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Michigan Supreme Court Lansing, Michigan 48909 _____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
WILLIAM C. KITCHEN,
KITCHEN FARMS, INC.,
a Michigan corporation,
and KITCHEN FARMS,
a Michigan copartnership,
Plaintiffs-Appellants,
v ROBERT W. KITCHEN and
HARRIET ANN KITCHEN,
Defendants-Appellees.
___________________________________ BEFORE THE ENTIRE BENCH
KELLY, J.


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED APRIL 2, 2002


No. 116459


In this case, we are called upon to resolve whether an
oral license for the use of real property can become


irrevocable by estoppel alone. law it cannot.


We hold that under Michigan


The central issue here is whether the principle of
estoppel applies to prevent defendants from revoking an


alleged license they granted to plaintiffs for use of their
property. Plaintiffs contend that (1) the principal defendant
promised plaintiffs that part of an irrigation system would be
allowed to travel across defendants' property in perpetuity,
and (2) plaintiffs relied on that promise.
The trial court granted summary disposition for


defendants and awarded sanctions of approximately $70,000
against plaintiffs for filing a frivolous supplemental


complaint. The Court of Appeals concluded that an irrevocable
license could not be based on an oral promise alone. upheld the sanctions against plaintiffs. It


We affirm the Court


of Appeals conclusion that an irrevocable license was not
created, but reverse the award of sanctions.
I
Most of the relevant facts in this case are not in
dispute. Brothers William and Robert Kitchen, a plaintiff and
defendant respectively, lived in Antrim County and were equal
owners of Kitchen Farms, one of the largest potato farming
businesses in Michigan. Robert owns and resides on a parcel


of property situated on the east side of the Kitchen farm.
His property is bordered on the north, west, and south by the
Kitchen farm, and his home is located on the south side of his
parcel.
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While the brothers were owners of Kitchen Farms, they
farmed the northern section of Robert's parcel. irrigation system crossed that property.
In 1995, a dispute arose between William and Robert,
resulting in William filing a complaint for dissolution of the
business.1 Thereafter, William and Robert entered into a
An arm of an


written agreement to conduct a private auction at which the
higher bidder would acquire the other's interest in Kitchen
Farms. William, as high bidder, purchased Robert's interest.


The agreement did not address the farming of Robert's land or
the irrigation system.
After the buyout, Robert decided that he did not wish
Kitchen Farms to use his land and prevented it from planting
crops and using the irrigation system there. As a


consequence, plaintiffs William and Kitchen Farms filed the
supplemental complaint that is at issue in this case.
In pertinent part, it asserted that Robert's oral promise
gave rise to an irrevocable license by estoppel for the use of
the land in question. Specifically, it alleged that Robert


orally represented in 1981 that the irrigation system could
cross his land in perpetuity.2 The supplemental complaint


The complaint named Robert and his wife, Harriet
Kitchen, as defendants. Harriet had served as a Director of
Kitchen Farms since 1981.

2

1

It is undisputed that there was no written document in
(continued...)
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sought declaratory and injunctive relief allowing Kitchen
Farms to continue planting crops on the property and making
use of the irrigation system.3
Eventually, plaintiffs decided to seek a dismissal


without prejudice.

Defendants opposed the motion, requesting


a dismissal with prejudice, and asking that plaintiffs be
sanctioned for filing a frivolous lawsuit. granted sanctions summary disposition for The trial court
and that imposed
their


defendants concluding

against

plaintiffs,

supplemental complaint was frivolous because it had no basis
in fact or law.
The Court of Appeals affirmed, concluding that Michigan
law does not recognize a right to enforce an oral license once
the grantor has acted to revoke it. It found no error in the


trial court's imposition of sanctions.4 Plaintiffs now appeal
to this Court.
II
We conclude that plaintiffs' claim for an irrevocable


(...continued)
which Robert made such a promise.
Because the irrigation arm operates on an arc, Robert's
decision to prevent the arm from traversing his property
apparently precluded irrigation of thirty-three acres of the
adjacent Kitchen Farms farmland.
239 Mich App 190; 607 NW2d 425 (1999). The Court of
Appeals had previously reached an issue unrelated to this
appeal in 231 Mich 15; 585 NW2d 47 (1998).
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4 3

2

license based simply on an alleged oral promise5 must fail
because it is barred by Michigan's statute of frauds, which
provides:
No estate or interest in lands, other than
leases for a term not exceeding 1 year, nor any
trust or power over or concerning lands, or in any
manner relating thereto, shall hereafter be
created, granted, assigned, surrendered or
declared, unless by act or operation of law, or by
a deed or conveyance in writing, subscribed by the
party creating, granting, surrendering or declaring
the same, or by some person thereunto by him
lawfully authorized by writing. [MCL 566.106.]
Plaintiffs claim they have a permanent and irrevocable
license for the use of a portion of defendants' land. Such an


irrevocable license would constitute an "interest in lands"
that cannot be granted orally in compliance with the statute
of frauds, as it would involve a permanent right to use the
property.
Under the statute of frauds, Robert could have granted
plaintiffs the claimed interest only through "a deed or
conveyance in writing." Thus, the statute of frauds bars


plaintiffs' claim for an interest in defendants' land based on
an oral promise and reliance by plaintiffs. "irrevocable license" by estoppel cannot We hold that an
be created in


Michigan on the basis of an oral promise because recognizing


For purposes of resolving this case, we assume without
deciding, as did the trial court in granting defendant's
motion for summary disposition, that Robert actually made the
alleged oral promise.
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5

such a conveyance would violate the statute of frauds.
Our analysis is consistent with existing Michigan case
law. By definition, a license is "a permission to do some act


or series of acts on the land of the licensor without having
any permanent interest in it . . . ." Sweeney v Hillsdale Co


Bd of Road Comm'rs, 293 Mich 624, 630; 292 NW 506 (1940),
quoting Morrill v Mackman, 24 Mich 279, 282 (1872). In


general, a license is revocable at will and is automatically
revoked upon transfer of title by either the licensor or
licensee. Forge v Smith, 458 Mich 198, 210; 580 NW2d 876


(1998); Sallan Jewelry Co v Bird, 240 Mich 346, 348; 215 NW
349 (1927).
Oral and written licenses, which are terminable at will
by the grantor, are valid. See McCastle v Scanlon, 337 Mich
The reason is that these


122, 133; 59 NW2d 114 (1953).

licenses, because of their revocability, do not create an
interest in land. Hence, the statute of frauds is


inapplicable:
"Where nothing beyond a mere license is
contemplated, and no interest in the land is
proposed to be created, the statute of frauds has
no application, and the observance of no formality
is important." [Id. at 133.]
By contrast, Michigan law generally requires that the grant of
a permanent interest in land be in writing to be enforceable.
Id. at 128.
Indeed, the fact that the interest is permanent brings it
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within the statute of frauds.

Accordingly, this Court has


distinguished between licenses and easements, utilizing the
statute of frauds rationale as follows :
A license grants permission to be on the land
of the licensor without granting any permanent
interest in the realty. While easements constitute
an interest in real estate, licenses do not.
Because they are not considered interests in land,
licenses do not have to comply with the
requirements of the statute of frauds. [Forge,
supra at 210.]
Michigan case law makes clear the justification for
excluding licenses from the requirements of the statute of
frauds: because they are revocable at will, they do not
By contrast,


constitute an interest in the pertinent land.

the "irrevocable license" claimed by plaintiffs would not be
revocable at will. Thus, it would not constitute a "license"


falling outside the scope of the statute of frauds.
Our case law indicates that an interest in land cannot be
established on the basis of estoppel, as plaintiffs seek to
do. See Penfold v Warner, 96 Mich 179, 180; 55 NW 680 (1893).


We stated in Huyck v Bailey, 100 Mich 223, 226; 58 NW 1002
(1894):
[T]he statute of frauds prevents the passing
of title to realty by parol, and this cannot be
done any more under the guise of an estoppel, in
the absence of fraud, and when the estoppel
consists only of an implied assent, than by showing
a direct parol contract.
As these cases reflect, the statute of frauds precludes
an oral promise from forming the basis of a claim to an
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interest in real property, even when estoppel is alleged.

As


has been observed, no writing exists in this case to support
plaintiffs' contention that they have more than a mere


revocable license to use defendants' land. plaintiffs' argument must fail.


Accordingly,


We note that plaintiffs rely heavily on 5 Restatement
Property,

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