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This question is about easements, profits-à-prendre and fundamentals of Property Law.1


I. Suppose you have a riparian land owner (A). By a deed of exchange, they trade to someone (B) an exclusive right2 to fish in the portion of the river opposite the lot, in exchange for some piece of land which is immaterial to the setup described. As subsequent sales by both (A) and (B) of their respective estate/rights occur, and ultimately the death of (B), questions arise:

  1. How do you qualify that fishing right? Is it an easement, profits-à-prendre; is that a full fledged fee simple or a mere interest arising out of a contract?
  2. Is it alienable/assignable?
  3. Can there be apportionment of the right?
  4. Does the right outlast the life of the original grantee/holder?

Looking for a Restatement (Third) compliant answer if it's based on U.S. common law. One can assume the deed is ambiguous and therefore all the presumptions come into play except for the fact it mentions the grantee has an exclusive right to fish, that his intent is sport fishing, and that there is no dominant land whatsoever involved.


Expanding on the first question, whether those fishing rights include any interest whatsoever in the river bed or whether it is seen as a charge/burden on the land owner's (A) radical title is of particular interest (registration considerations may be discussed if pertinent).3

II. Since Restatement (First's), I read profits-a-prendre are subsumed into easements in the U.S.. Therefore, I would also like to know which American states still have a noncommercial easement in gross which is assignable, based on past precedent i.e. states which have not yet integrated Restatement (First's) in that respect (i.e. in so many words still have profits à prendre independent of the modern easement).


1 I'm revisiting a civil law decision through the eyes of the common law. The landmark decision is The Matamajaw Salmon Club v. Duchaine, since deceased, [1921] UKPC 94, [1921] 2 AC 426, with the opinion delivered by Viscount Haldane for the Judicial Committee of the Privy Council, at that time the court of last resort for the Empire, overturning a decision from the Supreme Court of Canada, [1919] S.C.R. 223, on appeal from 27 Que. K.B. 196, concerning fishing rights bought by a famous Canadian character, Lord Mount Stephen, Bt., GCVO. What happened is that in the first instances of the case, reference was made by the Quebec justices to the common law concept of profits-à-prendre. So what you end up having is a very intricate discussion about the foundations of property law and implicit comparisons between the civil and common law traditions. Perusing this material is not required in order to provide an answer.

2 It is not clear whether the economic balance in the exchange plays a role in qualifying of the right someone like (B) would hold. One justice explains Viscount Haldane's inclination to see more than a personal right arising from the fishing right in the aforementioned case, is a consideration motivated analysis of the exchange. The right was granted in exchange of what is assumed to be valuable land, so it must be worth more than some trinket, and therefore justifies a self-contained title of some similar value. (Mc Whirter c. Cochrane, 2008 QCCS 5643, par. 17). For further background on personal servitudes and the impact of Matamajaw on Quebec civil law, see also Club Appalaches c. P.-G. Québec, Laberge c. Émond 2010 QCCS 263, Landry c. 9160-9388 Québec inc. 2012 QCCS 5558, Charbonneau c. Moreau 2014 QCCA 1425, and Fournier c. Lamonde and "Une relecture de l'arrêt Matamajaw", Sylvio Normand, Les Cahiers de droit, vol. 29, n° 3, 1988, arguing Lord Haldane concurred with the Court of the King's Bench of Quebec because he misconstrued its reasons.

3 I wonder on what physical substrate would such a fee rest (if the fee simple requires that - I'm asking); and does one distinguish between fruits/crops and fish (a living being traveling in the river, not constrained to a fraction of it, and not growing out of it) in the profits-a-prendre context at common law? From my perspective, the fish in the river is closer conceptually to that very water, than it is to crops and fruits. It is res nullius, the thing nobody owns, and as such it is appropriation i.e. fishing, which creates property; it is not property before that, that I know of. So can a fee simple be based on that? Plus I read that in UK common law, a profit a prendre, as opposed to an easement, can only be registered if it's in respect of something which can be owned (I quote: eg a right to take water from a spring or pump, or the right to water cattle at a pond may be an easement but cannot be a profit a prendre. Water, when taken, is not owned by anyone; nor is it part of the soil).

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This is an area of law that is in flux. For example, in Colorado, where I practice, the rule has changed over the last ten to thirty years. I'll provide a traditional and modern view of each.

The intermediate view and to a lesser extent the modern view, also give more weight to individualized evidence of the intent of the parties on a case by case basis, while the traditional view would be rather indifferent to the actual intent of the parties.

How do you qualify that fishing right? Is it an easement, profits-à-prendre; is that a full fledged fee simple or a mere interest arising out of a contract?

The traditional view would be that this would be a profits-à-prendre, also known as an "easement in gross" which is a property interest (since it is permanent or at least indefinite). The modern view would see it as having more similarities to an easement (or more precisely to a generic "servitude"). This assumes, of course, that it was not merely an expressly designated or orally created "license" as opposed to a property right.

Is it alienable/assignable?

The traditional view is that it is not alienable or assignable. The intermediate view is that it is alienable or assignable only if it expressly so provides. The modern view is that it is alienable or assignable unless the instrument creating it expressly provides otherwise.

Does the right outlast the life of the original grantee/holder?

The traditional view is that it does not. The intermediate view is that it only does so if it expressly so provides. The modern view is that it presumptively survives the life of the original grantee/holder.

The traditional view would also terminate the right upon the death of the grantor, at least if it does not expressly provide otherwise.

Can there be apportionment of the right?

The traditional view is no. The modern view is that the right can be apportioned only if this can be done without increasing the burden that the rights holder (the dominant estate) imposes on the river owner (the servient estate) and does not expand its scope. Depending upon the way that the right is formulated, this may or may not feasible.

An exclusive right for one person to fish and an exclusive right to fish exercised by thirty people impose a very different burden on the fishery, unless the thirty people are limited to the catch that one person exclusively fishing would have reasonably accomplished.

I would also like to know which American states still have a noncommercial easement in gross which is assignable, based on past precedent i.e. states which have not yet integrated Restatement (First's) in that respect (i.e. in so many words still have profits à prendre independent of the modern easement).

Short of a full fledged law review article this is pretty much impossible to answer. Based on searches of similar kinds of legal issues that I've done in the past, I would guess that 40%-60% of states have no clear precedents on the issue one way or the other, and another 10-20% of the states have some precedents but those precedents are ambiguous or are so stale that it is not obvious that they would be applied if the issue was litigated today.

The remaining states would probably be split fairly evenly between the traditional and modern rules.

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