Wood v. Rice. distinction between county and town poor prevails in Onondaga; (see 1 R. S. 620, 22;) and the counsel for Wood contended that, inasmuch as Rice was a resident of the town to be benefitted by the penalty sought to be recovered in the suit before him, he had no jurisdiction, and the execution under which the arrest of Wood took place was therefore a nullity. (See 1 R. S. 357, 5.) The court below held otherwise, and Wood's counsel excepted. Verdict and judgment in favor of Rice; whereupon Wood sued out a writ of error. G. F. Comstock, for the plaintiff in error. J. R. Lawrence, for the defendant in error. present, is to be sued for poor of the town where applied by them to the By the Court, NELSON, Ch. J. The penalty for selling liquor without license, in cases like the and collected by the overseers of the the offence is committed, and to be use of the poor of that town. (1 R. S. 629, § 26, 2d ed.; id. 679, 15; id. 680, 19.) It is conceded that the dis§ tinction between town and county poor prevails in Onondaga, and that the penalty therefore in this case, when collected, goes for the benefit of the poor of the town of Elbridge, in which the justice resides. The question is, whether the justice had jurisdiction; and that depends upon the true meaning of the following section of the revised statutes: "Any action in favor of a town, which, if brought by an individual, could be prosecuted before a justice of the peace, may be prosecuted by such town, in like manner, before any such justice; but no action to recover a penalty given to a town, shall be brought before any of the justices of the peace residing in the town for the benefit of which the same is prosecuted; but all such actions may be brought before any one of the justices of the peace residing in any other town in the same county." (1 R. S. 350, § 5, 2d ed.) It is insisted that an action by the overseers of the poor of Wood v. Rice. Elbridge to recover a penalty, which, when recovered, is to be applied to the support of the poor of the town, comes within the above prohibition; and consequently that the defendant, being a justice of the town, was disabled from entertaining the suit. In other words, that an action by the overseers, in a case like the present, is virtually an action by the town. I think not. The section applies only to cases where the penalty sought to be recovered is given to the town in its corporate capacity. Each town in the state is made a corporate body, and as such has capacity to sue and be sued, to purchase and hold lands &c., to make contracts, and to purchase and hold such personal property as may be necessary to the exercise of its corporate or administrative powers; (1 R. S. 330, § 1, 2d ed.;) and all acts and proceedings by or against a town, in its corporate capacity, must be in the name of such town. (Id. 3.) It is obvious therefore that the prohibition contained in 1 R. S. 350, § 5, 2d ed. does not apply to all suits which are brought before justices of the peace in the name of a town; (see 2 R. S. 159, §§ 2, 4, 5, 2d ed.; 1 id. 350, §§ 1, 5;) the prohibition being limited in express terms to actions brought to recover penalties given to a town. The reason for the distinction is not very apparent, and the distinction itself scarcely worth enlarging beyond the fair import of the terms in which it is declared. The prohibition will be sufficiently comprehensive in its operation even if confined to the class of cases where the penalty is given directly to the town, as they are somewhat numerous. (See 1 R. S. 340, 35, 2d ed.; id. 341, § 38; id. 342, § 2; id. 467, § 31, 32, 33; id. 353, § 22.) And besides, if we depart from the terms of the section, and extend the prohibition by construction to the case of suits by overseers of the poor for the recovery of a penalty like the one in question, it is difficult to see how we can consistently stop short of applying it to every case where the town may be interested in the recovery of a penalty, which would lead to great inconvenience. Towns are not directly interested in penalties given to overseers for the benefit of the poor, as they are only contingently chargeable with the support of paupers; the father, mother and Miller v. The Auburn and Syracuse Rail-Road Company. children of such paupers, if of sufficient ability, being bound in the first instance to maintain them. (1 R. S. 623, § 1 to 13, 2d ed.) The interest, so far as the taxable inhabitants are concerned, is certainly not as manifest and strong as in those cases where the penalty is given directly to the town, and where, when recovered, it constitutes a part of the personal estate of the town, to be applied to such uses as the corporate body may see fit within the scope of its powers. I will only add, that the value of the prohibition may be further appreciated from the fact that the same statute expressly makes an inhabitant a competent juror in the case. (1 R. S. 35, 4, 2d ed.) He may act as juror in a suit for the penalty, but not as justice. Judgment affirmed. MILLER VS. THE AUBURN AND SYRACUSE RAIL-ROAD COMPANY. The owner of lands cannot grant the right to enter upon and occupy them by a rail-road for an indefinite length of time, without a conveyance sufficient under the statute of frauds to carry a freehold. Per Cowen, J. The right of permanently occupying one's own land in such a manner as to deprive the adjoining owner of an easement, cannot be acquired under a parol license; such license being revocable even after it has been executed. Semble; per COWEN, J. The license, however, is a justification for acts done under it while unrevoked. Per COWEN, J. Accordingly, in an action against an incorporated company for building and continuing a rail-road on a street in front of the plaintiff's house, so as to obstruct his right of egress and ingress; held, that the company might give evidence of a parol license from the plaintiff to build the road, and thus defeat his claim for all damages sustained while the license remained unrevoked. CASE, tried before MOSELEY, C. Judge, at the Cayuga circuit in May, 1843. The action was brought to recover damages for the erection and continuance of an embankment and railroad in and upon Garden street, in Auburn, thereby interrupt Miller v. The Auburn and Syracuse Rail-Road Company. ing the plaintiff's ingress, egress &c. to and from certain lots alleged to be his, one lying on the north side of the street, and the other on the south side. The declaration alleged that the embankment and rail-road were erected in 1839, and were continued till the summer of 1842, when this suit was brought. At the trial, the plaintiff proved the erection and continuance of the embankment and the rail-road, together with the consequential injury to his lots, as alleged in the declaration. The defendants offered to prove that the embankment and rail-road were erected under a parol license from the plaintiff. This evidence was objected to, and the circuit judge excluded it; whereupon the defendants excepted. The jury rendered a verdict for the plaintiff, and the defendants now moved for a new trial on a bill of exceptions. B. D. Noxon, for the defendants. W. H. Seward, for the plaintiff. By the Court, COWEN, J. If the plaintiff is to be regarded as the owner of the road, there can be no doubt that he was incapable of granting, by parol, the right claimed by the defendants. It would be a right to enter upon and occupy his premises by the rail-way, for an indefinite length of time, without a conveyance sufficient within the statute of frauds to carry a freehold. (Mumford v. Whitney, 15 Wend. 380; Bridges v. Purcell, 1 Dev. & Batt. 492; see also 1 Chit. Gen. Pr. 336 to 340.) The declaration, however, does not aver that the plaintiff was seized of the road itself. It claims lots adjoining the road, and alleges a consequential injury. It is not in trespass for entering upon and occupying the plaintiff's land; but in case for the defendants' having erected and continued a nuisance, perhaps on their own, perhaps on the land of another. If the question be confined to an issue on the declaration, the injury was perhaps no more than the exercise of such a right. as, if granted, would amount to a naked easement in respect to Miller v. The Auburn and Syracuse Rail-Road Company. the plaintiff's land without entering upon it. It would then somewhat resemble a right by one so to build on his own land as to diminish the natural flow of a stream to the benefit of which the plaintiff was entitled, or so as to detract from the air or light which belonged to him, or so as to turn a drain of water upon or across his land. In such and the like cases there are authorities which hold that a mere parol license operates, when executed, as a grant; or rather, as the cases express themselves, a license irrevocable to use the land of another. Some cases go further, and authorize an actual entry and permanent possession under the license; e. g. to stack hay or coals upon land, or to hold a seat in another's building; (Tayler v. Waters, 7 Taunt. 374, 2 Marsh. 551, S. C. and the cases there cited; Liggins v. Juge, 7 Bing. 682;) or to build a bridge on the plaintiff's land; (Ricker v. Kelly, Greenl. Rep. 117;) or to flow his land by a dam on the defendant's own. (Clement v. Durgin, 5 Greenl. Rep. 9, 13.) These cases evidently let in a verbal distinction under which, if retained and made applicable in its full extent, the statute of frauds would, in many important respects, be repealed. Parol licenses irrevocable would be made in effect to pass estates of freehold. The well established rule of the common law too, that easements and other incorporeal hereditaments shall pass by deed only, would be nearly repealed. You have only to throw the grant into the form of a parol license, and, on its being executed, both the statute and common law are evaded. How far the cases mentioned may accord with the rule of equity which sometimes enforces parol conveyances made on valuable consideration and executed by possession, it is not necessary to inquire; nor how far some of the cases cited, or others like them, may be supported upon their particular circumstances, as not conflicting with the general doctrines adverted to. Many of them clearly do conflict with these doctrines, and have accordingly been much qualified if not entirely overruled in some of the English as well as American courts. In Hewlins v. Shippam, (5 Barn. § Cress. 221,) the right to drain water from one man's land through another's was held to be an easement; and a parol license to do do so, though |