#### In the Matter of the Application of the Trustees of the Village of White Plains, etc., Respondents, to Acquire Certain Lands, etc., Pursuant to Chapter 609 of the Laws of 1887, etc. Robert Caterson, Appellant.

Second Department,-

January 24, 1908.

Eminent domain — municipal corporation — assessment of damage on condemnation of lands for sewer purposes — when license to make improvements revocable — effect of conveyance by licensor — partial . performance takes license out of Statute of Frauds —lis pendens.

A license permitting village trustees to. enter lands.to construct improvements for a sewer system is revocable at the pleasure of the owner and confers no rights which survive such revocation. ‘ ■

Such license is revoked *ipso-facto*when the owner conveys to a third person.

When such license was not revoked by the licensor prior to his conveyance the grantee is not entitled to have improvements made by the village trustees prior to the conveyance considered on the question of. damage when the lands are subsequently taken for sewer purposes by eminent domain.

When village trustees have made partial improvements for sewer purposes under an oral license the agreement is taken out of the Statute of Frauds.

As between licensor and licensee-, the latter is entitled to notice of . a revocation of the license; hut where the revocation is worked by a conveyance, the licensee is not entitled to such- notice from the grantee.

*2Hence, when, subsequent to the revocation oí a license to make sewer improvements, worked by a conveyance o£ the lands, the licensee makes further improvements without the consent of the grantee, he does so as a trespasser, and when the lands are subsequently taken by eminent domain for sower pur- • poses,' the owner is entitled to have the enhanced value resulting from the improvéments considered on the assessment of his damage.

A *lis pendens*filed in condemnation proceedings taken under chapter 140 of the Laws of 1850 is a nullity as no *lia pendens*was authorized by that statute.

Hooker,, J., dissented.

Appeal by Bobert Caterson from, an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27tli day of March, 1907.

*Baljph JS. Prime [Augustus G. Brown*with him on the brief], for the appellant.

*Henry B.*Barrett, for the respondents.

Jenks, J.:

This is an appeal by Caterson, the landowner in certain condemnation proceedings, from an order uf the Special Term confirming the report of the commissioners tó ascertain and to appraise the com- • pensation for land taken for public sewer purposes by the trustees of the village of White Plains. Chapter 609 of the Laws of 1887. empowered the trustees to adopt and to establish a permanent, system of sewerage and drainage. Section á thereof* provided : “.Whenever it is necessary to construct or extend or discharge said sewers, or to do anything appurtenant thereto, either within or without said village, said board shall have full power, and is hereby authorized to construct and extend the same through any real estate, and title thereto shall be acquired in the same manner as provided in chapter one hundred and forty of the laws of eighteen hundred and fifty and the several acts amendatory thereof.” The proceedings were begun by petition filed on February 28, 1890, and commissioners were appointed on March 15,1890. The lands in question were of a parcel then owned by Findlay, who, however, conveyed the parcel in 1892 to Caterson. The original commissioners died. *3It does not appear that any steps had been taken in the .proceedings until 1905, when an order of the Special Term was made which vacated all previous orders appointing commissioners and appointed the present commissioners, who alone sat, heard and determined the compensation. It appeared on the hearing the said trustees were in possession of the land in question and were using disposal works set up thereon by them for the treatment and the care of the sewage of the village.

The question presented on this appeal is whether Caterson was entitled to have the commissioners, in ascertaining his compensation, take into consideration any improvements made by the trustees upon his land. The record clearly indicates that- the commissioners did not consider them. There is evidence that some time in 1890' the trustees caused work, to be done on the lands which was thereafter torn down, the grade leveled and reconstruction begun. Indeed, there is evidence that indicates that some of the original work was begun in 1888. • And there is .evidence that the trustees had thus entered' upon' the lands under a license from Findlay. Such a license was, however, revocable at the pleasure of the owner, and conferred no rights which could survive his revocation. *(Duryee*v. Mayor, 96 N. Y. 477, 478; *White*v. *M. R. Co.,*139 id. 19.) Such license was revoked by the conveyance of that owner to Caterson by the deed of 1892. (Washb. Ease. *&*Serv. [4th ed.] 7; *Eckerson*v. *Crippen,*110 N. Y. 585 ; *Cahoon*v. *Bayaud,*123 id. 298; *Eggleston*v. *N.*Y. *& Harlem, R. R. Co.,*35 Barb. 162, cited in *Olmsted*v. *Dennis,*77 N. Y. 378; *Wilson*v. *St. Paul, Minneapolis & Manitoba Ry. Co.,*41 Minn. 56.) . So far as the improvements were made by the trustees within the terms of the license up to the time of the conveyance of the premises, I think that the present owner is pot entitled to have them considered, inasmuch as the evidence does not show that such license’was ever revoked by . the then owner. There was then, as to such improvements, a part performance of an oral agreement, and hence the matter was thus taken out of the Statute of Frauds. (2 Lewis Em. Bom. [2d ed.]: 715, and cases cited; Beeves Beal Frop. 327, and cases cited.) But a different question arises as to the improvements made by the trustees subsequent to the conveyance to Caterson. The question presented is as to improvements now retained upon the land. Caterson testifies *4that when he took possession of the property no work had been done on this plot where the disposal works now stand towards the erection of the disposal works that are there now. The trustees entering originally under a license from Findlay were entitled to notice of any revocation made by Findlay and to a reasonable time thereafter to remove any of the structures set up by them under the license. *(Putnam*v. *State,*132 N. Y. 344; *Wilson v. St. Paul, Minneapolis & Manitoba Ry. Co., supra; Arrington y. Larrabee,.*10 Cush. 512.) 1 think that upon the revocation worked by the conveyance the trustees would have had a reasonable time thereafter - for such removal, but that right is not involved for the question arises as to structures now maintained and worked thereon by the trustees. While I think that as between licensor and licensee the licensee was entitled to notice of any revocation thereof by the licensor, I also think that such rule does hot apply to . Caterson,. a third party, when a revocation was worked by conveyance to him. If notice was prerequisite to such revocation, then the conveyance alone did not work revocation^ and notwithstanding the conveyance-some legal rights of occupancy and continuance under the license (other than removal) remained' in the trustees until notice of the revocation. This doctrine would deny the proposition that conveyance *ipsofaeto*was revocation. In *Wallis*v. *Harrison*(4 M. *&*W. 538) the-license was to make a main way a by way and certain cuts for railway purposes. The point was made that the licensees could not be regarded as trespassers after a conveyance of the land without first giving the licensees notice of the conveyance. The court, per Lord Abinger, O. B., said : “I never heard it supposed that if a man out of kindness to a neighbor allows him to pass over his land, the transferee of that land is bound to do so likewise. But it is said that the defendant should have had notice of the transfer. That is new law to me. A person is bound to know who is the-owner of the land upon which he does that which, *prima facie,*is. a trespass. Even if this were not so, I think the defendants ought, in excuse of their trespass, to have pleaded the fact that they had no notice of the transfer.” This question was also raised in *Wilson*v. *St. Paul, Minneapolis & Manitoba Ry. Co. (supra),*where the court, per Gtlfillan, Oh. J., held: “ It is probably true, in general, that the protection which the license affords the licensee in doing. *5what it permits him to do continues until notice, so that he cannot be liable for acting under it until notice of revocation. This, however, has been held not to be the rule upon a revocation of a grant to a third person. *(Wallis*v. *Harrison,*4 Mees. *&*W. 538.)” In *Bunke*v. *N. Y. Telephone Co.*(110 App. Div. 248; affd., 188 N. Y. 600) the court say: “ And the conveyance of the premises by the licensor was a revocation thereof of which the licensee must take notice. *(Eckerson*v. Crippen, 110 N. Y. 585; *Winne*v. *Ulster Co. Savings Institution,*37 Hun, 349; *Eggleston*v. *N. Y. & H. R. R. Co.,*35 Barb. 162; *Forbes*v. *Balenseifer,*74 Ill. 183; *Estelle*v. *Peacock,*48 Mich. 469; *Hodgkins*v. *Farrington,*150 Mass. 19.) ”

I think that subsequent to the revocation by the conveyance, the trustees with respect to any structures thereafter erected upon this land which they did not seek to remove but to maintain without ' any license or consent from Gaterson must be regarded as trespassers, so that Gaterson had the right to invoke the rule of *Village of St. Johnsville v. Smith*(184 N. Y. 341). “The measure of such compensation,” says Willard Bartlett, J., for the court, “is neither the *cost*of the improvements *nor their value or the value of their use to the village.*The true inquiry is how much do the improvements placed upon the property enhance the value of the appellant’s land.” Gaterson is not barred from, his claim by any principle of estoppel. *(Crosdale*v. *Lanigan,*129 N. Y. 604; *Duryee*v. *Mayor, supra; White*v. *M. R. Co.,*139 N. Y. 19; *Eggleston*v. *N. Y. & Harlem R. R. Co.,*35 Barb. 162, 172 *et seq.; Ewing*v. *Rhea,*37 Ore. 583.)

This proceeding, it is to be noted, was not governed by the present Condemnation Law. For the statute expressly provides that the proceedings shall be under chapter 140 of the Laws of 1850 and the . amendments thereof *{ut supra).*Section 3384 of the Gode of Civil Procedure provides: *a*This title shall take effect on the first day of May, one thousand eight hundred and ninety, and shall not affect any proceeding previously commenced.” This proceeding was begun on February 28, 1890. Ho *lis pendens*was authorized under the statutes regulating this proceeding, and any *lis pendens*if filed was but a nullity. *(Mills*v. *Bliss,*55 N. Y. 139, 141.)

I advise that- the court order a new appraisal (Laws of 1850, chap. ■ *6140, § 18)* before new commissioners. Tire, question of costs should be reserved until the coming in of the second report.

Gaynor, Rich and Miller, JJ., concurred; Hooker, J., dissented. -

Order reversed and new trial ordered before new commissioners. Question of costs reserved until coming in of second report.

*

 This section was amended by chapter 812 of the Laws of 1888; — [Rep.

*

This section was amended by chapter 198 of the Laws of 1876.r— [Rep.