Profits a prendre have already been distinguished from easements as being a right to take a profit out of another man's land.168 These rights may be as various as the nature of the soil and the things which grow thereon or are imbedded in it will permit.169 For instance, there may be a right to mine for metals or for coal, a right to take wood or turf, or any other product of the land.170 Profits a prendre have to do with our system of law chiefly as rights of common. These rights of common were privileges which the lord of an English manor granted to his tenants to take certain profits from his waste land. The principal rights of common were (1) common of pasture, (2) common of turbary, (3) common of estovers, (4) common of piscary. The first, or common of pasture, wms a right in the tenants to turn their cattle out to graze on the lord's waste. The number of cattle which each tenant had a right to depasture was strictly regulated by the local customs.171 Commons of pasture are either appurtenant or appendant.172 The latter ex165 Magor v. Chadwick, 11 Adol. & E. 571.
166 Goodrich v. Burbank, 12 Allen (Mass.) 459; Bissell v. Grant, 35 Conn. 288. Cf. Amidon v. Harris, 113 Mass. 59.
167 See Goodrich v. Burbank, 12 Allen (Mass.) 459. So to enter and clean a railway for a mill. Prescott v. White, 21 Pick. (Mass.) 341.
168 Ante, p. 350. See, also, Race v. Ward, 4 El. & Bl. 702; Wlckham v. Hawker, 7 Mees. & W. 63.
169 a right to take water from a spring is not a profit & prendre. Race v. Ward, 4 El. & Bl. 702.
170 Waters v. Lilley, 4 Pick. (Mass.) 145; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Hill v. Lord, 48 Me. 83.
171 Whitelock v. Hutchinson, 2 Moody & R. 205; Carr v. Lambert, L. R. 1 Exch. 168. 172 2 Bl. Comm. 33.
1st only In connection with arable land,173 and give a right to pasture no other beasts than those of the plow; that is, those beasts which are necessary to the cultivation of the land to which the common is appendant. Commons of pasture appendant do not exist in the United States. Commons of pasture appurtenant may oxist in connection with any kind of land, and give a right to pasture other beasts than those of the plow.174 Common of turbary is the right to take turf or peat for fuel to burn in the tenant's house. The same term would apply to the right to take coal.175 Common of estovers corresponded to the right of estovers, which has already been defined,176 and the kinds are the same. Common of piscary is a right to fish in the lord's waters.177 It has been seen that the owner of land has the exclusive right to fish in waters thereon, except in the case of navigable rivers.178 Such an owner must not, however, obstruct the passage of fish up and down.179 The right to fish in another man's waters may be created by express grant or acquired by prescription.180 The right to take fish is now very largely regulated by statute in the various states. With rights of common, or any other profits a prendre, there is no obligation to maintain a supply of the things to which the right exist.181 Commons are the same as easements in their method of creation 182 and
173 Anon., Y. B. 26 Hen. VIII., p. 4. pl. 15.
174 Cowlam v. Slack, 15 East, 108; Commissioners of Sewers v. Glasse, L. R. 19 Eq. 134; Baylls v. Tyssen-amhurst, 6 Ch. Div. 500.
175 2 Bl. Comm. 34. See Wilkinson v. Proud, 11 Mees. & W. 33; Caldwell v. Fulton, 31 Pa. St. 475; Massot v. Moses, 3 S. C. 168.
176 Ante, p. 81.
177 2 Bl. Comm. 34.
178 Ante, p. 5.
179 Parker v. People, 111 111. 581; Boatwrlght v. Bookman, 1 Rice (S. C.) 447. And see Case v. Weber, 2 Cart. (Ind.) 108.
180 Treary v. Cooke, 14 Mass. 488; Melvln v. Whiting, 7 Pick. (Mass.) 79; Smith v. Kemp, 2 Salk. 637; Benett v. Costar, 8 Taunt. 183; Seymour v. Courte-nay, 5 Burrows, 2814.
181 See Rivers v. Adams, 3 Exch. Dlv. 361; Chilton v. Corporation of London, 7 Ch. Div. 735.
182 Tottel v. Howell, Noy, 54; Duke of Somerset v. Fogwell, 5 Barn. & C. 875; Bailey v. Stephens, 12 C. B. (N. S.) 91; Pitt v. Chick, Hut. 45; Huntington v. Asher, 96 N. Y. 604. Common appendant can be acquired only by prescription. 2 Bl. Comm. 33. And see Smith v. Floyd, 18 Barb. (N. Y.) 522; Smith v. Gatewood, Cro. Jac. 152.
§§ 234-235) rents. 375 destruction.183 They are subject to merger,184 and common appurtenant is extinguished by an alienation of a part of the land to which the right is attached.185 They descend with the land, but cannot be devised separate from the land.186 Rights of common are rare in the United States, but a number of cases have come before the courts, in which these rights have been considered. For any more than this brief outline of rights of common the reader is referred to those cases which will be found in the notes.187 Profits a prendre other than rights of common are merely matters of contract rights between the owner of the land and the grantee of the profit.188 They are closely allied to licenses, which have already been considered.189