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.
Issue. What is the legal character of the writing between Plaintiff and Defendant?
Held. 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.
Discussion. Plaintiff receives no benefit to land but receives a personal benefit. Therefore, Plaintiff has an easement in gross.