property, and subject it to the control of another. I am unable to find, in the words of the parties, any intention to produce that result. It is not expressed in the receipt, nor is it fairly to be implied. Full effect may be given to it by regarding it as a temporary arrangement; and it should, I think, be so construed.

Nor has anything been done referable to such an agreement as one giving a right in perpetuity. The connecting sewer constructed by the plaintiff was of plank, of short length and trifling expense, temporary and not permanent in character, and, as subsequent events have shown, easily and necessarily displaced to make room for another better adapted to the increasing necessities of the plaintiff and his improved method of removing filth from his premises. The case is not analogous to Wetmore v. White, 2 Cai. Cas. 87; Brown v. Bowen, 30 N. Y. 541; Rindge v. Baker, 57 Id. 209; Babcock v. Utter, 1 Abb. Ct. of App., Dec. 27; Pierrepont v. Barnard, 6 N. Y. 304; Miller v. A. & S. R. R., 6 Hill, 63; or Wolfe v. Frost, 4 Sandf. Ch. 93, cited by the learned counsel for the respondents. So far as they bear upon the question as to the effect of part performance, it will be seen that large expenditures were made upon permanent and valuable improvements, not reasonably to be accounted for except upon the belief, on the part of the person making them, that an actual interest or estate in the land had been acquired, not depending upon any contingency, or the will or acquiescence of another. This was so in Wetmore v. White. Mills were erected, for the use of which the easement in question was indispensable. The court say: "Public accommodation and private emolument were probably the primary inducements for building the mills and diverting the water; the same reasons, for anything that appears, now exist for their continuance." The defendant claimed the right to restore the water to its original channel, but the court denied it, on the ground that his conduct in not disclosing his right at the time of selling the mills, his sleeping so long upon the claim and permitting the appellant to expend his money in repairing and rebuilding the mills, was unconscientious, and formed strong grounds for the interposition of a court of equity. Brown v. Bowen was an action for damages caused by defendants' acts in setting water back upon the plaintiff's mills, and a verdict for the plaintiff was sustained upon the ground that the defendants were by their conduct estopped from setting up a right to do the acts complained of. On the other hand, in Babcock v. Utter, 1 Abb. Ct. of App., Dec. 27, it was held that the easement then in question, and which in character was like the one claimed here, was an interest in real estate, incapable of transmission by parol, and the question was, "whether it could be done by a court of equity, against the positive provisions of the Statute." There the license given permitted the doing of an act on the land of the licensor by which water power had been secured. The defendant interfered with it and the plaintiff brought an action in equity to establish his easement, to restrain the defendant from diverting the water and for damages for

the diversion already made. He failed in the action, the court saying: "A mere verbal license to do an act or a series of acts upon the land of the licensor necessarily excludes all idea of a right to do the act or acts by virtue of a contract, or promise, which equity might enforce specifically;" adding: "To grant the relief here prayed for would effectually subvert the legal right, or, which is the same thing in effect, forever prevent the exercise of those rights which unavoidably pertain to one seised of the undisputed legal title, and with which he has never consented to part." The consequences thus pointed out are illustrated by the judgment in this case. It gives to the plaintiff a right to the perpetual use of the defendant's land, although there is no stipulation as to such title or right," and it is, therefore, as declared in the case cited," as repugnant to the principles of equity as to the rules of law." I do not in detail state the other cases cited by the appellant, for as to them it is enough to say they decide nothing contrary to the views expressed in the case just referred to. While the argument of the learned Judge Welles, in Pierrepont v. Barnard, 6 N. Y. 279, distinguishes between an easement and a license, Miller v. A. & S. R. R. Co., 6 Hill, 63, and Wolfe v. Frost, 4 Sandf. Ch. 93, seem to support the appellant's view of the proper limitation to the plaintiff's rights. There are no doubt many cases in which courts recognize an equitable right to an easement without a deed; but there will be found in them either an express agreement for an easement, or an acquiescence or consent by conduct which has led to the erecting of permanent works, or valuable and lasting improvements, or some other fact which would make the assertion of a legal title operate as a fraud upon the persons setting up the equitable right. But here there is no agreement for an easement, and no circumstances which render it inequitable in the defendant to insist upon the application of the Statute.

The agreement, however, to be implied from the receipt was undoubtedly good as a license, giving to the plaintiff immunity while acting under its privilege, but no vested right entitling him to its use or enjoyment against the will of the grantor; and this presents the point of difference between the parties. In behalf of the plaintiff is claimed an indefeasible right to an easement, such as passes by deed only; while the defendant denies to him any interest except as licensee, and construes the receipt as a mere dispensation or license, which "properly passes no interest nor alters or transfers property in anything, but only makes an action lawful, which, without it, had been unlawful." Per Vaughan, Ch. J., Thomas v. Sorrell, Vaughan, 351. Therefore, the plaintiff had liberty to enter upon the defendant's land and lay his sewer, subject to interruption at the defendant's will, but nothing more; and this, except for the license, would have been unThe principle upon which, after the fullest consideration, Babcock v. Utter, and St. Vincent Orphan Asylum v. City of Troy (hereafter referred to), and Wood v. Leadbitter, 13 M. & W. 838, were decided, applies here; and the case itself seems a reproduction of

the one put by Alderson, J., in the one last cited. "Suppose," he says, "the case of a parol license to come on my lands, and there to make a watercourse, to flow on the lands of the licensee. In such a case there is no valid grant of the watercourse, and the license remains a mere license, and therefore capable of being revoked. On the other hand, if such a license were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse; and if it did, then the license would be irrevocable." Now the receipt contains a mere license or permission to drain, and no agreement to convey an easement; nor is the license coupled with any interest in the land. It was, therefore, revocable, and its revocation did not operate as a fraud upon the plaintiff. His expenditures were trifling, and for aught that appears, have been more than repaid in the use already had by the plaintiff of the privilege given to him. There is no finding that by the action of the defendant he will be deprived of the means of drainage; and the contrary may not only be presumed, from the fact that the lot is on one of the public streets of the city, but if we look into the evidence, we see that there are sewers in neighboring streets to which access may be had, although doubtless with more expense and labor. Without regard, however, to these considerations, which apply to the equity of his case and not to any right, we have no doubt of the power of the plaintiff [defendant] to revoke the permission or license given. Nor does the fact of payment for the license alter the defendant's right. His permission to drain was still a mere license, and none the less revocable that it was paid for. Hewlins v. Shippam, 5 Barn. & Cress., ante.

It is also contended, on behalf of the plaintiff, that the judgment may he sustained upon the ground that he has a prescriptive right to the easement. This claim is inconsistent with the theory of the action as we find it disclosed in the complaint. There an agreement of purchase is set out, naming the price paid, and the averments of right subsequently made evidently refer to a right so acquired; and following that theory is the finding of the trial judge, based upon an agreement for which a consideration was paid. Moreover it is opposed to the claim that the agreement exists of which specific performance may be decreed; for to support it the possession and part performance must be with consent of the vendor, and in pursuance of and in reliance upon a contract; for otherwise there would be no fraud in the refusal of the vendor to execute or abide by his agreement. So if the possession was adverse; and in neither aspect would it present a feature for the jurisdiction of a court of equity. But I find nothing upon which this point can stand. The finding of the trial court is distinct: That within a short time after 1842, and more than twenty-five years last past, the plaintiff purchased of the defendant the right and easement, for the consideration of seven dollars." Thus the acts of possession commenced by permission purchased for a price, the minds of both parties concurring. If we look at the testimony given on the trial, we also

He says that he

find that the plaintiff's theory, from the beginning to the end, was that "an arrangement was made between the plaintiff and the defendant in reference to the sewer." Such is the plaintiff's own evidence. he applied to the defendant for the privilege and obtained it, first obtained this right. He says: "He permitted me to get a sewer there at the time I built the house; I made the bargain with him to connect the sewer," and then did so. The defendant confirms this. Denying the receipt of money, he admits that he gave permission. As to that fact, there was no controversy between the parties; and it follows that there could be no adverse possession until after July, 1876, when the defendant did the thing complained of, and cutting off the plaintiff's sewer, forbade his entrance upon the premises. Up to that time, possesssion under the license or permission of the defendant prevented it from being adverse. But the question is well settled by authority. White v. Spencer, 14 N. Y. 247-249; Jackson v. Mc Connell, 19 Wend. 177; Jackson v. Parker, 3 Johns. Cas. 124. The St. Vincent Orphan Asylum v. City of Troy, 12 Hun, 317, came before the Supreme Court in 1877. It appeared that in 1853 the defendant, by formal resolution of its common council, relinquished certain land theretofore used as a street, and in the same manner declared that the Troy Hospital, which then stood on the adjacent lot, was at liberty to enclose the land so relinquished within its grounds, for the use of that institution. This was done, and possession retained for more than twenty years. But thereafter the city sought to remove the wall, and in an action commenced against them, the plaintiff recovered. Upon appeal the General Term sustained the verdict, upon the ground that under the resolution of 1853, possession had been taken and permanent improvements made on the faith thereof, and held that the defendant was concluded by its resolution, "followed as it was by actual and continued occupation under claim of absolute right, especially in view of the improvements made on the faith of the action of the common council." Upon appeal to this court (76 N. Y. 108), the judgment was reversed. The view taken by the Supreme Court was relied upon in support of the judgment, and it was also urged that the plaintiff's possession was adverse to the title of any other claimant. This court, however, held first, that the resolution of the common council was invalid for want of power; but in answer to the plaintiff's claim as one holding by adverse possession, say: "The plaintiff's occupation, at least previous to the rescission by the common council in 1868, was not an adverse possession within the Statute of Limitations;" adding: "The occupation of a grantee of the fee is perhaps hostile to his grantor, but not so as to a licensee." I am not able to see why this decision is not in point and conclusive upon us in this The resolution was general and unlimited in terms; it gave permission to enclose" the land for its use." It was held to be a license. It was also held to be invalid. But the court say: "The entry of the plaintiff was, nevertheless, under it, and the holding is not

case.

adverse." In the case before us, the words of the receipt are general and unlimited, "for the right to drain through my premises;" but if construed so as to give an interest in land or an easement, is invalid, because not in conformity to the Statute. And the court further say: "The license, being invalid and void, could of course be the foundation of no right in the plaintiff; but its entry and occupation thereunder was nevertheless no more adverse to the defendant than if the license had been valid." The same doctrine is asserted in many other cases, and is deemed so well settled that it has found its way into the text-books, where, in various forms of words, it is declared that enjoyment had under a license or permission from the owner of the servient tenement confers no right as to the easement (Angell on Watercourses, § 216); and so the effect of the user would be destroyed, if it were shown that it took place by the express permission of the owner of the servient tenement; and the reason is, that such enjoyment is consistent with the right of the owner of that tenement, and consequently confers no right in opposition thereto. White v. Spencer, supra.

The case of Sibley v. Ellis, 11 Gray, 417, cited by the respondent, is not in conflict with these propositions. It there appeared that the user began in a trespass and had continued open and adverse for twenty years. It was therefore held that the defendant had a prescriptive right. To the same effect are many other cases cited by him; but they have no tendency to support the demand of the plaintiff. His user has not been adverse, nor has it been under a claim of right. The trial court does not so find it, nor that it was adverse. In the recent case of Ward v. Warren, 82 N. Y. 265, lately decided by this court, and to which our attention is called, the plaintiff claimed the title by prescription; and it was adjudged in his favor, because the trial court found "that the use of the way by him and his predecessors in the title had been adverse, under claim of right, exclusive, open and notorious, with the knowledge and acquiescence of defendants and their grantors, for forty-eight years." It was substantially so in the other cases cited by the respondent. Here there is no finding that the use was under a claim of right, or that it was adverse. On the contrary, the source of the plaintiff's possession was the defendant's permission; never under any claim of right, or in any sense adverse to the defendant. Our attention has been also directed to the following as authorities in favor of the plaintiff's contention. Washburn on Easements, § 88; La Frombois v. Jackson, 8 Cow. 589; Briggs v. Prosser, 14 Wend. 227. It is said by Washburn that although a right of way cannot be created by parol agreement, yet where, under such an agreement, the way was used for twenty years, and the same was acquiesced in by the owner of the servient estate, a prescriptive right was thereby gained. The learned author as authority for this statement cites Ashley v. Ashley, 4 Gray, 197. It depends on quite other considerations. It appeared that when a deed of certain land was delivered to the defendant, the grantor's agent stated it reserved no right of way to her own lot, and the defend