
    Pierrepont et al. v. Barnard.
    
      Parol license. — Statute of Frauds.
    
    A paroi license to cut and carry away standing timber, when fully executed, ~ before revocation, passes the title to the lumber, though the contract between the parties provide, that no timber shall be cut, “ without the consent or approbation of the vendor, in writing; such paroi license is a good defence to an action of trover for the lumber.
    A paroi license to cut and carry away standing timber, is not within the statute of frauds, and when fully executed, is irrevocable.
    Pierrepont v. Barnard, 5 Barb. 364, overruled.
    Appeal from the general term of the Supreme Court, in the fifth district, where a judgment in favor of the plaintiffs, in a case tried before the court, without a jury, had been affirmed. (Reported below, after a former trial, 5 Barb. 364.)
    This was an action of traver, brought by William 0. Pierrepont, and others, executors of Hezekiah B. Pierrepont, deceased, against Barnard, the defendant, for a large quantity of pine lumber and logs, alleged to have been converted by the defendant to his own use. The declaration was in the usual form, and the defendants pleaded the general issue. On the first trial of the cause, the defendant had a verdict, which was set aside by the general term, and a new trial awarded.
    On a second trial of the cause, before Pratt, J., without a jury, the plaintiffs gave in evidence a contract, under seal, bearing date the 1st August 1840, whereby William C. Pierrepont, one of the executors of Hezekiah B. Pierrepont, deceased, covenanted and agreed to convey to John R. Woodworth and Hiram A. Woodworth, lot No. 155, in the town of Richland, in Oswego county, containing 150 acres, in consideration of the payment * 280 1 SUm °’*> *hree equal annual *in- -* stalments, with interest.
    The contract provided, that the parties of the second part would not quit or abandon the premises, nor sell or assign the contract, or their betterments, nor cut or suffer to be cut, for sale, any timber from the said land, without the consent or approbation of the said party of the first part, or his attorney, first had and obtained in writing; nor commit any waste, actual or permissive, upon said premises. There was also a stipulation for a* renewal of the contract, for another term of three years, if the interest should be punctually paid — the Woodworths to cut no timber, without paying down one-fourth of the whole amount due at the time, and obtaining permission therefor as therein stipulated. The chief value of the lands consisted in the timber standing thereon. There were two indorsements of payments on the contract, one dated the 7th January 1842, for $1500; and the other, 4th February, for $300.
    The contract was made by William O. Pierrepont, in pursuance of the following clause in his father’s will:
    
      “ I desire that the sale and settlement of my lands in the northern and northwestern parts of the state of New York, may be sedulously and vigorously attended to and prosecuted; and to facilitate the same, I direct that the separate signatures of either of my sons, being executor as aforesaid, to contracts or articles of agreement for the sale of any lands situate in either of the counties of Oswego, Jefferson, Lewis, St. Lawrence and Franklin, to actual settlers, shall be sufficient; and that contracts or articles of agreement, so signed, shall be as valid and binding as if executed by all the executors.”
    It was shown, on the part of the plaintiff, that the lumber mentioned in the declaration was manufactured from logs cut by the Woodworths, on lot No. 155, in the winter of 1843. *In August of that year, the * J manufactured lumber, and about 350 unsawn logs, was levied upon by the sheriff of Oswego county, at the saw-mill of the Woodworths, by virtue of an execution issued upon a judgment against them, in favor of the defendant, Barnard, who purchased the property at the sheriff’s sale, with notice that it was claimed by the plaintiffs, whose agent forbade the sale. The value of the lumber was $2660.
    The defendant gave evidence tending to show a paroi license from William 0. Pierrepont, to cut the timber in question from lot No. 155, in the winter of 1843. *The learned judge, however, subsequently ex-eluded the evidence of a paroi license, holding that nothing but a license in writing would constitute a defence to the action; to which an exception was taken. The plaintiffs had a judgment for the value of the lumber and logs; which having been affirmed at general term, and a motion for a new trial denied, the defendant appealed to this court.
    
      Hill, for the appellant.
    
      Comstock, for the respondents.
   Welles, J.

— The defence interposed at the trial was excluded solely on the ground, that *- the license to the Woodworths, to cut the trees and timber, from which the lumber in question was manufactured, was not in writing. We are to assume, that a paroi license was proved, because evidence was given on that subject, sufficient to have been submitted to a jury, and which would have probably justified a finding of the fact, that a paroi license had been given, and that the timber had been taken in pursuance of it. It appears by the bill of exception, that after the evidence had been given, his honor, the justice, then decided, that the facts thus proved, going to show a paroi license, were not admissible, on the ground, that nothing but a license in writing would constitute-a sufficient defence, „ and thereupon excluded the said evidence; *to J which decision the counsel for the defendant excepted. The title to the land upon which the trees grew and stood, from which the lumber was made, was admitted to have been in the plaintiffs. The Woodworths held the land under a written contract, with one of the plaintiffs, for its purchase, in which they covenanted not to cut, or suffer to. be cut, for sale, any timber from the land, without the consent of the vendor first had and obtained in writing.

The question to be decided is, whether, after the parties have mutually agreed to depart from the provisions of the written agreement, as to what kind of consent should justify the vendees in cutting the timber, or how such consent should be manifested, the latter shall be protected in what they have done under the new agreement, after the same has been completely executed, without any dissent or revocation on the part of the vendors.

There are some provisions in the contract upon which, perhaps, it might be argued, that the vendees had an implied consent of the vendors to enter and make improvements, and cut timber for the purpose of improving the land. The prohibition is of cutting timber for sale; the evidence is clear, that the timber was in fact Cut for such purpose. The case, however, in my judgment, is no stronger for thp plaintiffs, than if the contract had been simply for the sale of the land, with a covenant to convey upon full payment of the purchase-money, and containing no provision whatever, either express or implied, authorizing the vendees to take possession, or to cut timber for any purpose. Under such a contract the vendees wuuld be trespassers, by cutting timber or entering upon the land; nor would an express, unqualified provision in the contract, prohibiting such acts, superadd anything to the rights, liabilities or obligations of either party. The most that can be said of a provision that the vendees should not cut timber without a written consent is, that they might do it, with such consent; and, probably, no one would contend, that they would be trespassers, with a written consent, in either of the supposed cases. In the further - consideration of the question, therefore, the provisions of the contract, in reference *to ^ ^gg the consent to cut timber for sale, and those from *- which an implied right to take possession and cut timber for the purpose of improving the premises might be claimed, may be laid out of view; and the question treated as if it arose upon a contract simply for the sale of the land, with a covenant to convey upon payment of the purchase-money.

What, then, is the effect, in such a case, of a paroi agreement or license by the vendor to the vendee, to enter and cut timber of a particular description or quantity, and to take the same away and convert it to his own use, after such license has been acted on and completely performed and executed ? In answering this question, it is important to understand and bear in mind, the distinction between a license, and an easement or right of permanent occupancy of the land. Chancellor Kent, in his commentaries (3 Kent’s Com. 452), says, “the modern cases distinguish between an easement and a license; a claim for an easement must be founded upon grant, by deed or writing, or upon prescription, which supposes one; for it is a permanent interest in another’s land, with a right at all times to enter and enjoy it; but a license is an authority to do a particular act, or series of acts, upon another’s land, without possessing any interest therein; it is founded in personal confidence, and is not assignable.” The learned commentator adds, that “this distinction between a privilege or easement, carrying an interest in land, and requiring a writing, within the statute of frauds, to support it, and a license, which may be by paroi, is quite subtle, and it becomes quite difficult, in some of the cases, to discern a substantial difference between them.” He then refers to several decided cases, and concludes as follows: “ The decision in Cook v. Stearns, narrows the limits assigned to a paroi license, while on the other hand, the cases of Ricker v. Kelly, and Clement v. Durgin, seem to approach the more questionable doctrine in Wood v. Lake.” In the latter case (Sayer 3), it was held, that a paroi agreement for the liberty to stack coal upon any part of the close of another for seven years, was valid.

The case of Cook v. Stearns (11 Mass. 533) was trespass * 0n7 Square clausum fregit, and digging up the soil of -* the plaintiff’s land; the defendant justified the trespass, under a paroi license or consent from a former owner of the plaintiff’s land, to enter and dig, &c., for the purpose of repairing a mill-dam, a part of which was on the plaintiff’s close, claiming a right, under such paroi consent of the former owner, to enter upon the plaintiff’s land, and of digging up the soil, whenever necessary for the purpose of repairing the dam and bank. The court overruled the defence; and Parker, C. J., in giving the opinion of the court, says: “A license is, technically, an authority to do some one act, or a series of acts, on the land of another, without passing any estate in the' land; such as a license to hunt in another’s land, or cut down a certain nwmber of trees. These are held to be revocable, when executory, unless a definite time is fixed, but irrevocable, when executed.”

In the case of Mumford v. Whitney (15 Wend. 380), which contains an able review of many of the conflicting cases, Savage, C. J., cites with approbation the case of Cook v. Stearns (supra), and the views of Chancellor Kent above extracted: he says, “much of the discrepancy may have arisen from the different ideas attached to the word license. If we understand it as Chancellor Kent defines it, it seems to me, there can be no difficulty; it is an authority to do a particular act upon another’s land; is founded in personal confidence, and is not assignable. For example, A. agrees with B., that B. may hunt or fish on A.’s land; A. thereby gives B. a license for that purpose. This gives B. no interest in the land; he cannot authorize any other person to go upon the land; it is a personal privilege to B. alone. If, after A. has given his consent, and before B. has entered upon his land, A. changes his mind, he has a right to do, and forbid B. from entering upon his land for the specified purpose. The license is thus far executory, and may be revoked at pleasure; if B. afterwards enters, he is a trespasser. If, however, B. enters, before any revocation of the license, the license is then executed, and it is not competent for A. to revoke it, and make *B. a ^ ^ ^gg trespasser. This doctrine is applicable only to *- the temporary occupation of land, and confers no right nor interest in the land.”

The learned chief justice then proceeds to illustrate and show what is an easement, or a right which can only be acquired by a grant or prescription, as contra-distinguished from a mere license; from which, and the other authorities I have referred to, it appears, that the marked and leading distinctions between them are, that in the former, there is a permanent interest in the land, for some specified period, amounting to an estate in the land, which is assignable, is irrevocable, and gives a right at all times to enter and remain in possession, during its continuance; while the latter is a mere authority to enter upon the land of another, for a temporary purpose, and to do a particular act, or series of acts, upon the land, is revocable at pleasure, before acted on, is not assignable, and gives no estate or interest in the land upon which the act or acts are to be done. Another incident of a technical license is, that no consideration is necessary to its validity as such; it should, therefore, on that ground, be distinguished from an agreement, the breach of which would entitle the party injured to an action, or other legal remedy. And yet cases may, I think, be imagined, of transactions, which, at common law, would be valid agreements, creating substantial vested rights, but which, by force of the statute of frauds, would only have the effect (so far as respects the right of either party to enforce their execution) of a mere license, and where the question of consideration would, therefore, become immaterial. None of the cases, protecting parties in acts, otherwise unauthorized or unlawful, on the ground of an unrevoked executed license, treat the question of consideration as of any importance. A plea of license, by way of justification of a trespass, never states a consideration; this must be so, as a license is nothing but an authority, revocable at pleasure by the person granting it, which could not be the case, in respect to a valid agreement upon sufficient consideration.

Applying the foregoing principles to the case under * 289 1 cons^era^on’ seems *° me) to follow, that the -* consent or agreement of the vendor, allowing the Woodworths to enter upon the land, and cut and take off the timber in question, can have no other effect than that of a strict license, which the plaintiffs might have revoked or countermanded, at any time before it was executed, and that the Woodworths, and those claiming under them, must be protected in whatever thay have done in pursuance thereof, before the same was countermanded.

It was insisted upon the argument on behalf of the respondents, that the consent under which the defendant claims that the timber was taken, to be good, even as a license, must have been in writing; and that being only by paroi, it was void by the statute of frauds. If it had been in writing, as a license merely, it would have been revocable, before execution, equally with a paroi license If an agreement in writing, expressing a sufficient consideration, it would have lost its character of a mere license, and there would be no necessity for invoking the doctrine applicable to an executed license, in its support, or for the protection of acts done under it, for it could not have been revoked, would have been assignable, and an action might have been sustained for its violation, and would have been effectual and enforceable at all events. Among the great number of cases to be found upon the subject, there is not one that I have met with, where this objection has been allowed to prevail, although there are many where it has been urged and overruled.

In the case of Cook v. Stearns, before cited, Ch. J. Parker puts the very case of a license to cut down trees on the land of another, as being revocable, while it remains executory, but irrevocable, when executed; and in the late case of Miller v. Auburn and Syracuse Railroad Co. (6 Hill 61), it was held, that the right of permanently occupying one’s own land, in such a manner as to deprive an adjoining owner of an easement, cannot be acquired under a paroi license, but was nevertheless a justification for acts done under it, while unrevoked; and that, accordingly, in an action against the defendant, for building and continuing a railroad on a street in front of the plaintiff’s house, *so as to obstruct ^ ^ his right of egress and regress, it was held, that L the defendant might give, evidence of a paroi license from the plaintiff to build the road, and thus defeat the claim for all damages sustained, while the license remained unrevoked.

The rule is one having its foundation in justice and good morals, and is very much like that applicable to estoppels in pais; a different one would be productive of great injustice, and would open a door for fraud, imposition and bad faith. If the Woodworths went on, in good faith, under a license which only lacked validity, according to the ruling at the trial, for the reason that it was not in writing, and expended their money and labor in converting the standing timber into personal property, and manufactured it into lumber, thus, probably, quadrupling its value, without objection or dissent on the part of the vendor, the law is not, in my judgment, obnoxious to the imputation of allowing the plaintiffs, then, for the first time, to come in with their dissent, and reclaim the property, or recover its enhanced value, in an action of trover or otherwise.

Suppose, in this case, the trees cut had been black walnut or mahogany, and the Woodworths had manufactured them into the finest articles of furniture, thereby increasing their value a hundred-fold, and had sold the furniture, in different parcels, in a distant market, the plaintiffs standing by and knowing it all, and not countermanding the license; can it be, that they would be permitted to reclaim the property, or recover its enhanced value, wherever they could find and identify it ? Such a proposition shocks the conscience, by its bare statement; and yet it is true, if the doctrine of the cuurt below is to be sustained. Upon the same principle, ii T take an apple from my neighbor’s tree, by his consent, I am liable in an action of trespass for the value of the apple, unless I have his license in writing.

If it should be said, that the same unjust consequences are liable to follow, in case of a. tortious taking of the timber, without or against the consent of the owner of the land, the answer is obvious; the owner, in such case, never consented to part with his property, and though . innocent persons might suffer, he has *done ^vi J nothing to contribute to their misfortunes, and it is a case where the maxim, caveat emptor, would apply in all its force. The rule in such case is necessarily a severe one, and should never be applied in favor of one whose acts and declarations were designed and calculated to induce the line of conduct on the part of another,, which the former seeks to repudiate.

There are several answers to the point made upon the argument by the respondent’s counsel, that the license was void for want of consideration. 1. It has been shown, that a consideration was not necessary, and does not necessarily enter into the contemplation of a license, which can only be set up in justification of acts done in pursuance of it. 2. No such objection was raised upon the trial, and the rejection of the evidence going to show a license, was put upon the sole ground that nothing but a written license would constitute a defence. If the point had been raised, or regarded as material by the learned justice before whom the cause was tried, the defendant might have offered further evidence on the subject, which it would have been within the discretion of the justice to receive. Under the ruling, it would have been the merest supererogation, not to say disrespect to the court, for the defendant to have given proof of a consideration. The law of the case at the circuit was, that no paroi license, however well supported by a consideration, or however completely performed and executed, would constitute a defence. If that was the law of the land, the defence was properly excluded; if not, the cause was not tried upon proper principles, and should be sent back for a new trial.

There was no written opinion in the court below, on giving the judgment for the plaintiffs, from which the present appeal was taken, but there had been a previous trial, resulting in a verdict for the defendant, which had been set aside and a new trial granted, on the ground, among others, that the evidence of the paroi license was improperly received. Upon that occasion, there was an opinion given, in which the learned justice who wrote it assumes that the license was without consideration and merely gratuitous. A distinction is drawn between an action *of trespass against the Woodworths, for „ ^ cutting the timber, and trover to recover its *- value, against the defendant deriving title from them; thus, by implication, at least, admitting that the license would justify the Woodworths in the entry and cutting down the timber, but denying, that it conferred any title to the timber, after it was cut down or taken away, or to the lumber into which it was manufactured, either upon thorn or the defendant. It is argued, that as the trees were a part of the real estate, the title to which could not pass except by writing; and that while the case of Green v. Armstrong (1 Denio 550) continues to be the law of the land, and the identity of the trees can be traced to the lumber, and the contract has not been performed by the payment of the purchase-money, the title to the property continues in the original owner, and he may reclaim it, in its altered state.

In the case of Green v. Armstrong, the plaintiff declared for the breach of a verbal contract, by which the defendant sold to the plaintiffs certain trees standing on the defendant’s land, at a certain specified price per saw-log, the trees to be paid for, when cut and carried away, the plaintiff to be at liberty to cut and take them away, at any time within twenty years; averring that a part of the timber had been cut, taken away and paid for) and that the defendant had forbidden the plaintiff to take away any more of the trees. The plaintiff had judgment, which was very properly reversed, on the ground, that the contract, not being in writing, was void within the statute of frauds. It will be seen, that the case did not, and could not, embrace the question of an executed license, and I confess myself entirely at fault, in perceiving its application to the case at bar. It was, undoubtedly, a good authority to prove that the standing trees were a part of the land upon which they stood and were rooted, and that a paroi contract for the sale of them, while it remained executory, was within the statute. I suppose it was referred- to for that purpose. This, however, is admitted, in the preceding discussion of the present case. If the plaintiffs had revoked the license, before it was executed, or, on supposition of a paroi ^agreement, upon a good consideration, if ^gg they had rescinded it, before it had been exe- *- outed, the Woodworths would, undoubtedly, have been wrongdoers, in cutting the timber, and, of course, would have acquired no title to it, and could have conferred none upon the defendant.

The point of the argument of the learned justice is, as I understand it, that admitting the license to have the effect of protecting the Woodworths against an action of trespass for entering and cutting down the trees, still, it goes no further, and does not change the title to the timber, which remains in the owners of the land, notwithstanding any mutations of form or possession which it might afterwards undergo. But it seems to me, that must depend upon what the license was, in fact, intended by the parties to be. If it was merely to sever the trees from the land, and leave them there, I admit, no title would pass; if, on the contrary, it was, as the witness states, to cut the timber and draw it off to a'saw-mill, on another lot, for the purpose of stocking the mill, it is impossible to suppose, without importing an absurdity, and stultifying the parties, that they did not intend that the timber, at least, after it was taken away, was to be the property of the Woodworths. The license, undoubtedly, referred to the whole series of actá by the Woodworths, of entering upon the land, cutting the timber, taking it away and manufacturing it into lumber as their own. If it was good for a part, it was good for the whole; and I can perceive no more difficulty, upon principle, in sustaining the transaction, after its consummation, than in upholding a paroi gift inter vivas, after a full delivery of the thing given.

Again, upon cutting down the trees and severing them from the land, they became personal estate; and ' if the object and scope of the license was what I have supposed, it attached to them in that character, and the appropriation of them by the Woodworths to their own use and possession, in the manner stated in the case, transferred the title, as effectually, in my judgment, as it would have ■ been done; provided the plaintiffs *themselves ■ had cut them down and given -* them the, Woodworths.

In every aspect in which I have been able to view the cáse,-1 am constrained to believe a substantial error has been commited in the court below, in holding that the license, to be-available to the defendant, should have been in writing. The judgment appealed from should be reversed, and a new trial ordered.

Gridley, J.

(Dissenting.) — This action was trover for the conversion of a-large quantity of pine lumber, which was seized and . sold by the defendant, on an execution against John R. and Hiram Woodworth. The premises on which the timber grew, from, which the lumber was manufactured, were known as lot No. 155, in Richland, in the. county, of Oswego. This lot. had been contracted to be sold to the Woodworths, by an agreement executed by William C. Pierrepont, by virtue of a power conferred upon him by the last will of Hezekiah B. Pierrepont, deceased. The contract contained a clause by which the Woodworths covenanted “ not to cut, or suffer to be cut, ,for sale,- any timber from the said land, without the consent or approbation of'the said party of. the first part, first had and obtained in writing.” The evidence which.was given to prove a license, and which was finally excluded by the judge, was of the loosest and most uncertain character. Had it been received and considered, as competent evidence, it might possibly have been regarded as . .a justification for cutting timber on the premises, amounting in value, as assessed, to the sum of $2660. No written permission to cut timber was ever given; and - by the terms of the contract, nothing short-of that could'confer the power.

*1. I am of the opinion, that upon principle as well as authority, the evidence was rightly rejected. Why was this extraordinary prohibition inserted in the agreement, in addition to the provisions requiring the payment of a large part of the consideration-money, for the premises? It was, because the principal value of the premises consisted of the timber growing on them; and to secure the plaintiffs against the consequences of mistakes and frauds and perjuries. By admitting the evidence, the judge would have defeated the intentions of the vendors, in requiring the license to be in writing. The object of the parties was the same that induced the legislature to enact the statute of frauds itself. It was, because the plaintiffs foresaw that a paroi license might be misunderstood;- that if there were important conditions annexed to it, those might be forgotten; and if the license was only extended within particular limits, or was confined to a particular. quantity-, those limitations might not be borne in mind by a rapacious purchaser; and, in fine, that the most important rights of the owners of lands, whose value consisted mainly in the timber on them, might lie at the mercy of mistaken and unscrupulous witnesses. It was for these reasons, that they imposed the obligations on the purchasers in the very contract of sale, to cut no timber without a written license; and I think, the judge was right, on principle, in rejecting the evidence, which would have deprived them of the advantages of this stipulation.

' Again, this rule, which is founded on reasons of such unquestionable weight- and soundness, is also supported by authority. It has been repeatedly held, in England and in this state, that a covenant under seal cannot be discharged by a paroi agreement, before breach. (Suydam v. Jones, 10 Wend. 180; Kaye v. Waghorne, 1 Taunt. 429.) The discharge must be by matter of as high a nature as that which creates the debt or duty. (Preston v. Christmas, 2 Wilson 86.) -This is universally true, when the action is founded on, or grows out of the deed or covenant. (Blake’s Case, 6 Co. 43 a; Alden v. Blague, Cro. Jac. 99.) In the case of Barnard v. Darling *11 Wend. 27), the same doctrine was adopted; -I and in Delacroix v. Bulkeley (13 Wend. 71), the question came again before the court, and Savage, G. J., reviewed all the previous cases, and came to the conclusion, that a sealed executory contract cannot be released or rescinded by a paroi agreement. And where a landlord covenants to make certain alterations and improvements in a store, and by the same instrument, let the store, so to be altered, to a tenant, for a term of years, at a stipulated rent, and by reason of the decay of the building, the landlord was forced to change his plans, and accordingly took down the old building and erected a new one, to which change of plan the tenant assented (but such assent was by paroi only), it was held by the court, in an action by the tenant against the landlord, for the nonperformance of the original covenant, that the evidence of the assent was inadmissible. The doctrine was here established, that it was only after a breach of the sealed agreement, that a paroi agreement, executed, becomes a satisfaction. This doctrine is fully stated in Cowen & Hill’s Notes (p. 1479), and the doctrine is, that a paroi agreement, being executed, becomes a satisfaction for the breach of the sealed agreement, on the familiar grounds of accord and satisfaction.

To apply the principle of these cases to that now under consideration; if the Woodworths had committed the trespass on the lands of the plaintiffs, and thus bioken the sealed agreement, and the plaintiffs had agreed by paroi, to receive one-half the quantity of boards that the lumber in question produced, in lieu of the timber cut, and the Woodworths had delivered the boards to the plaintiffs, that delivery would have been a satisfaction. The case at bar, however, is in no respect like this. The Woodworths plundered the premises of over $2000 worth of timber, and have made no satisfaction, and nothing that can be regarded as a satisfaction, to the plaintiffs. The transfer of the indorsement from one contract to the other, at the request and for the benefit of the Woodworths, was no advantage to the plaintiffs; and the manufacture of the lumber, and the expenditure of ‘labor and money on it, for their own benefit, ... was no satisfaction to the plaintiffs for the loss of *- their timber, or for the breach of the sealed agreement in the commission of the trespass. It was no satisfaction, either in fact or in law. The payment of a part, is no consideration for giving up the residue of a demand. (5 Johns. 271.) In Verplanck v. Wright (23 Wend. 506), a covenant just like the one in question was held valid, and the breach of it, a forfeiture of the estate, which was recovered in ejectment.

In Richardson v. Evans (3 Haddock 118), a lessee was bound not to assign his lease, without a written license ; the lessor consented, by paroi, that he might assign to the plaintiff, and agreed to ratify the assignment. On a bill filed by the plaintiff against the lessor, to compel the lessor to perform his agreement, alleging some circumstances of fraud, which he failed to prove, Sir John Leach, vice-chancellor, dismissed the bill, saying that no relief could he granted against such a covenant, in equity, any more than at law, unless the defendant should prove fraud on the part of the lessor, and that the plaintiff, relying on the paroi consent, had incurred some loss or damage. Now, two things are apparent from this decision ; first, that at law there is no relief for a party who has acted on a paroi license, when he had agreed, under seal, that nothing but a written one should confer any authority; and secondly, that equity will give no relief, unless circumstances of fraud, in addition to a consent by paroi, are proved; so that in the case at bar (there being no satisfaction of the breach after it had occurred), the defendant can have no relief at law.

Roe v. Harrison (2 T. R. 425) was a case in a court of law, where a tenant had assigned a lease, notwithstanding a covenant not to- assign, except by virtue of a writ ten license, and an ejectment was brought for the forfeiture incurred by the assignment. The defendant set up a paroi license to let a part of the premises, which, it was contended, waived the forfeiture as to the whole, and authorities were cited on that point. Buller, J., remarked, This case does not come within the authorities, for here is no legal consent to let any part of the , _ premises.” ^Unless these cases are to be overyüx I A 1 J thrown, I see no defence, m an action at law» growing out of the facts on which the defendant relies.

II. Independently of the stipulation providing that the license should be of no validity, unless in writing, the license itself is in direct violation of the statute of frauds, and is utterly void for that reason. And that, whether the license be executed or not. At law, the license is void, and cannot be set up, even when executed, in a suit brought for the doing of the act in pursuance of the license;, the party must seek his relief in equity on the ground of part performance.

(1.) The license is this case to cut 700,000 feet of growing timber, was a license, transferring to the Woodworths that amount of the real property of the plaintiffs, or, if there was a consideration for the license, then it was a paroi contract for the sale of about one-third in value of the lot in question. The growing trees were real estate, and were the most valuable part of the real estate, contracted to be sold by the plaintiffs to the Woodworths; and the title to this real estate could not be changed, by cutting and removing it, without any legal right. It still remained the property of the plaintiffs, in its altered condition, and the legal right of the plaintiffs to control it, for all the purposes of property, remained unaltered. A grant of growing wood is a grant of real estate, and is within the statute of frauds. See many cases collected in the first volume of Hilliard’s Abridgment of the law relating to real property (1 Hilliard, pp. 6, 7).

In Green v. Armstrong (1 Denio 550), it is held, in an elaborate judgment delivered by Mr. Justice Beardsley, that an agreement for the sale of growing trees, with a right to enter on the land, at a future time, and remove them, is a contract for the sale of an interest in land, and to be valid, must be in writing. In Moore v. Wait (3 Wend. 104), it was decided, that a person contracting to purchase, with a right of entry and occupancy, had a right to occupy the land for agricultural purposes, but that he had no right to cut timber, except for the purpose of cultivation; and that such timber, when *cut, be- ... comes the personal property of the owners of the ^ inheritance, who could maintain trover for it, against any one in possession of it, even though he was a bond fide purchaser under the occupant.

It follows, then, that if the paroi license under consideration, was, in law, a sale of real estate, then the timber, when cut, was cut without any legal right, and remained the property of the owner of the land, who might bring trover for the conversion of it. So far, the rights of these parties would seem to be entirely clear. But the ingenious counsel for the defendant has advanced a proposition, plausible on its face, and apparently quite equitable, viz., that a license executed, like the one in the case before the court, cannot be revoked, and constitutes a good defence in an action at law: but—

(2.) This defence resting on an executed license, is applied by the authorities solely to a- license, which is not within the statute of frauds. The following cases, Webb v. Paternoster (Palmer 71), a license to stack hay on another man’s land; Wood v. Lake (Sayer 3), a license to stack coal on another’s land for seven years; Winter v. Brockwell (8 East 108), a license to erect a skylight, on an area on another’s land, by which a window of plaintiffs was darkened; Taylor v. Waters (7 Taunt. 374). a license to enter- an opera house by virtue of a silver ticket pur chased of a former owner of the house; Rerick v. Kern (14 S. & R. 267), a license to turn a water-course; Liggins v. Inge (7 Bing. 682), a license to erect a weir, are the principal authorities, in which it- has been held that a license executed was not revocable; and it was so held, because they were regarded as cases of a license, strictly speaking, not conveying an interest in lands. I cite the language of Gibbs, C. J., in Taylor v. Waters, to show what views the court entertained, in holding these licenses irrevocable. After reviewing the previous cases, the learned chief justice says, “ these cases abundantly prove, that a license to enjoy a beneficial privilege on land, may be granted, without deed; and notwithstanding the statute of frauds, without writing; what the plaintiff claims, is a license of this description, and not an * 300 1 *^eresi Gourgas pai(l a valuable con- -* sideration to Taylor, for these tickets.”

In Mumford v. Whitney (15 Wend. 380), Chief Justice Savage reviews the previous cases, and declares that they are not all reconcilable, and he will not undertake to reconcile them. But, he says, “ they all agree in this, that any permanent interest in the land itself cannot be transferred, except by writing. Much of the discrepancy may have arisen from the different ideas attached to the word license. If we understand it as Chancellor Kent defines it, it seems to me, there can be no difficulty; it is an authority to do a particular act upon another’s land; is founded in personal confidence, and is not assignable. For example, A. agrees with B., that B. may hunt or fish on his, A.’s land; A. thereby gives B. a license for that purpose; this gives B. no interest in the land; he cannot authorize any other person to go upon the land; it is a personal privilege granted to B. alone. If, after A. has given his consent, .and before B. has entered upon his land, A. changes his mind, he has a right to do so, and forbid B. from entering upon his land for the specifled purpose. "The license is thus far executory, and may be revoked at pleasure; if B. afterwards enters, he is a trespasser. If, however, B. enters, before any revocation of the license, the license is then executed; and it is not competent for A. to revoke it, and make B. a trespasser.” He then speaks of the distinction between such a case and the one he. was then considering, which was the license to build the abutment of a dam upon Mumford’s land, which he considered a permanent interest in land, and though executed by Whitney, at considerable expense, was void, being in violation of the statute of frauds. Now, this decision has ever since been considered as settling the true line of distinction, in this state, between those licenses, which, being executed, are irrevocable, and those which are within the statute of frauds, and are void at law, whether they have been executed, or remain executory.

I now propose to state a few of the cases in which licenses have been held void, under the statute of frauds, and as furnishing no defence in an action at *law, notwithstanding they have been executed, at great expense, and a valuable consideration *- paid for the privilege. The first I shall allude to, is Cook v. Stearns (11 Mass. 536). The action was trespass, for entering the plaintiff’s close, and digging up the soil; the defendant pleaded that he was the owner of a mill and dam, near the plaintiff’s close, part of the dam having been constructed on the plaintiff’s land, by the consent of the owners, and, it being necessary to repair the same, the defendant entered for the purpose of making repairs. The plaintiffs demurred to the plea, assigning for cause, that there was no conveyance. For the defendant, it was urged, among other things, that there was a license, which being once executed, was not revocable. Pakkee, O. J., delivered the opinion of the court, that the claim of the defendant was for a right to maintain a dam and canal, which were formerly placed there by consent, and to enter, at any time, to make repairs. • This, he says, is an interest in lands which cannot pass without writing. The counsel for defendant had contended, that such a license might be by paroi, and that, after it was executed, it could not be countermanded. “ This argument,” says the learned chief justice, “ had some plausibility in it, when ■ first .stated, but on mature consideration, it seems to have no- foundation, in the principles, of law. A license is, technically, an authority to do some act on the land of another, without passing any estate in the land; but licenses, which in their nature amount to the granting of an estate, for ever so short a time, are not good without deed. The distinction is obvious; licenses to do a particular act, do not trench on the policy of the law which requires that bargains respecting the title or interest in the real estate shall be by deed or in writing.” The plea was held bad, on the ground that the interest claimed was not in the nature of a license, but of an estate, or, at least, an easement in the land, which could not be acquired without writing or prescription.

In Fentinam v. Smith (4 East 108), a paroi license was granted, to make a tunnel through defendant’s land, to convey water to plaintiffs’ mill. The plaintiffs had * 302 1 a&reec^ f°r the consideration *of a guinea, to allow the tunnel to be made, and even assisted in making it, but there was no conveyance. The guinea was tendered, but the defendant refused to receive it, and diverted the water. Lord Ellenborough said, the right claimed was an interest in land, and could not pass without deed. In Hewlins v. Shippam (5 B. & C. 210), the defendant and his landlord granted, by paroi, a right to dig a drain through their land, at plaintiff’s expense, to discharge the foul and refuse waters from an inn, and a suit was brought against the defendant, for obstructing the drain, and it was held by the court, that the action would not lie, notwithstanding the license was executed, as the interest conveyed was an interest in lands.

Again, in the case of Bryan v. Whistler (8 B. & C. 288), an action was brought against the rector of a church, for opening a vault and burying a corpse in it. The vault had been constructed by the plaintiff, by virtue of an agreement with the-defendant, and on paying him 201. for the privilege; in consideration of which, the defendant 'had agreed that the plaintiff should have the exclusive use of the vault. . The plaintiff’s counsel relied on the cases above cited, where a license had been held irrevocable, after it was executed, but the court, on a rule to show cause, ordered a nonsuit to be entered, on the ground, that the right claimed was either an easement or an interest in lands, and in either case, could not pass without writing. In Cocker v. Cowper (1 C., M. & R. 418), it was decided, that a verbal license was not sufficient to convey an easement in another’s land, and that it" was revocable, though acted upon. The same decision was made in Bird v. Higginson (4 N. & M. 505).

In the case of Miller v. Auburn and Syracuse Railroad Co. (6 Hill 61), an action was brought to recover damages for erecting and continuing an embankment on Garden street, in Auburn, whereby the plaintiff was disturbed in his ingress upon, and egress from certain of his lots, lying on the north and south sides of the street. The defendants offered to prove, that the embankment and railroad were made under a paroi license of the plaintiff; this ^evidence was excluded, and a motion for a new trial was made • and refused. Cowen, J., *- in delivering the opinion of the court, says, “If the plaintiff was to be considered as the owner of the road, there can be no doubt, that he was incapable of granting by paroi, the right claimed by the defendants. It would be a right to enter on and occupy his premises by the railway, for an indefinite length of time, without a conveyance. sufficient within the statute of frauds, to convey a freehold,” citing Mumford v. Whitney (15 Wend. 380); Bridges v. Purcell (1 Dev. & Bat. 492); 1 Chit. Gen. Pr. 336-40. The learned judge then cites the English cases holding a license executed to be irrevocable, to which I have adverted, and says: “ These cases evidently let in a verbal distinction, under which, if retained and made applicable in its full extent, the statute of frauds would, in many important respects, be repealed. Parol licenses, irrevocable, would be made to pass a freehold; the well-established rule of the common law too, that easements and other incorporeal hereditaments shall pass by deed only, would be nearly repealed.” He afterwards says, “Many of these cases do conflict with these doctrines, and have been accordingly much qualified, if not entirely overruled, in the English as well as American courts.”

I now cite the sixth edition of Kent’s Commentaries, note F. to p. 451, where several other authorities are collected, showing that the tendency is, at this time, in the English courts, to overrule the class of cases to which Wood v. Lake and Taylor v. Waters belong, as irreconcilable with a just construction of the statute of frauds. I also cite Chit. Gen. Pr. (vol. 1, pp. 336 to 340), to show,, that in England, at the present day, those cases are regarded as of no authority, and I rely particularly on the language of Sugden, in his Treatise on Vendors and Purchasers (8th ed. 745), where he comments upon, and pointedly condemns the most of this class of cases, which obtained for a time in the English courts, as being in the teeth of the statute of frauds, and not to be supported. Now, I beg leave to say, that it never was * qri/f i Prended, in England, that a license, which *fell -* within the statute of frauds, could be upheld, notwithstanding it had been executed, and a valuable consideration paid for the privilege; but the error of these cases consisted, in holding that certain paroi licenses, conveying an' interest in lands and creating a right to easements, were not within the statute of frauds. In the ease before the court, therefore, if it be admitted that a license, under which standing timber to the value of over $2000 has been taken from the premises in question, and the lot then abandoned by the trespassers, did not convey a right to real estate, and that the title to that real estate remains unchanged by the acts of the trespassers, there can be no question respecting the rights of the plaintiffs to hold the judgment they have recovered.

But it will be asked, is there no remedy for a party who has proceeded under a paroi license, and expended his money and labor on the timber in manufacturing it into lumber ? I answer, there is no remedy at law, any more than there is in a case where a man purchases a hundred acres of land by contract, and expends $1000 in improvements upon it, and is sued in ejectment, by the owner of the legal estate. In both cases, he may file his bill in chancery for relief, when that court will see equal and exact justice done to both parties. At law, there is no remedy, and the defendant, before he can have any relief, must seek it at the door of another tribunal.

Edmonds, J., also dissented.

Judgment reversed, and new trial awarded. 
      
       It appears to be the settled doctrine in this state, that a paroi, license to do an act upon the land of another, such as, the cutting and carrying away of timber, is not within the statute of frauds, and when executed, is not revocable, so as to make the licensee a trespasser, by relation. Bennett v. Scott, 18 Barb. 347 ; Hobbs v. Wetherwax, 38 How. Pr. 385 ; Killmore v. Howlett, 48 N. Y. 569 ; Brown v. Stanclift, 3 Bright. Dig. 4874. But a paroi license conferring an casement in the lands of another, such as, the right to enter and build a dam, is within the statute, and revocable, at any time. Babcock v. Utter, 1 Abb. Dec. 27 ; s. c. 1 Keyes 115, 397. The cases in which the opposite doctrine has been held, appear to have proceeded on the ground, that a contract, partly executed, by taking possession and making valuable improvements, would be enforced in equity by a decree for specific performance. This was the case in Rerick v. Kern, 14 S. & R. 267, which however, in Jamieson v. Millemann, 3 Duer 255, was declared not to be the law of this state, or in this country, outside of Pennsylvania, Babcock v. Utter, supra. ■ But a paroi license is effectual to justify everything that may be done under it, prior to its revocation. Selden v. Delaware and Hudson Canal Co., 29 N. Y. 634 ; Cayuga Railway Co. v. Niles, 13 Hun 170.
     