
    Henry H. Wightman and Sarah A. Wightman, Plaintiffs, v. Delano D. Cottrell and Willis L. Van Doren, Defendants.
    Fourth Department,
    January 8, 1913.
    Real property—ejectment—maintenance of private water main in public highway—revocable license by abutting owner—failure of wife to consent — public use.
    In an action of ejectment brought by a husband and wife to compel defendants to remove a water main placed by them in the highway in front of plaintiff’s premises, a mere revocable license granted by the husband to the defendants to maintain such main is no defense.
    Such alleged defense necessarily fails as to the wife as there is no evidence to show that she ever consented that the pipe should be laid.
    A judgment in a prior action brought by the present defendants against the husband to restrain him from interfering with the pipe which determines “That the plaintiffs have from defendant a revocable license to maintain then1 said waterpipe on defendant’s premises,” estops the defendants in this action from questioning the fact that their occupation of the highway was solely by virtue of a revocable license.
    The fact that the main was laid with the permission of the town authorities is no defense, where it appears that it was laid and has been used to serve the private interests of the defendants and no obligation rested upon them to furnish water to the public.
    Motion by the defendants, Delano D. Cottrell and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the verdict of a jury in favor of the plaintiffs, rendered by direction of the court upon a trial at the Steuben Trial Term in January, 1911.
    
      William H. Nichols, for the plaintiffs.
    
      James O. Sebring, for the defendants.
   Robson, J. :

This action is in ejectment. Plaintiffs’ purpose is to compel defendants to remove a one-and-one-quarter inch water main placed by defendants in the highway in front of plaintiffs’ premises. Plaintiffs’ title to the fee of the portion of the street in which this part of the pipe line is laid seems to be unquestioned. Defendants assert their right to maintain the pipe as laid for the following reasons:

First. That it was placed in- the street with plaintiffs’ consent and for an adequate consideration, and defendants thereby acquired -the right as to plaintiffs to maintain it in the street.

Second. That it was so placed with the consent of the public authorities authorized to grant such privilege and in the manner required by law.

In considering the first claim of defendants it should be borne in mind that title to the fee of the premises subject to the public easement is in both plaintiffs, who apparently hold as tenants by the entirety. There is an entire absence of any evidence to show that the wife, who is the plaintiff Sarah A. Wightman, ever consented in any way to the laying of the pipe. As to her, therefore, this first defense must necessarily fail. As to the other plaintiff this issue was conclusively determined in his favor in a prior action brought by the present defendants as plaintiffs against him as defendant therein to restrain him from interfering with this pipe and taking water therefrom. The complaint in that action, among other things, contains the allegation “ that before laying said pipe in front of defendant’s premises one of the plaintiffs for a valuable consideration duly acquired from him the right to lay said pipe.” This was denied by the defendant, and the court in that case found in effect, and the judgment, as amended, entered in that action in terms determines: “That the plaintiffs have from defendant a revocable license to maintain their said waterpipe on defendant’s premises in the said highway in front thereof. ” This issue was tendered by plaintiffs in that action, and as an incident of the trial litigated and expressly determined. Under such circumstances the judgment in that action estops defendants in this action from questioning, at least as to plaintiff Henry H. Wightman, who was a party to that action, the fact that their occupation of this part of the highway was solely by virtue of a revocable license. (Pray v. Hegeman, 98 N. Y. 351; Barber v. Kendall, 158 id. 401.)

Even if it should be held that the former judgment does not operate as an estoppel, I think that the proof on this trial shows that no grant to the defendants to maintain the water pipe in the highway was proved, and at most they had a mere naked license to place the pipes in the highway, which continued only so long as it remained unrevoked by the owners of the fee. The agreement, if any, under which defendants laid the pipe in the highway appears in the evidence of the defendant Van Doren, being a conversation he had with plaintiff Henry A. Wightman just before the pipe was laid. His version is as follows: UI said to Mr. Wightman that we were contemplating putting in a water pipe, would you have any objections to our running a pipe down by your property \ ’ He said, Not in the least; to go ahead', ’ and that he was willing if we could place a hydrant on the line where he could get water for his buildings, to pay us three dollars a year for each one of his houses,” etc. This does not seem to establish even a license based on a consideration, much less a grant in form necessary to convey an easement. Such an easement to do some act of a permanent nature upon the lands of another cannot be created by a license even when in writing and based upon a good consideration. Of course a license protects the licensee while it lasts, but after it has been revoked its protection ceases. (White v. Manhattan Railway Co., 139 N. Y. 19.)

Second. Neither can defendants establish a right to occupy plaintiffs’ premises with their water pipes by asserting the permission given them by the town authorities to lay their pipes in the highway. Though defendants insist that they are maintaining a public water system, yet it is clear that the pipe was laid and has since been operated, as the evidence shows, to serve their private uses. It is true that as maintained any family could use water from the limited hydrant supply by paying them three dollars per year for the privilege. But no contract was made with any municipal body or official for supplying water for public use; and no obligation by express or implied agreement, or otherwise, rested upon defendants to furnish it to any one other than such persons as they might choose to serve. The case of Cary v. Dewey (127 App. Div. 478) seems to be an authority decisive of this point.

Defendants’ exceptions should be overruled, motion for a new trial denied, and judgment ordered for the plaintiffs upon the directed verdict, with costs.

All concurred; Foote, J., not sitting.

Defendants’ exceptions overruled, motion for new trial denied, with costs, and judgment directed for the plaintiffs upon the verdict, with costs.  