Nature of Profits

Profits

A profit a prendre is a right to take something from the land of another. It is a proprietary right and has certain similarities to an easement. However, unlike an easement,  it may, but need not be attached to or accommodate/benefit adjoining land.

Profits a prendre may relate to anything which is the produce of the land. This can range from animals on it, soil, turf, minerals, clay, grass, wood and stone.

The thing removed must be capable of ownership. Water is not a product of the land. It is not capable of ownership until placed in a receptacle. The rules for the acquisition of profits differed from those for the easement. The 2009 land law reforms have caused the rules to converge.

Common and Several

There are profits in common and several profits. A profit in common may be enjoyed by a number of persons in common, including the owner of the property concerned. Such rights may arise in relation to pasturage, turbary etc. Such rights are commonly found in the west of Ireland.

A several or sole profit is enjoyed to the exclusion of the land owner. In the case of a sole profit, the owner has exclusivity. In the case of a several profit, it is exercised in common with others.

Appurtenant to Land

A profit appurtenant is attached to adjoining land. Once it is attached to the land benefited (or dominant tenement), it cannot be severed.

This attachment and link may determine the extent of the profit in the sense that the amount of what may be taken from the land affected for the benefited and is limited to that required to for the use of that land. Where the ownership of an appurtenant profit is in common, regard must be had to the various lands which benefit from the right.

A profit appurtenant is limited to benefiting the appurtenant land so that if it is no longer required, it may cease to be applicable or may be limited. There may, for example, be a right to take wood or turf for the benefit of a particular property. In this case, the same broad principles as apply to easements are applicable.

In the case of an appurtenant profit, regard must be had to the property which benefits from it. Where a profit benefits a particular house, it may cease when the house is demolished.

Questions for interpretation may arise as to whether it continues to apply if it is rebuilt. It may continue if it is essentially a continuance of the old house. It must not place a greater burden on the land affected.

Profits In Gross

In contrast to profits appurtenant, so-called profits in gross do not require a dominant tenement (the land benefitted). It is not linked to the requirements of the dominant tenement. It subsists separately from the land affected.

Unlike an appurtenant profit, it may be let and licensed. Strictly speaking, a profit in gross cannot be established by prescription under the pre-2009 legislation.

There is some support in Ireland for the proposition that it possible to sever a profit appurtenant. When the property which is benefited is divided, the profit is apportioned between the parts.

In some cases, such as, for example, where a house is severed from the land, the right of turbary will continue to subsist for the house, but not the land. In contrast, a right to graze will follow the land.

Public Rights

At common law, the courts do not recognise a right in common for members of the public generally or for a significant class of the public. The courts have refused to recognise rights claimed by custom in a particular district to take fish from a particular river, sand, foreshore etc. The body of persons who exercise a profit cannot fluctuate, as this would place too great a burden on the land.

If the right is in the nature of an easement, it may be established by custom. The same principle does not apply to profit.

Where there is a long-established practice of the taking of products or products from the land by a limited number of persons appurtenant to their land in the vicinity, as an easement by prescription may be established.

It must be claimed with reference to a particular dominant tenement. It cannot subsist for residents in the vicinity generally, without reference to their ownership of land.

Bases for Public Rights

There is an ancient fiction of a presumed Crown grant. The grant by a Crown to a group would, of necessity, incorporate them for the purpose of giving effect to the Crown grant. Accordingly, a  group of persons may be treated as a quasi-corporation and recognised as having the benefit of the profit.

Another possibility whereby the courts allowed such rights was by way of a presumption of trust. The courts may presume a grant to an authority or corporation on trust for certain groups or inhabitants.