
    Miller v. Brown.
    An owner of ground, with whose consent an adjacent proprietor occupies a portion of his premises on which to build a joint wall, can not tear away such wall after a building has been erected thereon, upon the faith of his acquiescence in its location and construction.
    Error to the District Court of Cuyahoga county.
    In the Court of Common Pleas of Cuyahoga county, Brown filed his petition against Miller to recover damages. Plaintiff and defendant had adjoining lots in the village of Berea, defendant being east of plaintiff. The boundary line-between them was undefined, and as plaintiff was about to-erect a brick wall, the parties agreed that it should stand upon the land of each. The wall had been commenced by Brown, and the foundation, which occasioned the dispute, had been laid, by agreement and consent of both, and thereupon, the 5th of October, 1866, the parties entered into the following agreement in writing:
    “ This agreement made this 5th day of October, 1866, between S. S. Brown and John L. Miller, both of Berea,. Cuyahoga county, Ohio.,
    “ "Witnesseth: That whereas S. S. Brown is about to ei’ect a brick building on the lot now owned by him, being on the south side of Bridge street, and a part of fraction D,. in the village of Berea, Ohio. And whereas, John L. Miller owns the lot adjoining on the east side ; S. S. Brown’s-east liue, and John L. Miller’s west line being the same; and whereas, the precise line can not be exactly defined at the present time, it is, therefore, mutually agreed that the said S. S. Brown shall put up the east wall of his building, where it is now commenced, and is supposed to be the line, on the following conditions, to wit:
    “That the said John L. Miller shall pay the said 8. S. Brown, one hundred dollars on the completion of said wall, to be for him; and then the said John L. Miller is to own one-half of the said wall, be for him and his use, and his-heirs and assigns forever. And in case the said J. L. Miller neglect or refuse to pay the said one hundred dollars as aforesaid, then the said wall is to belong to the said S. S. Brown, and also the land on which it stands, by paying the said J. L. Miller $17.50 per foot, or at that rate, for whatever land may be found to belong to the said JohiAL. Miller. And it is further mutually agreed that whenever said line shall be satisfactorily established, if it is found to be-west of the center of the said wall, then the said S. S. Brown shall pay the said John L. Miller for the same at the rate of $17.50 per foot front for the same, and if it is found to be east, then the said John L. Miller is to pay tbe said S. S. Brown at the same rate.
    “ In witness whereof, we have hereunto set our hands .•and seals the day and year first above written.
    “ S. S. Brown, [seal.]
    
      “ John L. Miller, [seal.] ”
    The wall was built of brick, upon a foundation of stone. This foundation extended some four inches beyond the brick wall, and when defendant, Miller, started to build on his own lot, as he subsequently did, he dug below the brick wall, and began to build right upon its east line. When he reached this foundation, which extended beyond the brick wall and upon his own land, some four inches, he cut it .away. This is the injury complained of. Plaintiff Brown says this caused the brick wall to settle, cracking his house, and occasioning him damage.
    Defendant Miller claims that this projection of four inches, extended wholly upon his land, and therefore he hud the right to cut it away or do with it what he would.
    It will be seen from the written contract, that Brown •was to build the wall and Miller was to pay $100, and own • one-half of it; then the line between them was to be fixed, .and if it turned out to be west of the center of the wall, Brown was to pay Miller $17.50 per foot for the ground of Miller’s occupied, if it were east of the center of the wall Miller was to pay Brown at the same rate.
    Defendant Miller offered in evidence the record of a -cause between the same parties, wherein Brown had sought specific performance against Miller, to compel him to convey the land upon which the wall had been built, in accordance with the terms of the written contract above. In this record it appeared that when they came to survey the premises, it was found that the wall stood fifteen inches on Miller’s, this fifteen inches including the four inches projection of the foundation. Brown wanted a deed for this fifteen inches, so including the projection, but the district court said he was not entitled to it, but only to eleven invehes, which was the width of the brick wall within the projection. As Brown was not satisfied to take the eleven’ inches, but claimed more, the district court dismissed the petition, entering the following decree :
    “ This cause came on to be heard upon the pleadings and exhibits, and the agreement of the parties that the pleadings show correctly the length of the wall, and a projection of the foundation for the distance of seventeen feet, at the-rear end of the wail. They also agree that a projection in the foundation, of four inches, on the east side of the brick wall, was left at the request of the defendant, which request was made after the execution of the contract; that • the fifteen inches from the street back to the projection claimed by the plaintiff, included this four inches of foundation, east of the brick wall, in front of the seventeen feet, was not, at the date of the contract, completed; and was-argued by counsel, on consideration whereof, the court find that under the contract of October 5, 1866, plaintiff was only entitled to a conveyance of that part of the defendant’s land covered by the brick wall, being about eleven inches wide from the street to the rear end of the wall, and that because the plaintiff demanded more than he was, by the terms of his contract, entitled to, he did not put himself in position to claim that the defendant was in default and the plaintiff refusing in open court to receive a conveyance for the lands covered by said brick wall, the court dismisses the petition, at the cost of the plaintiff, to be taxed, to which ruling of the court the plaintiff excepts, and this-decree is entered without prejudice to the right of either party to hereafter compel a performance of said contract in pursuance of the finding of the court herein.”
    Defendant, Miller, claims that this decree settles the case-before us now; that Brown had no right to occupy beyond the east line of the brick wall, thus depriving him of all interest in the four inches of projection, which, of course,, would preclude his right of recovery for cutting it away.
    The plaintiff in error asked for a great number of charges, which we compress into two propositions: 1. That owning-the land on which the four inch pi-ojection stood, he had the absolute, unqualified right to cut it away. 2. That the district court had already so determined, which was conclusive in the matter.
    The court refused to charge, and verdict was against-Miller, defendant below, who is plaintiff here.
    
      S. Burke, for plaintiff in error,
    claimed that Brown had no right to occupy any land east of the east line of the brick wall, either with the foundation to his brick wall, or in any other manner.
    The law governing the rights of adjoining proprietors,, in cases of this kind, is exceedingly well settled. It is settled by many authorities, that one adjoining proprietor has no right, by digging upon his own land, to remove the natural support of the soil of the adjoining land. But it is also very well settled that the adjoining owner has no right,, by building or constructing buildings upon his own land,, to increase the servitude of the adjoining land. In other1 words, the only servitude owed by adjoining land is that-of supporting the natural soil in its natural condition, and does not extend to buildings ; and in this case there is no pretense that any digging done by the defendant, upon his own land, in any way interfered with the natural soil upon the plaintiff’s land. The nature of the soil wholly forbids such a conclusion.
    The cases upon this point are plain and uniform. See 2 Hilliard on Torts, 12-15, and the numerous cases cited in note a, where many authorities upon this point are collated; Washburn on Easements, 54-3 ; Thurston v. Hancock, 12 Mass. 226 ; Farrand v. Marshall, 19 Barbour, 880-386 ; Richardson v. Vermont Central Railroad Company, 25 Vt. 465 ; La Salla v. Holbrook, 4 Paige, 169; Radclife v. Meyer, etc., 4 Comst. 195; cases cited in Washburn on Easements, note 1, page 546; Id. 550 ; Wyatt v. Harrison, 3 Barn. & Adolf. 871.
    The only thing which the district court decided in -the action for a specific performance, was the amount of land to which the plaintiff was entitled to a conveyance; and if this is the interpretation to be given to that decision, then it was immaterial in that case, and of no consequence in the case either way while the projection in the wall was left; and there certainly is nothing in this case to indicate why it was left; there is no writing in respect to it, and all that the record shows is that it was left at the request of the defendant, and we maintain that this request conferred no lights whatever upon the plaintiff.
    This principle is fully recognized by the Supreme Court, in the case of Hieatt v. Morris, 10 Ohio St. 523. The court, in that case, substantially recognized the doctrine that an agreement, even in regard to a party wall, is not to be so •construed as to create a perpetual easement by one party, in the land of the other; and that such agreements are to be reasonably construed. Now, can it be said in reason, that the defendant, by requesting that this projection should be left, in any way obligated himself not to occupy that strip ■of ground of twenty-three feet in length and four inches in breadth ? Can it in reason be maintained, that by such a request he abandoned that four inches of ground to the plaintiff', and deprived himself of the right to own and control the same, or to collect pay of the plaintiff for the same? Such an interpretation would certainly do very great violence to the intention of the parties, and to the language employed by them.
    In 2 American Leading Cases, 558, under the head of License, it is laid down : “ That an easement in land, such as is claimed here, can only be granted by deed or writing.” It is there said that parties will not be allowed to do that by indirect means which the legislature have forbidden to he done directly.
    Title is the right to possession and enjoyment; and an irrevocable authority to possess and enjoy is virtually a title.
    If I can use the land of another for a purpose of my own, under an authority which he can not recall, the ownership is, relatively to that purpose, in me and not in him. To give an oral license an effect which is denied to a con-tract, is, therefore, to virtually abrogate the statute of frauds. See 2 Hills, s. c., 534; 38 Missouri, 560; 46 New Hampshire, 505; 4 Sandford Ch. 72. In this last case, the court said, that there was no middle ground between a license and an easement.
    If it was an easement the grant must be in writing, under the statute of frauds; if a license, it could not descend or be transferable, and was revocable at pleasure by the grantor.
    
      S. J. Andrews, for defendant in error:
    As to the law of easements and servitudes, see Wash-burn on this subject (3 ed.), 566, 568.
    The immunity from any injurious interference with the wall by one party, after it is constructed by the other party,
    ■ depends not upon long occupation nor upon formal license or grant, but upon the agreement of the parties and the rights, legal or equitable, growing out of it, and it is practically immaterial whether the agreement is written or verbal, if it is executed.
    It may be true that at common law an easement could be created only by grant, but it is just as true that an easement can be acquired without grant, in the enjoyment of which a court of equity will protect a party as effectually .as if his title was indefeasible at law. A verbal contract for the sale of land is utterly void at law, yet if the party takes possession and expends his money in making improvements he can compel a specific performance. Washburn (3 ed.), 97; Platt v. Eggleston, 20 Ohio St. 414.
    So while at common law a parol license is revocable, yet it has been held that after it has been acted upon, and expense incurred by the licensee, it can not be revoked to his prejudice. Le Fevre v. Le Fevre, 4 Sargent & Rawle, 241.
   Wright, J.

Before the written contract had been entered into, Brown had begun his Avail and had partially ■constructed the stone foundation, and it was built where it was by the consent of defendant, and the mutual agreement of plaintiff and defendant. It was not then certainly-known where the lines would be. There was perhaps as-much reason to suppose that the four inches would turn out to be upon Brown as upon Miller. But even if it were upon Miller, as it is now ascertained to be, if he allowed Brown to goon, and in good faith build upon his premises in the way he did, it is too late now to retract. Brown spent his money upon the wall which was to be for the-benefit of both; Miller saw him do it, saw him put thefouudation just where he did. He can not tear it away. Washburn on Easements, ch. 1, sec. 3, par. 43, p. 97 (3 ed.) ; ch. 3, sec. 4, par. 23, p. 406.

As to the decree of the district court. That action was-for specific performance under the written contract of 5th October, 1866. But rights in Brown had vested prior to that contract, and no decree upon it could affect their prior-rights.

The sole purport of that decree was that Brown was entitled to a deed for eleven inches and not.fifteen. Nothing-else was determined. No other rights were in issue. The-court did not attempt to settle -what rights Brown had in the four inches beyond the eleven. They said he was not entitled to a deed for those four inches, but they did not say he had no interest therein whatever. They did not say that circumstances could not create an easement therein. The decree only settled the rights between the-parties as to what portion of the land specified in the contract Brown was entitled to have conveyed to him by Miller.

The court, therefore, were correct in holding that this-record did not conclude the parties in the pending cause.

Judgment affirmed,.  