Baseball Publishing Co. v. Bruton

Supreme Judicial Court of Massachusetts · Property

Propertyleaselicenseeasement in grossspecific performancestatute of fraudsdeedequity

Facts

The defendant signed a writing on October 9, 1934, agreeing to give the plaintiff the exclusive right and privilege to maintain one advertising sign on the wall of the defendant's building for one year, with yearly renewal privileges for four additional years, and the plaintiff's signs were to remain its personal property. The writing, labeled "Lease No. —," became effective only upon the plaintiff's written acceptance, which occurred on November 10, 1934, when the plaintiff sent the defendant a $25 check; the defendant returned that check and later returned similar renewal checks in 1935 and 1936. Despite the returned checks, the plaintiff erected and maintained the sign until February 23, 1937, when the defendant caused it to be removed. The plaintiff then sued for specific performance, and after the decree below the plaintiff tendered another $25 for renewal beginning November 10, 1937, which the defendant refused.

Issue

Whether the writing giving the plaintiff the exclusive right and privilege to maintain an advertising sign on the defendant's wall was merely a revocable license, which could not be specifically enforced, or whether it created or contracted to create an easement in gross that equity could specifically enforce. A subsidiary question was whether the instrument was a lease.

Rule

A lease conveys an interest in land and transfers possession, while a license merely permits acts on another's land and is revocable at the will of the possessor, even though revocation may breach contract and support damages. A writing granting the exclusive right and privilege to maintain a sign on a wall, without transferring possession of the wall, is not a lease; if it goes beyond a bare license and purports to confer an exclusive continuing right, it may be treated in equity as a grant or contract to grant an easement in gross. Although a legal easement generally requires a deed, an enforceable unsealed written contract for creation of an easement creates an easement in equity, and such an equitable easement may be specifically enforced.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Providence, Nora Keene signed an unsealed writing stating that Harbor View Promotions had the "exclusive right and privilege to maintain one illuminated advertisement" on the south wall of her warehouse for two years at $600 per year. The writing also stated that the display remained Harbor View Promotions' personal property, and Nora retained full control of the building except as limited by the agreement.

If Nora removes the display after eight months and Harbor View Promotions seeks specific performance, which is the strongest characterization of the agreement under the majority's reasoning?

Explanation. The majority distinguished a lease from a license by whether possession is transferred. Here, the owner retained possession, control, and the ordinary rights of ownership, so the arrangement is not a lease. But the grant of an exclusive right and privilege to maintain the advertisement goes beyond a bare license and may be construed as creating an easement in gross. Although unsealed, an enforceable writing to create such an easement creates an easement in equity and may be specifically enforced. (Derived from Baseball Publishing Co. v. Bruton (n.d.).)