#### Yeager et al. *v.*Tuning et al.

*Erection of telephone line*— By *owner of one 'estate over estate of another*— An *easement, when*— Parol *agreement of adjoining land owners*— For *mutual telephone line*— Easement *by deed or prescription.*

1. The right of an owner of an estate to erect and maintain, or to cause to be erected and maintained, a line of telephone poles over the estate of another for the benefit of the former is an easement.

2. An easement can be created only by deed or by prescription.

3. A parol agreement by several adjoining land owners to erect and maintain telephone poles on their respective lands, and to contribute equally to the expense of stringing wires thereon, and of operating a telephone line does not create an easement but is merely a parol license and is revocable by any one of such . owners, although in reliance thereon the poles have been erected and the line constructed.

(No. 10524

Decided December 1, 1908.)

Error to the Circuit Court of Gallia county.

The plaintiffs in error, Garret Yeager, J. W. Smith, William Davis, Jacob Miller, James Jones, H. H. Viars, C. C. Reese, J. G. Robertson and Mary E. Trichler, were plaintiffs in the court of common pleas, and the defendants in error, John P. Tuning, James J. Maddy, G. R. Viars, Clark Berry, A. L. Keeler, P. F. Hern and Phoebe Hern, were defendants in that court. It is averred in the petition, that the plaintiffs and the defendants mutually agreed, orally, to construct a telephone line over and across their respective lands and to their respective residences thereon to enable them to have telephonic communication with each other and with persons on other lines with which such *122line might be connected; that each agreed at his own expense to erect and maintain a certain number of poles, and that the plaintiffs and defendants agreed to contribute equally money to purchase and string the wires and to contribute equally sufficient money to repair and maintain the line; that the line was constructed as agreed, that it was of a permanent nature and of the value of $250; that each of the parties expended about fifteen dollars additional for telephone boxes and other appliances, and that the line was in use for about three years, and until shortly before the filing of the petition when certain of the defendants cut the wires and cut down certain of the poles and rendered the line in places useless, and they pray for a mandatory order requiring the replacing of the poles and the restoring of the line, and for an injunction against the destruction or interference with the line in the future.

The case went to the circuit court on appeal where a demurrer was sustained and the petition dismissed.

*Mr. R. M. Sivitzer,*for plaintiffs in error.

Plaintiffs in error contend that the telephone structure after the same was erected on and across the premises of each and all the parties by and with the consent of each, under the said verbal arrangement, the same being of a visible and permanent character, as much so as a railway track, and by reason of the expenditure of a considerable sum of money on the part of each as well as the expenditure of their labor, that the right thus given by each of the parties on and over his prem*123ises, became as to him an irrevocable license in favor of all the other parties. *Wilson*v. *Chalfant,*15 Ohio, 248; *Meek*v. *Breckenridge, 29*Ohio St., 642; *Hornback*v. *Railroad Co.,*20 Ohio St., 81; *LeFevre*v. *LeFevre,*8 Am. Dec., 696; *Rerick*v. *Kern,*16 Am. Dec., 497; *Hazleton*v. *Putnam,*54 Am. Dec., 165.

Plaintiffs contend that an easement, servitude or an irrevocable license has been acquired over the premises of each of the parties in favor of all the others, in this: a consideration has been given for the right to erect the telephone structure, possession has been delivered to the telephone company of so much of the premises as was necessary to erect such structure, possession has been taken by the company or association of persons and they have a visible and permanent occupancy of the portion of the premises of each appropriated to the telephone line and structure, as aforesaid; and that there has been such a part performance as takes the matter out of the statute of frauds and that the company or association has property right in the premises of each.

The plaintiffs further contend that no joint owner has a right to destroy the company or partnership property. 1 Spelling on Injunctions, Sections 587, 588, 589j 590 and 591.

*Mr. H. C. Johnston*and *Mr. E. D. Davis,*for defendants in error.

The only logical answer we can make to the brief of counsel is to say that he assumes facts not pleaded in the petition, and that he bases his argument upon a proposition of law that does not *124and cannot arise in the case. So it would be folly for us to discuss the proposition. We suggest to our opponents the reading, of the very excellent opinion of this court in the case of *Rodefer et al.*v. *Railroad Co.,*72 Ohio St., 272, and then read their amended petition. Wé ask the court to read only the amended petition.

We do not question the law quoted from Spelling on Injunctions. We simply say that there are no facts set forth to which the law can apply.

Summers, J.

If the plaintiffs are entitled to a specific performance of the agreement, then they have an easement created bv parol in the lands of the defendants.

An easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or .over the estate of another for the benefit of the former. A license is a personal, revocable and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein. *The Greenwood Lake & P. J. Railroad Co.*v. *The N. Y. & G. L. Railroad Co.,*134 N. Y., 435. Section 4198, Revised Statutes, provides that: “No lease, estate or interest, either of freehold or term of years, or any uncertain interest of, in, or put of lands, tenements, or hereditaments, shall be assigned, or granted, except by deed, or note in writing, signed by the party so assigning or granting the same, or his agent thereunto lawfully authorized, by writing, or by act and operation of law.” This statute would seem to settle the question of the right to a *125decree for specific performance against the plaintiffs, but it is contended that it is the well settled law of this state that such an agreement is a parol license and that such license when executed is irrevocable. Mr. Freeman in a note to *Lawrence*v. *Springer,*31 Am. St. Rep., 702-715, says: “At common law, a parol license to be exercised upon the land of another creates' an interest in the land, 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. In many of the states this rule prevails, while in others the licensor is deemed to be equitably estopped from revoking the license, after allowing the licensee to perform acts thereunder, or to make expenditures in reliance thereon. These two lines of cases cannot be reconciled; for one of them holds that an interest in land cannot be created by force of a mere parol license, whether executed or not, while the other declares that where the licensee has gone to expense, relying upon the license, the licensor may be estopped from revoking it, and thus an easement may be created. The former line of cases, it seems to us, is founded upon the better reason. They decide that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is revocable, at the option of the licensor, and this, although the intention was to confer a continuing right, and money has been expended by the licensee upon the faith of the license. Such license cannot be *126changed into an equitable right on the ground of equitable estoppel.”

To the same effect is Browne on the Statute of Frauds, Section 31; Jones on Easements, Section 84; Bigelow on Estoppel, 5th Ed., 666.

In *Lawrence*v. Springer, *supra,*49 N. J. Eq., 289, Beasley, C. J., says: “It has not been, and it cannot be, denied that such a grant as the one in question cannot be enforced in a court of law; such easements, being incorporeal, lie in grant, and their creation requires an instrument under seal. Nor is it questioned,' nor questionable, that a parol imposition of a servitude of this kind upon land is in flat contradiction of the statute of frauds. It is true, indeed, that in one class of cases, as is well known, courts of conscience have felt dispensed from putting in force the provisions of that act. This has been the course pursued where a parol agreement for the purchase of lands, or of some interest in them, has been performed to the extent of possession having been taken in part execution of such contract. But while this is the undeniable rule in equity, it should be ever borne in mind that its introduction has been regretted by the wisest judges. 'The statute/ says Lord Redesdale, 'was made for the purpose of preventing perjuries and frauds, and nothing can be more manifest to any person who has been in the habit of practicing in courts of equity than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been vigorously observed, the result would probably have been that few instances of parol agreements would have occurred. Agree*127ments, from the necessity of the case, would have been reduced to writing. Whereas, it is manifest that the decisions on the subject have opened a new door to fraud.’ And these strictures are pointed with the emphatic declaration that ‘it is therefore absolutely necessary for courts of equity to make a stand, and not carry the decisions further.’ *Lindsay*v. *Lynch,*2 Schoales & L., 4. And in the same vein, Judge Story (2 Story’s Eq. Jur., Section 766) says that ‘considerations of this sort have led eminent judges to declare that they would not carry the exceptions of cases from the statute of frauds further than they were compelled to do by former decisions.’ To the same purpose are the criticisms of Chancellor Kent in *Phillips*v. *Thompson,*1 Johns. Ch., 149, and of Chancellor Zabriskie in *Cooper*v. *Carlisle,*17 N. J. Eq., 529.”

Pomeroy in his work on Specific Performance of Contracts referring to the doctrine of the irrevocability of a parol license when executed, says that it is opposed to the common law doctrine concerning licenses as it'prevails in England and in most of the American states. In *Rodefer*v. *Railroad Co., 72*Ohio St., 272, the opinion of Andrews, J., in *Crosdale*v. *Lanigan,*129 N. Y., 604, was quoted from at length with approval, and it is unnecessary to repeat here what was said there. In that opinion he says that it is plainly the rule of the statute, as well as the rule required by public policy, that such a'license though executed is revocable.

See, also, *Hicks*v. *Swift Creek Mill Company,*133 Ala., 411, 91 Am. St. Rep., 38; *Pitzman*v. *Boyce,*11 Mo., 387, 33 Am. St. Rep., 536; *128*Thoemke*v. *Fiedler and another,*91 Wis., 386; *Stewart*v. *Stevens,*10 Col., 440; *The St. Louis National Stock Yards*v. *The Wiggins Ferry Company,*112 Ill., 384.

The cases are too numerous to cite but may be readily found by reference to the reports and textbooks already cited.

The early cases were grounded on some early English cases which were overruled in the leading case, *Wood*v. *Leadbitter,*13 Meeson & W., 838.

The cases of *Wilson et al.*v. *Chalfant,*15 Ohio, 248, and *Hornback*v. *The Cincinnati & Zanesville Railroad Company, 20*Ohio St., 81, are cited as supporting the doctrine of the irrevocability of such a license. The former seems to have been based upon precedents that were in accord with the early English decisions, which, as we have seen, have been overruled. The later case is not authority for the doctrine, but is a case of a parol agreement for the purchase of an interest in lands which has been performed to the extent of possession having .been taken in part execution of the contract. The later case decided by the Supreme Court Commission, *Wilkins*v. *Irvine,*33 Ohio St., 138, is not in accord with'the earlier doctrine, but is in accord* with the modern doctrine and it is there held that: *“A*written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with privilege to enter and repair them,, creates no interest in, nor incumbrance upon the land such as will disable the owner thereof from making a good and sufficient deed conveying a good title thereto.” It may be added that in that case the written license had been executed,, and in *129the opinion it is said: (144) “It gave the Cleveland Rolling Mill Company no dominion over the land, nor did it create, in its favor, an easement in the land. If its terms had been violated by Brooks or his grantees, the jurisdiction of a court of equity could not have been successfully invoked to enforce a ' specific performance. The remedy, if any it had, would have been an action for damages.”

*Judgment affirmed.*

Price, C. J., Shauck, Crew and Spear, JJ., concur.

Davis, J.,

dissenting. The contrary rule has been a rule of property in this state for more than sixty years. *Wilson v. Chalfant,*15 Ohio, 248. It is in the strictest sense *stare decisis*and is no longer an open question for the courts. If there is any demand for a change of the law, the legislature alone is competent to decide whether a change so vital to property ■ rights which have been acquired under the existing rule, should be made. -