Citation. 22 Ill.302 Mass. 54, 18 N.E.2d 362 (1938)
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Brief Fact Summary.
The Plaintiff ran a business, which placed billboards on the sides of buildings. The Defendant agreed to let Plaintiff place a billboard, but then took the billboard down.
Synopsis of Rule of Law.
Where the nature of the parties’ intent in writing and is such that the resulting right of the writing is to create an easement in gross, specific performance may be applied.
On October 9, 1934, Plaintiff obtained a writing from Defendant, who owned a building, to give to Plaintiff, for $25, “the exclusive right and privilege to maintain advertising sign one ten feet by twenty-five feet on wall of building” owned by Defendant for one year with privilege of renewal for four more years, year to year, for the same consideration. The agreement provided that the signs so placed would remain the personal property of Plaintiff. The agreement had on it as a heading “Lease No. —.” The Plaintiff accepted the agreement in writing on November 10, 1934, when he sent the Defendant a check for $25, which Defendant returned. Plaintiff put the sign up anyway and maintained the sign until February 23, 1937, paying $25 in early November for the years of 1935 and 1936, which checks were returned by Defendant. On February 23, 1937, Defendant took down the sign. Thereafter, Plaintiff brought this complaint alleging that the writing was a lease and that Plaintiff was e
ntitled to specific performance. The trial court ruled that the writing was a contract to give a license and ordered specific performance with damages and costs. The Defendant appealed. Plaintiff tendered $25 for renewal on November 10, 1937, but Defendant refused the money.
What is the legal character of the writing between Plaintiff and Defendant?
The writing is an easement in gross. Final decree affirmed.
The court began by defining the difference between a lease and a license: (1) a lease conveys an interest in land, requires a writing, and transfers possession, and (2) a license excuses acts done by one on the land of another that without the license would be trespass, conveys no interest in land, and may be oral. The court found that, under the rules on leases, the writing between Plaintiff and Defendant was clearly not a lease.
The court defined incidents to a license to determine if the writing in question is a license. The licensee has a right to be on the land of the other for a reasonable time after the revocation of a license to remove his chattels. The license is revocable at will of the licensor. The revocation of a license might be a breach of contract, which gives rise to damages, but the revocation is sufficient to deprive the licensee of any right to be on the land of the licensor.
The court notes that if the writing in question is a license, specific performance cannot apply because the Defendant would be legally able to revoke the license as soon as the court orders it granted. The court finds that there can be no specific performance of a contract to give a license in the absence of fraud or estoppel.
The court held that the writing in the case at bar goes beyond the granting of a license. The writing gives the Plaintiff the “exclusive right and privilege to maintain” a sign on Defendant’s wall. The contract between the parties should give effect to the intent of the parties. The court therefore found that the writing was a contract to create an easement in gross in favor of the Plaintiff for the duration of the contract, along with the rights of renewal. The breach of a contract to give an easement in gross can give rise to specific performance.
Plaintiff receives no benefit to land but receives a personal benefit. Therefore, Plaintiff has an easement in gross.