The insignificant amount in dispute of course makes the expediency of such an experiment very doubtful to the parties primarily concerned. But from the legal point of view an authoritative decision of the House of Lords on this perplexing subject would be of great value." See Devlin v. Smith, 89 N. Y. 470; S. C., 42 Am. Rep. 311.

IN

ORAL LICENSE TO FLOW LAND.

I.

'N Johnson v. Skillman, 29 Minn. 95, it was held that where one orally promised others that if they would erect a good custom mill at a certain point on their own land, he would give them the privilege of flowing his land so long as they would maintain such mill, and they relying on that promise and partly induced by it, erected a dam and a mill accordingly, at large expense, the promise was a mere license, and was revocable even after it had been acted upon. The court said: "The parol agreement set forth in the decision of the trial court created no easement in the land of plaintiff, but took effect as a parol license only. A license creates no estate in lands. It is a mere power or authority, founded on personal confidence, not assignable, and revocable at pleasure, unless subsidiary to a valid grant, to the beneficial enjoyment of which its exercise is necessary, or unless executed under such circumstances as to warrant the interposition of equity. This is the result of the best considered The doctrine of the early cases, which converted an executed license into an easement, is now generally discarded as being 'in the teeth of the statute of frauds.'

cases.

"The cases of Ricker v. Kelly, 1 Me. 117, and Clement v. Durgin, 5 id. 9, cited by defendants' counsel, have now little following, and the case of Rerick v. Kern, 148. & R. 267, also relied on, which was an action at law for damages in favor of the licensee, is followed in but few States. Houghtaling v. Houghtaling, 5 Barb. 383; Jamieson v. Millemann, 3 Duer, 255; Washb. Easem. 24.

v. Randall, 4 Cush. 195; Wood v. Leadbitter, supra. But where it is sought to couple with a license a parol grant of an interest in the realty, the attempted grant being void, the transaction remains a mere license. Wood v. Leadbitter, supra. A license is of course always a protection for acts done under it, and before revocation. Pierrepont v. Barnard, 6 N. Y. 279. In cases however of what are sometimes called negative easements, which are executed on the land of the licensee, a different rule prevails; as where a man has an easement of light and air upon or over an adjacent lot, he may abandon the same, and license the erection, by his neighbor, of a building which shall extinguish such right, and the license become irrevocable. Morse v. Copeland, 2 Gray, 302; Godd. Easem. 472.

"Nor is it material that a mere license is or is not in writing, or upon a consideration. In Jackson v. Babcock, 4 Johns. 418, there was a sealed instrument, and in Wiseman v. Lucksinger, 84 N. Y. 31; S. C., 38 Am. Rep. 479, there was both a writing and a consideration; but both were held licenses, and revocable. In such cases the question is one of interpretation as to the intent of the parties as evidenced by the writing, and as Chancellor Kent remarks, the distinction between an easement and a license is sometimes quite subtle. And so, in a suit in equity brought to confirm rights and assure an interest, as upon a part performance of a parol agreement alleged to be taken out of the statute of frauds (and otherwise void as a grant, but valid as a license), the question of interpretation of the terms of the agreement, and the intent of the parties, becomes a material one in the case. Jackson & Sharp Co. v. Philadelphia, etc., R. Co., 11 Am. Law Reg. (N. S.) 374," to be reported in 4 Del. Chy.

Mr. Goddard says (Easements, 471): "A license is also irrevocable if the licensee, acting upon the permission granted, has executed a work of a permanent character, and has incurred expense in its execution. This rule of law appears to be based on the injustice which would be inflicted upon the licensee, if after he had laid out money and executed a permanent work, the licensor were permitted to revoke his license and make him destroy his work, and so lose the money expended, or if he were

damages for the very act for which he gave permission."

In the later American cases stress is laid on the statute of frauds, and the early English cases are distinguished on the ground that they were decided

"A simple reference to some of the more import-allowed to treat him as a wrong-doer, and recover ant cases, in support of the views herein expressed, will suffice. Cook v. Stearns, 11 Mass. 533; Mumford v. Whitney, 15 Wend. 380; Wolfe v. Frost, 4 Sandf. Ch. 72; Foot v. New Haven & Northampton Co., 23 Conn. 214; Bridges v. Purcell, 1 Dev. & Bat. (Law) 492; Hazleton v. Putnam, 3 Pin. (Wis.) 107; Woodward, v. Seely, 11 Ill. 157; Wood v. Leadbitter, 13 M. & W. 838; Wiseman v. Lucksinger, 84 N. Y. 31; S. C., 38 Am. Rep. 479. In cases where the license is connected with a valid grant, as of chattels or fixtures, upon the land of the licensor, susceptible of being removed, it is subsidiary to the right of property, and irrevocable to the extent necessary to protect the licensee, and save to him the right of entry the right of possession following the right of property. Nettleton v. Sikes, 8 Metc. 34; Heath

before the enactment of that statute.
The leading case is Winter v. Brockwell, 8 East,
308. Here the action was on the case for nuisance,
caused by the defendant's placing and maintaining
a skylight over an area, belonging to the defendant's
house and between his and the plaintiff's house, thus
preventing the entrance of air and light. The
defendant set up a parol license by the plaintiff
executed at the defendant's expense.
Held, Ellen-
borough, C. J., that the license could not be recalled
at pleasure, at least not without tendering the ex-

penses the defendant had been put to, and no action beginning to be perceived. would lie.

*

*

But it is

otherwise where the object to be accomplished is
temporary.
With this qualification, it
may safely be affirmed that expending money or
labor, in consequence of a license to divert a water-
course or use a water-power in a particular way, has
the effect of turning such license into an agreement
that will be executed in equity." So in Snowden v.
Wilas, 19 Ind. 10, an action for flowage, the court
said: "But though a parol license, amounting in
terms to an easement, is revocable at law, and is
determined by a conveyance of the estate upon
which it was to be enjoyed, this is not the rule in
all cases in courts of equity. In these courts, the
future enjoyment of an executed parol license,
granted upon a consideration, or upon the faith of
which money has been expended, will be enforced at
all events where adequate compensation in damages
could not be obtained. This will be done upon the
two grounds, of estoppel on account of fraud and
specific performance of a partly executed contract
to prevent fraud." The like was held in case of a

In Liggins v. Inge, 7 Bing. 682, there had been an
oral license for defendant to lower the bank of a
river and make a weir above plaintiff's mill, which
diminished plaintiff's water. Held, that no action
would lie for damages. This was put on the ground
of relinquishment of his share in a public right to
the flowing to the water. Tindal, C. J., said: "We
think after he has once clearly signified such
relinquishment, whether by words or acts, and suf-
fered other persons to act upon the faith of such
relinquishment, and to incur expense in doing the
the very act to which his consent was given, it is
too late then to retract such consent, or to throw on
those other persons the burden of restoring matters
to their former state and condition. * * * There
is nothing unreasonable in holding that a right which
is gained by occupancy should be lost by abandon-
ment. * *-
Or suppose A. authorizes B., by
express license, to build a house on B.'s own land,
close adjoining to some of the windows of A.'s home,
so as to intercept part of the light; could he after-partly built party-wall, in Wickersham v. Orr, 9
ward compel B. to pull the house down, simply by
giving notice that he countermanded the license?
Still further, this is not a license to do acts which
consist in repetition, as to walk in a park, to use a
carriage way, to fish in the waters of another, or
the like; which license, if countermanded, the
party is but in the same situation as he was before
it was granted; but this is a license to construct a
work which is attended with expense to the party
using the license; so that after the same is counter-
manded, the party to whom it was granted may
sustain a heavy loss. It is a loss to do something
that in its own nature seems intended to be perma- IT is clear that an officer serving civil process cannot

*

nent and continuing. And it was the fault of the party himself, if he meant to reserve the power of revoking such a license, after it was carried into effect, that he did not expressly reserve that right when he granted the license, or limit it as a duration. Indeed the person who authorizes the weir to be erected becomes in some sense a party to the actual erection of it, and cannot afterward complain of an act which he himself contributed to effect."

Iowa, 253, the court observing, "when labor or money has been expended on the land of another, upon the faith of a promise given by him, the owner shall not assert his legal right to the soil so as to interfere with that use or enjoyment of the building or structure erected as the result of such promise by the money and labor of the licensee." So as to a mining license, in Beatty v. Gregory, 17 id. 100."

FORCE AS A DEFENSE OF REAL ESTATE.

legally break open the outer door of a dwellinghouse for the purpose of arresting the owner. 1 Bishop Crim. Law, § 307; Semayne's case, 5 Rep. 91; but that if he is once peaceably in, he may break open an inner door to complete his service, or make the arrest even of a lodger, Lee v. Gansel, Cowp. 1; or use all necessary force to serve a subpœna. Hagar v. Danforth, 20 Barb. 16. Resistance to such officer forcibly entering a house is not an indictable offense, State v. Hooker, 17 Vt. 658; nor is an attachment made by him legal. Shaw, C. J., in Isley v. Nichols, 12 Pick. 280. The rule that every man's house is his castle extends to the mansion house, and whatever at common law is within curtilage, Pond v. People, 8 Mich. 150; but not to barns and out-houses unconnected with the dwelling, Penton v. Browne, 1 Sid. 186; nor to inns, depots., etc; nor to any house that has become a resort for thieves, for one having escaped from arrest, or for any one except the owner and his family including parents and servants. Lloyd v. Sandilands, 8 Taunt. 250; 2 Cooley's Bl. 2; Allen v. Martin, 10 Wend. 300; Broom's L. M., § 324. But while one can meet force with force in defense of his house, he can do the a license may become an agreement on valuable consame in defense of his other realty, or his personalty. siderations; as where the enjoyment of it must The rule is only a part of the law of self-defense. State necessarily be preceded by the expenditure of money; v. Patterson, 45 Vt. 320. Lord Mansfield said in Lee and when the grantee has made improvements or v. Gansel, supra, that "the privilege of a mansion invested capital in consequence of it, he has become house * ** is annexed to the house and door for a purchaser for a valuable consideration. Such a the protection of a man and his family." Lord Denman in Rogers v. Spence, 13 M. &. W. 581, spoke of it grant is a direct encouragement to expend money, as an "extension of that protection which the law and it would be against all conscience to annul it as throws around the person." Defense of his house is soon as the benefit expected from the expenditure is defense of himself. The distinction is: 1st. The

There are a few American cases to the same effect. In Rerick v. Kern, 14 S. & R. 267, it was held that if a parol license be given without consideration, to use the water of a stream for a saw mill, in consequence of which the grantee goes to the expense of erecting a mill, the license cannot be revoked at pleasure of the grantor, and if he divert the water to the injury of the grantee, the latter may maintain an action against him. Gibson, C. J., said:

"But

וי

outer door cannot be broken by civil process. 2d. The law never compels the owner to abandon his house, aud retreat before resorting to extreme measures, even the taking of life. 1 Bishop Crim. Law, § 653. 3d. But if one is assaulted outside of his house, and there is safety in retreat, it is clearly his duty to retreat. 1 Russ. Crimes, 661; and 4th, while one can use "all reasonable and necessary force to defend" his other real and personal estate, "he can never innocently carry this defense to the extent of killing the aggressor. 2 Bishop Crim. Law, § 641. The owner of a house or tenant may turn out any one who has entered with force and violence without a request to depart; but request to depart must first be made if the entrance was peaceable. 2 Addison Torts., § 793. The force used can be only only such as is reasonably necessary to expel. Any excess may be trespass, Gregory v. Hill., 8 Term. 299; manslaughter, 1 Russ. Crimes, 662; murder, Meade's case, 1 Lew. 184; the character of the act determinable by the degree of excess. But while "the privilege of a mansion house" does not attach to inns, depots, etc., it is plain that a landlord may turn out one who is not a guest, Wharton Crim. Law, (7th ed.), § 1257; one committing a breach of the peace, Howell v. Jackson, 6 C. & P. 723; one merely making a disturbance, after a request to depart, 2 Addison Torts, 793, n. 1; Markham v. Brown, 8 N. H. 523. The officers of railroads may expel from depots, cars, etc., persous not having legitimate business with the company, or violating reasonable regulations, as mere loungers, Harris v. Stevens, 31 Vt. 79; innkeepers soliciting patronage from passengers. Commonwealth v. Powers, 7 Metc. 596; those refusing to pay fare, State v. Chovin, 7 Iowa, 207; Jencks v. Coleman, 2 Sum. 221; but not one for spitting on the floor. People v. McKay, 24 Alb. L. J. 118; 46 Mich. 439. Persons violating reasonable rules may also be removed or excluded from a religious meeting, McLain v. Matlock, 7 Ind. 525; from a shop where goods are sold, Timothy v. Simpson, 6 C. & P. 499; from a school house, Sherman v. Charleston, 8 Cush. 160; from places of public amusement, Burton v. Scherpf, 1 Allen, 133; McCrea v. Marsh, 12 Gray, 211; Wood v. Leadbitter, 13 M. & W. 838; but not from the office of a clerk of court, when open for public business, if the party is properly conducting himself, O'Hara v. King, 52 Ill. 303; nor according to Drew v. Peer, 93 Penn. St. 234, can a person of color, having an unrevoked ticket, and with no misconduct alleged, be excluded from a theatre.

One may also take the law in his own hands and suppress a nuisance; thus he may cut off the branches of trees overhanging his land or the highway. 5 Coke, 101; or projecting eaves. Wood Law of Nuisances, § 103. But if he cuts beyond the line he is a trespasser. Indeed this right is so nearly like that afforded by Shylock's bond,

"Nor cut thou less nor more,

But just a pound of flesh; if thou cut'st more,
Or less than a just pound, etc."

that in nearly all cases of nuisances it is safer that the
wrong be righted by the law. See remarks of Park,
B., in Jones v. Williams, 11 M. & W. 181, and Best, J.,
in Lonsdale v. Nelson, 2 B. & C. 311. Under certain
circumstances an entry upon another's land is not ac-
counted a trespass, or rather there is an implied
license; (1) to go to demand or pay money payable
there; (2) to execute legal process in a legal way; (3)
for a reversioner, or landlord, to see if waste is com-
mitted there, or collect rent, 3 Bl. Com. 212; Proud
v. Hollis, 1 B. & C. 9; (4) to get one's property
stranded there by a flood, Forster v. Bridge Co., 16
Penn. St. 393; (5) or lumber blown upon another's
land, but not when cut by its owner and it falls there;
(6) or property that one has purchased. McNeal v.

Emerson, 15 Gray, 384; (7) or that has been deposited there by thieves, or by the owner's consent, or by him wrongfully. Drake v. Wells, 11 Allen, 141; Arrington v. Larrabee, 10 Cush. 512; 2 Hilliard Torts, 83; 2 Rolle's Rep. 55; (8) or a traveller, when the highway is obstructed, Campbell v. Race, 7 Cush. 408; (8) or to preserve one's life, or prevent a felony, or to enter a building on fire. or pull it down to extinguish the flames, 2 Am. Lead. Cases (5th ed.), 568 (License); (9) or to go into the place of business of the publican, miller, broker, banker, artisan, merchant, or professional man, 1 Wash. Real Pr. 630 (License); in these and other cases there is an implied license. But the more difficult questions here are, not whether there is a license, but whether irrevocable, to what extent limited, whether forfeited, what the rights are under it, what the best remedy by either party for a violation or abuse of it. Thus it is submitted that there is au implied license to attend a public funeral; but it may be revoked, Neilson v. Brown, 15 Rep. 26; for one to go on another's land, who is on intimate terms with the owner, Martin v. Houghton, 45 Barb. 258; but clearly a revocation terminates all rights under it for the holder of a ticket to enter a place of public amusement; but a revocation is only a breach on contract. McCrea v. Marsh, supra. The rule is that a license coupled with an interest or grant cannot be revoked. But the courts are far from agreeing as to what licenses may be revoked or countermanded; and unfortunately so, for the same action under one ruling may be innocent, and under another criminal. Thus the plaintiff in Wood v. Leadbitter, held a ticket admitting him to the Doncaster races; but it was ruled after great deliberation, to be no protection against expulsion, on the ground as Alderson, B., put it: "That no incorporeal inheritance affecting land can either be created or transferred otherwise than by deed. ** * All such inheritances are said emphatically to lie in grant, and not in livery." In Drew v. Peer, the plaintiffs had tickets admitting them to a theatre; and the court held: "We incline to the opinion however that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening."

It is impossible to distinguish between the two cases. But under the former ruling, if one were ordered out. he would be a trespasser from the moment he refused to go, with only the rights of a trespasser, liable to be met with all force necessary to expulsion, Burton v. Scherpf, supra, under the latter ruling, no trespasser, with the rights that such a condition gives. But take any view, call the ticket a lease, invoke the doctrine of estoppel as to the revocation of licenses (Am. Lead. Cas. [License], citing 4 S. & R. 241; 14 id. 267; 11 N. H. 102), the holder could not "fight himself into possession," any more than a mortgagee can after condition broken, or a lessor, after the expiration of a lease. 4 Bl. Com. 148; Redfield, C. J., in Dustin v. Cowdry, 23 Vt. 635.

WATERBURY, VT.

E. F. PALMER.

PRIVILEGE ON GROUND OF INCRIMINA-
TION.

ENGLISH HIGH COURT OF JUSTICE, NOVEMBER
23, 1882.

LAMB V. MUNSTER, L. R., 10 Q. B. D. 110. An objection to answer interrogatories, which is made by affidavit on the ground of the tendency of the answer to criminate the person interrogated, may be valid, although

not expressed in any precise form of words, if from the nature of the question and the circumstances, such a tendency seems likely or probable. In an action for libel the defendant pleaded a denial of the publication, and to in terrogatories asking him, in effect, whether he published the libel he stated, by his affidavit in answer: "Idecline to answer all the interrogatories upon the ground that my answer to them might' tend to criminate me.' Held, that his answer was sufficient.

defendant to answer them being read to a jury, who are asked whether they can doubt that the defendant really did what he was asked about, they would at once find that they did. In Allhusen v. Labouchere, 3 Q. B. D. 654, 662. Brett, L. J., doubts whether the equity doctrine is perfectly applicable to the courts of common law. But as the Lord Justice says: "That however is past controversy, and the question has been settled by the Court of Appeal." A decision of

MOTION to rescind an order of Watkin Williams, Lord Hatherley when Wood, W. C., was cited, and

J., in chambers.

The action was for libel, and the defendant by his statement of defense denied the publication of the alleged libel. Interrogatories being administered asking him whether he did not publish the libel, his answer was: "I decline to answer all the interrogatories upon the ground that my answer to them might tend to criminate me." A master ordered a further and better answer; but his order was rescinded by the order of the learned judge.

FIELD, J. I think the learned judge at chambers was right, and that the answer to the interrogatories is sufficient. The point raised is important, for the principle of our law, right or wrong, is that a man shall not be compelled to say any thing which criminates himself. Such is the language in which the maxim is expressed. The words "criminate himself" may have several meanings, but my interpretation of them is "may tend to bring him into the peril and possibility of being convicted as a criminal." It is said that a man is not bound to do so. There have been various authorities on the question how the point is to be raised. Suppose a witness in the box declines to answer a question. He is asked why? He answers: "Because it may tend to criminate me." But the judge tells him that he must go further and swear that be believes the answer will tend to criminate him. He answers, "I do not know, but I believe may do so." The judge tells him that he must go further and say that he is advised that the answer may tend to criminate him. He perhaps replies, "I have no one to advise me in whose advice on the subject I should crust." Then it becomes the duty of the judge to look at the nature and all circumstances of the case and the effect of the question itself, to see whether it is a question the answer to which will really tend to criminate the witness. If he said, "I think it may," or "it may," or "it might," or "I believe it will," or "I am advised it will;" I should not regard the form of words, but look to see whether answering would be likely to have or probably would have such a tendency to criminate, and bearing in mind the cardinal rule that a man shall not be compelled to criminate himself, I should almost prefer a man to be careful and say the answer might tend to criminate, and I should be slow to commit him to prison for not doing that which the law says he is not bound to do. In this case the tendency to criminate is evident. The statement of claim charges the defendant with the publication of a false and malicious libel, the remedy for which is either by action or indictment It would be competent to the plaintiff, after having got an answer to the interrogatories, to indict the defendant for libel, and the answer might establish the very first step the prosecutor would have to prove.

Mr. Woollett produced a case in which there were the
same words as those under discussion, but I find in the
cases that the learned judges used words such as
"will,"
46
"may," or might," indifferently, without
laying any stress on the verb. I think there is no
substance in the objection to the present answer, and
that it is quite sufficient. It is very desirable that the
rule should be in favor of the principle of law.

STEPHEN, J. I am of the same opinion. I entirely agree with my learned brother. In every case the principle itself has to be considered, and it would not be well to lay down any kind of strict rule as to the particular form of words in which persons are to be compelled to express their opinion as to whether or not the answer to questions would criminate them. When the subject is fully examined, it will, I think, be found that the privilege extends to protect a man from answering any question which "would in the opinion of the judge have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge." Stephen's Dig. of the Law of Ev., (3d ed.), art. 120, p. 121. That is what I understand by the phrase "criminating himself." It is not that a man must be guilty of an offense and say substantially, "I am guilty of the offense, but am not going to furnish evidence of it." I do not think the privilege is so narrow as that, for then it would be illusory. The extent of the privilege is, I think, this: the man may say, "if you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue. Prove what you can, but I am protected from furnishing evidence against myself out of my own mouth." I do not think the cases cited go any further than this, viz., that the court which has to decide must be satisfied on the oath of the witness that he does object on that ground, and that his objection is bona fide. In Reg. v. Boyes, 1 B. & S. 311; 30 L. J. (Q. B.), 301, a case not cited in argument, but a somewhat remarkble one, a man called as a witness on an information for bribery refused to answer any question as to his knowledge of the defendant, on the ground that by answering he might criminate himself; a pardon under the great seal was thereupon handed to the witness, who still refusing, was compelled by the judge to answer. This ingenious point was taken, viz., that the pardon was not pleadable to an impeachment by the House of Commons, and that Boyes when he refused to answer after the pardon was handed to him did so under the belief of an impeachment to which the pardon would be no answer. Cockburn, C. J., says "It was contended that a bare possibility of legal peril was sufficient to entitle a witness to protection; nay, further, that the witness was the sole judge as to whether his evidence would bring him into dan

I do not think the authorities lay down any princi-ger of the law; and that the statement of his belief to ple on which this application for a further answer can be rested. In Fisher v. Owen, 8 Ch. Div. 645, the point was only whether the question could be put, and there are many, amongst whom is Brett, L. J., who think it is a mistake to allow a man to refuse to answer on the ground that his answer might tend to criminate him, for this reason, that although a learned judge may regard the answer without being influenced by it, yet on the interrogatories and the refusal of the

that effect, if not manifestly made mala fide, should be received as conclusive. With the latter of these propositions we are altogether unable to concur." But he goes on to say that "the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer," and also that the danger must be real and appreciable.