Profits a Prendre
Nature of Profits a Prendre.
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 attach to or accommodate/benefit adjoining land.
Profits a prendre may relate to anything which is the product 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 an easement. They 2009 land law reforms have caused the rules to converge.
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 landowner. 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
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.
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 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.
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 be fluctuating, 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 produce or products from the land, by a limited number of persons appurtenant to their land in the vicinity, an easement by prescription may be established. It must be claimed with reference to particular dominant tenements. It cannot subsist for residents in the vicinity generally, without reference to their ownership of land.
There is an ancient fiction of a presumed Crown grant. The grant by a Crown to a group would of necessity incorporate them to 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 a trust. The courts may presume a grant to an authority or corporation on trust for certain groups or inhabitants.
Turbary
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. Tenants have a statutory right of turbary where the premises let includes a bog.
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.
Turbary 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 pre-existing practices of landlords, to assign and allocate turbary rights. The Land Commission also acquired bogs itself, for ultimate distribution to tenant purchasers or for the creation of commonage rights to turf.
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.
The owner is entitled to 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.
Estovers/ Wood
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.
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 putting wood for fuel or furniture. A tenant for life or for a term of years has an right of estover. The rights to cut trees is now subject to control under the Forestry Act 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 under the circumstances.
Mines & Minerals
In principle, rights in the soil include all property down to the centre of the earth, unless separately reserved. This will include minerals 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, 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.
As with profits generally, the exercise of the rights cannot be so extensive, so that they displace the rights of the landowner. 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 under 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.
Land grazed by two or more persons in common, is commonage. It is effectively a profit of pastorage in common, though it has a wider connotation. The Land Commission was empowered to facilitate the rearrangement of lands or profits held in commonage.
Rights in commonage held by individuals may be registered as a percentage of the entire commonage. Much hill land in Ireland is held, subject to rights to graze in common. In some cases, the ownership of the land in question has become unclear due to the passage of time or for various historical reasons.
Commonage
The Land Commission maintained a policy of dividing commonage in order to promote efficiencies. A significant amount of commonage land was divided in western counties until the winding up of the Land Commission in the 1980s.
There was provision whereby owners might apply to the Land Commission for compulsory partition of commonage right. The Commission could prepare a scheme for partition, having invited and heard objections of others concerned. Similar powers apply to turbary.
A right of commonage may be limited to a particular species of animals, such as cattle or sheep. If it is appurtenant to other lands, it may be limited to the requirements of the owners of that land. Most such rights are limited by the number of cattle that may be maintained on the land benefited. This is referred to as a measure of levancy and couchancy. The dominant tenement does not actually need to be used for out-wintering cattle provided that it could be so used.
Commons of pasture may be limited to a particular number of animals. Ownership in commons is sometimes registered by reference to fractions of the entire commonage. This refers to the number of commoners in most instances. In other cases, it may be divided by the proportion of animals that may use the common.
There is no commons registration system in Ireland, in contrast to England and Wales.
The right in commonage permits grazing of animals only. There is no right to use or interfere with the land beyond this use. There is a right to remove obstructions and hedges which interfere with access. Various acts of the Irish Parliament in the 18th century restricted the right of commoners from conducting activities beyond grazing.
Where the commoner puts out more animals than he is entitled to, he surcharges the land and his fellow commoners may take legal action to prevent this over-use.
The right to pasture includes ancillary easements such as rights of way, rights of place water apparatus and troughs.
The owner of the land is entitled to appropriate so much of the commonage that is not required by the commoners or which is surplus to requirements. This may entitle him to enclose the part not so required. Common rights of pasture may be extinguished in respect of the same. This is relatively rare in Ireland. The provision is limited and regulated by legislation in England and Wales.
The Curragh of Kildare is one of the best known and most ancient commonages in the country. The Curragh of Kildare Act vests the land in the Department of Defence subject to the rights of commoner pasture as specified in older legislation. The Curragh is managed under the legislation.