abatement without notice. Also if the occupier increases an existing nuisance, it is equivalent to a new nuisance, and it may be abated without notice (h).—The right of abatement extends to pulling down a dwelling house, as well as any other building, provided that no person be therein at the time; but if there be any person in actual occupation, notice must be given to him and a request made to him to remove, before it would be justifiable to pull it down as a nuisance (i). damage. Abatement of a nuisance must be executed without Unnecessary doing unnecessary damage. Therefore if part only of a house or building be a nuisance that part only may be pulled down; but the person who is justified in pulling down part is not responsible for the consequences to the rest. As in the case of a person pulling down the part of a milldam which was wrongfully built upon his land, thereby causing the whole dam to fall down and the water to run out, the Court held him excused, adding that "if one erects a wall upon his own land and the land of his neighbour, and the neighbour pulls down the wall upon his land, and thereupon all the wall falls down, this is lawful” (j). (h) Penruddock's Case, 5 Co. 101b; Jones v. Williams, 11 M. & W. 176. (i) Perry v. Fitzhowe, 8 Q. B. 757; Davies v. Williams, 16 Q. B. 546; 20 L. J. Q. B. 330. (j) Wigford v. Gill, Cro. Eliz. 269; per cur. Perry v. Fitzhowe, 8 Q. B. 775. See post, p. 369. Profits à prendre. In gross and appurtenant. CHAPTER II. PROFITS À PRENDRE. Section I. Profits à prendre in general. II. Creation of profits. III. Extinction of profits. IV. Remedies for profits. SECTION I. PROFITS À PRENDRE In general. Profits à prendre-in gross and appurtenant-conditions and limits of appurtenancy-land cannot be appurtenant to land. Licence to get minerals-to cut trees and turf-to take game and fish -to take water. Pasture of land-herbage of land. Commons-common of pasture-in gross-appurtenant-cattle levant and couchant-stinted commons-unstinted commons-sheep walk -pannage. Common appendant-commonable cattle. Common of vicinage-inclosure. Common fields-lammas lands. Common of estovers-common of turbary. Common of copyholders-profits of copyhold tenement. Profits à prendre are rights in the land of another which consist in the taking of some material profit from the land. They may be claimed as rights in gross, or in some cases as appurtenant to a dominant tenement over a servient tenement in the manner of easements. An easement, strictly so called, cannot be claimed in gross, or otherwise than as appurtenant to land; for if not appurtenant to a dominant tenement, it would be a mere licence personal to the licensee and revocable at will. But profits of land may be granted to be held in gross independently of other land; and the licence or easement, which is an implied accessory of such grant, to enter upon the land for the purpose of taking the profits granted, becomes by reason of the grant, if validly made, irrevocable (a).-The effect of appurtenancy is that the profit to be taken in the servient tenement passes inseparably with the dominant tenement for any estate, and by any mode of conveyance sufficient to pass the tenement (b). Also a profit granted as appurtenant to a tenement passes by descent with the inheritance of the tenement; a profit granted in gross passes to the heir of the grantee as a separate inheritance (c). appurte Profits can only be made appurtenant to a tenement as Conditions being beneficial to the occupation in some manner that and limits of serves to define and limit the right. "In all cases of a nancy. claim of right in alieno solo as appurtenant, such claim must be made with some limitation and restriction. In the ordinary case of common appurtenant the right cannot be claimed for commonable cattle without stint and to any number; but such right is measured by the capacity of the dominant tenement to maintain the cattle during the winter. Again, in the case of common of estovers or a liberty of taking wood, called in the books house bote, plough bote, and hay or hedge bote, such liberty is not wholly vague and indeterminate, but confined to some certain and definite use; as for the maintenance and carrying on of husbandry, for fuel, for repairing of the house, the instruments of tillage and the necessary fences of the tenement" (d). Thus a claim cannot be made in right of occupancy of a tenement to cut turf upon land for sale, without restriction to the requirements of the tenement (e); or a claim to cut turf as much every year (a) See ante, p. 197; post, p. 348. (b) Sachererill v. Porter, Cro Car. 482; Drury v. Kent, Cro. Jac. 14; Daniel v. Hanslip, 2 Lev. 67; see Bailey v. Stevens, 12 C. B. N. S. 91; 31 L. J. C. P. 226. (c) 8 Co. 54 a, Sym's Case. (d) Per cur. Clayton v. Corby, 5 (e) Valentine v. Penny, Noy. 145. Land cannot be appurte as two men can cut in a certain time, without alleging it to be spent in the house (f); or a claim to cut turf for the improvement of the tenement as often and in such quantity as occasion required (g); or a claim as appurtenant to a close to cut down all trees growing on another close and to dispose of them without any restriction (h). And upon this principle it was held that a claim to dig clay for making bricks at a brick kiln, as occasion required and without limit or restriction, could not be supported as appurtenant to the kiln (i). Rights claimed as appurtenant must not extend to all nant to land. the uses and profits of which the servient land is capable, for the claim would then be equivalent to ownership of the soil; and land cannot be claimed as appurtenant to other land, but must be held by distinct title (j). Accordingly an allotment of land given in lieu of appurtenant rights extinguished by an Inclosure Act does not become appurtenant to the original tenement, but is an independent property (k). Nor can a profit à prendre be claimed as appurtenant to another right of the like kind; a right of common cannot be appurtenant to another right of common (1). But a licence to use land by way of easement may be granted as accessory to a grant of a profit à prendre and would be irrevocable (m).—Profits to be taken from the land of another, that do not satisfy the legal conditions of appurtenancy in relation to a dominant tenement, may be held as rights in gross, provided they are capable of being the subject of a grant (»). The following are the principal species of profits à (f) Hayward v. Cannington, 2 Keble, 290; 1 Levinz, 231. (g) Wilson v. Willes, 7 East, 121. (h) Bailey v. Stevens, 12 C. B. N. S. 91; 31 L. J. C. P. 226. (i) Clayton v. Corby, 5 Q. B. 415. See Att.-Gen. v. Mathias, 27 L. J. C. 766; 4 K. & J. 579. (j) Co. Lit. 121 b; 4 Co. 36 b, Tyrringham's Case; Jones v. Richard, 5 A. & E. 413; Buszard v. Capel, 8 B. & C. 141; 6 Bing. 150. (k) Williams v. Phillips, L. R. 8 Q. B. D. 437; 51 L. J. Q. B. 102. (1) Mill v. Commiss. of New Forest, 18 C. B. 60; 25 L. J. C. P. 215. (m) Ante, p. 327, n. (a). prendre minerals. "The grant of a licence to search and get (irrevocable on account of its carrying an interest), with a grant Licence to get of such of the ore only as should be found and got, the grantor parting with no estate or interest in the rest. The grantee has no estate or property in the land itself, or any particular portion thereof, or in any part of the ore or minerals ungot therein; but he has a right of property only as to such part thereof as upon the liberties granted to him should be dug and got. That is no more than a mere right to a personal chattel, when obtained in pursuance of incorporeal privileges granted for the purpose of obtaining it, being very different from a grant or demise of the mines or minerals in the land" (o). In like manner a licence or right to enter upon land and to dig and carry away stone, gravel, sand, or other material of the soil, is a profit à prendre. And a licence to take cinders from a heap which had become a part of the soil was held to be a right of this kind (p).—The grant of a licence to search for and take minerals creates a right in gross, assignable, demisable, and descendible (2). Such a licence may be granted to one Exclusive and person exclusively of others, or to several persons concur- licences. rently. As it gives no specific property in the profits until taken, it is presumptively not exclusive of the owner, or of other licensees; if intended so to be, it must be so expressed. The owner of the land may grant similar licences to others, so far as he can without derogation from his former grant, or he may himself take similar profits while the land is in his possession, or he may grant or demise the land to another subject to the licence (r). A licence differs from a lease in this respect that the licence gives no specific right to the profits before actually taken into possession by virtue of (0) Per cur. Doe v. Wood, 2 B. & Ald. 738; Muskett v. Hill, 5 Bing. N. C. 706; ante, p. 53. (p) Smart v. Jones, 15 C. B. N. S. 717; 33 L. J. C. P. 154. (q) Muskett v. Hill, 5 Bing. N. C. 694; Willes, J., Bailey v. Stevens, 31 L. J. C. P. 228; 12 C. B. N. S. (r) Mountjoy's Case, Co. Litt. concurrent |