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 .
A profit a prendre in gross cannot be assigned in portions to different persons, so that each of the assignees may exercise it separately, but all the assignees must exercise it in common; this being on the theory that otherwise the land would be injured as a result of the taking of profits therefrom by numerous persons.46 Some rights of common appurtenant, such as those of estovers, are not apportionable on the severance of the dominant tenement by the conveyance of a part thereof, since this would increase the amount of profits to be house v. Gaffner, 73 111. 453; Des-icge v. Pearce, 38 Md. 588; Huff v. Mccauley, 53 Pa. St. 206.
42. Kamphouse v. Gaffner, 73 111. 453; Huff v. Mccauley, 53 Pa. St. 206.
43. Ante, Sec. 349(d), notes 44-49.
43a. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Warden v. Watson, 93 Md. 107, 5 S. W. 605; Alden's Appeal, 93 Pa. St. 182; Pierce v. Keator, 70 N. Y. 419.
That a reservation is ineffectual to create a profit a prendre in favor of a third person, see Beardslee v. New Berlin, L. &
P. Co., 207 N. Y. 34, 100 N. E. 434; Tuscorara Club of Mil-brook v. Brown, 215 N. Y. 543, 109 N. E. 597.
44. Dowglas v. Kendall, Cro. Jac. 256; Cowlan v. Slack, 15 East, 108; Ackroyd v. Smith, 10 C. B. 164; Bailey v. Stephens, 12 C. B. N. S. 91; Harris v. Chesterfield (1911), App. Cas. 623; Hill v. Lord, 48 Me. 83; Morse v. Marshall, 97 Mass. 519; Perley v. Langley, 7 N. H. 233.
45. Post, Sec. 419.
46. Mountjoy's Case, Co. Litt. 164b; Chetham v. Williamson, 4 East, 469; Funk v. Haldeman, 53 Pa. St. 229, 244; Harlow v. Lake taken, and, consequently, as neither of the persons between whom the land is divided is entitled to the profits, the right thereto is entirely extinguished by such a conveyance.47 But where a right of common is admeasurable according to the area of the dominant tenement, the common may be apportioned to the several parts of the dominant tenement upon its severance, the burden on the servient tenement not being increased thereby. Such is the case where there is a right to pasture such cattle as may be kept on the dominant tenement, or to take such herbage as may be used thereon, and the alienee of a part of the dominant tenement is entitled to a right of common proportioned to the extent of his grant.48
A profit a prendre is extinguished by a release thereof to the owner of the servient tenement.49 If the titles to the dominant and servient tenements become united in one person, he having an equal estate in both, the right of common or profit is extinguished, since a man cannot have a right of profit in his own land.50 And the same result no doubt follows if the owner of a right of profit in gross acquires a fee-simple estate in the servient tenement.
Even though a right of profit or common is appor-tionable, if separate parts of the land subject thereto are held by different tenants, the right is extinguished in case the owner of the dominant tenement releases a part of such land from the burden of the profit,51 or if the dominant tenement and a part of the servient land become the property of one man;52 since, otherwise, the burden upon the other parts would be increased.
Superior Iron Co., 36 Mich. 105, 121.
47-. Van Rensselaer v. Rad-cliffe, 10 Wend. (N. Y.) 639, 25 Am. Dec. 582; Livingston v. Ketchum, 1 Barb. (N. Y.) 592; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715; Bell v. Ohio & P. R. Co., 25 Pa. St. 161, 64 Am. Dec. 687.
48. Co. Litt. 122a; Tyrring-ham's Cas, 4 Coke, 37a; Wild's Case, 8 Coke, 78b; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639.
49. Litt. Sec. 480; Co. Litt. 280a; 2 Leake, 355.
50. Tyrringham's Case, 4 Coke, 38a; Bradshaw v. Eyre, Cro. Eliz. 570; Rex v. Inhabitants of Hermitage, Carth. 239; Saundeys v. Oliff, Moore, 467; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715.
51. Rotherham v. Green, Cro. Eliz. 593; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715; Johnson v. Barnes, L. R. 7 C. P. 592, 600.
52. Kimpton v. Bellamyes, 1
Leon. 43; Livingston v. Te~ Broeck, 16 Johns. (N. Y.) 14, 8 Am. Dec. 287; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715; Bell v. Ohio & P. R. Co., 25 Pa. St. 161, 64 Am. Dec. 687.