Flickinger v. Shaw

Citations

• 87 Cal. 126
• 11 L.R.A. 134
• 25 P. 268
• 1890 Cal. LEXIS 1107

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p> <p>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 r