A profit a prendre may be defined as a right for any man, in respect of his tenement, to take some profit out of the tenement of another man. Under the English law an easement is a privilege without profit, and confers no right to participate in the profit of the soil charged with it. The right to receive air, light, or water passing across a neighbour's land may be claimed as an easement, because the property in them remains common. But a right by which one person is entitled to remove and appropriate for his own use any part of the soil belonging to another man, or anything growing in or attached to or subsisting upon his land for the purpose of the profit to be gained from the property thereby acquired in the thing removed is a different species of right from an easement and is commonly called a profit a prendre.
The right of depasturing cattle on another's land, the right to cut therefrom and carry away turf or wood for burning within the dwelling house; the right to dig for and carry away stone, slate, coal, and minerals; the right to shoot and sport over another's land, and carry away and consume the game killed; or the right to fish in the water of an estate or of a manor, and carry away and consume the fish taken are all denominated as profits a prendre in English law, but they fall into the category of easements according to Indian Law. A profit a prendre in another's soil cannot be claimed by custom, however ancient, uniform and clear the exercise of that custom may have been; and an unlimited profit a prendre on another's soil cannot be claimed by prescription.
The usually accepted classes of profits a prendre are:
- Rights of Common
- Common of Pasture; which may be
- Appendant
- Appurtenant
- Pur cause de vicinage
- In gross.
- Common of Piscary (right of fishery).
- Common of Estovers.
- Common of Turbary.
- Rights of Ferry.
- Rights to Market.
Rights of Common
Right of Common is a right which one person, who is not the owner, has of taking some part of the natural produce of land belonging to another. There are four kinds of rights of Common, viz.,
- Common of Pasture;
- Common of Piscarry;
- Common of Estovers; and
- Common of Turbary.
The three essential ingredients with regard to this right are:
- any number of persons may have separate rights of common over the same land, or a body of persons may have a joint right for their own benefit, or in trust for others who may be legally incapable of taking it in their own names;
- the right of common must be exercised on the land of another ; and
- the right extends only to taking part of any particular product of the land {Elton).
As a general rule rights of common are acquired in the same manner as easements, viz., either
- by grant; or
- by prescription, which implies a grant.
Similarly, the remedies for disturbance of a right of common are the same as for the denial or obstruction of an easement.
Common of Pasture
Common of Pasture may be either
- Appendant
- Appurtenant
- Pur cause de vicinage
- In gross.
Right of common is appendant where the common is limited to beasts that serve the plough or manure the land. It is appurtenant where there is a right of depasturing a limited number of beasts upon the common. It is in gross where it arises from a grant to a particular person and his heirs, or by prescription. Pasture, in its widest sense, comprises all vegetable products that may be eaten, such as grass, nuts, acorns, the mast of trees, the right to which is known by the name of pannage, and even leaves and boughs. It, also, imports a right to take by the mouths of the commoner's animals, as horses, oxen, swine, and geese, not only grass and other wild herbage upon a waste, but also, leaves, masts, etc., on which any of them can be fed.
The common being free and open, to all having commonable rights over it, it follows that when the owner of the land, or some other person, so encloses or obstructs it that the commoner is precluded from enjoying the benefit to which he is by law entitled, the commoner may maintain an action. Thus, if the owner ploughs it up, or drives off the commoner's beasts, or stocks it with rabbits to such an extent that all the herbage is eaten by them, he commits a tort.
Common of Piscary
The right of fishery which a person might possess in any piece of water is not a right to the fishes living in such water at any time, for fishes, like other ferae naturae (wild nature) cannot, except in certain instances, be in the possession or dominion of any man until they are actually captured, but that it is simply a right to catch them. This right may exist either in connection with, or independently of, the ownership of the soil, over which water stands or flows. Rights of fishery are considered according as they are to be exercised:
- In the High sea.
- In the territorial waters.
- Over the foreshore of the sea.
- In rivers which are tidal and navigable.
- In lakes and ponds.
Infringement
A person commits a wrong when he fishes in another's fishery, whether he takes fish or not; or when he disturbs, or drives away, or destroys the fish in a fishery; or diverts the water to an unreasonable extent.
Where defendant wrongfully discharged into a stream, the exclusive right of fishing in which was given to the plaintiff, water loaded with sediment, the effect of which was to drive away the fish and injure the breeding, it was held that the defendant was liable.
Remedy
The disturbance of rights of fishery may be redressed or prevented either by civil actions; or by criminal proceedings. (i).
Civil actions: Ejectment, trespass, trover, and action upon the case, appear to be the principal civil remedies at law; and a bill of peace, or sometimes an injunction, to be the only remedies in equity for the invasion of rights of fishery.
Indian law
Rights of fishery are considered as profits a prendre in the English law, but are regarded as easements under the Indian Easements Act. These rights may be granted by the State to private individuals; they may also be acquired by prescription. An action for recovery of possession of a fishery, for a declaration of right thereto, for an injunction, or for damages, for catching and carrying away fish seem to be the principal remedies for the vindication or protection of rights of fishery. The Bombay High Court has ruled that a summary action under s. 6 of the Specific Relief Act for restitution of possession of an exclusive fishery, whether such fishery be territorial or a right in alieno solo, may also be entertained, provided the conditions specified in that section be satisfied. But the Calcutta High Court has held that this form of action does not apply to rights of fishery of the latter kind. This diversity is due to the difference of opinion between the two High Courts, as to the denotation of the term 'immovable property' used in that section, which makes this form of action applicable to such property alone.
Common of Estovers
The word 'estovers' is used to denote certain rights enjoyed by persons who have merely a limited estate or interest in land, being rights necessary to the enjoyment gf that estate or interest. It is a rule of law that estovers must be reasonable; also that they must be strictly applied to their respective purposes, and to none other. Any excess in the enjoyment or any misapplication of the just amount would be waste.
Common of Turbary
Common of Turbary is the right to take peat or turf which has become by course of time fit for burning, and not green turf, for the purpose of using the same for fuel in a messuage. Common of turbary is generally taken at present to include both rights of digging and rights of paring in the same waste, and to apply to pared turf as well as to peat. The peat or turf taken must not only be fit for fuel, but must be actually used for that purpose.
Rights of ferry
A ferry is the exclusive right of carrying passengers, in boat across a river or arm of the sea. It can only arise by royal franchise, which may, however, be presumed from immemorial user. The right is an incorporeal right, unaccompanied, in general, by any property in the soil.
In India a right of ferry or an interest therein is immovable property within the meaning of Specific Relief Act, s. 6. The right of establishing a private ferry and levying tolls is recognized here. Twenty years in the shortest period within which such a right of ferry can be established. But in a later case it is held that such rights can only be acquired by a grant from the State
The mere fact of being the owner of both banks of a river does not give the right of ferry. The disturbance of a right of ferry is in the nature of a nuisance1, and the cause of action in the case of the violation of this right is a continuing wrong for the purpose of Limitation Act.
Infringement of rights of ferry
A person commits a tort who disturbs a ferry, either by refusing to pay a reasonable toll, or by setting up a new ferry or passage to the diminution of the custom of the legal ferry. A ferry is the connecting link between two highways or two towns, and the carrying of passengers in boats belonging to other people to and from places so near these highways or towns as to allow the passengers to rejoin these highways almost immediately, will be a disturbance of the ferry, and the persons so conveying over will be committing a tort. The ferrying over of persons to places near these highways or towns will not be construed as an interference with the ferry, provided it is shown that it is not done fraudulently, or as a pretence for avoiding the regular ferry. The plea that the legal ferry is not sufficient for the public convenience owing to the altered condition of the neighbourhood will not avail.
To create a disturbance of the rights of an ancient ferry owner, there must be a carrying of passengers and merchandise from point to point in the line of the ancient ferry; and when that is done, directly or indirectly, and where it is clear that the ancient ferry owner has the undoubted right to the transport of passengers using that way, or of merchandise conveyed that way, then the owner has a cause of action against the wrong doer.
Where a railway bridge with a footpath had been erected about half a mile above the legal ferry, it was held that although the erection of a bridge in the line of the ferry so as to take the traffic of the highways between which the ferry plies would be an infringement, yet when a bridge is made to provide for a new traffic, and in no way takes the traffic directly from the two termini of the ferry, the owner of the ferry cannot claim compensation from the railway company for interference with the ferry.
Indian case: A, the owner of a ferry granted him under a Government Settlement, brought a suit to restrain B from running another ferry over the same spot where A's ferry plied for hire. It appeared, on the evidence, that B levied no tolls on his ferry, but it was not shown that it was used only for the conveyance of his own servants and ryots. Held, that such suit was maintainable. The plaintiffs purchased the ferry lease of the Chenab and Phulku rivers at Wazirabad, giving them the exclusive right to levy tolls on those rivers. The defendant conveyed materials and workmen from the north and the south side, to the middle of the bed of the Chenab, by means other than the ferry bridge, thereby causing an alleged loss to plaintiff : held, that the action of the defendant amounted to a tort, and not to a breach of contract.
Rights to a market
Originally it was considered a great benefit to towns to give them a fair or market; and this was thought beneficial that it was thought right, not only to give the fair or market, but also to grant a charter so as to prevent persons from disturbing the market. The right to prevent persons from selling marketable goods on market days in their private houses (though within the town or manor where the market may be held) may be acquired by immemorial enjoyment or prescription. A market without mites or bounds may extend over adjoining streets, which will be presumed to have been dedicated to the public, subject to the exercise of the market rights.
Infringement of rights to a market
If people come to a market to sell their wares, they are subject to toll, which is payable to the owner of the market; and if they come near the boundary of the market, and avail themselves of the concourse of persons coming to and fro, to find customers, and sell without the boundary of the market, so as to avoid the payment of the toll, an action is maintainable against them by the owner of the market for a disturbance of the market. But it must be proved that the thing was done wilfully and intentionally. It is not necessary that the defendant should actually have sold anything; any active interference by him in the conduct of the new market, or participation in its profit or risk is sufficient.
The grantee of a market, who takes a toll for his own benefit incurs an obligation to maintain the market in a state reasonably fit for the purpose for which it was granted. If, therefore, he erects any obstruction in the market of such a nature as to be dangerous to cattle, he is responsible for any injury thereby caused to the cattle of those who attend the market.
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