Page images
PDF
EPUB

taken in alieno solo; but being a profit to be taken concurrently with the commoners it is often spoken of as a right of common. Thus, "it is not an uncommon thing that the lord has demesne farms that have always been his freehold, and which therefore never could strictly acquire the right of common. Nevertheless the tenants of these demesne lands under the lord did enjoy the same rights of common over the wastes as those persons to whom lands had been conveyed, and they did de facto enjoy and use the rights of common, just as if the freeholder of the demesne lands was not possessed of the freehold of the land over which the right of common was used (a).

[ocr errors]

Hence in the General Inclosure Act, 8 & 9 Vict. c. 118, Statutory s. 27, the provision made for compensation for "any right for lord's compensation of pasturage which may have been usually enjoyed by the rights. lord or his tenants," besides the compensation for his right to the soil, is held to include the quasi right of pasturage over the wastes of the manor usually enjoyed by the lord or his tenants in respect of his demesne lands (b). Similarly the Lands Clauses Act, 1845, 8 Vict. c. 18, s. 99, provides for compensation for "any commonable or other rights to which the lord of the manor may be entitled, in lands, other than his right in the soil of such lands."

(a) Per cur. Musgrave v. Inclosure Commiss., L. R. 9 Q. B. 175; 43 L. J. Q. B. 87: Arundell v. Falmouth, 2 M. & S. 440.

(b) Musgrave v. Inclosure Commiss., L. R. 9 Q. B. 162; 43 L. J. Q. B. 80. See Lloyd v. Powis, 4 E. & B. 485.

Grant of profit à prendre.

Statute of
Frauds.

SECTION II. CREATION OF PROFITS A PRENDRE.

Grant of profits à prendre-Statute of Frauds-profits appurtenant.
Exceptions and reservations of profits à prendre.

Rights accessory to profits à prendre-rights accessory to mining.
Title by prescription at common law.

The Prescription Act-profits appurtenant-profits of copyhold tene

ments.

Profits in gross-corporate rights.

Prescriptive usage must be lawful-certain-continuous.

Profits à prendre, being incorporeal hereditaments, are created by grant or by prescription. The grant of a profit à prendre requires a deed, whether it be granted for a freehold interest or for a term of years; and if not made by deed, it operates only as a licence and is revocable (a). "A valid licence for a time certain must be by deed; to give a sole and exclusive right even for an hour a deed is necessary, and that would be a grant; and whether the grantee had it in fee, or for a term of years, or even an hour, he could sue for a disturbance during the time that the interest under his grant continued” (b).—A right to take profits from land is an interest in or concerning land within the 4th section of the Statute of Frauds, and therefore an agreement respecting it must be in writing signed by the party to be charged with it; as an agreement respecting the right of shooting and taking game (c). A sale of pasture to be taken by the cattle of the buyer is within the statute; but a contract by the owner of pasture for the agistment of cattle or taking in cattle to feed is not a contract within the statute (d).-An agreement for a

(a) Ante, p. 198; Co. Lit. 9 a, b; Duke of Somerset v. Fogwell, 5 B. & C. 875.

(b) Per cur. Holford v. Bailey, 13 Q. B. 446, citing Hopkins v.. Robinson, 2 Lev. 2.

(c) Webber v. Lee, L. R. 9 Q. B. D. 315; 51 L. J. Q. B. 485; ante, p. 79.

(d) Jones v. Flint, 10 A. & E. 753.

profit à prendre made in writing and duly signed may be enforced as a contract, although, not being under seal, it is inoperative in law to convey the profits contracted for (e). And if a profit be in fact taken under a parol agreement to pay for it, the payment may be recovered as a debt (f). Also a parol reservation of game upon a parol demise is sufficient to protect a person acting under it from being charged with a trespass in pursuit of game under the statute 1 & 2 Will. IV. c. 32, s. 30 (g).

Profits à prendre which have been made appurtenant to Profits apland by former grant, or by prescription, pass with the purtenant. land by any mode of conveyance that is sufficient to pass the land, and without express mention in the conveyance (h). A demise without deed of a messuage or land, together with incorporeal rights which are not appurtenant to the demised tenement, though it may be effectual as a demise of the tenement, is void as a demise of the incorporeal rights; as in the case of a parol demise of land together with the right of shooting and taking game over other land (i). As to such incorporeal rights, it can operate only as a licence (j).

and reserva

Profits à prendre cannot be claimed by way of exception Exceptions or reservation from a grant of land; for an exception, tions of profits strictly speaking, applies only to an existing part of the à prendre. thing granted; and the term reservation, strictly speaking, applies only to rents and services to be rendered as the condition of tenure. Whereas profits à prendre are rights. newly created by the terms of the deed of grant, and vested in some other person than the owner of the land, either in gross or as appurtenant to other land. Therefore expressions in a deed of grant purporting to except or

(e) Smart v. Jones, 15 C. B. N. S. 717; 33 L. J. C. P. 154.

(f) Davis v. Morgan, 4 B. & C. 8; Jones v. Reynolds, 4 A. & E. 805. (g) Jones v. Williams, 46 L. J. M. 272; ante, p. 75.

(h) Co. Lit. 121 b; ante, p. 327.
(i) Bird v. Higginson, 6 A. & E.
824; The Queen v. Hockworthy, 7
A. & E. 501.

(j) Ante, p. 198; Jones v. Wil-
liams, 46 L. J. M. 270.

Accessory rights.

reserve profits to be taken by the grantor can operate only by being construed technically as a re-grant from the grantee, concurrent with the grant by which he is made owner of the land k-A grant of land purporting to except and reserve to the grantor the liberty of entering the land to hunt and take game was held to operate effectually as a re-grant to him of the profits to be taken (1). “The privilege of hawking, hunting, fishing, and fouling, is not either a reservation or an exception in point of law; and it is only a privilege or right granted to the lessor, though words of reservation and exception are used” (m). -So, upon a grant of a several fishery or exclusive right of fishing, with reservation to the grantor of catching any kind of fish for his own table, it was held that the “reservation was equal to a grant,” being the same as if the grantee, being the general owner, had granted the reserved right to the grantor (n).-Expressions of the above kind, being construed as a re-grant, may operate in favour of other persons than the grantor, and even in favour of strangers to the deed of grant; whereas an exception or reservation in the strict meaning of those terms can operate only in favour of the grantor himself (0).

The grant of a profit à prendre imports all rights accessory to the taking of the profit in the usual and proper manner, including such use of the land as may reasonably be required for that purpose. Thus a grant of growing trees impliedly carries with it the right to enter and cut the trees and carry them away in the usual manner, and without liability for unavoidable damage to the ground and herbage in the cutting and carriage of the trees; it also gives the right to enter the land with intending buyers, to view the trees for the purpose of selling

[blocks in formation]

them (p). A grant of the right to fish in certain water was held to give the right to use the bank for fishing, there being no other means of getting at the fish; but not the right to dig a trench and draw off the water for the purpose of taking the fish, because they might be taken with nets and other means (q). A grant of a fishery in a river may carry with it, according to the usage under it, the right of drawing nets upon the land (r).

mining.

The right to take minerals carries with it, as an implied Rights acincident of the right, the power to enter the land and dig cessory to through the surface to the minerals, and raise and carry away the minerals, doing no more than what is necessary for the purpose (s). A reservation of the coals under land granted was held to include the accessory rights of entering upon the land to dig mines, and of erecting such machinery as was necessary to drain the mines, and to draw up the coals, including a steam engine with a supply of water; also the right of having a convenient and sufficient road for removing the coals profitably, including a properly constructed railway (t). In such cases the implied powers for taking the profits are not restricted by special powers expressly given for the same purpose, unless the restrictive intention is clearly expressed (u).—A power to take gravel from a pit was held to import the right to take it from the sides as well as from the bottom of the pit, and so to cut down the surface and enlarge the pit laterally (r). But a general power to enter upon land and to search for and take the minerals, was held not to include the right to take a particular mineral by the process of taking off the entire surface of the land, although it could not be effectually taken otherwise (w).

(p) Plowden, 16; 11 Co. 52 a, Liford's Case; Stukeley v. Butler, Hob. 168.

(q) Plowden, 16.

(r) Gray v. Bond, 2 B. & B. 667. (s) Cadogan v. Armitage, 2 B. & C. 197; Rogers v. Taylor, 1 H. & N. 706; 26 L. J. Ex. 203.

(t) Dand v. Kingscote, 6 M. & W. 174. See post, p. 210.

(u) Cadogan v. Armitage, 2 B. & C. 209.

(v) Ellis v. Bromley Local Board, 45 L. J. C. 763.

(w) Hext v. Gill, L. R. 7 Ch. 699; 41 L. J. C. 293.

« PreviousContinue »