Sec. 381. General considerations

A profit a prendre involves primarily a power to acquire, by severance or removal from another's land, some thing or things previously constituting a part of the land, or appertaining thereto, the holder of the profit a prendre having, as an integral part thereof, rights against the members of the community generally that they shall not interfere with the exercise or enjoyment of the power.1 As instances of profits a prendre may be mentioned rights to take from another's land, and so acquire as one' own, wood,2 herbage,3 or coal or other minerals,4 this latter being at the present day the most important class of such rights. Likewise, one may have the right to kill and take as his own game on another's land,5 fish in waters thereon,6 seaweed cast thereon,7

1. For a justifiable criticism of a former definition by the present writer, see Professor Hoh-field's article in 27 Yale Law Journ. at p. 70.

2. Reg v. Chamberlains, 9 Adol. & E. 444; Clark v. Way, 11 Rich. (S. C.) 621.

3. Co. Litt. 4b, 122a; Johnson v. Barnes, L. R. 8 C. P. 527.

4. Post, Sec. 385.

5. Wickham v. Hawker, 7 Mees. & W. 63; Webber v. Lee, 9 Q. B. D. 315; Bingham v. Salene, 15 Ore. 208, 3 Am. St. Rep. 152, 14 Pac. 523.

6. Fitzgerald v. Firbank, [1897] 2 Ch. 96; Turner v. Hebron, 61 Conn. 175, 14 L. R. A. 386, 22 Atl. 951.

7. Hill v. Lord, 48 Me. 83; Sale v. Pratt, 19 Pick. (Mass.) 191.

Or soil, sand and gravel therein.8 A right to take ice has been regarded as a profit a prendre.8a

A profit a prendre may be exclusive of any right in the land owner or in other persons to take that particular profit, or it may not be so exclusive.9 In the case of an exclusive right of profit the one entitled thereto, having begun the exercise thereof, has been regarded to that extent as in possession of the land, so as to be entitled to maintain an action of trespass qua re clausum fregit against a person interfering therewith.10

A profit a prendre, like an easement, may be created to endure in perpetuity, that is, for the duration of an estate in fee simple, or for a less period, such as a term of years,11 or it may even be terminable at the will of either the land owner or the owner of the profit.lla

A profit a prendre involves a right to do such things on the land in which the right exists as are reasonably necessary for the exercise of the right. Thus, one to whom is given the right to take timber from land may enter on the land to do so,12 and one given a right to mine may cut through the soil for that purpose, and erect necessary mining machinery.1238. Maxwell v Martin, 6 Bing. 522; Blewett v. Tregonning, 3 Ad. & El. 554; Constable v. Nicholson, 14 C. B. N. C. 230; Merwin v. Wheeler, 41 Conn. 25; Wenger v. Clay Tp. 61 of St. Joseph County, 01 Ind. App. 640, 112 X. E. 402; Perley v. Langley, 7 X. H. 233; Hopper v Herring, 75 N. J. L. 212, 67 Atl. 714; Texas & P. Ry. Co. v. Durrett, 57 Tex. 48.

8a. Mitchell v. D'olier, 62 N. J. L. 375. 59 L. R. A. 940, 53 Atl. 467. Huntington v. Asher, 96 N. Y. 601.

9. P08t, Sec. 383.

10. Burt v. Moore, 5 Terra

Rep. 329; Harker v. Birkbeck, 3 Burr. 1556; Wilson v. Mackreth. 3 Burr. 1824; Crosby v. Wiads-worth, 6 East, 602; Holford v. Bailey, 13 Q. B. 426; Fitzgerald v Firbank [1897] 2 Ch. 96.

11. Hooper v. Clark, L. R. 2 Q. B. 200; Fitzgerald v. Firbank (1897) 2 Ch. 96. Davis v. Miller-brent Lumber Co., 151 Ala. 580. 44 So. 639.

11a. Christian v. Stilh Coal Co., 189 Ala. 500, 66 So. 641.

12. Liford's Case, 11 Coke, 52a : Leake, Prop, in Land, 349.

12a. Cardigan v. Armitage, 2 Barn. & C. 197; Dand v. Kings2 R. P. - 13

That one has the exclusive right of hunting wild fowl on another's land has been held not to affect the right of the latter to drain or otherwise change the land, provided he does this in good faith to improve the land, though this detracts from the value of the hunting privilege.125

- Right to take water. The right to take water upon another's land from such a natural source of supply as a pond or spring, has been regarded as an easement and not a profit a prendre, on the theory that the water does not belong to the owner of the land on or by which it flows, and consequently the grant of the right to take it, while valid in so far as it gives an easement to pass over the land to reach the water, is a nullity as regards the water.13 And likewise, as the owner of land abutting on a natural watercourse has no ownership of the water therein,13a a grant by him of the right to take water from the stream would seem to involve merely the creation of an easement.13b In so far as water on one's land can be regarded as not publici juris, but as belonging cote, 6 Mees. & W. 174; Williams v. Gibson, 84 Ala. 228, 5 Am. St. Rep. 368, 4 So. 350; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538, 14 Am. Rep. 322; Wardell v. Watson, 93 Mo. 107, 5 S. W. 605.

12b. Isherwood v. Salene, 61 Ore. 572, 40 L. R. A. (N. S.) 299, Ann. Cas. 1914B, 542, 123 Pac. 49.

13. Race v. Ward, 4 El. & Bl. 702; Manning v. Wasdale, 5 Adol. & E. 758; Hill v. Lord, 48 Me. 83. Goodrich v. Burbank, 12 Allen (Mass.) 459, 90 Am. Dec. 161. See Legg v. Horn, 45 Conn. 409.

But that water issuing from a spring is private property, see Metcalf v Nelson, 8 S. D. 87,

To him personally, as when it is accumulated by him in a cistern or aqueduct,13c since the water is not a part of the land, the grant of such water would be, not the grant of a right of profit, but rather the grant of a chattel, with an incidental right to come on the land for the purpose of taking- it, that is, using the terminology of the older books, there is in such case a license coupled with an interest.13d But in those states in which water from natural streams is regularly distributed by means of aqueducts and ditches controlled by irrigation companies, contracts with such companies are regarded as having "for their subject matter the usufruct in the stream (and not the water itself) through the intermediate agency of the ditch, affecting the water right in the stream from which the ditch heads. So far as the water in the canal is personalty, it is personalty of the consumers as well as of the company, the company being chiefly the agent of the consumers to make the diversion and carry the water. "13e

65 N. W. 911

In Turner v. Hebron, 61 Conn. 175, 14 L. R. A. 386, 22 Atl. 951. it was held that one person could own the water in a large pond, with the incidental right of fishing therein, while another owned the bed of the pond.

The view that a right to take vater is an easement rather than a profit a prendre is perhaps not entirely in accord with the cases regarding a right to take Ice as a profit d prendre. Mitchell V. D'olier, 68 N. J. L. 375, 59 L. R. A. 949, 53 Atl. 467; Huntington v. Asher, 96 N. Y. 604.

13a. Ante, Sec. 339(a).

13b. Ante, Sec. 352.

- License privilege distinguished. One having a profit a prendre, has a right, as against the members of the community generally, including the owner of the land, that they shall not interfere with the exercise or .enjoyment of the profit.14 It is in this respect that a license to sever particular things from the land is to be distinguished from a profit a prendre, the licensee having no right to freedom from interference by third persons or by the landowner himself, the distinction between a license and a profit a prendre being in a general way similar to that between a license and an easement.15 It is as a result, it seems.

13c. Ante, Sec. 339(a).

13d. Ante, Sec. 349(d).

13e. Samuel C. Wiel, Esq., article 22 Harv. Law Rev. at p. 213. See editorial notes, 13 Columbia Law Rev. 251, 30 Harv. Law Rev. 297.

14. See cases cited ante, this section, note 11.

15. Ante, Sec. 349(a).

Of the absence of any duty on the part of the landowner to refrain from interference with the exercise of the license privilege that the license is revocable at the pleasure of the licensor.

Not infrequently a landowner licenses another to sever from the land some particular subject of profit, with the intention that the license, on effecting such severance, shall become the owner of the thing severed, as for instance, when the landowner orally licenses another to cut timber or remove minerals. In such a case there is both a license to sever the wood or minerals and an oral gift or sale of them, the gift or sale taking effect, for the purpose of transferring the ownership to the licensee, so soon as they become chattels by reason of their severance.16