Odger's English Common Law

PERSONAL LICENCES. 579
and if the licence to shoot the rabbits were revoked the grant
would be defeated. Moreover, a licence which Was in its
inception revocable may become irrevocable " owing to some
supervening equity," as where the licensor had either by
acquiescence or express consent induced the licensee to incur
expense in the erection of permanent works. 1
" The distinction between a licence and a grant is clear, and if you find
a person affecting to grant by deed rights in respect of real property which
are capable of being so granted, that is a grant and not a licence." 2
Lord Ebury granted by deed to the plaintiffs for a term of years " the
exclusive right of fishing " in a defined part of the River Colne, with a
proviso that " the right of fishing hereby granted shall only extend to fair
rod and line angling and to netting for the sole purpose of procuring fish-
baits." The defendant wrongfully discharged into the stream water loaded
with sediment, the effect of which was to drive away the fish and injure the
breeding. It was held by the Court of Appeal that the grant did not give
a mere licence to fish, but a right to fish and to carry away the fish caught
that this was a profit a prendre and therefore an incorporeal hereditament ;
and that the plaintiffs had a right of action against any one who wrongfully
did any act by which the enjoyment of their rights under the deed was
prejudicially affected. 8
" ' A licence to hunt in a man's park and carry away the deer killed to his
own use, to cut down a tree in a man's ground and to carry it away the
next day after to his own use, are licences as to the acts of hunting and
cutting down ; but as to carrying away the deer killed and the tree cut
down, they are grants.' So here, a licence to enter upon a canal and take
the ice is a mere licence, and the right of carrying it away is a grant of
the ice so to be carried away." 4
The rights of a mere licensee must as a rule be enforced
by an action of contract, not of tort, for he has no possessory
title. He can however claim a declaration that his licence
is irrevocable. But questions as to the terms and validity of
a licence often arise in an action of trespass, when " leave
and licence " is pleaded as a defence. A licence is a leave to
do a thing. " An exclusive licence is a leave to do a thing
and a contract not to give leave to anybody else to do the
same thing ; " but unless coupled with a grant, " it confers
1 Plimmer v. Mayor of Wellington (1881), 9 App. Cas. 699, following, the
principle of Ramsden v. Dyson (1866), L. R. 1 H. L. 129, 140.
2 Per Rigby, L. J., in Fitzgerald v. Firbank, [1897] 2 Ch. at p. 103.
» Fitzgerald v. Firbank, [1897] 2 Ch. 96.
* Per Sir W. Page-Wood, V.-C, in Newby v. Harrison (1861), 1 J. & H. at
p. 398, cited with approval by Cotton, U. J., in Heap v. Hartley (1889), 42 Ch. D.
at p. 468.
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