CHAPTER II. PROFITS. EASEMENTS. LICENSES. § 25a. Outline of chapter. In addition to the ordinary rights of a land-possessor discussed in the preceding chapter, rights to use another's land without possession may be obtained by land-possessors or others, through grant, agreement, devise, prescription, or condemnation in exercise of the power of eminent domain given by the state. Those of such rights as can be enforced not merely against particular persons, but against the world in general, are dealt with in this chapter. They are divisible superficially into two classes. One of these classes may be called Profits a Prendre and the other Easements, provided we use "easements" in a common, but a much broader sense than the technical definition of the word would justify. We shall also discuss in this chapter a class of restrictions on the use of another's land, resembling legal easements and called Equitable Easements, and a class of liberties, rather than rights, in another's land, due to the permission of that other and called Licenses. SECTION 1. PROFITS A PRENDRE. § 26. Definition of profit a prendre. A profit a prendre exists whenever a person, without possessing a certain plot of land, has a right, enforceable against the world in general, to enter and to take from it some part of the earth, the minerals, or the vegetable products, or to hunt or fish upon it. Some profits a prendre must be carefully distinguished from superficially similar possessory rights in a portion of a plot of land. For instance, a land-owner may convey to a person the minerals in his land with expressed or implied accessory rights of entrance and egress over and through the remainder of his land for the purpose of extracting them. By such a conveyance there would pass not only a right to enter and get the minerals, but ownership and possession of the minerals in place. This, then, would not be a profit a prendre. If the right given to take minerals is a profit a prendre, no possession or ownership of the minerals will accrue to the grantee until they are taken. Likewise, standing trees may be conveyed as part of the land; or a profit a prendre to enter and to cut down and carry away trees may be given. § 27. Rights to hunt and fish. A right, good against the world in general, to fish or to hunt wild game on private land, if the game or fish run unrestrained, can be granted by the owner of the land only as a profit a prendre; for under our law, no private person can have ownership of wild animals, running at large, in the possession of no one. § 28. Rights of pasture. A right, enforceable against the world in general, to pasture cattle, horses, or other animals on another's land, is perhaps the most usual profit a prendre. § 29. Duration of profits. Profits a prendre may be created for a term of years, or for the life or lives of a certain person or persons, or as inheritable interests in land. § 30. Profits appurtenant. A profit a prendre may be held by the possessor of a parcel of land, other than that in which the profit exists, for use accessory to the uses of the parcel possessed. In such a case, it is said to be appurtenant to the parcel possessed, and the right will follow the possession of the benefited land, and cannot at the will of the owner of the profit be granted away separately, as an independent right. The land which is benefited by such a profit is called the "dominant tenement." The land that is burdened by any profit is called the "servient tenement." Let us have an example of a profit appurtenant. Andrews, the owner in fee simple of farm A, grants to Brown, his neighbor, who owns in fee simple the adjoining farm B, "his heirs and assigns," a right to pasture the cattle kept on farm B, on the pastures of farm A, and also to take necessary firewood for the purposes of farm B from the woods of farm A. In this case we have two profits a prendre appurtenant to the dominant tenement B, and burdening the servient tenement A. The profits will pass as accessories to farm B, as long as they respectively exist, to the successors of Brown in the possession of B. If the conveyance is properly recorded, the burden will attach to farm A in the hands of the successors to the possession thereof. § 31. Profits in gross. A profit a prendre held for use independent of the possession of any given parcel of land by the owner of the right is said to be held "in gross." A profit a prendre in gross may be transferred freely by its possessor. § 32. Methods of creating profits a prendre. A profit may be created by a deed of grant (a deed requiring a seal), or, under the statutes of some of our states, by a written instrument without a seal. It may be created by devise. It may also arise from prescriptive user, in accordance with principles discussed in the article on Title to Real Estate, §§ 161-71, in Volume VI. A mere agreement that such a right shall exist will not technically create a profit a prendre, but if the agreement is in writing, and a consideration for it is given, it will be specifically enforced in a court of equity against all who had notice of the claim for the existence of the profit, or who are mere volunteers and will not lose by its enforcement. The practical result is that such an agreement generally creates an equitable profit a prendre which differs from a legal profit a prendre only in the matter of the technical processes for enforcing it, and in the fact that even if the agreement is recorded, the right will not be good against persons who give value, who have no actual notice of the right, and to whom the record, under the recording acts, does not give constructive notice. Persons, including the state and those specially authorized by it, having eminent domain rights, may acquire profits a prendre and easements through condemnation proceedings within the scope of their authority. § 33. Termination of profits a prendre. The holder of a profit a prendre may release it to the possessor of the servient tenement by a deed, or in some states by an un sealed written instrument. An agreement for a release upon consideration will be specifically enforced if the statute of frauds is complied with. A profit may also be terminated by prescriptive, uninterrupted interference with the user by the possessor of the servient tenement, in accordance with principles discussed in the article on Title to Real Estate (see reference in § 32, above). In some jurisdictions, a profit acquired by prescription may be lost by mere non-user for the length of time necessary for the acquisition of a prescriptive title. If the dominant and servient tenements come into the possession of the same person or group of persons, the profit will be at least suspended, since no one can have a profit a prendre or an easement in land which he himself possesses; and unless an injustice would thereby be done to the holder of some future interest in the dominant tenement, the profit will be completely destroyed. When thus suspended or destroyed, a profit will not be revived. by a separation of the possessions of the dominant and servient tenements through conveyance, descent, devise, or adverse possession. A profit a prendre may also be terminated by what is technically known as estoppel against its owner. If the owner of the profit voluntarily leads the servient owner to believe that it is his intention to give up the profit, and the servient owner thereupon makes some change in the servient tenement which renders impossible the continuance of the profit, or renders its continuance a new hardship to him, the owner of the profit will be "estopped from asserting its existence"-that is, legally, it will be at an |