
    Y. IDETA v. S. KUBA.
    Appeal prom Circuit Judge, Eirst Circuit.
    Argued November 5, 1913.
    Decided November 20, 1913.
    Robertson, C.J., Perry and De Bolt, JJ.
    
      Easements — statute of frauds.
    
    A way appurtenant to land is an easement — an interest in the land across wbicb it runs — which under the statute of frauds, as well as at common law, may not be created by parol.
    
      Licenses — ¡parol license revocadle.
    
    A parol license for a right of way over the land of the licensor, where no expenditures of money have been made or improvements constructed in reliance upon its assumed permanency and the status quo may be restored without loss to the licensee, may be revoked at the will of the licensor.
   OPINION OP THE COURT BY

ROBERTSON, C.J.

This is a bill for an injunction in which the complainant averred that he is the lessee of the land described in R. P. 1788, L. C. A. 3145, situate on the east side of the Pauoa stream, in Pauoa, Honolulu; that the respondent occupies land bordering on the west side of said stream and lying between the land of the complainant and a public highway which was constructed within ten years last past, known as the “Horseshoe Road;” that from time immemorial the land of the complainant has had access to a public road about twenty feet wide running along the west bank of said stream with the right to use the same for all purposes including the passage of wagons, the same being called the “old road;” that within ten years past, by mutual agreement between complainant and respondent, the latter closed up the old road leaving only a foot-path along the bank of said stream and as a consideration therefor gave to the complainant a new road about twenty feet in width over respondent’s land for use for all purposes including the passage of wagons, which said new road ran in a straight line from said stream to said “Horseshoe Road;” that the complainant assisted in the making of said new road and paid money for its construction; that the new road since its completion has been used by complainant, and is the only means of access to his premises by wagon; that within the last month the respondent has closed and blocked up said new road and prevented the complainant from using it, and threatens to permanently close it up, at the same time keeping closed the old road except as to the said foot-path, all to the irreparable injury and damage of the complainant. In his answer the respondent admitted the existence of a public way along the west bank of said stream having a width of from three to six feet but denied that there was a wagon road at that place; denied the alleged mutual agreement whereby the old road was closed and a new way across respondent’s land to the Horseshoe Road given to the complainant; and denied that he has closed up the new road except under the following circumstances: “That on or about the 1st day of May 1911, complainant requested respondent to allow said complainant the use of a road for his wagons across respondent’s premises to the public highway, promising to pay respondent for said privilege, and that respondent did agree with said complainant to allow him to make such road across his premises and use the same for the express and stipulated payment of ten dollars and said privilege and license expired on the 31st day of December 1911. That thereafter and before the 31st day of December 1912, respondent notified complainant that he would not renew said privilege and license, in view of the damage done to his premises by complainant’s wagon and cattle in passing over said road and closed up said road for the use of complainant’s wagons and cattle and that said road was never intended by respondent to become a public highway over his, the respondent’s premises, but was merely a license and privilege requested and paid for by said complainant, the term of which said license and privilege has now expired.” The respondent moved for judgment on the pleadings but that point will be passed

Of the averments in the bill of complaint that which referred to the complainant’s having paid ont money for the construction of the new road was not supported by any testimony. And we doubt whether the complainant proved by a preponderance of evidence that the old road was reduced in width and the new road opened pursuant to a mutual agreement between the parties. The fact probably was in accordance with the testimony of the respondent that he decided to reduce the old way to a foot-path in accordance with his understanding of its former condition, and to open a new road into his land for purposes of his own and regardless of the complainant’s wishes or claims in the premises.. However, we will assume that there was testimony tending to support- a finding that the change was made partly at least because of the consent of the complainant to accept the substituted right of way in lieu of the old one. The evidence also shows that the new road which was made in March 1911 was opened into the land of the respondent mainly for the respondent’s own purposes, and that such labor as was contributed by the complainant and his partner in the making of the road was given voluntarily. The complainant testified to having constructed a small bridge across the stream at an expense of about fifteen dollars but it does not appear that in so constructing it he relied entirely upon the new road being kept open permanently or that the bridge would not be useful otherwise.

The circuit judge held that “the complainant had a license from the respondent to travel over his land situate between the new road (meaning the Horseshoe Road) and the Bauoa stream subject however to revocation by the respondent upon the restoration of the privilege of travel previously enjoyed by the complainant and his predecessors in title along the Ewa (west) bank of Pauoa stream and over the land of respondent,” and an injunction was granted against the respondent “to be dissolved when the complainant has been restored to the use of the privilege previously enjoyed by him along the Ewa bank of the Pauoa stream over the land of the respondent to the satisfaction of the court.”

We are of the opinion that the decree should be reversed. The theory upon which the bill was drawn and which finds some support in the complainant’s testimony was that a new permanent right of way for all purposes was by mutual agreement to be substituted for one which had theretofore existed along the bank of the stream. In this connection the respondent presents the contention that as the alleged agreement was upon the complainant’s own testimony only orally made it is not en-forcible and the complainant acquired no rights from it. It is evident that this contention must be sustained. The alleged oral agreement, if made, was an attempt .to create a right of way over the premises of the respondent as an appurtenance of the land of the complainant. It is elementary that a way appurtenant to land is an easement — -an interest in land — -which under the statute of frauds, as well as at common law, may not he created by parol. 20 Cyc. 216; Jones on Easements, Sec. 80.

In this court counsel for the complainant argued that while the old right of way was an easement the new right of way is a license which is irrevocable so long at least as the respondent deprives the complainant of the use of the old road, and that the attempted revocation under the circumstances was without effect. In their brief they cite a great many eases in support of that point “that licenses may he irrevocable,” including Lopez v. Soy Young, 9 Haw. 117, and Dimond v. Macfarlane, 11 Haw. 181. Those were suits for specific performance in which the question was raised whether the agreements were taken out of the statute of frauds because of part performance, and it was held in each case that the statute applied and the relief sought was denied. "We think neither of those cases help' the complainant in this case. There is much conflict of authority on the question whether and under what circumstances a license purporting to be of a permanent nature but orally given may not be revoked to the detriment of the licensee. We think it is not necessary to review the many cases on this subject Avhich are cited in the appellee’s brief, or to go into tbe consideration of tbe much discussed question, as in our opinion tbe case at bar does not fall witbin tbe class of cases in which tbe conflict has arisen. In tbe case at bar there were no expenditures of money made, or improvements constructed in reliance upon an assumed permanency of tbe license. What little assistance was rendered by tbe complainant in tbe mating of tbe new road was voluntarily given, and if tbe old road existed as an easement of tbe description alleged in tbe bill and testified to by tbe complainant we find nothing in tbe record going to show that tbe complainant would be prevented in a proper case from insisting upon its being reopened. Tbe record does not show that tbe status quo cannot be restored. We think tbe testimony showed quite clearly that tbe complainant bad merely a license to use tbe new road across tbe respondent’s land, though that testimony came mainly from tbe side of tbe defense. In our judgment tbe case presents an illustration of a simple parol license bare of any special or complicating features — a mere personal privilege — which under all tbe authorities is revocable at tbe Avill of tbe licensor. 1 Washburn, Real Prop. (4th ed.) 632; 25 Cyc. 645. We conclude that tbe respondent was acting Avitbin bis rights in tbe premises when be revoked the license, that bis right to revoke it was subject to no condition, and that tbe complainant failed to show that be was entitled to tbe injunction sought. Tbe ease is therefore remanded to tbe circuit judge Avitb instructions to dismiss tbe bill.

J. A. Mago on (N. W. Aluli Avitb him on tbe brief) for complainant.

L. Andrews (Andrews & Quarles on tbe brief) for respondent.

CONCURRING OPINION OP

DP BOLT, J.

I am inclined to tbe view that tbe record shows that tbe new right of way is an executed license; but tbe great weight of authority is, as I believe, that neither tbe execution of tbe license, nor the incurring of expense, nor both combined, affect the right of the licensor to revoke. 18 Am. & Eng. Ency. Law, 2d ed., 1146; 25 Cyc. 647; Pifer v. Brown, 49 L. R. A. 497, 526; Wood v. Leadbitter, 13 M. & W. 838. I therefore concur in'the conclusion reached by the other members of the court, that the case be remanded to the circuit judge with instructions to dismiss the bill.  