The opinion
By the Court,
Nelson, Ch. J.
1. The case of Goodtitle ex dem. Chester v. Alker and Elmer (1 Burr., 133), and of Jackson v. Hatheway ( 15 Johns., 447 ), are direct authorities in favor of the owner of the fee to sustain ejectment against one who has exclusively appropriated a part of a public street or highway to his own private use.
The former case was twice argued in the king’s bench. Though no doubt seems to have been entertained by the judges in respect to this particular point; the fact, however, proves that it was decided after having been fully discussed and considered. I do not find that the point has ever been dpubted in England since that case; but it is sufficient for us that it has been expressly affirmed in this court in the case to which I have refered. (See also 2 Johns., 363 ; 6 Mass., 456 ; 1 Conn., 103,132 , per Swift, J.; Selw. N. P. 518; Saund. PI. and Ev., 447.)
2. The learned judge was right in excluding the paroi evidence offered of the license of the owners of the fee for the erection of the market, and occupation of the premises for the use of the same ; such agreement being void within the statute of frauds. It contemplated a permanent use and occupation of the land, which in Mumford v. Whitney ( 15 Wend., 380 ) was, after a very full and learned examination of the question by Ch. J. Savage, held to be an interest in the land itself, coming clearly within the statute.
The question there was, whether a license to abut and place the dam of the defendant thrown across the Genesee river upon land of the plaintiff was valid and binding, without being reduced to writing; a question which, in principle, can not be distinguished from the one before us.
It is supposed that the deed from Mumford to M. Brown, dated May 6, 1840, conveying the premises in question, subject to all the legal rights of the public in, to and over the *311 same, would enure to the benefit of the city by operation of his (Brown’s) previous written consent to the corporate authorities to erect the market house in question.
If that instrument from Brown to the trustees had purported to vest in them a complete and perfect interest in the premises, so far as was necessary for the purpose of erecting and maintaining the market house upon the same, he might, perhaps, have been estopped from setting up, in derogation of such privilege, an after acquired title. (1 Johns. Gas., 90; 12 Johns., 201 .)
But the difficulty here is, at the time of the license Mathew owned only one-sixth of the premises, and the instrument purported a consent for himself and to the extent of his interest; nothing more. It does not profess or assume, to grant a complete and absolute right to the easement claimed, nor is it pretended that there was any covenant, express or implied, that he had the right, or full power to make such a grant; it was simply a license, so far as his then existing interest was concerned, to use and occupy the premises for the purposes declared.
His assertion of the title, therefore, subsequently acquired from Mumford, who refused to give consent to the trustees together with the other owners, at the time, is not inconsistent with the previous grant of easement. He takes the place of Mumford unembarrassed, possessed of all his rights and entitled to all his remedies.
New trial denied.