to give the owner of the dominant tenement a right of action against him for disturbance of the easement.257

332. Executed license.

While, as before stated, in the majority of jurisdictions, a license is revocable even though the licensee has made improvements or incurred other expenditures on the faith of the license, 258 a different view is taken when the license is to do something on the licensee's land, the effect of which is to prevent the exercise of an easement in such land previously existing in favor of the licensor, and, in such a case, the license, if followed by improvements obstructive of the easement, not being revocable, extinguishes the easement.250 Accordingly, if one entitled to an easement of light over another's land gives a license to the owner of the servient tenement to erect a building thereon preventing the passage of light, and the building is erected accordingly, the license is

257 State v. Suttle, 115 N. C. 784; Butterfield v. Reed, 160 Mass. 361, Finch's Cas. 816; Edgerton v. McMullan, 55 Kan. 90; Lindsey v. Lindeman, 69 Pa. St. 93, 8 Am. Rep. 219; Day v. Walden, 46 Mich. 575.

258 See ante, § 304.

250 Winter v. Brockwell, 8 East, 308, 2 Gray's Cas. 340, as explained in Hawlins v. Shippam, 5 Barn. & C. 221; Liggins v. Inge, 7 Bing. 682, 2 Gray's Cas. 351; Boston & P. R. Corp. v. Doherty, 154 Mass. 314; Cartwright v. Maplesden, 53 N. Y. 622; Addison v. Hack, 2 Gill (Md.) 221, 41 Am. Dec. 421; Vogler v. Geiss, 51 Md. 407. See Stein v. Dahm, 96 Ala. 481. But see Peck v. Loyd, 38 Conn. 566. "The authorities show that the rule, sometimes laid down in the books, that a license executed cannot be countermanded, is not applicable to licenses which, if given by deed, would create an easement, but to licenses which, if given by deed, would extinguish or modify an easement. They also show that the distinction, sometimes taken in the books, between a license to do acts on the licensee's own land, and a license to do acts on the licensor's land, Is the same distinction that is made between licenses which, if held valid, would create, and licenses which extinguish or modify, an easement." Metcalf, J., in Morse v. Copeland, 2 Gray (Mass.) 30%, 8 Gray's Cas. 383.

irrevocable, and the easement is extinguished;260 and, if one entitled to flow another's land gives such other a license to erect an embankment preventing such flow, and the embankment is erected, the easement of flowage is extinguished. 281

333. In favor of innocent purchaser.

An easement is, in effect, as a general rule, extinguished as to a purchaser of the servient tenement if he purchases without notice, either by record or by the open and visible exercise of the easement on the land, of the existence of the easement.262

200 Winter v. Brockwell, 8 East, 308, 3 Gray's Cas. 340. The principle has been held to be applicable in respect to the so-called easements of light, air, and access in the owner of land abutting on a highway. White v. Manhattan Ry. Co., 139 N. Y. 19, Finch's Cas 795. See post, § 365.

261 Morse v. Copeland, 2 Gray (Mass.) 302.

262 Armor v. Pye, 25 Kan. 731; Corning v. Gould, 16 Wend. (N. Y.) 531; Taylor v. Millard, 118 N. Y. 244, affirming 42 Hun, 363; Rives v. Hickey, 1 MacArthur (D. C.) 83; Rome Gaslight Co. v. Meyerhardt, 61 Ga. 287; Pentland v. Keep, 41 Wis. 490; Taggart v. Warner, 83 Wis. 1. See Wissler v. Hershey, 23 Pa. St. 333; McCann v. Day, 57 Ill. 101; Ellis v. Bassett, 128 Ind. 118, 25 Am. St. Rep. 421.

(739)

A profit a prendre is a right to take from another's land a part of the soil, or of the products of the soil. Such a right is sometimes termed a "right of common," when it is not exclusive of the right of other persons to share in such profits.

A right of profit a prendre may be either appurtenant to land or in gross.

Rights of profit a prendre are acquired by grant or prescription, and are extinguished by a release of the right, by unity of title to the right of profit and the servient tenement, or by a change of title increasing the burden of the servient tenement.

334. General considerations.

As instances of profits a prendre may be mentioned rights to take from another's land wood,' or herbage, or coal or other minerals, the latter right being, no doubt, at the present day, the most important class of such rights. The right to take water from a source of supply on another's land has

1 Reg. v. Chamberlains, 9 Adol. & E. 444.

Co. Litt. 4b, 122a.

See post, § 338.

been regarded, not as a profit a prendre, but as an easement, on the theory that water is not, under such conditions, the subject of ownership.*

A right of profit a prendre involves a right to do such things on the land in which the right exists as are reasonably necessary for the exercise of the right. Thus, one to whom is given the right to take timber from land may enter on the land to do so, and one given a right to mine may cut through the soil for that purpose, and erect necessary mining machinery.

5

335. Rights of common.

The term "common" is frequently applied in England, especially by the older writers, to a right of profit of this character, as when they speak of common of pasture, of estovers, of turbary, of piscary (fishing), or of digging for coals, minerals, and the like. The word "common," applied in this connection, refers to an interest in the profits which is "common," either as between the owner of the profit and the owner of the land, or as between the owner of the right to the profit and other owners of like rights in the same land." 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

Race v. Ward, 4 El. & Bl. 702, 2 Gray's Cas. 10; Manning v. Wasdale, 5 Adol. & E. 758. But in Metcalf v. Nelson, 8 S. D. 87, it was decided that water in a spring is property, and, as such, an action lies for its wrongful appropriation.

5 Liford's Case, 11 Coke, 52a; 2 Leake, 349.

• Cardigan v. Armitage, 2 Barn. & C. 197; Dand v. Kingscote, 6 Mees. & W. 174; Williams v. Gibson, 84 Ala. 228, 5 Am. St. Rep. 368; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538, 14 Am. Rep. 322; Wardell v. Watson, 93 Mo. 107.

7 Co. Litt. 122a; 2 Bl. Comm. 32, 34; Williams, Rights of Common. passim.

• Co. Litt. 122a; 2 Pollock & Maitland, Hist. Eng. Law, 144; 2 Leake, 332.

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.

336. Rights in gross and appurtenant.

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 from that usually regarded as applying to easements, unattended with a right of profit.10 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."11 A right of profit, in order that it may be appurtenant to other land, and pass therewith, must be such as to 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. 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,12 or a right to take turf or seaweed from other land, without regard to the requirements of his own tenement.13

• Co. Litt. 122a; Williams, Rights of Common, 12, 18-30, 259-265. 10 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; Cadwalader v. Bailey, 17 R. I. 495; Williams, Rights of Common, 184, 195, 203, 207.

11 Grubb v. Grubb, 74 Pa. St. 25; Phillips v. Rhodes, 7 Metc. (Mass.) 322; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715, 2 Gray's Cas. 21. And see cases in notes following.

12 Bailey v. Stephens, 12 C. B. (N. S.) 91, 2 Gray's Cas. 14.

13 Valentine v. Penny, Noy, 145; Hall v. Lawrence, 2 R. I. 218, 8