The record-union., 1891-03-10
SUPREME COURT DECISIONS.
Filled March 4, 1871
IN BANK.

Respondent,
VS.. No. 14,O7S.
BELCHER EFT AL,
Appellants.
The findings of the court below show
that the plaintiff is the owner of a tract OF
land, situate on the bank of the Cos
umnes River, and adjoining it is an
other tract owned in common by the de-
PENDANTS, Alice j. and Lucy T.. Belcher,
and the estate of J. NJ. Beicher, of which
the defendant, Sarah w. Belchcr. is the
executriX; that to protect both of said
tracts from overflow it is necessary to
maintain a levee in front Of both tracts;
that just above the line dividing said
lands, and on the land of defendants,
there is depression which renders it
necessary that the levee there should be
Of greater hight and strength than at
other points. The plaintiff had COM
pleted her line oflevee, and the defend
ants were engaged in the repair of their
levee, the line of which connected with
that of plaintiff, and sit being feared that
the floods would come and inundate the
lands to be protected by said levee before
the same could be finished, the plaintiff
applied to the defendants for leave to
enter upon their said land, and enlarge
and repair that portion of the levee upon
defendants said land which extends
across the said depression The defend
ants consented and gave permission to
the plaintiff to repair, enlarge and re-
construct the said section of levea at her
own cost and expense. This the plaintiff
did, the same being constructed mostly of
earth hauled from the plaintiffs own
Land, and thus connected her own levee
with that of the defendants, forming a
continuous barrier against the waters of
the river. The court further found that
the defendants threatened and intend to
= tear down, remove and dig away a por
ton of the said levee, and if they should
do so it would subject the land of plaintiff
. to overflow and would cause great and
irreparable damage to her.lan
The court below gave judgment en-
Joining defendant from doing the threat
. sned acts. From this judgment and an
. order denying their motion for new trial
the defendants appeal.
The permission given. plaintiff to con-
/, struct the section of levee referred to in
the findings was verbal
The appellants urge that the license, if
, ever given, is one which they have right
to revoke; that a license is always re-
vocable when the act licensed is of such
nature that if granted by deed it would
amount to an easement TO sustain this
position the case of Potter VS.. Mercer (53
Cal. 66O is cited, in which case it is said:
'But the effect of an executed or partly
executed license, though revoked, is to
excuse the licensee from liability for acts
done properly in pursuance thereof and
their consequences; but the revocation
puts an end TO the license, and no fur
ther act can be justified under it." This
is undoubtedly true as general rule, and
was properly applied to the facts in that
case. But the judgment in this case does
not authorize the pLaintif to do aay further
act apon the land of appellants.
1t only restrains the appellants
from removing or injuring a levee
built by respondent at her own cost upon
the land of appellants, and with their
permission, such levee so constructed be-
ing necessary in order to protect the land
of respondent from overflow and ire
parable damage. Such a judgment does
I not, as supposed by appellants, confer
upon the respondent permanent right
in the property of appellants. 1t gives
her no right to enter upon the land OF APP
J pellants for the purpose OF repairing the
! levee, or TO rebuild it in the event Of its
destruction. The distinction between the
! right of respondent as fixed by this judg
ment, and a permanent right to maintain
the ievee in question, is clearly pointed
! out in the case of Carleton VS.. Redington,
: (2l n. H. 300. 1t is there said: ''The
, authorities would seem to show that a
license to erect dam will give no right
to repair and restore the dam when it has
! become ruinous and decayed. But
if it be holden that a license to erect a
dam implies also a license to repair the
same at pleasure, it would seem, from
many authorities, that the license cannot
be suStained.'
AS to the right of the respondent to
maintain this action upon the facts found
by the court, there is a conflict in the de-
cisions in the different States, many
courts holding to the contrary. There
are cases, however, which hold that such
an action is maintainable, and we think
these state the rule which is most in con-
sonance with principles of equity.
In Veghte VS.. Raritan Water Power
Company % n. J. Eq. 142) the court
say that lin cases where the revocation
would be a fraud, courts of equity give
remedy, either by restraining the revoca-
ton, or by constituting the license as an
agreement to give the right, and COM
pelling specific performance by deed, as
of contract in part executed
In the case of Clark VS.. Glidden go VT
702) it is held that "a license to lay an
aqueduct to a spring of water on ones
land is irrevocable during the existence
of the aqueduct; and court of equity on
the ground of equitable estoppel, will
protect the icensee in the use of the
aqueduct; and will grant and continue an
injunction restraining the owner of the
spring from interfering with the aque-
duct until its decay, for q revocation of
the license would operate as a fraud"
And this same principle has been af-
firmed in the case of Lee VS.. Mcleod Q2
New. 2S4).
Appellants further insist that the find
ings are not sustained by the evidence,
but we cannot say from the record that
the court committed any error in this re-
spect. Judgment and order affirmed
De HAVEN, J..
We concur:
PATERSON, J.,
SHARPSTEIN, J.,
GARoUTTE, j.
CoNCURRING OPINION.
I concur in the judgment, but base
my concurrence upon the particular facts
of this case. A rule which applies to two
coterminous owners of land, who unite
in continuous line oflevee for the pro-
lection of both, would not apply to many
other instances of parol license