
    Wilson Trammell vs. Daniel Trammell.
    
      Easement — Contract—Frauds, Statute of- — Case— Trespass.
    
    A right to erect a mill on the land of another is an incorporeal hereditament and an agreement conferring such right must be in writing.
    B. agreed by parol to allow A. to erect a mill on his land and to reduce the agreement to writing : — Held, that A could not maintain an action on the case against B. for wrongfully refusing to reduce the contract to writing and obstructing him in the use of the mill.
    For the wrongful removal of plank from a dam the action must be trespass and not case.
    BEFORE WARDLAW, J., AT GREENVILLE, SPRING TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbis was an action on tbe case. I treated it as an ordinary action for obstruction of an easement; but tbe plaintiff’s counsel bad other views of it, wbicb tbe declaration, grounds of appeal, and argument will explain.
    “There are two counts. Tbe first, complains in substance that tbe defendant was part owner of certain land. He, and bis brother, Jeremiah Trammell, tbe other owner of the land, agreed that tbe plaintiff should erect a mill on that land, and should have tbe use of bis erections, with all necessary privileges, so long as be chose to keep them up; thereby induced, be built at much expense; tbe defendant agreed to sign a written contract, but afterwards wrongfully and injuriously refused to sign, and obstructed tbe plaintiff in bis use of tbe mill.
    “The second, complains that tbe defendant wrongfully removed planks from a dam, so as to obstruct tbe plaintiff in bis use of a mill, of wbicb tbe plaintiff was proprietor.
    “ Tbe testimony showed that on a small mountain stream, Daniel and Jeremiab, as tenants in common, owned undivided shares of a tract of land. Above that, tbe defendant, Daniel, owned in severalty another tract; and still higher up, tbe plaintiff, Wilson, owned a third tract; that, with a view to the common convenience of themselves and the neighborhood, the defendant proposed and urged, and the three brothers agreed, that Wilson should have the privilege of building a mill on the lowest tract, and of keeping it there so long as he pleased, with perhaps, some condition about defendant’s spring, which it is not necessary now to notice; that about 1848, the plaintiff, Wilson, built a mill on the lowest tract and a dam on the defendant’s tract, near the line, and it was understood that whenever he desired, he should have written evidence of the privilege that had been granted to him; that the mill cost about four hundred dollars, and did a fair business till 1852 or ’53, when Wilson and -Daniel fell out; that Jeremiah then signed a paper which expressed and confirmed the verbal agreement; but Daniel refused to sign it, and at various times before 1857, (when this suit was commenced,) pulled away boards from the dam, so as to let off the water, and in the end, to destroy much of the custom and value of the mill, and that, although there has been no interference with the dam since the commencement of the suit, the mill has done very little because of its bad condition, the loss of confidence in it, and the establishment of other mills.
    “ Upon motion, after argument, I granted a non-suit; hold-ingLhat an easement could not be conveyed without writing; • that trespass, not case, was the remedy for an injury done to the plaintiff’s possession or right of tenancy; that the doctrines of part performance, and compensation for expenses induced by parol license, belonged to equity, and at law could give no title, even if they might serve as protection against an action of trespass; and that evil motive and fraudulent purpose could not supply the deficiencies of an agreement which the parties themselves considered to be incomplete without the writing required by the law.”
    The plaintiff appealed and now moved this Court, to set aside the non-suit, on the grounds:
    1. Because it is respectfully submitted, that the action can be maintained on the case made by the plaintiff, when the defendant not only agreed, but urged and induced the defendant to build a mill and dam on his lands, at a considerable expense of time and money, promising as a part of the inducement, that he would give a title in writing for the privilege of using and keeping them up, and not only neglected so to do, but positively refused on request made, and that such case is not within the statute of frauds, but rests on its peculiar circumstances.
    2. That this case is distinguished from other 'cases of parol or unwritten grants of the use of land, from the fact alleged in the declaration, and proved on the trial,, of the inducements and persuasion used by the defendant, Daniel Trammell, which were connected with the permission to build a mill and dam on his [defendant’s] land.
    3. That the privilege or easement given by the plaintiff’ was at least good from year to year, without notice to quit, and that the acts of the defendant, suddenly disturbing and hindering the use after inducements had been given to the plaintiff by him to build and have the undisturbed benefit of the mill, rendered the defendant liable to the action of the plaintiff.
    4. That although the plaintiff could not hold the premises or easement against the title of the defendant, nevertheless, tbe conduct of tbe defendant, embracing malafides and malfeasance on bis part, gaye legal grounds for tbe action.
    5. That tbe violation of an agreement, and promise to make written titles, which promise and agreement induce a party to expend money and labor, under the urgent request of the one making the promise, will justify an action on tbe case, after refusal to comply, especially where there were acts . of mala fides or malfeasance connected with the party holding out the inducement.
    Townes, for appellant,
    cited 1 Salk. 10; 19 Eng. C. L. E. 288; 15 Wend. 380; 1 M’C. 543; 10 Wend. 324; 7 Wend. 380.
    
      Elford, contra.
    Plaintiff claimed an easement under parol agreement. The agreement was void under the Statute of Frauds. Harris vs. Miller, 1 Meigs, 158; Woodworth vs. Sealy, 11 Illin. 157; Ellis vs. Bradly, 4 Johns. 81; 12 Ired. 285; 1 Chand. 118.
   The opinion of the Court was delivered by

Muítro, J.

The allegations in the first count in the declaration are, that under a parol agreement with the defendant, ■and another, who were joint proprietors of a tract of land, the plaintiff erected a mill thereon. That the defendant had agreed to reduce said contract or license into writing, but had afterwards wrongfully and injuriously refused to do so, and obstructed the plaintiff in the use of his mill.

The right to erect a mill on the land of another, is an incorporeal hereditament, and falls directly within the express provisions of the Statute of Frauds, and must therefore be in writing. In 3 Kent, 352, the doctrine is thus stated: — “A claim for an easement, must be founded upon a grant by deed, or writing, or upon presumption wbicb supposes one, for it is a permanent interest in another’s land, with a right at all times to enter and enjoy it.”

Of the necessity of some instrument in writing to perfect the right in question, the parties appear to have been fully aware, for it was the defendant’s refusal to comply with his promise to reduce it into writing that constitutes the gravamen of the plaintiff’s complaint.

Whether the plaintiff would be entitled to redress, in another forum, for having erected a mill on the defendant’s land, upon the faith of a parol license, coupled with the assurance that the agreement would be reduced into writing, and the defendant’s subsequent refusal so to do, is a matter about which we express no opinion — it being sufficient for us to say, that we know of no form of action by which adequate redress can be afforded fdr such a wrong in a Court of Law.

Nor can we perceive that the matters complained of in the second count are less liable to objection; with this difference however, — that although they do exhibit a valid cause of action, and proper to be redressed by a Court of Law; it is nevertheless obvious, that the form of action has been entirely misconceived. The wrongful removal of plank *for a dam— which is the matter complained of — although furnishing good ground for an action of trespass vi et armis, can hardly be redressed by an action on the case, the appropriate function of which is, the redress of injuries that are indirect and consequential — not such as are direct and immediate.

We are therefore satisfied that the non-suit was properly granted on circuit, and that the motion to set it aside must be dismissed — and it is so ordered.

O’Neall, Wardlaw, Whitner, and Glover, JJ., concurred.

Motion dismissed.

* From.  