delivered the following dissenting opinion.
I am unable to agree with the conclusion reached in the foregoing opinion, and am not in accord with all of the views expressed. I therefore feel impelled to give in part at least my reasons therefor.
The complaint pleads a license only, and no other claim by either of the parties has been made in their briefs or at the oral argument. I recognize the possibility of the eminent counsel for the respective parties being mistaken in this respect, but I am of the opinion that their position is not open to serious doubt. The only averment in the complaint bearing on this feature is “that the plaintiff obtained from the defendant T. N. Proffitt and his predecessors in interest * * the right, consent, and permission and license to build and construct the said main ditch, and to use the said canyon or gulch as a part of his said irrigating ditch, and to build, construct, and maintain the said lateral ditch leading from said canyon. * *” Not only from the fact that it has been so treated and recognized throughout the trial by the plaintiff and his counsel that only a license was intended to be pleaded, but from the language used it is clear that the words, “right, consent and permission and license,” are intended •as merely synonymous terms, each defining the other. I find nothing in the definition of the word “right” even if it were standing alone, to justify the broad meaning applied thereto in deciding this case. The standard dictionaries treat the word “right,” when used in this manner, as synonymous with “authority,” “privilege,” *209“license,” etc. True, an easement includes a right, but a right does not necessarily include an easement. An easement is a permanent interest in another’s land, with the right at all times to enter and enjoy the same; and, save under exceptional circumstances, such, for example, as adverse possession for the requisite period, or as in Morse v. Whitcomb, 54 Or. 412 (102 Pac. 788: 103 Pac. 775), must be founded upon a grant by deed or writing, or by prescription: Emerson v. Bergin, 76 Cal. 197 (18 Pac. 264) ; Stokes v. Maxson, 113 Iowa 122 (84 N. W. 949: 86 Am. St. Rep. 367). As stated by the court in Forbes v. Balenseifer, 74 Ill. 183, 185, “a license, unlike an easement, is not an interest in the land, but only a privilege to go upon the land for a specified purpose, but is revocable at the will of the owner, whilst an easement is irrevocable” — citing Washburn, Eas. 23. But, as in effect held in the case of Baldwin v. Taylor, 166 Pa. 509 (31 Atl. 250), a license is distinguished from an easement which must be created by grant or prescription in the fact that the latter always implies an interest in the land upon which it is imposed, while a dispensation or license passes no interest, nor does it alter or transfer property in anything but only makes an action lawful which without it would have been unlawful.
But, assuming it was the purpose of the language quoted from the complaint to assert that a grant of perpetual easement was intended to be given, the letter offered in evidence is insufficient for that purpose, and even if it were admissible, subject to supplemental parol proof in a suit for specific performance, the pleadings are insufficient therefor. It is not claimed in the opinion that a grant was actually made, but that the letters exchanged amounted to a written agreement to make such grant. Nor is it assumed that this is a suit for specific performance of a contract, and until the grant is made, either in writing or as a result of a decree for *210specific performance, plaintiff cannot successfully rely thereon. He has at no time been in the actual possession of the ditch. The ditch is on the lands of defendant, making plaintiff’s possession constructive only. 28 Am. & Eng. Ency. Law (2 ed.) 289. How, then, can it be said on the perpetual easement theory that plaintiff may permanently enjoin defendant from interfering with his possession? For he had been not only ousted from his use, or constructive possession, by the one through whose lands the ditch extends, but his right of constructive possession stands upon a mere, indefinite written authority, requiring, for completion, parol proof. A perpetual injunction under such circumstances will not lie; no authority has been cited to such effect, nor do I think a decision that so holds will be found, unless it be the one here under consideration.
Plaintiff’s case must stand or fall upon a license, upon which he has acted under such circumstances as will estop defendant from questioning his rights. This estoppel plaintiff had an opportunity to plead in his reply, but did not do so, contenting himself with a mere denial of the affirmative allegations of the answer. Under no rule, as I view it, can plaintiff avail himself of any transaction or doing between him and defendant, without pleading such facts as may constitute an estoppel, and the rule in this state that an estoppel of such character to be available must be pleaded is too well settled to need discussion or citation of authorities. Since, therefore, the issues presented are not broad enough to enable plaintiff to rely upon the right to a permanent easement over the premises, a consideration of the facts discussed in the opinion is unnecessary. I know of no reason why we should suspend in this particular case, even though it were a discretionary matter (and it certainly is not), the well-settled rules of pleading, for defendant was undoubtedly justified in relying on these rules, and was, *211accordingly, entitled to notice of such issue. The decree in the case of McPhee v. Kelsey, 44 Or. 193 (74 Pac. 401: 75 Pac. 713), was vacated by this court to enable the defendant to offer proof, not on an issue not pleaded or relied upon by either party, as here, but on a possible ambiguous averment, upon which the suit finally turned. See McPhee v. Kelsey, 45 Or. 290 (78 Pac. 224). I think therefore, that even should it be assumed that the statement of the facts is in accord with the weight of evidence, as to which I express no opinion, the authorities relied upon in the majority decision are not in point.
Again, the written permission here urged came, at the time it was given, from only a part of the owners of the property. The fact that Failing may have had charge of all the lands or may thereafter have become possessed of the title thereto is of no avail, unless on the theory of estoppel, which, as stated, is not within the issues. The so-called contract or writings are not nearly so complete as was the agreement, and the twenty-five years’ subsequent acquiesence of the parties thereto presented by the record for the consideration of this court, and held insufficient, in Beers v. Sharpe, 44 Or. 386 (75 Pac. 717). In that case an examination of the records and briefs will disclose that estoppel was both pleaded and established. The result on the main point therein (whether a subsequent, separate, and distinct appropriation of surplus water, by means of a dam and canal leading therefrom, in which all were tenants in common, could be made) is in conflict with the views and the law announced in McPhee v. Kelsey, 44 Or. 193 (74 Pac. 401: 75 Pac. 713), as well as inconsistent with subsequent adjudications thereon, among which is Ison v. Sturgill, 57 Or. 109 (109 Pac. 579), but I find the law announced therein on the above point unshaken by any later decision, save by the majority opinion herein.
I deem it unnecessary at this time further to present *212my reasons for dissenting, as in my opinion the foregoing are adequate to justify a reversal of the decree appealed from.