Opinion of the Court-Walters, District Judge.

construction of said ditch was obtained, is the same land now owned by the plaintiffs; that said ditch when constructed was constructed with reference to the natural surface of the ground and without reference to the lines or boundaries of the same, and that the seepage from the same renders some portion of defendants' land wet and useless for farming, and that it is necessary for defendants to construct flumes over said ditch in order to irrigate some portions of their own land.

It further appears that in the year 1911 the plaintiff McReynolds and the defendant George Harrigfeld had some conversation about the location of the ditch in question, when Harrigfeld informed McReynolds that if he must take water across defendants' land, that defendants would grant plaintiffs a full right of way for the same across defendants' land, to be, however, constructed along the fence line and of sufficient capacity to convey the forty inches of water owned by plaintiffs, where defendant asserted it could be easily constructed, would cause no damage, and be out of the way of everybody. To this offer the plaintiff McReynolds refused to accede, insisting that if the ditch was rebuilt elsewhere it should be done by defendants.

Based upon this record the trial court found, as conclusions of law, that the oral license obtained by the licensees (McIntosh and Green) from said defendants for the construction of said ditch, and upon which plaintiffs based title, was revocable at the will of the defendants; that the defendants, prior to the institution of this action, had revoked said license; that the plaintiffs have no right or other interest in or to said ditch or a right of way for the same, and decree was entered accordingly, from which plaintiffs prosecuted this appeal.

(1) It thus appears that the precise question here for inquiry is, when will a parol license for a right of way for a ditch over land be made perpetual, having in mind that such right of way is an easement or interest in real property, which sec. 6007 of the Rev. Codes declares can only be created by operation of law, or a conveyance or other instrument in

Opinion of the Court-Walters, District Judge.

writing subscribed by the party granting such easement or right of way?

Inasmuch as it is not claimed that any consideration passed to, or benefit has been received by, the defendants for the license granted to construct the ditch across defendants' land, this case therefore does not fall within the rule announced by this court upholding oral agreements for such purposes in the following cases: Stowell v. Tucker, 7 Ida. 312, 62 Pac. 1033; Feeney v. Chester, 7 Ida. 324, 63 Pac. 192; Male v. Leflang, 7 Ida. 348, 63 Pac. 108.

(2) It should further be borne in mind that the record in this case is absolutely silent as to what amount of money the licensees or their successors in interest may have expended, if any, in reliance upon their license, or oral permission to construct said ditch; what additional acreage or improvements, if any, licensees, or their successors, may have developed or made. It is not shown that the defendants permitted said ditch to be constructed because of any benefit or advantage which may accrue to them, nor that any benefits or advantages have accrued to defendants by reason of the construction of said ditch. The testimony merely shows that defendants had granted licensees permission to build the ditch, and that they had so built it.

The question involved in this appeal has received some considerable attention by the courts, and it has been held, as the most liberal view, that when the licensee has acted under the authority conferred and has incurred expense in pursuance of it, by making valuable improvements on his own property or on the right of way, that equity will regard it as an executed contract and will not permit it to be revoked, regarding it substantially as an easement, the revocation of which would. be a fraud on the licensee.

The supreme court of Nevada, in the case of Lee v. McLeod, 12 Nev. 280, has held: "A parol license to erect a dam upon another's land, or to convey water from a stream running through the land of another, for the purpose of erecting and conducting a flouring-mill, is, in our opinion, irrevocable after the party to whom the license was given has executed it by

Opinion of the Court-Walters, District Judge.

erecting the mill, or otherwise expended his money upon the faith of the license."

In the case of Bowman v. Bowman, 35 Or. 279, 57 Pac. 546, it is said: "For the rule is well settled in this state that a parol license cannot be revoked after the licensee has expended money or performed labor in making valuable and permanent improvements on real property upon the faith of such license."

The question here mooted seems to have been exhaustively considered by the supreme court of Oregon in the recent case of Shaw v. Proffitt, 57 Or. 192, Ann. Cas. 1913A, 63, 109 Pac. 584, 110 Pac. 1092, wherein the following language is quoted with approval:

"The cases are practically agreed that on strict commonlaw principles a bare license is revocable at the will of the licensor, even though executed; but it is held by a very respectable line of authorities, as in the reported case, that on principles of equity the revocation of a license after the licensor has stood by and permitted the licensee to incur considerable expense on the faith of the license would amount to a constructive fraud, working an estoppel in the licensee's favor." To the same effect is Great Falls Water Works Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 Pac. 963. See, also, 25 Cyc. 646, and cases cited.

This court has heretofore recognized such principle of law in the case of Howes v. Barmon, 11 Ida. 64, 114 Am. St. 255, 81 Pac. 48, 69 L. R. A. 568, where it is held that a court of equity will not lend enforcement to a parol license for an easement in realty 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.

So in the case at bar, it does not appear that the plaintiffs, nor their predecessors in interest, parted with any consideration or property for the permission given; neither does it appear that plaintiffs will suffer irreparable damage by a

Idaho, Vol. 26-3

Opinion of the Court-Walters, District Judge.

denial of the court to enforce the specific performance prayed; nor does it appear that, should the court refuse to grant plaintiffs the relief asked, they will not be left in their original position, nor defeated of their original rights. On the contrary, they will be absolutely in statu quo, and hence it clearly appears this is not a case authorizing or justifying the interference of a court of equity to make perpetual or permanent a parol license for an easement in realty.

(3) In the case of Daly v. Bernstein, 6 N. M. 380, 28 Pac. 764, the supreme court of New Mexico says: “'In statu quo' means being placed in the same position in which a party was at the time of the inception of the contract which is sought to be rescinded."

As was said in Howes v. Barmon, supra: "But courts of equity grant relief in such cases upon the principal theory that the parties cannot be placed in the position they originally occupied, and therefore equity will compel them to live up to their agreements.'

(4) All that may be said in the case here considered is, that the plaintiffs, or licensees, have been let into possession of the property or right of way for ditch, and such fact alone is not sufficient for a court of equity to declare that "by operation of law" the provisions of sec. 6007, Rev. Codes, need not be observed. (Howes v. Barmon, supra, and cases there cited.)

We conclude that upon the evidence as contained in the record, and the law applicable thereto, the trial court was authorized to enter the judgment appealed from, and said judgment is affirmed, with costs awarded to respondents.

Ailshie, C. J., and Sullivan, J., concur.

Opinion of the Court-Walters, District Judge.

(May 7, 1914.)

GEORGE A. RICHARDSON, Respondent, v. JOSEPH D. BOHNEY, Appellant.

[140 Pac. 1106.]

HARMLESS ERROR-SUFFICIENCY OF EVIDENCE.

1. No judgment will be reversed upon appeal by reason of errors or defects in the proceedings below which do not affect the substantial rights of the parties.

2. Evidence examined, and held that there is substantial evidence to support the verdict and findings of the jury.

APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.

Action to ascertain and determine the true boundary line between the homestead entries of plaintiff and defendant. Judgment for plaintiff. Defendant appeals. Affirmed.

Millsaps & Moon, for Appellant, cite no authorities on points decided.

Soule & Soule, for Respondent.

"The only question presented on this appeal is the sufficiency of the evidence, and there is evidence which supports the verdict. For these reasons the judgment must be affirmed." (Meeker v. Trappett, 24 Ida. 198, 133 Pac. 117.)

WALTERS, District Judge.-This action was commenced by the plaintiff for the purpose of ascertaining and determining the true boundary line between the homestead entries of the plaintiff and the defendant, Joseph D. Bohney. The plaintiff and defendant differed as to the location of said line as established by the original government survey. By answer the defendant put in issue the allegations of the complaint as to the location of said line, and such question was by trial presented to a jury who returned a general verdict