Opinion
Argued November 27, 1883
Decided January 15, 1884
J.B. Rafter for appellant.
Amos H. Prescott for respondent.
The referee, before whom this action was tried, found that, in or about 1832, Henry C. Cronkhite (plaintiff's father) and John C. Cronkhite (defendant's father), who owned adjoining farms, entered into a contract or agreement whereby they agreed to lay down logs or pipes upon the lands of John C. Cronkhite to carry water from a spring upon his farm to his buildings for his use, and from thence to the buildings of Henry C. Cronkhite for his use; and that it was agreed that Henry C. Cronkhite should bear one-half the expense, and perform half the labor of procuring and laying down the logs and pipe, etc.; and that, in consideration of such expenditure and labor, he should have a right to take water from said spring through logs and pipes in perpetuity, etc. The complaint alleges an agreement in writing upon which the plaintiff's right to maintain this action is founded. At the trial no written agreement was proved, and the plaintiff relied upon parol proof of the declarations and acts of the parties which, as he claimed, established the right to use the water in the spring by adverse possession for a period of forty years or over. The agreement found by the referee rests upon the oral declarations of John C. Cronkhite in allowing his brother, Henry C. Cronkhite, the right to take and use the surplus water of the spring, which was upon the land of the former, and which he used for his own benefit. The testimony upon the trial established a parol contract between John C. Cronkhite and Henry C. Cronkhite, whereby Henry C. was to take and use the water, and there was proof showing that both parties acted in accordance with that agreement. Money was expended by Henry C., pipes were laid down and improvements made in connection with the use of the water, but there was no specific agreement as to the size of the pipes, the amount of water to be carried through them, how far below the surface they were to be laid, how long they were to be continued, or who was authorized to direct and control them and decide as to their character. Nor was there any arrangement which authorized Henry C. Cronkhite to enter upon the land of his brother for the purpose of repairing, laying down, or improving the pipes, nor was the quantity of water to be used by either party fixed, except by the gauging at the spring, when a new line of pipes was laid. The arrangement made had reference to the surplus water belonging to John C., and it was evidently intended that Henry should only have the use of that. In case of a deficiency of water, by reason of the spring giving out, or in consequence of an increase in its use by John C. for his own purposes, the agreement might be ended. Disagreements might also arise as to how, and when, and where the pipes should be laid and repaired, and as to the manner in which the spring should be protected, and thus it would be difficult for a court of equity to determine the precise character of the agreement. The evidence given upon the trial was too vague and uncertain to establish a valid agreement in perpetuity such as the law recognizes. The statute requires an agreement of this character to be in writing, expressing a consideration, and to establish it otherwise, by adverse possession, the proof should be entirely clear as to the nature and specific character of the agreement so that it can be eventually carried out and enforced.
To enforce an agreement relating to real estate, in a court of equity, it must be a complete and sufficient contract founded not only on a valuable consideration, but its terms defined by satisfactory proof accompanied by acts of part performance unequivocally referable to the supposed agreement. ( Wiseman v. Lucksinger, 84 N.Y. 31; 38 Am. Rep. 479.) No such agreement was established on the trial, and we think that the finding of the referee was without sufficient evidence to support it. The most that can be claimed as to the agreement proved is that it was a license which was revocable at the pleasure of the person granting the same, or his heirs or representatives. The right to revoke a license, which does not partake of the character of a grant, and where the rights are not affirmatively and definitely fixed and settled, is fully established by the authorities. Even when a consideration is paid the right of revocation exists where the terms of the agreement are not of such a nature as to make out a valid agreement which could be enforced in equity. Nor does the fact of the performance of the agreement render it effectual and valid unless the acts of performance are so clear, definite and certain in their object and design, as to refer exclusively to a complete and perfect agreement, of which they are a part execution. ( Wheeler v. Reynolds, 66 N.Y. 227.)
The question under discussion in this case has been the subject of consideration recently in this court. In the case of Wiseman v. Lucksinger ( 84 N.Y. 31; 38 Am. Rep. 479), the plaintiff had paid a sum of money for permission to drain his lot upon the land of the defendant, and took a receipt for the same, and he used and enjoyed the privilege for twenty-five years, when the defendant revoked the permission. In an action to enforce the right of the plaintiff, it was held that such user did not give the plaintiff a prescriptive right to the easement, as the possession was by consent of defendant and there could be no adverse possession until defendant cut off plaintiff's drain. It was also held that the right to drain was an easement which could not be conferred by parol license, but could be granted only by deed or conveyance in writing, and that an oral contract, which equity will regard as equivalent to the grant required at common law or by statute, must as already stated be a complete and sufficient contract in all its parts.
The authorities are fully discussed in the opinion in the case cited, and, within the law as there laid down, that case is decisive of the question now presented. Following that decision it is manifest that the referee erred in his finding.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.