Assume A orally agrees to grant his neighbor, B, a perpetual right-of-way easement over A's property Blackacre from B's property Whiteacre. B spends $5000 grading the right-of-way and putting down some gravel. After a few years, A informs B that he is no longer allowed to use the right-of-way on Blackacre.
The doctrines of estoppel and part performance are equitable doctrines which take an oral easement out of the Staute of Frauds. In other words, the oral easement will be recognized in equity which, in order to do justice, will "block the Staute's application." (Hornbook at 457).
Estoppel Theory
Hornbook p. 458: "If this theory is employed, one reasons as follows: the oral grantor represented to the grantee that he had an easement...upon the grantor's land; in reliance upon the representation, the grantee expended money or labor or made improvements upon or with reference to the easement...--detrimental reliance; and therefore, the grantor became estopped to deny the easement."
Part Performance Theory
Hornbook at p. 458: "The same facts that invoke the estoppel theory will usually support the equitable part performance theory. Here the reasoning is that the oral grantee's acts, making improvements of a kind one would make if one had an easement...,give tangible evidence, independent of the spoken words, that such an interest exists. The acts themselves 'speak of' an easement...; the trier of fact need not rely on the oral statements alone." In other words, the acts of part performance substitute for a writing to demonstrate or prove the existence of the easement.
Oral Licenses
But now suppose the oral promise is "I hereby give you permission, revocable at will, to use my land for a right-of-way." The licensee spends money constructing the right-of-way. The above doctrines allow an oral easement to be given effect in accordance with the oral promise notwithstanding the Statute of Frauds. But should those doctrines be used to transform a revocable oral incense into an irrevocable perpetual easement? Does justice require forcing a "grantor" to give much more than he promised to give?
As Prof. Clark Once put it: "Instead of the picture of the licensor prevented by the courts from taking advantage of his own fraud, it is suggested that a truer picture is that of a kind, neighborly individual who finds himself outwitted, under this rule of law, by a clever land-grabber."
What do you all think?
