Profit Types
Turbary & Estovers
Rights of turbary and estovers are the rights, respectively, to take turf and wood from land for the purpose of fuel for a house. At common law, a tenant is entitled to turf for his own consumption from a bog on the property let.
The right to take turf may exist as a sole profit. More usually, it is held in common with a number of persons. Commons of turbary rights were of immense practical importance in the past in Ireland. They are still prominent.
Tenants have a statutory right of turbary where the premises let includes a bog.
Land Commission
Legislation conferred powers on the Land Commission in respect of turbary in lands acquired under the Land Purchase Act. The
Land Commission purchased many turbary rights in common and took over the pre-existing practices of landlords to assign and allocate turbary rights. The Land Commission also acquired bogs in some cases, for ultimate distribution to tenant purchasers or for the creation of commonage rights to turf.
Nature of Turbary Rights
The right of turbary does not embrace the right to commercialise the bog and sell turf. Similarly, a letting of land, including a bog, does not entitle the tenant to sell turf. The right to turbary turf for sale must be specifically granted.
The right to cut turf includes such ancillary rights as are necessary. This will include the right to enter the lands and may include rights to drain it, in circumstances where natural drainage is insufficient. It will usually include the right to spread the turf and keep it on the bog for the requisite period.
Estovers
An estover is similar to a turbary right. It is a right for the owner of lands to enter other property for the purpose of cutting wood for fuel or furniture. A tenant for life or for a term of years has a right of estover.
The right to cut trees is now subject to control under the Forestry Acts and in some instances, the Planning and Development Acts.
Estovers may be enjoyed in common, in the same manner as turbary rights. In the case of an estover for fuel, it is appurtenant to the house, not the land. The wood must be used for that house and not sold. The quantity of wood, which may be taken, is limited to the needs of that house.
An estover may exist in gross. The quantity of wood used must generally be specified. The right allows the taking of lops and tops of trees, underwood, bushes and dead trees. Trees should not be cut where there is sufficient dead or other wood available.
A reservation of timber reserves the right to cut and take timber standing at the date of the deed or subsequently grown from existing stock. It does not cover trees planted after the date of the deed.
Rights of access may be granted expressly with the profit to take wood. The extent of use permitted will be a matter of interpretation in the circumstances.
Owners’ Residual Rights
The owner is entitled to the reasonable use of the property, subject to the rights of holders the turbary rights. He is not generally excluded from cutting turf himself unless this has been expressly agreed. Ultimately, once the bog has been exhausted, a right of reclamation may be asserted by the landowner.
All trees, bushes, hedges etc., growing on the property are presumed to belong to the owner. They may be conveyed and transferred separately, even while still growing.
The party to whom a grant of such rights is made has a right to enter and fell the trees etc.. so as to remove them. The trees remain part of the land, until felled pursuant to the profit.
Mines & Minerals
In principle, rights in the soil include all property down to the centre of the earth unless separately reserved. This will include mineral rights.
Rights may be owned appurtenant to adjoining property to dig for minerals such as sand, stone, clay, gravel etc. The most important rights are mining and quarrying right. Mining involves deeper excavation, whereas quarrying involves surface excavation.
A right to mines and minerals will include whatever is necessary in order to exercise the right. This may include the use of facilities, Â plant and equipment for the purpose of access, extraction and removal. This will depend on what is a reasonable and necessary method and degree of working of the mine or minerals.
Limits to Mineral Rights
As with profits generally, the exercise of the rights cannot be so extensive so that they displace the rights of the land owner. An appurtenant right cannot exist for commercial purposes. The holder of the right must not disregard the rights of support of land for adjoining owners. Mines of gold and silver belong to the State.
By statute, the exclusive right to work minerals is vested in the State. Under the Land Purchase Acts, most rights of mines and minerals were reserved to the Land Commission. This excludes mines and quarries being worked in advance of the vesting of the land, and rights in respect of stone, gravel, sand or clay.
Grazing
The right to graze animals may constitute a profit. This is separate from the right to enter the land and remove grass. The right of pasture carries ancillary rights as are necessary to enjoy those rights.
Common rights of pasture are frequently encountered in hilly areas in Ireland. They are usually appurtenant to a dominant tenement.
Unlike other profits, where the right of entry is limited to where the profit or material can be found, the right of pasture extends to wherever the grazing animals may wander.