§ 324. A parol license may be revoked so long as it remains unexecuted,1 although a consideration for it has been paid, and terminates with the death of the licensor.2 A license by a riparian proprietor for the building of a bridge on his premises is revocable, and is revoked by a conveyance of the property.3 Where A. and B. agreed by an unsealed writing that A. might cut timber on B.'s land, and that B. might flow A.'s land to a certain extent by a dam, it was held that, although the licenses might have been mutual and given, each in consideration for the other, they were independent, and that either might be revoked without the other. But where A., at B.'s request, agreed verbally to build his mill at a spot different from that which he had intended, and which was selected by B., and also to give B. possession of a strip of land required to straighten B.'s lines, and to saw B.'s lumber at less than the market rates, and B. agreed, in return, to permit A. to build a tramway across B.'s land, and to throw the waste from the mill into a stream running through B.'s land, it was held that, the contract having been executed by both parties, A.'s license to throw the waste from the mill into the stream was irrevocable.5 Upon the revocation of a license to erect a dam upon another's land, and tender of the expenses thereof, it is as much the duty of the licensor as of the licensee to remove the dam. A parol license cannot be assigned by the licensee,7 and is presumed to be inoperative if not acted upon within a reasonable time; but an abandonment will not be presumed where the enjoyment of the license is interrupted by a providential cause, without laches or fault on the part of

1 Beidelman v. Foulk, 5 Watts, 308; Dark . Johnston, 55 Penn. St. 164; Owen v. Field, 12 Allen, 457; Hewlins v. Shippam, 5 B. & C. 222; Bryant v. Whistler, 8 B. & C. 288.

2 Bridges v. Purcell, 1 Dev. & Bat. 492.

3 Jackson v. Babcock, 4 John. 418; Drake v. Wells, 11 Allen, 141; Dark v. Johnston, 55 Penn. St. 164, 171; Maxwell v. Bay City Bridge Co., 41 Mich. 453; Clark v. Close, 43 Iowa, 92.

the licensee. If a license to butt a dam on the opposite shore, until the opposite owner should wish the privilege for his own use, is revoked, the licensee's right to the head of water thus raised and appropriated remains unimpaired.2

§ 325. The right of a riparian proprietor to the use of a stream is so valuable that misrepresentations as to the benefits or disadvantages arising therefrom may afford a cause of action for fraud or deceit. If the vendor of land which the vendee wishes, with the knowledge of the vendor, to purchase for a stock-ranch, represents that the land sold was upon a certain creek, when, in fact, the land was not supplied with water from that creek or any other source, and was worthless as a stock-ranch, the sale may be set aside at suit of the vendee, although the vendor made the statement in ignorance of the truth, and refused to enter such description in the warranty clause of the deed. So, if the vendor of a river plantation makes positive representations as to its comparative safety from overflow, which are inducements to the vendee to purchase, the latter may recoup, to the extent of his injury, in a suit in chancery by the vendor to enforce security for the purchase-money;5 and if the land is diminished in value by the overflow, and the representations are false and fraudulent, a court of equity will rescind the contract. If a positive declaration is made that a sluiceway connected with a mill is firmly laid upon sand rock which is from four to five feet below the bed of the river at that point, the vendee may rely upon the representations, and may maintain an action for deceit against the vendor if such representations are false and fraudulent.

1 Southwestern Railroad Co. v. Mitchell (Ga.), 27 Alb. L. Journ. 116.

2 Blanchard v. Baker, 8 Greenl. 253, which suggested that the right might still be "enjoyed by a diagonal or wing dam."

3 Farris v. Ware, 60 Maine, 482; Gilpin v. Smith, 11 S. & M. 109; Sargent v. Gutterson, 13 N. H. 467; Winston v. Gwathmey, 8 B. Mon. 19, 23;

So,

White v. Hardin, 5 Dana, 154; Long v. Weller, 29 Gratt. 347.

4 Pendervis v. Gray, 41 Texas, 326. Estelle. Myers, 54 Miss. 174; Reynolds . Cox, 11 Ind. 262; Durrett v. Simpson, 3 Mon. 517.

6 Alexander v. Beresford, 27 Miss. 747.

7 Faribault v. Sater, 13 Minn. 223.

fraudulent representations, as to the extent of the right to the use of a sewer, are cause for an action for fraud and deceit.1

3

§ 326. Promissory representations, or expressions of opinion that a dam will in the future continue to furnish the full amount of power conveyed, or that "the stream will furnish water to run the mill day and night eight months in the year," 2 are not fraudulent, though proved to be erroneous; nor are representations that the dam supplied "about three times as much" power as was conveyed, where the dam furnishes the vendee the full amount conveyed to him. Where a navigation company laid out a town and sold the lots, the purchasers expecting that they would open the navigation to it, and the lots were rendered worthless because the funds of the company were insufficient, the vendees were held not entitled to relief in equity, upon the ground that the vendors had made no fraudulent concealment of their means. If a deed conveys the right to flow so much of the grantor's land as would be flowed by raising the water of a stream by a dam to a certain height, it will not be cancelled upon a bill by the grantor, alleging that the deed was procured by the grantee's false representations as to the quantity of land that would be flowed by thus raising the water, if it appears that the prospective flowage could be ascertained by personal inspection; that neither party possessed any means of information not thus obtainable; that the grantor's agent inspected the land for this purpose before the sale, and the grantee did nothing tending to mislead the agent. An affirmation that land which is, in fact, imperfectly watered is "uncommonly tich water meadow-land" will not render the contract voidable in equity by the purchaser, although the court might, on that account, be disinclined to enforce specific performance at the suit of the vendor. And if a spring, which was rep

1 Whitney v. Allaire, 1 N. Y. 305; Green . Collins, 86 N. Y. 246, 253. 2 Morrison v. Koch, 32 Wis. 254; Banta v. Savage, 12 Nev. 151.

3 Clark v. Ralls, 50 Iowa, 275. Morrison v. Koch, 32 Wis. 254; Wells v. Day, 124 Mass. 38.

5 Turner v. Cape Fear Navigation Co., 2 Dev. Eq. 236.

Sanford . Nyman, 23 Mich. 326; Wright v. Gully, 28 Ind. 475.

7 Scott v. Hare, 1 Sim. 13.

resented to be upon the tract of land sold, could not, from its location and value, have formed a decided inducement to the purchase, there is no ground for rescission, if, in fact, it is found to be without the purchase. Upon the sale of "eighty acres of land, be the same more or less," including a mill-site, if it is evident that such site was the main object of the purchaser, a deficiency of twenty acres in the land sold will not, in the absence of fraud, justify a rescission of the contract.2

§ 327. Damages for the breach of a covenant against incumbrances, when the incumbrance is of a permanent character and impairs the value of the premises, such as an easement of a canal company to pass and repass along their canal upon the premises, upon which it abutted, for the purpose of cleaning and repairing it, will be measured by the diminished value of the premises.3 Damages for failure to keep a dam in repair so as to furnish the necessary supply of water, as agreed in a lease of a saw-mill, the lessee to have a right to repair at the lessor's expense, is the difference between the rental value of the mill in its then condition and in the stipulated condition, or the cost of repairs; and profits that would have been made if kept in the latter condition, or for deterioration of machinery, etc., are too remote.1

§ 328. Mill-owners on either side of a stream are jointly liable to keep the dam between them in repair,5 each being bound to keep his own flume in order, and one will not be liable, while using ordinary diligence, to the other, for damage accidentally caused in making the repairs. The grantee of an ancient mill, the water from which has passed off from time immemorial, through a raceway, which was an artificial channel, through land of another, has a right to enter on such land and clear out any obstructions in the ordinary

1 Winston v. Gwathmey, 8 B. Mon. 19, 23; Jasper v. Hamilton, 3 Dana, 280. 2 Pollock v. Wilson, 3 Dana, 25. 3 Mitchell r. Stanley, 44 Conn. 312. 4 Winner. Kelley, 34 Iowa, 339;

Fort. Orndoff, 7 Heisk. 167; ante, § 211 b.

5 Runnels v. Bullen, 2 N. H. 532. 6 Boynton v. Rees, 9 Pick. 527.

manner, doing no unnecessary damage,1 and to make repairs 2 and improvements, etc., necessary to its full enjoyment.3 A right to enter to cleanse a pool and repair a dam is incident to a grant to flow back water upon the grantor's premises, and to take earth and stones from the bottom of the pond for that purpose.5 A person with a right to use a well and pump on another's land, each being bound to pay for repairs proportionately, cannot maintain an action against the latter before a request and a refusal to repair.6 Under the general rule that a lessor, in the absence of an express agreement, is not bound to make any repairs, leases of a farm with "water privileges from the mill-pond for turning a wheel to drive a saddle-tree manufactory," and of "so much of the surplus water of a canal" as might be necessary to propel a mill of a certain kind, have been held not to bind the former lessor to keep the mill-dam in repair, and sufficient water in the mill-pond to carry on the factory, or to prevent the latter from abandoning the navigation of the canal, and suffering it to go to decay. A general covenant in a lease of a mill property and land to keep the mill in good repair," while it may embrace an obligation to keep the tail-race in as good repair as at the date of the agreement to lease, will not relieve the lessee of an obligation to clear the race of such deposits as result from the ordinary use of the mill.10 A bond to build and keep a bridge in repair for

1 Prescott v. White, 21 Pick. 341; White v. Chapin, 12 Allen, 516, 521; Roberts v. Roberts, 55 N. Y. 275.

2 Daniel v. Chaffin, 28 Iowa, 327. 3 Beals . Stewart, 6 Lans. 408. Pico v. Colimas, 32 Cal. 578, while admitting the general principle that a person, enjoying an easement in the land of another, may enter thereon to keep it in repair, declared that a water commissioner, under the statute to regulate watercourses, etc., had no authority as such to repair a watercourse, or to make an entry to remove an obstruction.

4 Frailey v. Waters, 7 Penn. St. 221. 5 Miller v. Scolfield, 12 Conn. 335.

6 Doane v. Badger, 12 Mass. 65; Calvert v. Aldrich, 99 Mass. 74, 76.

7 Pomfret v. Ricroft, 1 Wms. Saund. 321 n.; Colebeck v. Girdlers Co., 1 Q. B. D. 234. Sheets v. Selden, 7 Wall. 416, decided that a lessee, under a waterpower lease, providing for an abatement of rent for every failure of water, cannot, having forfeited the estate by non-payment of rent after due proceedings had, set up a claim for repairs to the water-channel made necessary by the landlord's gross negligence. 8 Morse . Maddox, 17 Mo. 569. 9 Trustees. Brett, 25 Ind. 409.

15 Middlekauff v. Smith, 1 Md. 329. See Bird v. Elwes, L. R. 3 Ex. 225.