CARL T. ALBRECHT, APPELLANT,
v.
DRAKE LUMBER COMPANY, A CORPORATION, APPELLEE
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The Florida Supreme Court affirmed that a parol license to construct a railroad on another's land becomes irrevocable when the licensee substantially performs by constructing and operating the railroad at great cost, and that a subsequent purchaser of the land takes it subject to the burden of the railroad and cannot object to its continued operation.
A parol license to construct a permanent structure on land becomes irrevocable where the licensee substantially performs by making great expenditures in permanent improvements with the licensor's knowledge. A subsequent purchaser of the land takes it subject to the burden of the railroad and is not in a legal position to object to its maintenance or operation.
“That an express oral license, becoming irrevocable by execution, by expenditures in permanent improvements in reliance thereon, inuring to the benefit of the licensor, if relating to the use or occupation of real estate, becomes an easement.”
Establishes the doctrine that executed parol licenses for permanent improvements become irrevocable easements.
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Join FLexlaw to unlock all legal intelligenceAlbrecht owned land and gave Drake Lumber Company a parol license without consideration to build, locate, and construct a railroad across his property…
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Taylor, J.,
(after stating the facts) — Two questions are presented in this case: (1) Where the owner of land, without consideration, by parol, gives license to another to build, locate and construct a railroad on and across his land, and the licensee at great cost executes such license by constructing such railroad and puts it into actual operation for the purpose of transporting logs to his sawmill located upon other land, is-such license revocable at the will and pleasure of the licensor or of his grantee of the land who became such grantee after .the execution of such license?
(2) Is such grantee, who purchased the land subsequently to the construction and operation thereon of such railroad, in a position legally to object to the maintenance of such railroad on such land or to cause or have the same removed therefrom, or to obstruct its operation thereon ?
While there is conflict in the authorities as to the first of these two questions, yet the great weight and preponderance thereof are on the side of a negative answer thereto, and hold that a parol license, without consideration, to construct upon the land of the licensor any permanent structure, such as an irrigation ditch, a mill-dam or railway, can not be revoked at the licensor’s pleasure, where the licensee, in consequence of the license, at great cost has erected his mill, or constructed his railroad. See the leading case of Rerick v. Kern, 14 Serg. & Rawle, (Pa.) 267, as reported in 16 Am. Dec. 497, and numerous citations both pro and con in the copious notes to that case; Shaw v. Proffitt, 57 Ore. 192, 109, Pac. Rep. 584, 110 Pac. Rep. 1092; 26 Am. Cas. 63. In the case last cited it is held: “That an express oral license, becoming irrevocable by execution, by expenditures in perma,nent improvements in .reliance thereon, inuring to the benefit of the licensor, if relating to .the use or occupation of real estate, becomes an easement. The licensor’s attempted revocation of the express license, which has been executed by expenditure in permanent improvements by the licensee to the knowledge of the licensor, is a fraud, against which equity will relieve by estoppel.”
The second of these questions must likewise be anstvered in the negative. The appellant when he purchasd the. land took it with the burden of the railroad thereon and is not in position to object to its presence or to sue for or recover damages therefor.' Roberts v. Northern Pacific R. R. Co., 158 U. S. 1, 15 Sup. Ct. Rep. 756; Bennett v. Booth, 70 West Va. 264, 73 S. E. Rep. 909, 39 L. R. A. (N. S.) 618; Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 South. 381.
The court below correctly refused to dissolve the temporary injunction and the order appealed from is hereby affirmed at the cost of the appellant.
Shackleford, C. J., and Whitfield, J., concur. Cockrell, J., concurs in the result.
Hocker, J., takes no part.
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Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22 (Fla. 1932)…se, or in a certain manner and in the execution of that use, the permittee has expended large sums or incurred heavy obligations for its permanent improvement. This rule applies' whether the permit be express or parole. Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98, Shaw v. Proffitt, 57 Ore. 192, 109 Pac. 384, 110 Pac. 1092, Rariton Water Power Co. v. Veghte, 21 N. J. Eq. 463, text 475, Boswreth v. Nelson, 170 Ga. 279, 152 S. E. 575, Frederic v. Mayers 89 Miss., 127, 43 So. 577, Nowlin v. Whipple, 1…
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Dance v. Tatum, 629 So. 2d 127 (Fla. 1993)…great public importance: WHETHER, IN LIGHT OF MOORINGS ASSOCIATION, INC. V. TORTOISE ISLAND COMMUNITIES, 460 S0.2D 961 (FLA. 5TH DCA 1984), DECISION QUASHED, 489 S0.2D 22 (FLA.1986) (DISSENT APPROVED), THE STATEMENT IN ALBRECHT V. DRAKE LUMBER CO., 67 FLA. 310, 65 SO. 98 (1914), TO THE EFFECT THAT AN IRREVOCABLE LICENSE BECOMES AN EASEMENT BASED ON EQUITABLE ESTOPPEL, MEANS THAT AN IRREVOCABLE LICENSE CAN NO LONGER EXIST IN FLORIDA. Tatum v. Dance, 605 So. 2d 110, 113 (Fla. 5th DCA 1992). We have jurisdi…1 / 2
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Merrill Stevens DRY Dock Co. v. G & J Invs. Corp., Inc., 506 So. 2d 30 (Fla. 3d DCA 1987)…whether language in a quitclaim deed created an easement or a license. The court held that the deed created an easement subject to termination upon the happening of a condition subsequent, not an irrevocable license. In Albrecht v. Drake Lumber Co., 67 Fla. 310, [*33] 65 So. 98 (1914), a case cited in Dotson, a landowner purchased his land subsequent to the construction of a railroad operating across his property under a license from the landowner’s predecessor. The court held that because the landowner pu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roberts v. N. Pac. R.R. Co., 158 U.S. 1 (U.S. 1895)
- Martin v. Van Ness, 60 Fla. 284 (Fla. 1910)