles of agreement, dated March 3,1810, between Aspen-shade and Daniel Le Fevre, the plaintiff, for the sale of the same land with the water right, and three or four adjoining acres, and a deed dated March 30, 1811, in pursuance of these articles, were there laid before the jury.
    The plaintiff then offered to prove by Daniel Aspenshade, that after the pipes had been in use some time, it became necessary to lay new ones, when Joseph Le Fevre proposed to Aspenshade to change the route of the water course, as a matter of convenience to both parties, from the dry ground marked out by the deed, to the low wet ground near the stream, and to carry them higher up the stream than the spot designated by the deed, which would make the new pipes more ” durable' and save the necessity of a dam; that to this proposa^ Aspenshade acceded, and Jos. Le Fevre accordingly staked off the new route, upon which Aspenshade laid the pipes and covered them, carrying them up the stream to the spot agreed upon ; that these conduit pipes continued to be used without molestation by Aspenshade, for six or seven years, proving to be a great advantage to both parties, and were in use at the time he sold to the plaintiff; tha t AspeJtshadc was the sole owner of the tanyard and water right, agreeably to the deed from Adam Le Fevre to him, and that Joseph Le Fevre was the Owner of all the lands through which both routes of the pipes passed, at the time it was agreed to change their course.
    To this evidence the defendant’s counsel objected, and the Court sustained the objection. The plaintiff’s counsel tendered a bill of exceptions.
    
      Jenkins and Hopkins, for the plaintiff in error.
    The alteration of the route offered to be proved, was proposed and marked out by Joseph Le' Fevre himself, for the advantage of both parties, and it saved' him from the erection of a dam on his land. The plaintiff purchased on a view of the water as it ran on the new route, without notice from Joseph Le Fevre, and if the original contract is to be adhered to, it is a gross fraud upon him. To the objection, that an incorporeal right cannot be granted by parol, it may be answered, that the water right was created by deed, and the parol agreement only went to alter the course of it. It did not contradict the deed, and the evidence was therefore admissible. Sugden, 97, and the cases there collected. Besides, it was a right to the water which was claimed, which is corporeal,'and therefore, it was not an incorporeal hereditament.
    SinCe the statute of frauds, lands can no more pass without deed, than incorporeal rights, yet an agreement in relation to them, in part performed, is binding. The reason is, that after a parol agreement varying a written one, has been acted upon, it would be a fraud to enforce the original contract; and therefore after signing a written agreement, parol evidence may be received to shew, that the parties entered into a verbal agreement, varying the former one. Phill. Ev. 450. In the principal case, the parol agreement had been carried into effect at great expense to the plaintiff, at the suggestion of Joseph Le Feme, and had been acted upon for the mutual benefit of both parties for six or seven years, without interruption. Though, therefore, an incorporeal right will not pass without-deed, yet under such circumstances, chancery would compel a deed to be executed, according to the altered route, and if so, this Court will consider as done, what in equity ought to be done.
    Rogers, for the defendants in error,
    insisted, that the permission given by Joseph Le Fevre, to Aspens hade, to carry the water along the new route, was merely during pleasure, and did not convey a right in fee to this privilege. The right of soil remained in Le Fevre, and the privilege of conveying water through it, was an incorporeal right, which could not be vested in another but by deed. 2 Bl. Com. 17.32. Co. Litt. 51, a. sect. 64, 65. It was, therefore, perfectly correct to reject testimony which went to contradict the deed, and set up a new verbal contract, inconsistent with it.
   The opinion of the Court was delivered by

Duncan J.

The rejection of the evidence is endeavoured to be supported on two grounds. 1st. That this right of water, See. was incorporeal, and could pass only by deed. 2d. That the evidence offered was in direct contradiction to the deed.

1st. From the view in which I have considered this evidence, it is unnecessary to decide, whether this right is corporeal or incorporeal. Whatever it was, the first route, &c. ' conveying the water is granted by deed. One thing is very certain, it is such right as is tangible; its existence is not merely in idea or abstracted contemplation, but a substance which may be always seen; always handled; it is an exclusive right to the occupation of the route granted. Incorporeal things are in their nature invisible, quare ñeque tangí, nec videri possunt, and for these ejectments will not lie. Rnnn Ej. 36. But an ejectment will lie on a right reserved in a deed, of erecting or building a dam on the bank of a creek at the place specified. Jackson, v. Buel, 9 Johns. 299. Wherever a_ right of entry exists, and the interest is tangible, so that possession can be delivered, an ejeemnent will lie.

An ejectment would lie here, but an ejectment will not lie for a mere incorporeal hereditament. Lessee of Black v. Hepburn et al. 2 Yeates, 331. The Court say incorporeal things-are in their nature invisible; not capable of being delivered *n execution ; not susceptible of actual possession,

I own the inclination of my mind is, that an interest in the soil at the given place passed, not only for laying the pipes, but for occupying and possessing exclusively the spot designated by the grant. But if this was a mere incorporeal right, the subject only of a grant by deed, and not by livery and seisin, still the evidence would be admissible; not to pass absolutely the soil by parol agreement, but such an executed contract, as, that, on the ground of fraud, chancery would direct a specific execution, or restrain the defendant from disturbing this right.

Wherever a court of equity would direct a conveyance, or enjoin a party from prosecuting his legal right on account of an existing equity against the existence of the legal right, or of a fraud committed on the party, our laws will, by considering the act to be done, which in equity ought to be done, grant as adequate relief as a court of chancery could by forbidding the party to recover a right which in equity he is considered as having relinquished.

The decisions of the courts of equity on the statute of frauds and perjuries, proceed on the principle, not that the right passes by the parol agreement, but that wherever one. party has in part executed it, by payment of money, taking possession and making valuable improvements, the conscience of the other is bound to carry it into execution; and equity will compel him to do it. It cannot be questioned, that the execution of an agreement in writing, not under seal, respecting an incorporeal right, would be decreed to be executed by a deed under seal.

It would be a fraud on Aspenshade, after the change of route at the request of Joseph Le Fevre, and for his benefit and advantage, staked out by himself, and the pipes laid by himself, to defeat the right and the possession thus acquired, after the expense to which Aspenshade had been put, and after the long acquiescence in such possession. But the fraud would be still greater on the plaintiff, a purchaser for a valuable consideration, with the possession notorious, and notoriously enjoyed for years. If Joseph Le Fevre had brought a suit against Daniel Le Fevre, chancery would have granted an injunction; if so, courts of common law would not suffer him to take the law into his hand and destroy the pipes which had been laid, not only by his own acquiescence, but with ( his own hand, and for his own benefit.

We are not without authority, if authority were required, to establish so plain a principle of justice and of equity, for in 2 Eq. Abr. 522, we have the very case. A, diverted a water course, which put B to great expense in laying of sooths, &c. and the diversion being a nuisance to B, he brought his action, and an injunction was decreed on a bill exhibited for that purpose; it being proved, that B, did see the work when it was carrying on, and connived at it without shewing the least disagreement, but rather the contrary. Short v. Taylor, in Lord Somers’s time, was cited, which was thus: Short built a fine house; Taylor began to build another, but laid part of his foundation on Shorfs land; Short seeing this, did not forbid him, but on the contrary, very much encouraged it, and when the house was built he brought an action, and Lord Somers granted an injunction, and said it was but just and reasonable; for being a nuisance, every continuance is a fresh nuisance, and so he would be perpetually liable to actions, which would be hard when he was encouraged by the party himself. And so was the law laid down in an action for nuisance, tried before the present Chief Justice, at a Circuit Court at Carlisle. -v. Ege.

But this is likened by the counsel of the defendants in error to a parol license, which may be revoked. A parol license may be.revoked, but if it has been acted upon and the party put to expense, it cannot be recalled, and the party made a wrong-doer.

2d. As to the objection, that this evidence was in direct contradiction to the deed, the evidence was not offered for that purpose, but to shew a substitution of another spot, as being more for the mutual benefit of both parties. If this had not been carried into effect, the evidence would not have been admissible; but where the situation of the parties is altered, by acting upon the new agreement, as here, the evidence is proper; for a party may be admitted to prove by parol evidence, that after signing a written agreement the parties ' made a verbal agreement, varying the former ; provided their variations have been acted upon, and the original agreement can no longer be enforced without a fraud on one party.

On every principle of law, justice, and equity, this. evidence ought to have been received, and the judgment must be reversed.

Judgment reversed.  