
    Robert Croasdale, Resp’t, v. Daniel M. Lanigan, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    Easement—Lateral support op land—License, when revocarle.
    Plaintiff and defendant were adjoining owners. In grading his land for building, defendant removed soil along plaintiff’s line to a depth of several feet, and negotiations were opened as to the construction of a retaining wall. Defendant refused to construct it, but finally wrote to plaintiff that he had decided to give him the two feet he bad asked to build his wall on. The plaintiff built the wall of flat ordinary building stone, not hewn, and without mortar or cement, ninety feet long, two feet in width and four feet high, but defendant upon learning how -it was constructed notified, plaintiff that he had not agreed to give a deed, and as the wall was not built according to the understanding he intended to tear it down. Held,. that defendant had merely given a paroi license, which was revocable at. his option, and he could not be restrained from tearing down the wall.
    
      Appeal from judgment of the supreme court, general term, fourth department, affirming judgment entered at Onondaga special term, restraining the defendant from taking down or interfering with a retaining wall, built by plaintiff between the premises of. plaintiff and defendant.
    
      Lawrence T. Jones, for app’lt; M. M. Waters, for resp’t.
    
      
       Reversing 36 St. Rep., 575.
    
   Andrews, J.

This case presents a question of importance' from the principle involved, although the particular interest, affected by the decision is not large.

The action was brought to obtain equitable relief by injunction, to restrain the defendant from tearing down a stone wall erected on the defendant’s land, by the plaintiff, under an alleged paroi license from the defendant, and in the'erection of which the-plaintiff expended in labor and materials a sum exceeding $100. The parties are the owners of adjoining lots fronting upon a public street. The plaintiff’s lot is west of the lot of the defendant. The land in its natural state descended toward the east. In 1886-the plaintiff graded his lot and in so doing raised an embankment several feet high along his eastern line, adjacent to the-lot of the defendant, and erected a house on his lot In 188T the defendant graded his lot, and in so doing excavated the earth up to his west line, adjacent to the embankment on the plaintiff’s lot, to the depth of four or more feet, thereby removing" the natural support to the lot of the plaintiff as it was in its original state. Before the defendant had completed, his excavation the parties had an interview and the question of the support of the plaintiff’s embankment arose. The plaintiff claimed that the defendant was bound to build a wall where his excavation was. The defendant denied his obligation to do so and referred to the-fact that the plaintiff had raised his land several feet higher than it was in its natural state. The plaintiff wanted the defendant to-sell him two feet of his land to build a wall upon, which the defendant declined to do.

Both parties agree that the wall was spoken of. The plaintiff' testified that nothing was said between them as to what kind of a wall the plaintiff would build, nor as to its height, dimensions or quality. The defendant, on the other hand, testified that the plaintiff stated he would build a wall laid up in mortar, pointed on the side facing the defendant’s (proposed) house, and cement it on top with Portland cement. Some days after the interview, and on the 13th day of April, 1887, the defendant addressed a letter to the plaintiff, in which, after referring to their previous interview, he said: “ While perfectly satisfied that I am justified in grading my lot as far as I have done, and that if at any time your embankment should topple over on my land, that I could claim damages, yet perhaps I was a little hasty and somewhat unreasonable with you the other night, and although I came away fully determined to stand on my rights, and keep every inch of ground that belonged to me, since then I have thought the matter over seriously, put myself in your place, so to speak, and decided to give you two feet asked for to build your wall on.”

The plaintiff on the same day replied in writing, saying: I will be glad to accept your offer in the spirit in which it was given, and thus end a disagreement, etc. I expect to go to work immediately to build the wall, and will go as far into my bank as is consistent with its safety. I will also modify as much as I can the grade of the bank along the side and the front.” The plaintiff thereupon proceeded to build a wall on the defendant’s land, the building of which occupied four or five days. He first made a contract with a mason to build a mortared wall, and lime and sand were drawn upon the place to be used therefor. But for some reason he changed his mind, and he built the wall of “ flat ordinary building stone, not hewn into shape, and not packed into regular courses, nor dressed at all,” and without mortar or cement. The wall was ninety feet in length, two feet or less in width, and four to six feet high.

It does not appear that the defendant saw the wall during the course of its construction, except that he was upon the lot on one occasion when the foundation was being laid, nor does it appear that he knew that the wall was to be laid up loose, or at any time consented to the erection of such a wall as was constructed. Within two weeks after the wall was completed he notified the attorney for the plaintiff, who, at the request of his client, had written him demanding a deed of the two feet, that he had not agreed to give a deed, and that the wall was not built according to the understanding, and that he intended to tear it down.

This case was tried and decided upon the theory that the plaintiff had a license from the defendant to build the wall on his land, which when executed became in equity irrevocable. It was riot claimed on the trial, nor is it now claimed, that there was any contract on the part of the defendant to sell the land occupied by the wall to the plaintiff, which by reason of part performance equity will enforce. The claim and the finding is that the license to enter upon the defendant’s land, when acted upon by the plaintiff, conferred upon him a right in equity in the nature of an easement to maintain the wall on the defendant’s lot. If this claim is well founded, there has been created, without deed and in violation of the statute of frauds, an interest in the plaintiff and his assigns in the land of the defendant, impairing the absolute'title which he theretofore enjoyed, and subjecting his land to a servitude in favor of the adjacent property. It is quite immaterial in 2-esult that this intei-est claimed, if it exists, is equitable and not legal. An incumbrance has been created upon the defendant's lot and his ownership, to the extent of such interest, has bee2i divested.

We are of opinion that this judgment is opposed to the rule of law established in this state. There has been much contrariety of decision in the courts of different states and jurisdictions. But the courts in this state have upheld with great steadiness the general rule that a paroi license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is nevertheless revocable at the option of the licenso2-, and this although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the licensor. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements easily misunderstood. It gives security and certainty to titles which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land is clearly defined and well understood and is indisputable. But to change what commenced in a license into an irrevocable right on the ground of equitable estoppel is another and quite a different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed should be observed, than to leave It to the chancellor to construe an executed license as a grant depending upon what in his view may be equity in the special case.

There are several circumstances in the present case which rendu- the enforcement of such a jurisdiction a dangerous precedent The only license claimed is contained in the letter of April 13th. 'The language is: “I have decided to give you the two feet you asked for to build your wall on.” How far the wall was to extend, its character, or how it was to be built, is not stated.

Referring to the previous interview to which the letter alludes, the evidence of the plaintiff of what was said at the interview leaves the whole matter indefinite and uncertain. He testifies that neither the description, dimensions and character of the proposed wall were spoken of. The testimony of the defendant is to the contrary, but perhaps it is to be assumed that the trial judge adopted the testimony of the plaintiff.

Upon the case made by the plaintiff upon the letter and the prior conversations, if it was a case of contract, it is difficult to see how it could be enforced in equity. The cases are decisive that equity will only enforce a paroi contract for an interest in land when the contract is definite and certain in all its parts. The extent of the injury which will be suffered unless equity intervenes is also an element to be considered when its extraordinary jurisdiction is invoked. Here the amount expended by the plaintiff in reliance upon the license was comparatively small. The most reasonable inference is that the plaintiff confided in the good faith of the defendant as his security that the wall would be permitted to remain. It does not appear that anything was said as to the time it should be maintained. It is claimed that the wall was built for the benefit of both parties. This is founded on the assumption that the defendant’s excavation removed the natural support of the plaintiff’s land, and subjected him to liability. But this would not take the case out of the statute nor authorize the interference of equity to enforce the license as a grant in equity. The same element of common benefit is found in the case of Cronkhite v. Cronkhite, 94 N. Y., 323.

The trial judge refused to find the facts as to the effect which would have followed from the defendant’s excavation in case the plaintiff’s land had continued in its natural state. He tried and decided the case on the theory that the license, when executed, became irrevocable. In this, we think, he erred. The cases of Mumford v. Whitney, 15 Wend., 380, and Cronkhite v. Cronkhite, supra, are, we think, decisive of this action.

Judgment reversed, new trial granted, costs to abide event.

All concur.  