Nelson v. Nelson

Full title: NELSON v. NELSON

Court: Supreme Court of Mississippi, In Banc

Date published: Jun 8, 1942

8 So. 2d 507 (Miss. 1942)

8 So. 2d 507

Opinion

No. 34861.

June 8, 1942.

1. LICENSES.

Complainant could not maintain a suit against his wife to enjoin her from interfering with collection of rents by complainant after complainant had built houses on wife's land in reliance upon an allegedly gratuitous oral license granted by wife authorizing complainant to construct houses for purposes of leasing them.

2. LICENSES.

Where bill in suit to enjoin complainant's wife from interfering with collection of rents by complainant from tenants in houses built by complainant on wife's land under a gratuitous oral license claimed to have been granted by wife alleged that complainant had the right under license to either remove houses or continue to occupy land with them, but there was no allegation that complainant had attempted to exercise his right to remove houses and had been prevented from doing so by wife, the existence of such right vel non was not presented by bill.

APPEAL from chancery court of Washington county, HON. J.L. WILLIAMS, Judge.

Percy Bell, of Greenville, for appellant.

There is but one question of law involved in this case, which is whether or not an irrevocable license for the use and occupancy and improvement of land can be created in Mississippi by the acts of the defendant-appellee, and was so created.

There are three cases decided by our Supreme Court bearing upon this question: Beck v. Louisville, etc., R.R. Co., 65 Miss. 172, 3 So. 252; Belzoni Oil Co. v. Railroad Co., 94 Miss. 58, 47 So. 468; and Binder v. Weinberg, 94 Miss. 817, 48 So. 1013.

Curiously enough the writer was chancellor in the Belzoni Oil Company case and counsel in the Binder case.

In the various extended notes on this subject in Lawrence v. Stringer, 31 Am. St. Rep., beginning on page 712, the subject of parol licenses is gone into very thoroughly by Mr. Freeman. He states correctly that there are two lines of authorities on the subject.

One line holds that a parol license to be exercised upon the land of another creates an interest in the land which is within the Statute of Frauds, and may be revoked by the licensor at any time, no matter whether or not the licensee has exercised acts under the license, or expended money in reliance thereon.

The second line of authorities holds that the licensor is deemed to be equitably estopped from revoking the license after allowing the licensee to perform acts thereunder making the contract an executed one, or to make expenditures in reliance thereon.

The first line of authorities is based upon the strictness of the common law and is an exceedingly harsh rule.

The second line of authorities is based upon equity and justice and it requires no argument in the writer's opinion to demonstrate that it is the rule of right and justice. The learned author in his notes placed Mississippi on the authority of Beck v. L.N.O. B.R.R. in the first line of authorities. With all due and proper respect for the learned commentator we think that this case does not cover a situation like the one in the case at bar. In the Beck case the railroad entered upon the land without objection from anyone and the action was at law in ejectment. The claim to a license was based upon an acquiescence in the occupation and an implied promise and not upon an express act and agreement followed by a performance of the agreement. The holding of the court was to the effect that the railroad company could not build upon the land of one who does not object and thereby secure an irrevocable license for a right-of-way. There was in the Beck case no expressed authority to proceed nor expressed license as in the case at bar, and we submit that the case is not properly cited in the notes above referred to; that no question of a license based on a performed agreement arose therein.

There are many authorities in other states supporting the harsher rule, and, as the commentator stated, the two lines could not be reconciled but we submit that he was in error in placing Mississippi with the harsher states on the authority of the Beck case alone.

The subject re-arose in the Belzoni Oil case. In this case the claim was not based upon as strong a state of facts as the case at bar. That case was tried before the writer as chancellor and the decision was announced by Judge Whitfield. Judge Whitfield held that there were no words of grant in the written agreement and furthermore stated that "this court has declined to follow the line of cases holding that a licensee who has entered under a license and expended large sums for improvements, etc., may not have his license revoked without refunding the money so expended." In support of this position he cited the Beck case, an examination of which we think does not support the classification of Mr. Freeman. He also referred to the Freeman notes hereinabove mentioned and says that Judge Campbell expressly stated in the Beck case that "this doctrine had no footing in our jurisprudence." A careful reading of Judge Campbell's opinion does not disclose any such statement. And we submit that the learned Judge Whitfield was misled by the inclusion of Mississippi by Freeman in the harsher line of other states.

The third case in which the question has come before this court was one in which the writer, relying upon the decision of the court in the Belzoni Oil case, defended Weinberg upon that authority. The writer believed at the time that the rule as announced in Binder v. Weinberg was without doubt the just and equitable rule but that our court in the Belzoni Oil Company case had repudiated that rule. Curiously enough the Binder decision was announced by Judge Whitfield. In that case there were no representations whatever as there are in the case at bar but the court through Judge Whitfield said that the appellee was estopped by equitable considerations from obstructing this common hallway. On page 826 the court further said "it is evident that the appellant had put his money into the construction of this hallway upon the faith of a verbal agreement." The court furthermore quoted with approval from the Cleland case, 133 Pa. 189, and Clark v. Henckel (Md.), 26 A. 1039. In the Maryland case the court quotes with approval the decision of the Maryland court that verbal agreements fully exercised and performed on both sides would be carried out by a court of equity.

Our court quotes with approval from the Cleland case as follows: "A right of this character, while not strictly an easement, is in the nature of one. It is really a permission or license, express or implied to use the property of another in a particular manner or for a particular purpose. Where this permission has led the party to whom it has been given to treat his own property in a way in which he would not otherwise have treated it, as by the erection or construction of permanent improvements thereon, it cannot be recalled to his detriment. Having expended his money upon the faith of it, and not being able to be restored to his original position, equity will not allow the permission to be revoked in breach of such faith. This has given rise to the doctrine of executed or irrevocable licenses. This doctrine obtained an early foothold in Pennsylvania, and has been consistently adhered to ever since. The defendants are furthermore affected with both actual and constructive notice of the right to which the plaintiff lays claim. Not only were they directly notified of its existence, but they could not use their eyes without having it plainly called to their attention. It was an evident servitude existing over the one building in favor of the other, and arising out of the permanent form in which the building has been constructed. They were thus put upon such inquiry as would have elucidated the facts upon which the plaintiff now justly relies and are bound thereby."

The Cleland case stated that the theory announced and italicized by the writer has given rise to the doctrine of executed or irrevocable licenses and our court in the concluding paragraph of the opinion says, "We think this statement of the law is not only eminently just, but perfectly sound, and covers the case in hand fully." The appellant believes that this last interpretation of the Supreme Court is correct and that it should be followed.

This appeal is taken for the purpose of giving the court the opportunity of placing Mississippi among those states which believe in justice and right and equity and of making its position no longer one of doubt.

We submit that the Belzoni Oil case basing its position upon the Beck case erroneously decided the question of irrevocable license in Mississippi; that the court in the Binder-Weinberg case announced the correct rule and that in the instant case the chancellor below adhering to the harsher rule instead of the lighter rule erred.

See, also, United States v. Baltimore O.R. Co., Fed. Cas. No. 14,510 (1 Hughes 138); Flickinger v. Shaw, 87 Cal. 126, 25 P. 268, 22 Am. St. Rep. 234, 11 L.R.A. 134; Smith v. Green, 109 Cal. 228, 41 P. 1022; Tynon v. Despain, 22 Colo. 240, 43 P. 1039; Russell v. Hubbard, 59 Ill. 335; Lee v. McCleod, 12 Nev. 280; Flick v. Bell (Calif.), 42 P. 813; Lane v. Miller, 27 Ind. 534; Addison v. Hack, 2 Gill. 221, 41 Am. Dec. 421; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484; Woodbury v. Parshley, 7 N.H. 237, 26 Am. Dec. 739; Ameriscoggin Bridge v. Bragg, 11 N.H. 102; Sampson v. Burnside, 13 N.H. 264; Howes v. Barmon, 11 Idaho 64, 81 P. 48, 69 L.R.A. 568, 114 Am. St. Rep. 255; Cook v. Stearns, 11 Mass. 533; Cheever v. Pearson, 33 Mass. (16 Pick.) 226; Claflin v. Carpenter, 45 Mass. (4 Metc.) 580, 38 Am. Dec. 381; De Graffenried v. Savage, 9 Colo. App. 131, 47 P. 902; Hiers v. Mill Haven Co., 113 Ga. 1002, 39 S.E. 444; Nowlin v. Whipple, 120 Ind. 596, 22 N.E. 669, 6 L.R.A. 159; Buck v. Foster, 147 Ind. 530, 46 N.E. 920, 62 Am. St. Rep. 427; Kastner v. Benz, 67 Kan. 486, 73 P. 67; Jarvis v. Satterwhite, 3 Ky. Law Rep. 190; Maxwell v. Bay City Bridge Co., 41 Mich. 453, 2 N.W. 639; Bowman v. Bowman, 35 Or. 279, 57 P. 546; Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98; Ruthven v. Farmers' Co-op. Creamery Co., 140 Iowa, 570, 118 N.W. 915; Dawson v. Western Maryland R. Co., 107 Md. 70, 68 A. 301, 14 L.R.A. (N.S.) 809, 126 Am. St. Rep. 337, 15 Ann. Cas. 678; Binder v. Weinberg, 94 Miss. 817, 48 So. 1013; Polakoff v. Halphen, 83 N.J. Eq. 126, 89 A. 996; City of Barre v. Perry Scribner, 82 Vt. 301, 73 A. 574; Lashley Telephone Co. v. Durbin, 190 Ky. 792, 228 S.W. 423; Leininger v. Goodman (Pa.), 120 A. 772; Reynolds v. McLemore (Texas), 241 S.W. 606; Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759; Bosworth v. Nelson, 170 Ga. 279, 152 S.E. 575; Boland v. Walters, 346 Ill. 184, 178 N.E. 359; Schwarz v. Medford Lakes Colony Club, 116 N.J. Eq. 465, 171 A. 496; McCarthy v. Kierman, 118 Or. 55, 245 P. 727; David v. Brokaw, 121 Or. 591, 256 P. 186; Dutton v. Davis, 103 Vt. 450, 156 A. 531.

Ben Wilkes, of Greenville, for appellee.

I am frank to say that in my judgment the allegations of the bill set forth a cause of action such as would give to the complainant the right to occupy the houses and collect rents therefrom until such license was revoked by the owner of the land, appellee herein. I deny, however, that it entitles him to any irrevocable license. It must be borne in mind that this agreement is in parol, and it is our contention that any claim that such a license is more than a revocable license would bring it squarely within the Statute of Frauds.

A license in respect of real property is an authority or permission to do a particular act, or series of acts, upon the land of another without possessing any interest or estate in such land. It is a mere personal privilege to do certain acts upon the lands of another, of a temporary character, and therefore is non-assignable, and generally is revocable at the will of the licensor.

37 C.J. 279.

Conceding that a license had been granted, the sole question before this court is whether or not such a license is revocable. As stated by counsel for the appellant there are two lines of authority, it is not possible to reconcile them.

In general, a revocable license to be exercised on the grantor's land may be granted by parol. In some instances a statute expressly provides that parol licenses of a specified kind shall be valid. But so-called licenses, which are coupled with an interest in the land, and affect the right of the owner to its exclusive possession, or give some usufruct in the land itself, must be in writing, and cannot be granted by parol.

See 27 C.J. 216.

To declare a parol license perpetual, permanent or irrevocable would violate the provisions of the Statute of Frauds relating to the creation of interest in real property; and it may be properly done only where there are facts and circumstances which take the case out of the statute, such as fraud or estoppel. To allow a claim that a parol license when executed is irrevocable would be to allow the creation of an interest in land without a deed and in violation of the Statute of Frauds. Nor will the circumstances that the licensed act inures to the benefit of both licensor and licensee take the case out of the Statute of Frauds. However there is considerable conflict of authority on the general question of whether an executed license is revocable.

27 C.J. 217.

In some jurisdictions where the licensee has acted under the license in good faith, and has incurred expense in the execution of it by making valuable improvements or otherwise, it is regarded in equity as an executed contract and substantially an easement, the revocation of which would be a fraud on the licensee, and therefore the licensor is estopped from revoking it, and the rights of the licensee will continue for so long a time as the nature of the license calls for; this rule is particularly applicable where the licensor joins in the enterprise and accepts the benefits of the licensee's labor and expense.

37 C.J. 292.

Quite a few authorities are cited under this rule, and this is the rule that the appellant here tries to get this court to adopt.

In other jurisdictions, according to what is said to be the better rule, where there is merely a parol or implied license, neither the execution of the license nor the making of expenditures in reliance thereon affect the right of the licensor to revoke the license so far as it is unexecuted, at his pleasure.

37 C.J. 294; Beck v. Louisville, etc., R.R. Co., 65 Miss. 172, 3 So. 252; Belzoni Oil Co. v. Yazoo, etc., R. Co., 94 Miss. 58, 47 So. 468.

I shall not burden this court with the decisions of other states as I believe the point has been definitely settled by the Supreme Court of Mississippi for us. I have carefully investigated the authorities of the different states and while the matter has not been passed on in all I find Mississippi classed with Alabama, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New York, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Utah, Washington, West Virginia and Wisconsin, all following the second rule which says that the license is revocable. It is true that I find about an equal number of decisions from other states holding that the license is not revocable; many of the latter, however, have statutes which provide that part performance of a contract takes it out of the Statutes of Fraud. This is not true in Mississippi.

It has long been the settled doctrine of this court not to accept part performance, or any other thing, to take a case out of the operation of the Statute (of Frauds).

Fisher v. Kuhn, 54 Miss. 480.

We respectfully submit that the Beck case and the Belzoni Oil Company case, supra, are squarely in point herewith and definitely settle this question adversely to the appellant.

Percy Bell, of Greenville, for appellant, in response to the court.

The court has requested additional briefs upon the following questions: (1) Is Agnew v. Jones, 74 Miss. 347, 23 So. 25, in conflict with Beck v. Louisville, etc., R.R. Co., 65 Miss. 172, 3 So. 252, and Belzoni Oil Co. v. Railroad Co., 94 Miss. 58, 47 So. 468, and if so, what effect should be given it here? (2) In event the court should decide that the license here granted the appellant by the appellee is revocable, will it be called on to decide whether or not the appellant has the right to remove the buildings constructed by him from the land? The bill of complaint does not allege that he has attempted to remove these buildings and been prevented from so doing by the appellee, and the only reference to such a right therein is in the clause of its prayer, "and at said hearing will confirm the license of your complainant to occupy the property with his structures or to remove the same if he may desire."

A consideration of the Agnew case confirms counsel in his brief that there has been and is no real conflict in Mississippi.

I take it that for a parole license to become irrevocable there must be three distinct elements: (1) a definite understanding between the parties; (2) the promisee must have acted upon the agreement or promise to his detriment by expending money and materials; and (3) there must be an effort on the part of the original promisor to revoke his promise and the license created thereby. I take it further that it is clearly established that the more confidential the relationship existing between the parties, the more strictly will the courts enforce the agreement.

Now, taking these considerations one by one, we see that in the first case in Mississippi — the Beck case — there was no agreement whatever. The action was one in common law in ejectment, in which the railroad set up a course of non-objection as creating a license. The court properly held that there was no license created. This was all that was necessary to decide the case, and its further statement concerning irrevocable licenses was practically obiter.

The second case — of the Belzoni Oil Company — when examined discloses that there was no agreement whatever between the railroad company and the landowner. One S. Castleman had endeavored to give a permit to the railroad, but as he was not the owner nor the authorized agent of the owner, there was no license at all, and there having been no actual license, there could not have been, of course, irrevocable license.

In the Weinberg case there was an express agreement between the parties, and in reliance upon that agreement the promisee had proceeded to his detriment, and our Supreme Court properly decided that such a course of conduct would be met in a court of equity with the doctrine of estoppel.

The Agnew case is also a case of express agreement between the parties, sustaining, or rather anteceding, the Weinberg case by the court's upholding the agreement of the parties. The case at bar is stronger for the appellant than any of these other cases. Not only was there an express agreement that Mr. Nelson should improve the property and collect the rents but this agreement was acted upon to his detriment by him in his reliance upon the sacredly confidential relationship of husband and wife.

The answer, therefore, to the first question propounded by this court is that Agnew v. Jones conflicts with the obiter statements of the Beck and Belzoni cases, but does not conflict with the facts, and being a proper exposition of law, should be followed.

The second question I think largely answers itself. If the buildings were built by Mr. Nelson at his own expense in reliance upon his wife's agreement, then I think the doctrine of irrevocable license applies, and he should be given, first, a judgment against Mrs. Nelson for the rents of his that she has collected, and second, a certain length of time within which she shall reimburse him for the moneys expended on his improvements and take them over, or he should be granted time within which to remove the improvements, and permission to do so.

See 37 C.J., Licenses, pp. 291-299.

Ben Wilkes, of Greenville, for appellee, in response to the court.

In an effort to intelligently and honestly answer these questions I have read and studied very carefully the three cases referred to and the bill of complaint herein. I shall briefly discuss each case, trying to point out the differences therein.

My answer to the first question is that there are statements in the Agnew v. Jones case that, taken alone, are directly in conflict with both the Beck case and the Belzoni Oil Co. case. I do not think that any of these cases can be brushed aside, as counsel for appellant attempts, by saying that all unfavorable statements "are practically obiter." It cannot successfully be contended that the question of a license and the revocability thereof was not a material issue in both the Beck case and the Belzoni Oil Co. case. The Beck case was tried upon an agreed statement of facts which is not set out in the printed report, but a reading of the portion of appellant's brief (page 174 of Vol. 65, Miss. Reports) shows that this question was before the court. The report leaves us somewhat in the dark as to just what did occur when the tracks were laid, but the court settles all that by saying, "If Klien had expressly licensed it by parol, such license would have been revocable at pleasure, etc." And in the same opinion, "A parol license may shield from liability for trespass, but it is revocable and when revoked is no longer a protection."

The opinion itself answers counsel's contention that no license was involved in the Beck case.

In the Belzoni Oil Co. case there was a written instrument which the court specifically held was a license. The instrument appears in full on pages 72-73 and 74 of Vol. 94, Miss. Reports. After setting out the instrument in full the court said ( 94 Miss. 74), "The instrument conferred upon the Yazoo and Mississippi Valley Railroad Co. a mere license." And (Page 74 same report), "There are no words of grant in the instrument. It was revocable, and under the facts of this case could be revoked without refunding any money spent by the Yazoo and Mississippi Valley Railroad Co. That line of cases which holds that where one has entered under a license and expended large sums for improvements, etc., the other, the licensor may not revoke the license without refunding the money so expended, this court has declined to follow."

The court further held that the doctrine of irrevocable licenses has no footing in our jurisprudence, and quotes with approval the similar holding in Crosdale v. Lanigan, 129 N.Y. 604, 29 N.E. 823, 26 Am. St. Rep. 551. The reasoning is most sound.

Counsel for appellant however attempts to dispose of Belzoni Oil Co. case by saying there was no agreement between the landowner (Belzoni Oil Co.) and the railroad company; that one S. Castleman endeavored to give the permit to the railroad company and that he was neither the owner of the land nor the agent of the owner. Unfortunately for counsel's contention, the Belzoni Oil Co. made the same claim on the trial of the case, that is, Belzoni Oil Co. was not a party to the agreement and the court disposed of that contention by saying (Page 76, Official Report) "We do not think there is anything in the contention of the Belzoni Oil Co. that it was not a party to this instrument, etc.," and then gives the reasons therefor. I think the above statement of the court disposes of counsel's contention in his brief that the Belzoni Oil Co. was not a party to the agreement, just as it disposed of the same contention on the part of the Belzoni Oil Co. when the case was tried. I repeat this case cannot be brushed aside as has been attempted by appellant.

Both of the above cases undoubtedly place Mississippi with those states which hold that a license is revocable at the will of the licensor.

I have carefully studied Agnew v. Jones, 74 Miss. 347, 23 So. 25. Standing alone, the opening statement of the opinion in that case, as well as some other portions thereof, appear to be in direct conflict with the holdings in both the Beck and Belzoni Oil Co. case. I think some of the statements could rightfully be considered "dictum," because this case, Agnew v. Jones, was reversed for the giving of an erroneous instruction, an instruction that in itself authorized a trespass. However, I am frank to say, whether it was necessary to consider the question of a license or not, the court did apparently consider it and make certain remarks that are in direct conflict with the Beck case and the Belzoni Oil Co. case, and they are not obiter statements as claimed by counsel.

There is, however, this distinction as to the facts; in the Agnew v. Jones case, speaking of Agnew, the original landowner, the court said, "It would seem that it was his duty to preserve that property inviolate for its proper uses, having induced the people to build there, and particularly against people who would destroy it utterly."

Agnew v. Jones, 74 Miss. 347, 23 So. 25.

In the above case it seems Agnew by agreeing to make a deed to the land induced the people of the community to make the improvements. That is also true of the Weinberg v. Binder case relied upon by the appellant. In both cases a party, by some affirmative action, had been induced to make the improvements. My interpretation of these cases is that the Supreme Court was of the opinion that there had been such inducement in those cases as to create an estoppel.

I respectfully submit there is no allegation of any inducement, even in the slightest degree, in the present case.

Consequently, I answer the first query of the court by saying that in my judgment the correct decision was reached in the Agnew-Jones case but some of the statements therein contained are in direct conflict with the Beck case and the Belzoni Oil Co. case and that those statements are erroneous statements of the law as applied to the law of license in Mississippi. It will be noted that in the Agnew-Jones case that while Judge Whitfield concurred he is marked "dubitatur." The instruction is so clearly erroneous that Judge Whitfield's doubts must have been brought about by the statements as to irrevocable licenses. I think the above statement is justified as Judge Whitfield handed down the opinion in the Belzoni Oil Co. case.

As to the effect to be given here, I think to clarify the matter the court should reaffirm the Beck and Belzoni Oil Co. holdings, and if the court is of the same opinion, that portion of the opinion in Agnew v. Jones should be overruled. I don't think the entire case should be overruled as I think the instruction complained of is erroneous and the right result was reached. Attention is called to the fact that in the Agnew-Jones case no one with any interest in the subject matter, either as landowner, licensor or licensee, was attempting to revoke the license. The parties selling and purchasing the house were strangers to the original transaction.

As to the second question, frankly I do not think that question is before the court as the pleadings now stand. The only relief asked is that the court confirm in appellant an irrevocable license "to occupy the property with his structures or to remove the same as he may desire and will enjoin the said defendant from interfering with his use or rental of said property or collecting the rents thereon." The question asked by the court has never been considered. He is claiming the right to do whatever he pleases, leave them there and collect rents or move them when and if he desires. He doesn't ask to be allowed to remove them because his license has been revoked. He says his license cannot be revoked and prays that he be allowed to do whatever he desires and asks that the appellee be enjoined from interfering with "his use or rental of said houses or collecting the rents therefrom."

Under some circumstances a licensee, his license being revoked, would be entitled to remove improvements, under other circumstances he would not. That would depend largely upon the agreement at the time the houses were erected.

Consequently, under the present bill of complaint I hardly see how the court could pass upon the question of whether or not the appellant can remove the improvements. Aside from that, however, he has never tried to move them. His contention has been, as shown by the bill of complaint, that he didn't have to move them except when and if he desired. He is not contending for the right to remove the houses, but for the right to let them remain on appellee's property and let him collect the rents and move them when and if he desires.

Argued orally by Percy Bell, for appellant, and by Ben Wilkes, for appellee.

Smith, C.J., delivered the opinion of the court.

The appellant exhibited an original bill of complaint against the appellee, his wife from whom he seems to be headed for a complete separation, alleging that she had granted him a gratuitous oral license to construct houses on land belonging to her for the purpose of leasing them to tenants and collecting and appropriating the rents therefrom. Acting on this license he built several small houses on the appellee's land and has been collecting rents therefrom, but that the appellee has attempted to revoke this license and prevent him from collecting rents from the houses. The prayer of the bill is for an injunction restraining the appellee from interfering with the collection of these rents by the appellant. The court below sustained a demurrer to the bill and on the appellant's declining to plead further dismissed the bill and committed no error in so doing. Beck v. Louisville, etc., R. Co., 65 Miss. 172, 3 So. 252; Belzoni Oil Co. v. Yazoo M.V.R. Co., 94 Miss. 58, 47 So. 468; Binder v. Weinberg, 94 Miss. 817, 48 So. 1013, relied on by the appellant, presented an executed agreement of adjoining landowners to erect contiguous buildings with a party wall on, and a stairway and hall over, the boundary line between the two properties; the wall being necessary for the support and the stairway and hall for the use of each of the buildings. The case while apparently in conflict with the cases hereinbefore cited is not so in reality and is distinguishable therefrom, as will appear from 2 Tiffany on Real Property, Enlarged Ed., 1206 et seq., and 1261 et seq.; 33 Am. Jur., License, Secs. 103-105; 37 C.J. 292 et seq.; note to Lawrence v. Springer, 31 Am. St. Rep. 712; note to Shaw v. Proffitt, Ann. Cas. 1913A, 74, where Binder v. Weinberg, supra, is commented on as it also is in 37 C.J. 294. There is language in Agnew v. Jones, 74 Miss. 347, 23 So. 25, which conflicts with the holding in Beck v. Louisville, etc., R. Co., supra, but the question there presented was very different from that presented in the Beck case and here, and it does not appear that the court there intended to overrule the Beck case and clearly did not think that case had been overruled when it decided the Belzoni Oil Co. case, for the Beck case was there cited and relied on.

This bill of complaint alleges that the appellant had the right under this parol license "to either remove said structures or continue to occupy said land with them as he may elect," and a part of its prayer is that the court "will confirm the license of your complainant to occupy the property with his structures or to remove the same as he may desire." The bill contains no allegation that the appellant had attempted to exercise his claimed right to remove the buildings and been prevented by the appellee from so doing, consequently the existence of that right vel non is not presented by the bill of complaint and the brief of counsel for the appellant does not so claim; no opinion, therefore, is here expressed thereon.

Affirmed.