Licenses

While often similar in action to an easement, a “license” is a different matter. Please note that this idea is related to a license to do an activity by the state, such as a fishing license, hunting license, or license to cut hair. Black’s Law Dictionary defines a license as: “An authority to do a particular act or series of acts upon another’s land without possessing any estate therein.”[1] The BLD goes on to differentiate it from an easement, in noting that:

It is distinguished from an “easement,” which implies an interest in the land to be affected and a “lease” or a right to take in the profits of land.^[2]

This distinction is carried over into Indiana law. For instance, one case discussed the difference between an easement and a license as such:

A license in real property is a personal, revocable, and unassignable privilege to do one or more acts on the land of another without possessing an interest therein…..A right, given in perpetuity, to do an act on the land of another is an easement, but the same must be in writing.^[3]

To confuse the issue a bit, in some cases, a license, if it has certain characteristics, will be treated as an easement. Generally, licenses are revocable at the will of the grantor. In some cases, however, they may also be more permanent. For instance, an older Indiana case stated:

A license does not convey any title to the land; and where a mere license is relied on, it must appear that there was a consideration paid for it, or it will be deemed revocable at the will of the person granting it…..Where a consideration is paid, or value has been parted with, on the faith that the license is perpetual, then it cannot be revoked...^[4]

This, then, defines another characteristic of a license. Usually, a license does not give any chance for use of it to turn into ownership.

Unlike express easements, a license need not be in writing. For instance, a license may even come into existence when an owner fails to object when the owner should have objected. So, for instance:

An implied license partakes of the nature of an estoppel, and may be found to exist from the inducements and representations of the owner, or from silence, where an owner sees and knows the extent of an act or acts done upon his property, and fails to object thereto.^[5]

Or, to put it in slightly less archaic language, if one person often goes on the land of another to perform some action (e.g., fishing or cutting timber) and the other does not object (for instance, escorting the trespasser bodily off the property), but allows the individual to continue, the owner may have granted the trespasser a license. Now, that license could be revoked by the owner at will, but the owner will not be able to object to previous actions taken under the implied license.

As we discussed above, a license may be revoked expressly (directly, in writing or verbally), if there has been no consideration paid for it. A license may also terminate in other ways. If the license is not executed, the death of the licensee causes the revocation of the license.^[6] In addition, a license may terminate after a certain period of time for nonuse of the license, also called “abandonment.”^[7] Finally, in the case of an irrevocable license, the landowner could essentially “buy out” the license-holder, ending the license.^[8]

[1] Id.

[2] Id.

[3] Selvia v. Reitmeyer, 295 N.E.2d 869, 873 (Ind. App. 3d Dist. 1973).

[4] Parish v. Caspar, 10 N.E. 109, 110 (Ind. 1887).

[5] Stevens v. Howerton, 96 N.E. 968, 970 (Ind. App. 1st Div. 1911).

[6] Spacy v. Evans, 52 N.E. 605, 605 (Ind. 1899).

[7] Lake Erie & W.R. Co. v. Michener, 20 N.E. 254, 256 (Ind. 1889)

[8] Indus. Disposal Corp. v. E. Chi., Dep't of Water Works, 407 N.E.2d 1203, 1205 (Ind. Ct. App. 1980)