Nelson v. Nelson, 8 So. 2d 507 (Miss. 1942). · Go Syfert
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Nelson v. Nelson, 8 So. 2d 507 (Miss. 1942). Cases Citing This Book View Copy Cite
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Nelson
v.
Nelson.
Mississippi Supreme Court.
Jun 8, 1942.
Published opinion
8 So. 2d 507
1942 Miss. LEXIS 111
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
Smith.
etc.
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[*152] 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., 12061 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[*153] 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.