Kentucky Law Journal

Volume 7 Issue 1 Article 2

1919

The Revocability of Licenses as Applied to Property in Land

Albert J. Harno
Washburn College

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Harno, Albert J. (1919) "The Revocability of Licenses as Applied to Property in Land," Kentucky Law
Journal: Vol. 7: Iss. 1, Article 2.
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IKenturky i[aW 3ournaI
VOL. VII. LEXINGTON, KY., MARCH, 1919. NO. I

THE REVOCABILITY OF LICENSES AS APPLIED TO

PROPERTY IN LAND.
By Albert J. Harno*

The word "license," as applied to property in land, has ever

had as a companion word the adjective, "revocable." In fact it
has been repeatedly stated by courts and commentators on the law
-that one of the chief distinguishing characteristics of a license was
to be found in the fact that it was always revocable.'
Bouvier's Law Dictionary defines a license as follows:
"A permission. A right given by some competent authority
to do an ait, which without such authority would be illegal or a
tort or trespass. .. . It may be in writing or by parol; it may
be with or without consideration, but in either case it is usually
subject to revocation, though continuing a protection to the party
acting under it until the revocation takes place."
And the following statement from Thomas v. Sorrell 2 is quoted
in nearly every case where controversy over a license has arisen:
*Dean, Washburn College School of Law.
1"The difference between a license and an easement is that a license is an
authority to enter in land, but confers no interest in the estate; it is generally
granted by parol, and may be revoked by the licensor at pleasure, and, being a
personal privilege, Is not assignable, and usually amounts to an excuse for what
would otherwise be a trespass * * * whilst an easement confers an interest in
the land, and invests the owner with privileges that he cannot be deprived of
at.the mere will or wish of the proprietor of the servient estate." Rittenhouse
v. Swango (1906), 97 S. W. (Ky.) 743, 744. Not officially reported.
And see Tiffany, Real Property (1903, p. 677, where it is said: "An easement
is a right, in one person, created by grant, or its equivalent to do certain acts
on another's land * * *. To be distinguished from easements, are licenses,
which merely justify acts on another's land which would otherwise be illegal.
They may be revoked at any time, except, in some states, after the licensee has
incurred expense under the license, and they are not assignable."
2(1672) Vaughan 330, 351.
 KENTUCKY LAW JOURNAL.

"A dispensation or license properly passes no interest nor

alters or transfers property in anything, but only makes law-
ful, which without it would have been unlawful. As a license to go
beyond the seas, to hunt in a man's park, to come into his house,
are only actions, which without license had been unlawful."
It is a platitude to assert that the law of licenses has been
unsettled. Starting with the rule of Thomas v. Sorrell, just referred
to, courts have narrowed down the scope- of the law of that case
considerably since its decision. This, no doubt, was due primarily
to the fact that judges have been dissatisfied with that decision in
its sweeping terms and have engrafted exceptions in the interests
of justice. Much of the difficulty has been due to inaccurate think-
ing. In the course of this study we shall review some of the author-
ities which have created the confusion, and reduce, if possible, the
law of licenses to a scientific and reasonable basis. This will involve
a discussion (1) of "bare licenses," (2) of licenses "coupled with
an interest," and (3) of licenses founded upon valuable considera-
tion, with some of the resulting legal relations.

Where a Bare License is Involved.

A says to B, "You have my permission to walk across my land
any time you wish." The statement is oral, and there is no con-
sideration. If B, relying on this statement, enters upon A's land
what is B's legal status with reference to A? Has A the power at
any time to revoke this privilege, and if he has what are the legal
consequences ?.
Under the facts stated B has the privilege of going
upon A's
land, and if found upon A's he cannot be sued by A as a trespasser.
X, Y, Z and others, having no such privileges, are under a duty to
stay off. But B is under no such duty. If A, without revoking the
privilege, commits an assault upon B there is no doubt but that A

2The following analysis of Jural relations in a scheme of opposites and cor-

relatives by Professor Wesley N. Rohfeld in his article, Some Fundamental
Legal Conceptions As Applied to Judicial Reasoning (1913), 23 Yale Law Journal
16, is adopted in this article:
Jural -right privilege power immunity-
Opposites no-right duty disability liability
Jural right privilege power immunity
Correlatives duty no-right liability disability
 Revocability of Licenses as Applied to Property in Land. 3

could be made to answer for it in tort. But does A have the power
to revoke B's privilege? There was no deed to pass title, nor was
there a contract, nor, from the facts stated, can the doctrine of
equitable estoppel be brought to bear. A, therefore, is under no
legal or equitable duty toward B, and B has no right against A
if A revokes the privilege. In other words, A has the power to re-
4
voke B's privilege, and if revoked a duty is created in B to stay off.
Should B now enter the laud, his privilege having been" revoked
A has the same affirmative right against him as he would have
against X, Y or any one else who enters upon the land without per-
mission. For such entry A may sue B as a trespasser.5
Should we now change the facts to a case where A has given
B the privilege of entering upon A's land, and not only that, but
also has permitted B to erect valuable improvements upon it, and
has stood by while B has spent sums of money on the land, would
the same result, as above, follow? In other words, under these cir-
cumstances, does A still have the power of revocation? As in the
previous case there is no writing to satisfy the Statute of Frauds.
Nor is there a contract. Many courts in passing upon this question
have held that this again is but a "revocable license." In a New
York case6 the court in the course of its opinion said:
"There has been much contrariety of decision in the courts of
different states and jurisdictions. But the courts in this state have
upheld with great steadiness the general rule that a parol license
to do an act on the land of the licensor, while it justifies anything
done by the licensee before revocation, is, nevertheless, revocable
at the option of the' licensor, and this although the intention was
to conftr a continuing right and money had been expended by the
licensee on the faith of the license." 7

'See Comment 26, Yale Law Journal 395.

s"As there was no consideration alleged to have been paid for the license, it
was competent for the appellees to revoke it at any tfme before It had been
acted upon by the appellant." Williamson, et al. v. Yingling, et al. (1883), 93
Ind. 4 47.
eCrosdale v. Lanigan (1892), 129 N. Y. 604.
,"The most, we think, can possibly be claimed from the evidence is that the
tracks were built under a parol license from the plaintiff; and there is nothing
better settled than that a mere license, not subsidiary to a valid grant, may
be revoked at pleasure, and does not create or transfer any interest in land,
even though granted for a valuable consideration and though the license may
be for a purpose which involves the expenditure of money on the faith of it."
Minneapolis Mill Co. v. Minneapolis & St. L. By. Co. (1892), 51 Minn. 304, 312.
 KENTUCKY LAW JOURNAL.

The Illinois courts have come to a like conclusion:

"The agreement is an indefinite and uncertain oral license to
use the poles and right of way of the appellee. Such an agreement
is within the Statute of Frauds and not being an agreement for a
conveyance cannot be enforced in equity. It makes no difference
that the licensee acting upon the strength of the parol license may
have expended money and made valuable improvements on the
faith of the license. Yet the license is revocable at the will of the
licensor, when entry was not under an agreement for a convey-
ance. . . . The foregoing is the law in this state, and if the
agreement contended for were admitted, still the appellee had the
right to revoke it at any time and the appellant would not be en-
titled to the relief sought." 8

Applying the test of jural opposites and correlatives to this

state of facts, B no doubt has the privilege of entry, and he also
has the privilege, of erecting improvements on the land. These oral
privileges so far have saved B from being a trespasser.9 But is A
in any manner bound by an oral privilege? Surely to begin with he
is not. He has received no consideration nor has he passed an inter-
est in the land. If the legal relation of the parties has become
altered it must have been through tho fact that B has erected
improvements which A has permitted.. Since in law A is not bound,
his liability (if liable at all) must be based on equitable principles.
In many jurisdictions, including those last mentioned, it is held that
B's privilege remains revocable throughout and no equitable priv-
ileges arise:
"A licensee is conclusively presumed, as a matter of law, to
know that a license is revocable at the pleasure of the licensor; and
if he expends money in connection with his entry upon the land
of the latter he does so at his own peril."' 0

8streator Ind. Tel. Co. v. Interstate Ind. Tel. Co. (1908), 142 I1. App. 183, 194.
And see in accord: Hicks v. Swift Creek Mill Co. (1901), 133 Ala. 411; Hodgkins
v. Farrington (1889), 150 Mass. 19; Johnson v. Stillman (1582), 29 Minn. 95; Foster
v. Browning (185), 4 R. I. 47.
9"The distinction is obvious. Licenses to do a particular act do not in any
degree trench upon the policy of the law which requires bargains respecting the
title or interest in real estate shall be by deed or in writing. They amount
to nothing more than an excuse for the act, which would otherwise be a tres-
pass." Cook v. Stearns (1814), 11 Mass. 533.
"Minneapolis Mill Co. v. Minneapolis & St. L. 11y. Co. (1892), 51 Minn. 304.
 Revocability of Licenses as Applied to Property in Land. 5

Other courts have come to a different conclusion through apply-

ing the doctrine of equitable estoppel. The holding of these courts
is more nearly just, and is founded in better reason as it beaip ju-
dicial analysis. To be sure A has the legal power to revoke B's
privilege, but B, after adding improvements to the land, is in a dif-
ferent position than he was before. Before the improvements A
had the power to revoke B's privilege, thereby creating in A a
right against B that B should not be there, and a correlative duty
in B to stay off. The addition of the improvements, however, has
raised in B an equitable privilege, and an equitable "no-right" in
A to revoke B's equitable privilege which conflicts with A's legal
power. Many courts recognize this conflict, and give preference
to the rules of equity holding that B's privilege has become irre-
vocable:"

Air. Justice Gibson in Rerick v. Kern:

"But a license may become an agreement on valuable consid-
eration; as where the enjoyment of it must necessarily be preceded
by the expenditure of money; and when the grantee has made im-
provements or invested capital in consequence of it, he has become
a purchaser for a valuable consideration. Such a grant is direct
encouragement to expend money, and it would be against all con-
science to annul it as soon as the benefit
12
expected from the expendi-
ture is beginning to be perceived.'
Mr. Justice Mason in Kastner v. Benz:
"The question therefore is fairly presented whether an exe-
cuted parol license which was given for a valuable consideration,
and upon the strength of which the licensee has expended money
or labor may be revoked at the pleasure of the licensor. .
The question being new in this court we adopt the reasoning that
impresses us as being more in keeping with modern ideas of equi-
table principles as well as with natural justice . . . accepting
the plaintiff's evidence as true we hold that (the) defendant is es-
topped from revoking the license.' '13
"See (1913), 23 Yale Law Journal, 16, 43.
22(1826), 14 S. & R.. (Pa.) 267.
1(1903), 67 Kan. 486. And see in accord: Stoner v. Zucker (190), 146 Cal. 516;
Wichersham v. Orr (1359), 9 Iowa 253; Noble v. Sherman (1898), 151 Ind. 573; Joseph
v. Wild (1896), 146 Ind. 249; Jarvis v. Satterwhite (1881), 3 Ky. L. Rep. 190; Car-
rollton T. Exch. Co. v. Splcer (1917), 177 Ky. 340; Clark v. Glidden (187), 60 Vt.
702.
 KENTUCKY LAW JOURNAL.

License Coupled With An Interest.

A, the owner of land, for a valuable consideration, sells to B
a stack of hay standing on the land. No interest in land is passed
which would satisfy the Statute of Frauds. Does B have the priv-
ilege of entering upon the land for the purpose of hauling away
the hay? And if he has, does A have the power of extinguishing
that privilege?
The leading English case of Wood v. Manley appears to have
settled the law on this question. In the words of Lord Denman,
C. J.:
"Mr. Crowder's argument goes this length: that if I sell goods
to a party who is, by the terms of the sale, to be permitted to come
and take them, and he pays me, I may afterwards refuse to let
him take them." The law countenances nothing so absurd as this:
a license thus given and acted upon is irrevocable. "14
In this class of cases the doctrine of "licenses coupled with an
interest is involved.'' 15 There is a unanimity among the authori-
ties holding that where a license is "coupled with an interest" it is
irrevocable. 16 As previously stated, no interest in land has passed
which would satisfy the Statute of Frauds, yet such a privilege is
recognized as irrevocable even in a court of law:
"A license to enter a man's property is prima facie revocable
but irrevocable even at law if coupled with or granted in aid of a
legal interest conferred on the purchaser and the interest so con-
ferred may be a purely chattel interest or an interest in realty."' 1
If no interest in land can be created except as recognized by
the Statute of Frauds how is it that an oral privilege when "coupled
with an interest," which is itself no interest in land, is irrevocable?
"Now, in the present case, the right claimed by the plain-
tiff is a right, during a portion of each day for a limited number
11 Ad. & E. 34.
24(1839),
uThis was a case not of a mere license but of a license coupled with an
interest. The hay, by the sale, became the property of the defendant, and the
license to remove it became, as in the case of the tree and the deer, put by
C. J. Vaughan; irrevocable by the plaintiff; and the rule was properly refused."
Wood v. Leadbitter (1845), 18 iM. & W. 838.
"Jones v. Tankerville (1909), 2 M. 440; Snowden v. Wilas (1862), 19 Ind. 10.
"7Jones v. Tankerville, supra.
 Revocability of Licenses as Applied to Property in Land. 7

of days, to pass into and through and to remain in a certain close

belonging to Lord Eglintoun; to go and remain where if he went
and remained, he would, but for the-ticket, be a trespasser. This
is a right affecting land at least as obviously and extensively as a
right of way over land-it is a right of way and something more;
and if we had to decide this case on general principles only, and
independently of authQrity, it would appear to us as perfectly clear
that no such right can be created otherwise than by deed." 1 8
If the privilege to enter upon another's land affects land, and
such a privilege to be irrevocable must be created by deed, by what
legal reasoning can ,an oral privilege in aid of a legal grant of a
movable on the land of the licensor, become irrevocable? The
answer is that, aside from the Statute of Frauds, this class of cases
is grounded in equitable principles. The correlative of B's privilege
to enter A's land and haul away the hay is A's "no-right" that
B should not enter. Since B's privilege forms part of a contract
for the sale of a movable there is a valuable consideration for it.
If this were a bare privilege there would be no doubt but that A
would have the legal power to revoke it. The sale of the movable,
however, has, in equity, created a "no-right" in A, and an equitable
privilege in B, which equitable privilege conflicts with and prevails
over A's legal power. It would seem, therefore, that this irrevoc-
able privilege in B creates in him an interest in A's land, and that
this case is without the purview of the Statute of Frauds. 19
Should we vary the facts just stated to a case where A, for
a valuable consideration, sells to B certain growing timber on A's
land, with a stipulation in the contract that B may enter the land,
cut and remove the timber, the same legal result would follow as
in the sale of a movable. The subject of the purchase, to be sure,
I'Wood v. Leadbitter, supra.
9"A second class of authorities involving so-called 'licenses coupled with
a grant' consists of cases like Wood v. Manley. This leading case established
the rule that the sale of a movable located on the vendor's land, coupled with
permission to enter on the land for the purpose of removal, results in an 'ir-
revocable' privilege (frequently called 'license') of entering the land and re-
moving the object purchased. It would seem clear that in this case also there
are accompanying rights (or claims) against interference. It is equally clear
that the total aggregate (rights, privileges, powers and immunities) should be
recognized as an interest in land, even though not within the general common
law requirement of a deed or the requirement of section 1 of the Statute of
Prauds." Hohfeld, Faulty Analysis in Easement and License Cases (1917), 27
Yale Law Journal 66, 100.
 KENTUCKY LAW JOURNAL.

differs materially in that here is a sale of an immovable (trees

drawing their sustenance from the soil), which in itself involves
an interest in land. The legal reasoning applied in the former case,
however, is apropos here. A valuable consideration having passed
an equitable privilege is created in B to go upon the land, cut and
remove the trees. Or, in other words, B has a right against inter-
ference. A, having the legal power to revoke B's legal privilege,
is prevented from doing so by B's equitable privilege, which con-
20
flicts with his (A's) legal power.

"On the other hand, if A, by instrument not under seal, for

good consideration, agrees that B shall have the right of shooting
and carrying away game on A's estate for a term of years, the
license conferred is at law revocable, because the nature of the in-
terest intended to be conferred is a profit a prendre, and cannot at
law be created otherwise than by deed. The agreement, however,
confers on B a good interest in equity, and the license is in equity
an irrevocable license, and a court of equity will accordingly re-
strain its revocation. . . Even, therefore, if no interest at law
passes by a contract for the sale of specific growing timber to be
cut by the purchaser, it is difficult to see why on principle equity
should not restrain the vendor from revoking the license conferred
by the contract, though it might be unable to compel the purchaser
to cut the timber if he refused to do so . . . An injunction re-
straining the revocation of the license when it is revocable at law,
may in a sense be called relief by way of specific performance, but
it is not specific performance in the sense of compelling the vendor
to do anything. It merely preveilts him from breaking his contract,
and protects a right in equity which but for the absence of a seal
would be a right at law, and since the Judicature Act it may well be

""The English Judicature Act of 1873, already quoted, after uniting all the
higher tribunals into one Supreme Court of Judicature, enacts that, 'in every
civil cause or matter law and equity shall be concurrently administered' by this
court according to certain general rules; and that generally in all matters not
particularly mentioned in other provisions of the act, in which there is a
conflict or variance between the rules of equity and the rules of the common
law, with reference to the same matter, the rules of equity shall prevail: 36
& 37 Vict., Chap. 66, Sections 24, 25. This great reform which was inaugurated
by New York in 1848 has been adopted by the states of'Ohio, Kentucky, Indiana,
Wisconsin, Iowa, Minnesota, Missouri, Kansas, Nebraska, Nevada, California,
Oregon, North Carolina, South Carolind, Arkansas, Connecticut, Colorado, and
by the territories of Washington, Montana, Idaho, Dakota, Wyoming, Arizona,
Utah. Pomeroy, Equity Jurisprudence (4th ed. 1918), Sec. 40, note.
 Revocability of Licenses as Applied to Property in Land. 9

doubted whether the absence of a seal in such a case can be relied

on in any court.' '21

Licenses Founded Upon Valuable Consideration.

Up to this point the courts, on the various questions considered,

have usually reached equitable solutions. But in turning to a state
of facts where A, for a valuable consideration, grants to B the priv-
ilege, for some purpose or another, of entering A's land some
startling results have been reached. It has been quite generally
held, where the licensee's claim is based only in contract, that the
privilege may be revoked at any time at the will of the licensor.
And where revoked the licensee may sue for breach of contract,
but not in tort, even though he has been forcibly ejected:
"The revocation of a license is in itself no less effectual though
it may be a breach of contract. If the owner of the land or a build-
ing admits people thereto on payment, as spectators of an entertain-
ment or the like, it may be a breach of contract to require a person,
who has duly paid his money and entered, to go out, but a person
so required has no title to stay, and if he persists in staying he is
a trespasser. "22
The question has frequently arisen over the power of the
licensor to revoke the licensee's privilege of admission to a place
of amusement, when a valuable consideration has been paid. On
this point the law seems to have been well settled (at least until
recently) that the licensor may revoke this privilege at his pleasure.
And if he, after revoking the privilege, ejects the licensee without
unnecessary force, no tort action can be based thereon:
"It was suggested that, in the present case, a distinction might
exist, by reason of the plaintiff's having paid a valuable considera-
tion for the privilege of going on the land. But this fact makes no
"3ones v. Tankerville, supra. And see Snowden v. Wilas, supra.
Compare the following cases holding that an oral sale of trees gives the
vendee a privilege to enter, hut that such privilege is revocable until the trees
are severed when the privilege of entering and removing them as chattels be-
comes Irrevocable: Armstrong v. Lawton (1881), 73 Ind. 498; Emerson v. Shores
(1901), 95 Me. 237; Fish v. Capwell (1894), 18 R. I. 667.
2'Pollock on Torts (9th ed. 1912) 390. And see Rhodes v. Otis (189), 33 Ala. 578.
 KENTUCKY LAW JOURNAL.

difference; whether it may give the plaintiff a right of action

against those from whom he purchased the ticket, or those who
authorized its being issued and sold to him, is a point not necessary
to be discussed; any such action would be founded on breach of
contract, and would not be the result of his having acquired by the
ticket a right of going upon the land, in spite of the owner of the
soil; and it is sufficient, on this point, to say, that in several of the
cases we have cited . . . the alleged license has been granted
for a valuable consideration but that was not held to make any
difference. "23
It is submitted the reasoning in these cases is inaccurate. 'Where
a "bare license" is involved the licensor is under no legal duty.
He may revoke at pleasure and such act will, of course, not involve
a breach of a legal duty. But where a valuable consideration has
passed the parties are in an entirely different position than they
were before. If A has a horse and tells B that B may ride the horse
to Oshkosh, A could, no doubt, withdraw the privilege, even after
B was seated in the saddle. But if A has a horse and B has $100.00,
and B says, "I will give you $100.00 for your horse," and A agrees,
whereupon the money is paid, the horse belongs to B, and no court
would hold that A could revoke the contract. Or if B should say
to A, "I will give you $10.00 if you will allow me to ride your
horse for one day," and A agrees, a binding contract has been
created. 24 And if B were seated in the saddle on the day desig-
nated and A came along and said, "I hereby revoke your privilege

=Wood v. Leadbitter (1845), 13 If. & W. 838. See in accord: Collister v.

Hagman (1905), 183 N. Y. 250; and Mr. Justice Holmes in Marrone v. Washington
Jockey Club (1913), 227 U. S. 633: "We see no reason for declining to follow the
commonly accepted rule. The fact that the purchaser of the ticket made a
contract is not enough. A contract binds only the person of the maker, but
does not create an interest in the property that it may concern unless it also
operates as a conveyance. The ticket was not a conveyance of an interest in
the race track, not only because it was not under seal, but because by common
understanding it did not purport to have that effect. There would be obvious in-
convenience if it were construed otherwise. But if it did not create such an in-
terest, that is to say, a right in rem, valid against the land owner and third
parties, the holder had no right to enforce specific performance by self-help.
His only right was to sue upon the contract for the breach. It is true that if
the contract were incidental to the right of property either in the land or in
goods upon the land, there might be an irrevocable right of entry; but where
the contract stands by itself, it must be either a conveyance or a license, sub-
ject to be revoked."
24See article by Professor Arthur L. Corbin, Offer and Acceptance and Some
of the Resulting Legal Relations (1917), 26 Yale Law Journal 169.
 Revocability of Licenses as Applied to Property in Land. 11

tc rde that horse," what court would not allow B to recover in

tort if A proceeded to knock B off from the horse? And if A, on
that day, took possession of the horse, without B's consent, B might
even bring replevin for the horse. 25 Let if A owns a theater and
sells B a ticket, it is held that A may revoke B's privilege, eject
him, and not be answerable in tort, even though B has paid a val-
uable consideration and his conduct has been exemplary. And all
this because the theater seat is on A's land, and B, not having pur-
chased the land, or an interest in it, in a manner permissible under
the Statute of Frauds, becomes a mere trespasser at A's will.
Surely the average theatergoer would find little consolation in this
reasoning after being ejected from a theater from no fault of his
own.
Bat the law, in this particular, is not sound in reason, When
B has paid A for the privilege of entering the theater B is no longer
under a duty to stay out. The correlation of B's privilege is A's
"no-right" that B should not attend the theater. B's privilege is
equitable since it was not created in a manner recognized by law,
i. e., the Statute of Frauds. Since B's privilege does not have the
sanction of the Statute of Frauds, A still has the legal power to
revoke it.26 A's legal power therefore conflicts with B's equitable
privilege, and when such.is the case the rules of equity prevail. 2"
A, therefore, in equity, cannot revoke B's privilege. Should A eject

=Sowden v. Kessler (1898), 76 Mo. A. 581.

'"A right is one's affirmative claim against another, and a privilege is one's
freedom from the right or claim of another. Similarly, a power is one's af-
firmative control over a given legal relation as against another; whereas an im-
munity is one's freedom from the legal power or 'control' of another as re-
gards some legal relation." Hohfeld (1913), 23 Yale Law Journal 16, 55.
2"When A purchases a ticket to enter and occupy a seat in B's theater, it
is commonly asserted that A gets a mere 'revocable license,' This is inac-
curate. The term 'license' is merely descriptive of a group of operative facts
which create in A a 'privilege' of entering and occupying the designated seat
during the performance. The operative facts referred to are, of course, the
payment of consideration, the issuance of the ticket, proper behavior, etc. A
having acquired this 'privilege' B is obviously in a different position as regards
A from what he was before. B is now said to have a 'no-right' that A should
not be there; or, in other words, A does not have the 'duty' to stay out of the
theater, the privilege of entering being the negation of the 'duty' to stay out.
Under the doctrine of Wood v. Leadbitter, B would still possess a 'power'
of extinguishing A's legal 'privilege' and creating a 'duty' in him to leave.
This same act would, of course, extinguish his own 'no-right' and give rise
to a 'right' or 'claim' that A depart. Wherever the principles of equity are
enforced, however, A's equitable 'privilege' will remain undefeated by B's legal
'power.' "1 Comment (1917), 26 Yale Law Joufnal 395, 397.
 KENTUCKY LAW JOURNAL.

B, A would be guilty of the breach of a legal duty, which would

give rise to a correlative right in B to recover in tort.
This is the law reduced to sound principles. It remains to be
seen if there is any judicial sanction for this reasoning, or whether
it is "mere theory." The law of Wood v. Leadbitter, supra, is,
almost without exception, the law in the United States today. 28
In England, however, Wood v. Leadbitter has been overruled by the
case of Hurst v. Picture Theaters, Limited. In that case the plain-
tiff sued to recover damages for an alleged assault and false im-
prisonment. He had gone to the defendant's theater, had bought
and paid for a six penny seat, and had been given a metal check
entitling him to an unreserved seat. At the door he gave up his
check and was shown to a place. In the midst of the performance
he was asked to leave, and on his refusal to do so a porter took
hold of him under the arms and lifted him from the seat. The plain-
tiff then walked out. The court held that the ticket of admission
was not a revocable license but entitled the plaintiff to remain
throughout the entire performance.

From the opinion of Buckley, C. J., in the case last mentioned:

"The position of matters now is that the court is bound under
the Judicature Act to give effect to equitable doctrines. The ques-
tion we have to consider is whether, having regard to equitable
consideration, Wood v. Leadbitter, 13 Al. & W. 838, is a decision
which can be applied in its integrity in a court which is bound to
give effect to equitable considerations. In my opinion, it is not.
Cozens-Hardy, J., as he then was, the' present Master of the Rolls,
in the case of Lowe v. Adams, said this (1901), 2 Ch. 598, p. 600:
'Whether Wood v. Leadbitter, 13 M. & W. 838, is still good law hav-
ing regard to Walsh v. Landsdale,' 21 Ch. D. 9, which is a decision
of the court of appeal, 'is very doubtful.' The present Lord
Parker, then Parker J., in the case of Jones v. Tankerville, says
this (1909) 2 Ch. 440, at p. 443: 'An injunction restraining the re-
vocation of the license, where it is revocable at law, may in a sense
be called relief by way of specific performance, but it is not specific
performance in the sense of compelling the vendor to do anything.

28Marrone v. Washington Jockey Club (1913 U. S.), supra. Collister v. Hay-

man (1905), 183 N. Y. 250; People v. Flynn (1907), 189 N. Y. 180; Buenzle v. New-
port Amusement Assoc. (1908), 68 Atl. (R. I.) 721; N. W. V. Co. v. Black (1912).
113 Va. 728. But see California Statutes 1893, p. 220.
 Revocability of Licenses as Applied to Property in Land. 13

It merely prevents him from breaking his contract, and protects a

right in equity which but for the absence of a seal would be a right
at law, and since the Judicature Act it may well be doubted whether
the absence'of a seal in such a case can be relied on in any court.'
What was relied on in Wood v. Leadbitter, 13 M. & W. 838, and
rightly relied on at that date, was that there was not an instrument
under seal, and therefore the licensee could not say that he was not
a mere licensee, but a licensee with a grant. That is now swept
away. It cannot be said as against the plaintiff that he is a licensee
with no grant merely because there is not an instrument under seal
'2 9
which gives him a right at law."

The following comment from the Law Quarterly Review, edited

by Sir Frederick Pollock, is of interest:
"The well known and much discussed ease of Wood v. Lead-
bitter, decided all but seventy years ago, by the court of exchequer,
in its golden age . . . appears to be deprived of all practical
authority by the decision of the court of appeal in Hurst v. Picture
Theatres, Ltd. . . . According to the court of exchequer a re-
vocable license is no less revocable because the revocation of it
may be a breach of contract, and if it is revoked in breach of con-
tract, the licensee's only remedy at law is an independent action
for damages on the contract. He could not, of course, before the
Judicature Act, make anything in a court of law of his claim to an
injunction in equity, which in several cases he might well maintain.
But suppose, even in 1845, a vice-chancellor present in the race
stand or theatre, a ticketholder turned out by the bare arbitrary
will of the manager in defiance of the contract and the licensee ap-
plying to the vice-chancellor, in the emergency, for an ex parte in-
junction, is it clear that the injunction would not have been
granted? And is it now possible for a court having equitable as
well as legal jurisdiction to treat as rightful in a sense an expulsion
which a court of equity would have restrained if a motion could
have been made in time? The Lord Justices Buckley and Kennedy
think not, also suggesting that a contract for a seat at a specified
performance creates not a bare license but a license coupled with
some kind of interest, a point not made in Wood v. Leadbitter,
and not considered by the court of exchequer. Phillimore, L. J.,
dissenting, not without plausible grounds, and suggested that the
real implied term is only to return the licensee's money if the

-(1915), 1 XC.B. 1. And see the case of Taylor v. Waters (1816), 7 Taunt. 374,
decided before the case of Wood v. Leadbitter, supra.
14 KENTUCKY LAW JOURNAL.

license is unreasonably
30
revoked: a suggestion which surely no play-
goer would accept."
Changes occur; thought slowly progresses; one idea takes the
place of another, and viewpoints vary. It has been one of the sever-
est criticisms of the law that it has not kept abreast with events.
We are not ready to assert that the Statute of Frauds has had its
day and served its purpose. But when a portion of it is so applied
that it is absurd to believe such could ever have been intended by
its framers, and such portion hinders justice, courts should welcome
the opportunity to supplant it with principles of equity and reason.
30(1915), 31 Law Quarterly Review 9. Irving, J. A., in Barnswell v. National
Amusement Co., Ltd. (1915), 21 B. C. 435, 439: "It appears that the plaintiff
entered the building as a spectator who had only paid his money to see the
entertainment. He was therefore entitled to remain. Wood v. Leadbitter
* * * was decided on the ground that the plaintiff had not obtained an instru-
ment under seal granting him the privilege he claimed. But the Judicature Act
has changed all that. The court now gives effect to equitable considerations
and will protect a right in equity, which but for the absence of an instrument
under seal would be a right at law."
Note to Jackson & Sharp Co. v. P. W. & B. R. R. Co. (1871), 4 Del. Ch.
180, 195: "It (the privilege of a ticket holder) would seem to be just such a
privilege or authority as might properly be the subject of a license, and in
that view the objection to the recovery of the plaintiff in Wood v. Leadbitter
would rest, not upon the invalidify of the ticker considered as the grant of an
easement, but upon its revocability as a license. On this point Mr. Baron
Alderson held it revocable at the absolute pleasure of Lord Eglintoun even
though sold for a consideration because he considered that a license to enter
upon land was always revocable except when coupled with an interest in some-
thing upon the land created by grant or duly enacted otherwise than by the
license itself. This opinion is based mainly upon an early judgment by C. J.
Vaughan in Thomas v. Sorrell. * * * But C. J. Vaughan's general statement
of the most common and obvious ground on which a license to enter on land
becomes irrevocable can hardly be taken as sufficient authority to exclude all
other grounds; and certainly the doctrine of equitable estoppel is as clear a
ground for holding irrevocable a license to enter on land temporarily to wit-
ness races as is the right to the deer killed on the land under license to enter
and kill such deer. Laying out of consideration the Statute of Frauds as not
applying in either case, and if it applies to either it must to both, the ques-
tion depends simply upon the revocability of a license; and there is nothing
in the nature of a license to withdraw it from the doctrine of equitable es-
toppel, no more in a license to enter temporarily upon the land than a license
to do anything else, supposing the Statute of Frauds out of the way. Indeed
the cases put by C. J. Vaughan of a license to enter, coupled with an interest,
must, after all, be resolved by this doctrine of estoppel; being upon it,is not a
general right incident to property in the chattel, but it springs from the au-
thority given by the owner of the soil to kill the deer or-to place the chattel
there, which authority he cannot in good faith revoke to the prejudice of the
party who has acted upon it, supposing there be in such a. case no objection to the
validity of the license as passing an interest in land. And it is upon this prin-
ciple of equitable estoppel that in the later cases the irrevocability of a license
to enter on land is coupled with an interest in something upon it, has been
placed."
Compare Metts v. Charleston Theatre Co. (1916), 105 S. C. 19: Boswell v.
Barnum & Bailey (1916), 115 Tenn. 35; Weber-Stair Co. v. Fisher (1909), 119 S. W.
(Ky.) 195.