Howes v. Barmon

Citations

• 11 Idaho 64
• 81 P. 48
• 69 L.R.A. 568
• 1905 Ida. LEXIS 31

Syllabus

<p>License to Pass Ovee Stairway — Easement—Statute of Frauds— Equitable Interposition — Specific Performance.</p> <p>1. A license is a personal privilege to do certain acts upon the lands of another, but creates no estate therein, is revocable at will, and may rest in parol, while an easement is an estate in real property and its grant falls within the statute of frauds.</p> <p>2. v/here B. is erecting a two-story building —- proposes to H. & K., who own and occupy a two-story building on the adjoining lot, that he will build a stairway on the side of his building next to H. & BPs building^ and that they may use the same for ingress and egress to and from the seeond story of their building in consideration of H. & K. allowing B. to erect a porch on a five foot strip of a vacant lot adjoining the back end of B.’s building, and each party agrees thereto and enters upon the use so agreed upon, held, that the permission to use such stairway does not amount to the grant of an easement, but constitutes a license only and is revocable by the licensor.</p> <p>3. A court of equity will not grant the aid of specific performance where the party invoking its aid has not parted with any consideration or property, and no irreparable damage is suffered and no fraud is inflicted upon him, and where he is in statu quo at the time of the commencement of his action.</p> <p>4. Unless the evidence be clearly to the contrary, a court will presume that a ■ parol agreement to impress real property with a servitude was made with a knowledge of the provisions of the statute of frauds, and was therefore intended as a license only and not as an easement.</p> <p>(Syllabus by the court.)</p>