Odger's English Common Law

PROFITS A PRENDRE. 577"
occupier of the land to which that right is attached. Next,.
he must establish the existence of the right ; and lastly, the
obstruction or disturbance of it by the defendant. Like an
easement, a profit d prendre must be acquired either by grant,,
express or implied, or by prescription either at common law,
by a lost grant or under the statute. The prescription should
be laid in the plaintiff " and those whose estate he hath."
This is called " prescribing in the que estate." * The periods
fixed by the statute are, however, thirty and sixty years
respectively in the case of a profit d prendre, instead of twenty
and forty years as in the case of an easement.
But a right of profit d prendre is not always attached to
a dominant tenement. Such a right is sometimes expressly
granted to or acquired by a person or corporation who owns
no land in the neighbourhood ; it is then called a profit a
prendre " in gross." It has been decided that section 2 of
the Prescription Act does not apply to a right of this
kind. 2 Hence a right of profit d prendre in gross can only
be acquired by grant, express or implied, 3 by prescription at
common law or by the presumption of a lost grant. The
prescription must be laid either in the plaintiff and his
ancestors or in a corporation of which the plaintiff is a
member. 4
It follows that a profit d prendre in gross cannot
be claimed by or on behalf of undefined persons or a fluc-
tuating class, such as the inhabitants of a parish or village.
Such a class cannot take a right of profit d prendre by grant,
hence they cannot acquire such a right by any prescription
known to the common law. " No prescription can have had
a legal origin where no grant could have been made to
support it." 5 Moreover the exercise of such a right by so
large a number of persons would speedily destroy its subject-
matter. For the same reasons " the public as such cannot
prescribe " for any such right. 6
for it is but one person in law.
13ut a corporation can do so,
i Per Fry, J., in Austin v. Amhurst (1877), 7 Ch. D. at p. 692.
8 Shuttleworth v. Le Fleming (1865), 19 C. B. N. S. 687 ; but see the argument
of counsel in Mereer v. Denne, [1905] 2 Ch. at pp. 568—676, and also p. 586.
3 Welcome v. Upton (1840), 6 M. & W. 536 ; Staffordshire, $c, Canal Navigation
v. Bradley, [1912] 1 Ch. 91.
4 See the remarks of Fry, J., in Austin v. Amhurst, supra. ,
« Per Tindal, C. J., in Lockwood v. Wood (1844), 6 Q. B. at p. 64.
e Per Farwell, J., in Att.-Gen. v. Antroous, [1905] 2 Ch. at p. 198.
B.C.L.
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