Stone v. Wait

The opinion of the court was delivered by

In this case there is no feature of a tenancy as between the parties — the relation of rent-paying to the one for occupation by the other. It was the case of a license by the plaintiff that the defendant’s cattle might feed on his land,.and a like license by the defendant that the plaintiff’s cattle might feed *667on his land. It was a volunteer arrangement between them, not involving the creation and vesting of an affirmative right ex contractu, enforcible by suit, to pasture the cattle of the one on the land of the other ; but it only operated to make the acts of each, as to the pasture of the other, lawful, and not trespasses, so long as the arrangement by mutual consent should continue. When that consent was withdrawn by either of the parties, and the license revoked, the right of the other party under such license was thereby ended, and he would become a trespasser by putting or permitting his cattle upon the land of the revoking party after such revocation, the same as if no such arrangement and license had previously existed.

The evidence did not tend to show any other relation of the parties than such as above indicated. Nor did it tend to show any element of estoppel in pais. Each party knew exactly the arrangement and understanding upon which the cattle were being pastured indiscriminately, and without division fence, in the pastures of the two parties; and that was, in fact, a parol license from each to the other, which, in law, was revocable at pleasure by either. The course as to fencing, and letting fences run down, went on with this posture of the parties to each other in full view, and neither was able to be thereby misled through any act or neglect of the other.

The evidence, direct and circumstantial, bore on the subject of the arrangement and understanding between the parties, as constituting license from each to the other, and of the revocation of such license by the plaintiff.

Under the charge by the court, the full force of the defendant’s evidence was accorded to him, and there was no error in law in not otherwise complying with his requests. The judgment for nominal damages is affirmed, including the judgment awarding a close-jail certificate; and full costs are allowed to the plaintiff.