Flickinger v. Shaw

California Supreme Court Dec 15, 1890 No. No. 12609Published

Before: Thornton

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Holding. The court held that an executed parol agreement for a right of way, where the grantee has expended money and labor in reliance on the agreement, constitutes a purchase for valuable consideration that is enforceable in equity through specific performance.

Issues

Whether a parol agreement for a right of way, once executed by the grantee's expenditure of money and labor, is revocable by the grantor.
Whether a court of equity may grant specific performance of an executed parol agreement for a right of way to prevent fraud.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The principle on which these cases proceed is, as was said in Swartz v. Swartz, 4 Pa. St. 358, 45 Am. Dec. 697, "that the revocation would be a fraud; and that to prevent it a chancellor would turn the owner of the soil into a trustee ex maleficio.””

“To refuse specific performance under the circumstances would be to sanction fraud, and to allow a statute passed for the prevention of frauds to become the means of accomplishing a fraud.”

Synopsis

Easement — Right of Way for Irrigating Ditch — Contract of Sale— License — Revocation.—Where the plaintiff and his assignor entered into a parol agreement with deEendant, by the terms of which they were to receive a conveyance of a right of way for an irrigating ditch over defendant’s land, and of one half of the water to be diverted thereby, the plaintiff and his assignor to survey and excavate the ditch and keep it in repair, and the ditch, when completed, to be used for the equal benefit of both the contracting parties for the purpose of irrigation, and the ditch was constructed and kept in repair by the plaintiff and his assignor, and used by both parties, the agreement is essentially one of purchase and sale, and the defendant will not be allowed to treat the transaction as a mere parol license which he may revoke after the work has been done and money expended by the other parties under the contract.

Id.—Specific Performance — Oral Agreement for Easement — Part Performance — Statute of Frauds. —■ Equity will execute every agreement for the breach of which damages may be recovered, where an action for damages would be an inadequate remedy; and where there has been such a part performance of an oral agreement for an easement upon land that it would be sanctioning fraud to refuse its specific performance, the statute of frauds does nob prevent an enforcement of the agreement.

Id. — Executed License — Expenditure by Licensee — Revocation — Trust ex Maleficio. — An executed license may become an agreement for a valuable consideration, and where the revocation of the license would operate as a fraud upon the licensee, who has expended money and made improvements upon the faith of it, equity will hold the owner of the land as a trustee ex maleficio to prevent such revocation.

Id.—Right of Way — Equitable Title — Injunction.—Where nothing remains to he done to complete such contract except the execution of a conveyance to the plaintiff of the right of way for the irrigating ditch, and of a proper proportion of the water diverted thereby, the plaintiff has a perfect equitable title in the ditch and water, which equity will protect by injunctiou, as readily and fully as it would protect the legal title.

Thornton, J. That the object to be attained by the agreement between Flickinger and Smith on the one hand, and the defendant (Shaw) on the other, was to acquire by purchase a right of way over the land of the latter for the ditch constructed by the first-named parties is, in our judgment, a fair legal deduction from the facts disclosed in this case. Flickinger and Smith were seeking to acquire something more than a mere license or authority to do a particular act or series of acts on another's land without possessing any estate therein (Potter v. Mercer, 53 Cal. 673), and which right might at any time be revoked by the licensor.

In this case, the agreement between the parties is, in substance, that Shaw gives the right of way for a ditch over his land; that Flickinger and Smith survey and excavate the ditch, and keep it in repair, and the ditch, when completed, to be used for the benefit of all the contracting parties in irrigating their respective tracts of land. Let it be observed (and it is so found) that Shaw agreed that Flickinger and Smith should have a conveyance of and give a right of way over his land for the ditch, and one half of the water to be diverted thereby.

The above facts clothe the transaction with the character of a purchase by one party, and sale by the other, of a right of way for a ditch. The license under which [131]Flickinger and Smith entered was vested in them by a contract of purchase for a valuable consideration.

Under this agreement, Flickinger and Smith did survey and construct the ditch and kept it in repair, and both parties made use of it for the purpose for which it was constructed, viz., the irrigation of their lands. Thus the agreement between the parties was executed. The license here given to Flickinger and Smith -was one for the acquisition of an interest in land by purchase of Shaw, for which they paid by doing what they had agreed to do. After the ditch was constructed, it was used by all parties under the agreement for four or five years.

Now, it would be highly inequitable, after the work has been done and money expended by Flickinger and Smith, to allow Shaw to recall his consent, fill the ditch, and cut Flickinger, who has succeeded to all the rights of Smith under the agreement above stated, off from the use of the ditch and the water flowing therein; nor should any such proceeding, in our view, be upheld by a court of justice.

In Rerick v. Kern, 14 Serg. & R. 271, 16 Am. Dec. 497, a case in some respects similar to the one under consideration, came before the supreme court of Pennsylvania. The case was one concerning the legal effect of an executed license. It was an action on the case to recover damages for diverting a watercourse, by which the plaintiff lost the use of his saw-mill. The facts were as follows: Kern, the plaintiff below, being about to erect a saw-mill on a stream designated as the right-hand stream, a better seat for the mill was found by his mill-wright, on what was termed the left-hand stream. Kern thereupon applied to Berick for permission to turn the water of the other stream into the left-hand stream, which was granted. In consequence of this permission, Kern built the mill on the left-hand stream. The mill was rendered a third more valuable by the union of the two streams than it

Flickinger v. Shaw

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