SAMUEL SNOW v. M. KIMMER et als, 52 Cal. 624

1. The demurrer should have been sustained. The contract set up in that portion of the answer demurred to was verbal contract concerning real property, and invalid as being within the Statute of Frauds. (Civil Code, secs. 1624 and 1741; Code Civil Procedure, sec. 1971.) If it be claimed that the contract was not for the sale of an interest in the land, but for an easement, we answer that a claim for an easement must be founded upon a grant by deed or writing, or by prescription. ( Wagner v. Hanna, 38 Cal. 111.) The answer alleges a contract to convey, and cannot he construed into a parol license to mine.

A parol license must be for a temporary, and not to convey an estate in the land. ( Cook v. Stearns, 11 Mass. 536.) A contract of the kind set out in the fifth finding would clearly be the grant of an estate in real property without limitation. “ To decide that a right to a permanent occupation of plaintiff’s land may be acquired by parol, and by calling the agreement a license, would be in effect to repeal the statute.” (Mumford v. Whiting, Wend. 380.) 2.

The alleged contract, regarded either as an agreement for the sale of the land, the granting of an easement therein, or as a parol license to mine out and remove a portion of the land, was an illegal contract, which the Courts will not enforce, and constituted no defense to the action. “ That is not lawful which is, first, contrary to an express provision of law; second, contrary to the policy of express law, though not expressly prohibited; or, third, otherwise contrary to good morals.” (Civil Code, sec. 1667.) Appellant was a pre-emptor, and before being allowed to enter the land in dispute was required to make oath before the Receiver or Register “ that he had not directly or indirectly made any agreement or contract in any way or manner with any person whatsoever by which the title which he might acquire from the Government of the United States should inure in whole or in part to the benefit of any person except himself.” (Rev.

Stats. U. S. sec. 2262.) This Court has passed upon agreements similar to the one here set up in the cases of Damrell v. Meyer, 40 Cal. 166, and Huston v. Walker, 47 Cal. 484. 3.

Should the Court consider the alleged agreement in the light of a contract to convey, counsel begs leave to call their attention to the latter part of sec. 2262 of the Revised Statutes United States, which provides that “ any grant or conveyance which he [the pre-emptor] may have made, [prior to making the affidavit] except in the hands of a bona fide purchaser for a valuable consideration, shall be null and void.” Defendants do not claim to be such purchasers. They had actual knowledge of the facts, and are presumed to know the law. George G. Blanchard, for Respondents. 1. This agreement is a mining license.

It conveyed no estate in the land, and was not within the Statute of Frauds. But if considered as a conveyance of an estate in the land, it was executed, and therefore taken out of the statute, and for the same reason not revocable. That an executed parol agreement for the transfer of an interest in land is not within the Statute of Frauds, see 12 N. Y. 364; 4 Comst. 403; 41 Barb. 619; Story’s Equity Jurisprudence, 719 et seq.; 39 Cal. 639. On the subject of license and that parol executed licenses are irrevocable, see Rerick v. Kern, 14 Serg. & R. 267-272; Le Fevre v. Le Fevre, 4 Serg. & R. 241; Ricker v.

Kelley, 1 Me. 117; Clement v. Durgin, 5 Me. 9; Androscoggin Bridge v. Brigg, 11 N. H. 102; Wilson v. Chalfant, 15 Ohio, 248; Sheffield v. Kelly, 3 Kelly, 82; Swartz v. Swartz, 4 Barr, 353; Winter v. Brochwell, 8 East, 308 ; Harmon v. Harmon, 61 Me. 222; Cook v. Prigden et al. 45 Ga. 331; 2 Disn. 100; 4 Green, 142. 2. It seems from these findings that plaintiff is estopped from denying to defendants the right to mine out the gravel on the bed-rock of the Northern Light Claim. As to estoppel: Biddle Boggs v. Merced Mining Co. 14 Cal. 367; Davis v. Davis, 26 Cal. 40; 31 Cal. 148 ; 40 Cal. 33.

As to estoppel by license: Cases cited above; Rerick v. Kern, 14 Serg. & R, 267-272; Ricker v. Kelley, 1 Me. 117; Clement v. Durgin, 5 Me. 9; Androscoggin Bridge v. Brigg, 11 N. H. 102; Sacq v. Amot, 33 Pa. St. 169; Houston v. Laffee, 46 N. H. 505, 3. The demurrer to plaintiff’s answer was properly overruled. It was proper for defendants to plead and prove the license in justification and as a complete defense to the alleged trespass. If it would be no defense to ejectment, it is in trespass. ( Gronour v. Daniels, 7 Blackf. 108; Crabbs v.

Fetrich, Ibid. 373.) By the Court : That portion of the answer which was demurred to presents no defense to the action. The agreement therein set up was in violation of the pre-emption laws of the United States, and was therefore illegal and void. The demurrer ought to have been sustained. Judgment reversed and cause remanded, with an order to the Court below to sustain the demurrer.