ing.

License-right to revoke.

Under such circumstances it certainly could not be maintained that defendant could indefinitely continue to violate the terms of the license and maintain his ditch to the constant and continuing injury of the plaintiff. Upon this subject, see 17 R. C. L. “Licenses," §99; 2 Tiffany, Real Estate, 2d ed. § 349f; 19 C. J. "Easements," § 155; Wheelock v. Noonan, 108 N. Y. 179, 2 Am. St. Rep. 405, 15 N. E. 67; Pratt v. Ogden, 34 N. Y. 20; Mumford v. Whitney, 15 Wend. 380, 30 Am. Dec. 60; Henneky v. Stark (Sup.) 128 N. Y. Supp. 761. In the latter case a privilege to flood land had been granted upon condition that the licensee should grade a certain lane approaching a bridge over which the licensor was compelled to travel in reaching portions of his land. This the licensee failed to do. The licensor declared the license forfeited. The court said: "On the other hand, the defendant's engagement to grade the lane to the height of the bridge was something more than a mere independent covenant. It was a condition, the performance of which would materially affect the character of the servitude imposed upon plaintiff's land, for it would make tolerable a privilege which otherwise would result in a very serious inconvenience. To flow the land without the grading of the lane to the required height would and did compel the plaintiff to drive or walk through the water in going from one part of his farm to the other. I do not forget that forfeitures are not favored, and that where there is doubt as to whether the engagement of a grantee should be considered as a mere collateral covenant with a right of damages for a breach thereof, or as a condition upon the breach of which a forfeiture may be declared, the law resolves the doubt in favor of the continuance of the estate granted. But, in this case, it seems to me the engagement of the defendant to grade the lane was a condition upon the performance of 38 A.L.R.-72.

which, in good time and in a reasonable manner, his right to continue to flow the lands necessarily depended."

Just so in the case at bar. The defendant, according to the findings of the court, has continued to violate the condition upon which the license was granted, and his continued maintenance of the ditch in such manner as to be a constant annoyance and danger to the plaintiff authorizes a forfeiture of the license.

2. It was strenuously urged by defendant throughout the proceeding that plaintiff had mistaken his remedy in proceeding in equity for injunction. It was asserted there, and is likewise claimed here, that plaintiff had an adequate remedy at law by way of ejectment, or forcible entry and detainer, or for damages in trespass. It is argued that, although a licensee or the owner of an easement has no such interest or estate or right to possession as is required to maintain ejectment, the converse of the proposition is not true, and that the owner of the fee may maintain these actions against a defendant claiming such rights. This is vigorously contested by plaintiff, he contending that ejectment or forcible entry and detainer is not maintainable in these circumstances.

An understanding of the nature of the rights of the parties would seem to be sufficient to determine the question. In the first place, it may be stated generally that the right of a licensee or easement owner is ordinarily not in any sense adverse to the owner of the fee in cases like the present. The defendant's right as claimed is merely a right to run water through the ditch. He claims, and can claim, no right to the exclusive or adverse possession of the soil. The plaintiff's cattle are free to travel over the land the same as if the ditch was not there, and the plaintiff has in no way been excluded from his possession of the soil. An easement or license of this kind differs from one where, from the nature of the use of the land by the li

censee, the owner of the fee is excluded from his possession, as, for example, where some structure of a permanent character so occupies the land as to exclude the owner, or where the public have such right to the use of a street as to necessarily exclude any personal possession of the soil by the owner. And in this case, if the defendant had fenced the ditch so as to exclude the plaintiff and his cattle, and was claiming the exclusive right to the possession of the land fenced, it may be that ejectment or forcible entry and detainer might be maintained by the plaintiff, but such is not the fact.

Injunction

pass by former licensee.

There is no claim of exclusive adverse possession by defendant, and it would seem clear that the plaintiff, under the circumstances, has no remedy at law. His to prevent tres- remedy is in equity for an injunction, which is the one he has pursued. Upon this subject, see Hicks v. Bluefield, 86 W. Va. 367, 103 S. E. 323; Pinkum v. Eau Claire, 81 Wis. 301, 51 N. W. 550; Le Blond v. Peshtigo, 140 Wis. 604, 25 L.R.A. (N.S.) 511, 123 N. W. 157; Henneky v. Stark, supra. And see also, generally, as to the availability of injunction to prevent continuing trespasses, and to avoid a multiplicity of suits, Stroup v. Frank A.

Hubbell Co. 27 N. M. 35, 32 A.L.R. 450, 192 Pac. 519; Hales v. Atlantic Coast Line R. Co. 172 N. C. 104, 90 S. E. 11; Mendelson v. McCabe, 144 Cal. 230, 103 Am. St. Rep. 78, 77 Pac. 915; Rhoades v. McNamara, 135 Mich. 644, 98 N. W. 392. And see also 19 C. J. "Easements," § 247; 14 R. C. L. "Injunctions," §§ 156-158.

Some other considerations are presented, to the effect that the pleadings made out a case for ejectment, which ousted the equitable jurisdiction. An analysis of the pleadings, however, shows that the case was to determine the right to use the ditch under the license, and we have determined that a court of equity is the proper forum. It is also argued that the decree is inequitable because the defendant, relying upon the license, had abandoned another means of taking and conveying the water. However this may be, if defendant violated the conditions upon which the license was granted, as the court found, he must abide by the consequences.

It follows from all of the foregoing that the decree of the court below is correct and should be affirmed; and it is so ordered.

Bratton and Botts, JJ., concur. Petition for rehearing denied August 20, 1924.

The question of revocability is, of 'course, beyond the scope of the present annotation. See, for example, Vernam v. Palmer (1889) 5 N. Y. Supp. 71 (dismissing an injunction as premature where no use had been made of the premises in excess of that authorized by the license); Stephens v. New York, O. & W. R. Co. (1903) 175 N. Y. 72, 67 N. E. 119 (holding that if an agreement by a landowner, permitting railroad tracks to be laid opposite his premises, be construed to

be a license, yet the fact of performance by the licensee, accompanied by the expenditure of large sums of money in constructing its railroad plant, would move a court of equity to protect the latter's rights against revocation, and to refuse an injunction restraining enjoyment of the license); Garrett v. Bishop (1895) 27 Or. 349, 41 Pac. 10 (dismissing suit to enjoin further use of ditch across complainant's land by licensee, where, in reliance upon the license, valuable im

V.

provements had been made, so as to make the license irrevocable); Hopkins v. Stoneroad (1902) 21 Pa. Super. Ct. 168 (dismissing a bill in equity to restrain the use of a drainage drift by licensee, where, in reliance upon the permission given, heavy expenses had been incurred, so as to make the license irrevocable); Caldwell Knott (1836) 10 Yerg. (Tenn.) 209 (where, upon the filing of a bill to enjoin defendant from overflowing plaintiffs' land because of a dam built under a parol license from plaintiffs' ancestor to overflow his land, the court refused to take jurisdiction until the right to revoke the license was determined at law, the dam having been erected at considerable expense, in reliance upon the license to overflow the land in question). See also, in this connection, Wilson v. Bondurant (1892) 142 Ill. 645, 32 N. E. 498, affirming (1891) 42 Ill. App. 603, in which an injunction restraining defendants from draining water over and through a ditch upon complainant's land was denied, upon the ground that defendants had a right so to discharge water, independently of any so-called license which may have been since revoked.

In the present annotation, the same being concerned only with the propriety of injunction as a remedy by the licensor upon revocation of the license, no attempt has been made to collect the many cases in which the injunctive relief asked for has been granted, as a matter of course and without objection to the form of the remedy, upon holding the license revocable, the issue being the revocability of the license. See, for example: Wheeler v. West (1886) 71 Cal. 126, 11 Pac. 871, second appeal in (1888) 78 Cal. 95, 20 Pac. 45 (license to extract and remove gold from mining claim); Garner v. Mahoney (1902) 115 Iowa, 356, 88 N. W. 828 (license to cut growing trees); Home Invest. Co. v. Iovieno (1922) 243 Mass. 121, 137 N. E. 382 (license to cross land in storing and transporting ice); Hathaway v. Yakima Water, Light & P. Co. (1896) 14 Wash. 469, 53 Am. St. Rep. 874, 44 Pac. 896 (license to

maintain a waterway or waste ditch across certain lands of plaintiff); Duval v. Welch (1912) 148 Wis. 244, 134 N. W. 232 (license to mine).

Injunction as a proper remedy against abuse of the license is, of course, beyond the scope of the present annotation. See, for example, Northern C. R. Co. v. Canton Co. (1906) 104 Md. 682, 65 Atl. 337 (holding that a mandatory injunction may be granted compelling a railroad company to remove tracks in excess of the number laid by permission of the owner); Meinecke v. Smith (1908) 135 Wis. 220, 115 N. W. 816 (holding that one having a license to use for farming and pasturage purposes a private way across complainant's land may be enjoined from using the way for hauling sand from a sand pit, by reason of which heavy hauling the road was impaired and damaged).

As to the propriety of injunction as a means of dispossessing a servant who refuses to vacate upon his discharge, see, for example, MacKenzie v. Minis (1909) 132 Ga. 323, 23 L.R.A. (N.S.) 1003, 63 S. E. 900, 16 Ann. Cas. 723; Marshall v. Matthews (1919) 149 Ga. 370, 100 S. E. 103. See also Mechanics' Foundry v. Ryall (1882) 62 Cal. 416.

The question under annotation presupposes that the license has been or may be revoked, and that the owner of the land is entitled to possession of the same, free from the burden imposed by the license.

Remedies in license cases are, of course, dependent on the nature of the case itself, the provisions of the local law, and the ends sought. 17 R. C. L. 590.

An injunction will lie to restrain repeated trespasses on the plaintiff's private landing by a mere licensee whose privilege has been revoked, but who has repeatedly broken down the fence across the private way leading to the landing, and threatened to remove the fence each time it was rebuilt. McClellan v. Taylor (1898) 54 S. C. 430, 32 S. E. 527.

A license to a firm operating a ferry, to land upon the licensor's premises being revoked by a transfer

of the firm's interest in the ferry, the owner is entitled to an injunction restraining the further use of the premises as a landing place for the ferry by those owning the same, who claim the right to such further use of the premises. Bryant v. West (1920) Mo., 219 S. W. 355. Injunction is a proper remedy, notwithstanding the solvency of defendants, since the remedy at law is inadequate and involves a multiplicity of suits for damages difficult, if not impossible, to estimate. Ibid.

Upon revocation of a license to enter lands and cut timber therefrom, an injunction will be granted at the instance of one owning the timber rights, restraining the licensee from further cutting and removing timber from the land. Bruce v. John L. Roper Lumber Co. (1891) 87 Va. 381, 24 Am. St. Rep. 657, 13 S. E. 153.

An injunction will be granted at the instance of a lessee of farming lands, restraining another from trespassing upon such lands under claim of the right to enter and farm the land by permission of a former lessee. Meyers v. Schmidt (1919) 103 Neb. 475, 172 N. W. 352.

Where a license to enter upon a mining claim and extract ore from the same has been revoked, and the licensees, who are insolvent and unable to respond in damages, refuse to surrender possession of the claim, but continue to mine and remove ores and minerals from the claim, converting them to their own use, and threaten to continue their unlawful acts, thus destroying the substance of the licensor's estate in the premises, an injunction will be granted restraining the licensees from further continuance of their unlawful acts in mining, extracting, and removing ores from the claim. Clark v. Wall (1905) 32 Mont. 219, 79 Pac. 1052.

Where hackmen who have been permitted by a railroad company to enter its passenger station and depot grounds for the purpose of soliciting passenger and baggage business continue to enter the station to solicit passenger and baggage business, after sale by the company to another of the

exclusive privilege of entering the premises to solicit such business, and notice by the company of the sale, and of the fact that thereafter they would not be permitted to solicit business upon the company's premises, and it is conceded that their acts constitute trespass, the company is entitled to an injunction restraining further acts of trespass, since, by confining the remedy to one at law, the amount recoverable could not be large, in comparison with the amount expended in litigation, and every trespass would give a new right of action, thus giving rise to a multiplicity of suits. Boston & M. R. Co. v. Sullivan (1900) 177 Mass. 230, 83 Am. St. Rep. 275, 58 N. E. 689. The fact that the defendant is solvent in such a case is not of importance, although his insolvency may be an additional reason for sustaining equitable jurisdiction. Ibid.

Upon revocation of a license to persons erecting a building, to insert its timbers into a wall on the land of the licensor, the licensor is entitled to a decree authorizing him to remove the wall so far as it stands on his land, and also the timbers, so far as they project over it, but at his own expense, as the structure has become unlawful only since the license under which it was erected has been countermanded, and to an injunction forbidding the licensees from interfering with him in so doing, unless, within a brief time to be named in the decree, the licensees shall themselves remove the wall and timbers. Hodgkins v. Farrington (1889) 150 Mass. 19, 5 L.R.A. 209, 15 Am. St. Rep. 168, 22 N. E. 73. The fact that the plaintiff will sustain no substantial injury if the wall remains as it is, and that the defendants will suffer heavy loss if it is removed and they are compelled to take out their timbers, will not prevent the plaintiff from maintaining a bill in equity to compel their removal; nor will an offer by the defendants to pay plaintiff the damages caused by the retention of the wall in its present site. Ibid.

In Krich v. Zemel (1924) — N. J. Eq., 124 Atl. 449, where defendant, by agreement with an adjoining land

owner, had projected the roof beams of a building into the walls of an existing building upon the adjoining tract, and otherwise encroached upon the adjoining tract, it was held that one who had purchased the adjoining premises at a foreclosure sale, and in whom, as determined by a suit at law, the legal title was vested free and clear from the encumbrances imposed upon the premises, was entitled to a mandatory injunction restraining defendant from the use of the wall upon the premises, and from continuing to permit the roof beams, etc., to encroach upon the premises, and this though it would cost defendant in the neighborhood of $3,500 to remove them; since the damage is irreparable and the remedy at law therefore inadequate.

In Smyth v. Brooklyn Union Elev. R. Co. (1907) 121 App. Div. 282, 105 N. Y. Supp. 601, judgment modified in (1908) 193 N. Y. 335, 23 L.R.A. (N.S.) 433, 85 N. E. 1100, it was held that upon revocation of a license by one owning the fee to the center of the street, to maintain an elevated railway upon the street, the owner may enjoin the railway company from maintaining and operating its road in front of his premises. Upon appeal, however, it was held that the railway company had been given an easement, and not a mere license in the street, so that injunction should not have been granted.

A mandatory injunction will be granted to compel the removal from plaintiff's premises of a large quantity of stone, placed there by the defendant pursuant to a license which he has abused, and which has, moreover, expired by lapse of time. Wheelock v. Noonan (1887) 108 N. Y. 179, 2 Am. St. Rep. 405, 15 N. E. 67, affirming (1886) 21 Jones & S. 286. Said the court: "The court found as matter of law that the original permission given did not justify what was done either [as] respected the quantity of rock or the time allowed; that, after the withdrawal of the permission in the spring, and the demand for the removal of the rock, the defendant was a trespasser, and the

trespass was a continuing one, which entitled plaintiff to equitable relief. The sole question upon this appeal is whether the relief granted was within the power of the court, and the contention of the defendant is mainly based upon the proposition that the equitable relief was improper, since there was an adequate remedy at law.. It is now said that

the remedy was at law; that the owner Icould have removed the stone and then recovered of the defendant for the expense incurred. But to what locality could the owner remove them? He could not put them in the street; the defendant presumably had no vacant lands of his own on which to throw the burden; and it would follow that the owner would be obliged to hire some vacant lot or place of deposit, become responsible for the rent, and advance the cost of men and machinery to effect the removal. If any adjudication can be found throwing such burden upon the owner, compelling him to do in advance for the trespasser what the latter is bound to do, I should very much doubt its authority., Such is neither an adequate remedy nor one which the plaintiff was bound to adopt. But it is further said that he could sue at law for the trespass. That is undoubtedly true. But in a case like the present, would that be an adequate remedy? In each action the damages could not easily be anything more than the fair rental value of the lot. It is difficult to see what other damages could be allowed, not because they would not exist, but because they would be quite uncertain in amount and possibly somewhat speculative in their character. The defendant, therefore, might pay those damages and continue his occupation, and, if there were no other adequate remedy, defiantly continue such occupation, and, in spite of his wrong, make of himself, in effect, a tenant who could not be dispossessed. The wrong in every such case is a continued unlawful occupation, and any remedy which does not or may not end it is not adequate to redress the injury, or restore the injured party