Odger's English Common Law

576 DISTURBANCE OF EASEMENTS, &C.
liberty to take a profit out of the land is the main distinction
between a profit d prendre and an easement. In the case of
an easement those who exercise the right may never take
anything out of, or carry anything away from, the land on
which they enter, except running water, which is no man's
property. 1 But persons who enjoy various rights of profits d
prendre may, in some cases, catch fish, cut turves or faggots ,,
or dig up gravel, and carry away what they thus obtain ; in
other cases they may send iu animals to graze upon the
servient tenement.
A right of profit d prendre is in most cases vested (as an
easement always is) in the owner of some dominant tenement.
It is then a hereditament of a purety incorporeal nature.
And, as a rule, a connection is strictly maintained between
the dominant tenement and the extent of the right enjoyed.
When a right of profit a -prendre in the land of another is attached
to a dominant tenement, it cannot be without stint and for commercial
purposes. 2
In an action of trespass for cutting down and carrying away trees growing
in the plaintiff's close, the defendant in justification of his acts set up
a claim to an immemorial right in A., the owner in fee of an adjoining
close, and his tenants (of whom the defendant was- one), to enter the close
of the plaintiff and to cut down and convert to their own use all the trees
and wood growing there. This right was claimed as appurtenant to the
close of A., but the plea did not allege that the timber so taken was to be
used in any way in or about that close. It was held that such a claim was
too large to be recognised by law. 3
A similar rule prevails in the case of those customs, of a manor which
create a privilege in the nature of a profit a prendre. A copyholder may
only place upon the common as many cattle as he can house on his copy-
hold tenement during the winter ; he may only cut as much wood as he
needs for the repair of his house or his fences or for fuel to burn in his
house ; he may only dig out of the waste as much stone or gravel as he
requires for use upon his tenement. 4 He may not, as a rule, sell to
others the faggots, timber, stone, &c, which he has a right to take for his
own use.
The plaintiff in an action for the obstruction or infringement
of a profit d prendre which is appurtenant or appendant
to land must prove, in the first place, that he is the owner or
i Race v. Ward (1866), 24 L. J. Q. B. 163.
2 Lord Chesterfield v. Harris, [1911] A. C. 623.
3 Bailey v. Stevens (1862), 12 C. B. H. S. 91.
4 Eeath v. Deane, [19051 2 Ch. 86.