Estabrook v. Wilcox

This is an action by which the plaintiff seeks to recover damages for breach of an oral agreement to lay out and construct a street on the defendant’s land for the use of the plaintiff as grantee in a deed executed by the defendant. The defence set up is the statute of frauds.

*158The plaintiff relies upon Cole v. Hadley, 162 Mass. 579, Drew v. Wiswall, 183 Mass. 554, and Durkin v. Cobleigh, 156 Mass. 108. But in those cases the right to have a street laid out over the defendant’s land was created in writing. In those cases the deed to the plaintiff referred to a plan to show the land conveyed and on that plan a street was shown on which the premises conveyed abutted. In those cases the right to have a street laid out over the defendant’s land (that is to say the right to an easement over the defendant’s land) was created by an instrument in writing. In the case at bar the only way in which the plaintiff undertook to make out that he had an easement over the defendant’s land was by the oral contract. To this the fourth section of the statute of frauds (re-enacted in this Commonwealth in R. L. c, 74, § 1, cl. 4) is a defence. Where the plaintiff makes out a right to a street over the defendant’s land by deed or by any other writing and then relies on a contract on the defendant’s part to do the physical work necessary to construct the street and make the paper street into a real street he has a right of action on that contract although that contract was made by word of mouth. That was the point decided in the three cases on which the plaintiff relies, where the whole matter is fully explained.

It follows that the exceptions must be sustained. And we are of opinion that acting under St. 1909, c. 236, § 1, we should direct judgment to be entered for the defendant. It is

So ordered.