This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Rights to take profits from another's land may exist in gross, - that is, they may be held by one independently of his ownership of other land, the rule in this respect differing in England from that usually regarded as applying to easements, unattended with a right of profit.17 They may, however, be appurtenant to other land, the land to which the right appertains being then the "dominant tenement," and the land from which the profits are taken being the "servient tenement."18
16. Ante, Sec. 261.
17. Welcome v. Upton, 6 Mees. & W. 536; Shuttleworth v. Le Fleming, 19 C. B. (N. S.) 687; Pierce v. Keator, 70 N. Y. 419, 26 Am. Rep. 612; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21. 100 Am. Dec. 597; Youghiogheny River Coal Co. v. Pierce, 153 Pa. St. 74, 25 Atl. 1026; Cadwalader v. Bailey, 17 R. I. 495, 14 L. R. A. 300, 23 Atl. 20. Williams, Rights of Common, 184, 195, 203, 207.
18. Phillips v. Rhodes, 7 Mete. (Mass.) 322; Goodrich v. Bur-bank, 12 Allen (Mass.) 459, 90 Am. Dec. 161; Huntington v. Asher, 96 N. Y. 604; Bingham v. Salene, 15 Ore. 208, 14 Pac. 523, 3 Am. St. Rep. 152; Grubb v. Grubb, 74 Pa. St. 25; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715; Chase v. Cram, 39 R. I. 83, 97 Atl. 481, 802. And see cases in notes following.
A profit a prendre in gross is ordinarily regarded as freely transferable and inheritable.19 A profit a prendre appurtenant passes prima facie upon a transfer of the dominant tenement.19a
A right of profit, in order that it may be appurtenant to other land, and pass therewith, must be in some way connected with the enjoyment of the right of property in the dominant tenement, and must be limited by the needs of the latter.19b Consequently one cannot claim as appurtenant to land owned by him a right to take all the wood which may grow on other land, and dispose of it as he pleases,20 or a right to take turf or seaweed from other land, without regard to the requirements of his own tenement.21
Since a right of profit appurtenant is limited and admeasured by the uses of the dominant tenement, it follows that such profit cannot be separated from the latter by a grant thereof to a third person without the tenement.22
19. Welcome v. Upton, 6 Mees. & W. 536; Muskett v. Hill, 5 Eing. N. C. 694; Grubb v. Bayard, 2 Wall. Jr. 81; Gaston v. Plum, 14 Conn. 344; New Haven v. Hotchkiss, 77 Conn. 168, 58 Atl. 753; Baker v. Kenney, 145 Iowa, 638, 139 Am. St. Rep. 456, 124 N. W. 901; Harlow v. Lake Superior Iron Co., 36 Mich. 105; Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264, 96 N. W. 468; Boatman v. Lasley, 23 Ohio St. 614; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21, 100 Am. Dec. 597; Cadwalader v. Bailey, 17 R. I. 498, 14 L. R. A. 300, 23 Atl. 20.
19a. Warrick v. Queen's College, 6 Ch. App. 716; Hopper v. Herring, 75 N. J. L. 212, 67 Atl. 714; Huff v. Mccauley, 53 Pa. St.
209, 21 Am. Dec. 203; Grubb v. Grubb, 74 Pa. St. 25.
19b. Chesterfield v. Harris (1908), 2 Ch. 397; Hopper v. Herring, 75 N. J. L. 212, 67 Atl. 714; Pierce v. Keator, 70 N. Y. 419, 26 Am. Rep. 612.
20. Bailey v. Stephens, 12 C. B. N. S. 91.
21. Valentine v. Penny, Noy, 145; Hall v. Lawrence, 2 R. I. 218. In Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652, it was held that a right to cut ice on land, and to store it in an ice house on other land, might be appurtenant to the land on which the ice house was situated.
22. Drury v. Kent, Cro. Jac. 14; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715; Baker v. KenSec. 383. Rights of common. The term "common" is frequently applied in England, especially by the older writers, to a right of profit, as when they speak of common of pasture, of estovers, of turbary, of piscary (fishing), or of digging for coals, minerals, and the like.23 The word "common," applied in this connection, refers to the fact that the interest in the profits is "common," as between the person entitled to take profits and either the owner of the land, or other owners of like rights of profit in the same land.24 Consequently, the word is properly applied to any profit a prendre which is not exclusive of like rights in either the owner of the land or in a third person. A right of profit, on the other hand, which is exclusive of any rights in either the landowner or in a third person to take similar profits from that particular land, is usually referred to in the English books as a "several" right, as in the case of a several right of fishery or of pasture.25
Common of turbary involves the right in common with others, of digging turf on another's land, and common of piscary the right of fishing on the land of another, or, rather, in water on his land.26 Common of estovers involves the right of taking necessary wood from another's land for use as firewood, or in repairs on a house or farm.27