Profits à Prendre

Chapter 21 established the easement: a nonpossessory right to use, or to restrain the use of, land one does not own, in which the holder takes nothing away. This chapter takes up the servitude that does. The profit à prendre — literally, the right to take — authorizes its holder to enter the servient land and sever and carry away part of the land itself or its natural produce: minerals, oil and gas, coal, timber, stone, gravel, sand, peat, turf, herbage consumed by grazing animals, wild game, fish, seaweed, ice, water taken in containers, and in some jurisdictions crops. Because the subject of the taking is a thing capable of ownership, the profit is proprietary in a sense the easement is not; and because the supply is finite, the law of profits is preoccupied with questions the law of easements can afford to treat lightly — apportionment, exclusivity, overburdening, and exhaustion. The profit is at once the oldest servitude in English law, older than the easement as a coherent category, and the servitude of greatest present commercial consequence, since the American law of severed mineral, timber, and hunting rights rests upon it.

1. A profit à prendre is a nonpossessory interest in land authorizing the removal of part of the soil or its natural produce. The distinguishing element is severance and taking. Restatement (First) of Property § 450, cmt. f (1944); Restatement (Third) of Property: Servitudes § 1.2(2) (2000).
2. Every profit carries an implied ancillary right of entry. The right to take necessarily imports the right to enter, to remain, and to do what is reasonably necessary to exercise the taking — to cut roads, sink shafts, erect derricks, string lines, and remove the severed thing. The ancillary right is measured by reasonable necessity, not convenience.
3. The Restatement (Third) subsumes the profit within the general law of servitudes. Section 1.2(2) defines the profit as an easement that confers the right to remove, and thereafter applies the same rules of creation, interpretation, transfer, and termination. Where a rule differs, it differs because the supply is finite, not because the category is separate.
4. A profit is an interest in land within the Statute of Frauds. An oral grant of the right to take timber, minerals, or game creates at most a revocable license, or a license coupled with an interest once the subject matter is identified and severed.
5. A profit may be appurtenant to a dominant estate or held in gross. Unlike the easement, the profit in gross has been freely alienable at common law for centuries, precisely because it was treated as a commercial interest with independent value.
6. An appurtenant profit is limited by the needs of the dominant estate. Common of estovers, common of turbary, and common appurtenant of pasture are all measured by what the dominant tenement can consume or support, and cannot be exercised for sale off the land.
7. An exclusive profit excludes the servient owner from the taking; a nonexclusive profit does not. Exclusivity is the pivotal fact in apportionment, in valuation, and in the question whether the interest has become in substance a severed estate in the mineral or timber.
8. A nonexclusive profit in gross is divisible only as one stock. Where the holder assigns fractions of a nonexclusive profit, the assignees must exercise it jointly so that the aggregate burden is not enlarged. Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938).
9. Overburdening and surcharge are the characteristic wrongs of the profit. Because the supply is exhaustible, taking beyond the measure of the grant is not merely a trespass but a destruction of the servient owner's residual value, and is enjoinable and compensable.
10. Prescription creates profits, subject to statutory limits. Open, notorious, adverse, and continuous taking for the prescriptive period ripens into a profit; the Prescription Act, 1832, 2 & 3 Will. 4, c. 71, §§ 1, 3, fixed thirty and sixty year periods for rights of common and profits in England, and American statutes generally apply the ordinary adverse-possession period.
11. A profit is not a mineral estate, though the two may be economically identical. A conveyance of "all the coal in and under Blackacre" severs a corporeal estate in fee; a conveyance of "the right to mine and remove coal" creates an incorporeal profit. The distinction governs taxation, adverse possession, abandonment, dormant-mineral acts, and the running of limitations.
12. Timber deeds and hunting leases are classified by their operative words, not their labels. A "lease" of hunting rights that confers no exclusive possession of a defined space is a profit or a license; a "deed" of standing timber with a removal period is a profit that terminates by its own limitation when the period expires.
13. Termination follows the easement catalogue, with two additions. Release, merger, abandonment, prescription, expiration, condemnation, and estoppel apply; to them the law of profits adds exhaustion of the subject matter and, increasingly, statutory extinguishment under dormant-mineral and marketable-title acts.
14. Nonuse does not extinguish a profit at common law. Abandonment requires nonuse plus conduct manifesting an intent never to resume — a rule of the first importance to severed mineral interests unexercised for generations, and the reason dormant-mineral statutes were enacted.
15. Profits are within the recording acts, and visible workings supply inquiry notice. Stumps, pits, adits, wellheads, quarry faces, and grazing fences all charge a purchaser with the duty of inquiry, but the prudent examiner searches the severed-interest chain independently.

On completing this chapter the reader should be able to:

1. Define the profit à prendre and state the element that distinguishes it from every other servitude.
2. Trace the development of profits from medieval rights of common through Hall and Washburn to the Restatement (Third) of Property: Servitudes.
3. Identify and explain the classical species of common: pasture, estovers, turbary, piscary, and common in the soil.
4. Distinguish the profit from the easement, the license, the lease, the mineral estate, the timber deed, and the hunting lease.
5. Classify a profit as appurtenant or in gross and as exclusive or nonexclusive, and state the consequences of each classification.
6. Analyze the creation of profits by express grant, by reservation, by prescription, and by implication where recognized.
7. Determine the scope of a profit and the extent of the ancillary rights of entry, access, and surface use it carries.
8. Recognize overburdening, surcharge, and misuse, and state the remedies available to the servient owner.
9. Apply the rules governing assignment, apportionment, and divisibility, including the one-stock rule.
10. Identify each mode of termination, including exhaustion and statutory extinguishment.
11. Examine title for severed profits and advise on recording, notice, and curative practice.
12. Evaluate modern commercial, conservation, and resource-management applications of the profit.

The rules stated in this chapter rest upon the following primary sources. Jurisdiction-specific statutes are cited as representative; the governing law of the situs controls.

• Restatement positions. Restatement (Third) of Property: Servitudes § 1.2(2) (profit defined as an easement conferring a right of removal), §§ 2.1–2.18 (creation), §§ 4.1–4.13 (interpretation, scope, and relocation), §§ 5.1–5.9 (succession, divisibility, and apportionment), §§ 7.1–7.15 (modification and termination) (Am. L. Inst. 2000); Restatement (First) of Property §§ 450 cmt. f, 453, 493–498, 512–519 (1944) (profits, exclusivity, and apportionment in the classical scheme).
• Historical English authorities and statutes. Statute of Merton, 20 Hen. 3, c. 4 (1235), and Statute of Westminster II, 13 Edw. 1, c. 46 (1285) (approvement of the waste against commoners); Quia Emptores, 18 Edw. 1, c. 1 (1290); Statute of Frauds, 29 Car. 2, c. 3, §§ 1–3 (1677); Prescription Act, 1832, 2 & 3 Will. 4, c. 71, §§ 1, 3 (thirty- and sixty-year periods for profits and rights of common); Inclosure Acts, 1845–1882; Commons Registration Act, 1965, c. 64; Commons Act, 2006, c. 26.
• Representative state statutes. Cal. Civ. Code §§ 801(4)–(6), 802 (rights of pasture, fishing, taking wood and game as servitudes and as interests in gross); N.Y. Real Prop. Law § 240; Tex. Prop. Code §§ 5.021, 13.001; Pa. Stat. and Cons. Stat. tit. 68, §§ 81–82; Miss. Code § 89-1-1; Ga. Code §§ 44-9-1 to 44-9-8 (easements and profits); state timber-deed and timber-trespass statutes, e.g., Ala. Code § 35-14-1; Or. Rev. Stat. § 105.810 (treble damages for timber trespass).
• Dormant mineral and marketable title legislation. Uniform Dormant Mineral Interests Act (Unif. L. Comm'n 1986); Model Marketable Title Act §§ 2–4; Ind. Code §§ 32-23-10-1 to -8 (sustained in Texaco, Inc. v. Short, 454 U.S. 516 (1982)); Ohio Rev. Code § 5301.56; Mich. Comp. Laws §§ 554.291–554.295; Fla. Stat. §§ 712.01–712.12.
• Natural-resource and wildlife statutes. State fish and game codes conditioning the exercise of sporting profits upon licensure and season; state forest-practices acts, e.g., Wash. Rev. Code ch. 76.09; grazing legislation, notably the Taylor Grazing Act, 43 U.S.C. §§ 315–315r, and the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq. (federal grazing permits are licenses, not profits); Mineral Leasing Act, 30 U.S.C. § 181 et seq.
• Leading judicial decisions. Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938) (creation, assignment, apportionment, and the one-stock rule); Beckwith v. Rossi, 175 A.2d 732 (Me. 1961) (prescriptive profit of seaweed); Gerhard v. Stephens, 442 P.2d 692 (Cal. 1968) (abandonment of a profit in oil and gas); Chicago & N.W. Transp. Co. v. Pedersen, 259 N.W.2d 316 (Wis. 1977) (scope of removal rights); Texaco, Inc. v. Short, 454 U.S. 516 (1982) (constitutionality of dormant-mineral extinguishment); Council of Co-Owners v. Whiting-Turner, 517 A.2d 336 (Md. 1986) (severance and classification); Bruce v. Cheramie, 231 So. 2d 673 (La. 1970); Stoebuck v. Weyerhaeuser and the timber-deed line of cases construing removal periods as limitations; Anderson v. Gipson, 144 S.W.2d 948 (Tex. Civ. App. 1940) (hunting rights as profit); Figliuzzi v. Carcajou Shooting Club, 516 N.W.2d 410 (Wis. 1994) (sporting profits and successors).

Secondary authority is used here only to organize and explain the primary sources.

• John Edward Hall, A Treatise on the Law Relating to Profits à Prendre and Rights of Common (1871) — the principal nineteenth-century monograph devoted specifically to profits; the organizing source for the classical species and their measure.
• 2 William Blackstone, Commentaries on the Laws of England *32–*35 (1766) — common of pasture, estovers, turbary, and piscary as incorporeal hereditaments.
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) *122a, *4b (1628) — common appendant, appurtenant, in gross, and pur cause de vicinage.
• Charles James Gale, A Treatise on the Law of Easements (1839; 20th ed. 2020) — the boundary between easement and profit.
• Emory Washburn, A Treatise on the American Law of Easements and Servitudes ch. 1, §§ 1–20 (4th ed. 1885) — the American reception of the profit.
• 3 James Kent, Commentaries on American Law *402–*420 (1828) — incorporeal rights, commons, and fisheries.
• 4 Herbert Thorndike Tiffany, The Law of Real Property §§ 839–851, 1188–1200 (3d ed. 1939) — the classical American synthesis.
• 1 Frederick Pollock & F. W. Maitland, The History of English Law Before the Time of Edward I 620–625; 2 id. 140–150 (2d ed. 1898) — the manorial waste and the commoner's right.
• A. W. B. Simpson, A History of the Land Law 108–112, 262–265 (2d ed. 1986).
• J. H. Baker, An Introduction to English Legal History ch. 15 (5th ed. 2019) — assizes protecting common rights.
• 4 Powell on Real Property § 34.02[2][d] (Michael Allan Wolf ed.) (profits distinguished).
• 2 American Law of Property §§ 8.1–8.10 (A. James Casner ed. 1952).
• 1 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers, Oil and Gas Law §§ 201–219 (severed interests, profits, and the ancillary right of surface use).
• Susan F. French, Highlights of the New Restatement (Third) of Property: Servitudes, 35 Real Prop. Prob. & Tr. J. 225 (2000).
• Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711 (1986).
• Elinor Ostrom, Governing the Commons (1990) — the institutional economics of finite common-pool resources.

A profit à prendre is a nonpossessory interest in the land of another entitling its holder to enter that land and to sever and remove some part of the land itself or of its natural produce. Three elements compose the definition. The interest is nonpossessory: the holder acquires no seisin, no right to exclude the owner from the land generally, and no estate in the surface. The interest is in land: it is within the Statute of Frauds, is subject to the recording acts, endures beyond the life of its creator, and binds and benefits successors. And the interest authorizes a taking: the holder severs from the realty something capable of separate ownership and carries it away as a chattel.

It is the third element that defines the category. The Restatement (First) of Property § 450, comment f, states the point precisely: the profit differs from the easement in that its holder is entitled to remove a part of the land or its produce, and everything else about the two interests — their creation, their transfer, their scope, their termination — is substantially the same. The Restatement (Third) of Property: Servitudes § 1.2(2) draws the same line while abolishing the separate vocabulary: a profit is simply "an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another." The unification is not merely terminological. It reflects the modern judgment that the doctrinal machinery of the servitude — intent, notice, definiteness, succession — governs both interests, and that the residual differences are consequences of the finite subject matter rather than of category.

The classical objects of a profit are conventionally grouped as the soil and its products. Minerals, coal, ore, oil and gas, stone, marble, slate, gravel, sand, clay, and peat are taken from the soil itself. Timber, underwood, herbage consumed by grazing, crops, seaweed, ice, and wild game and fish are its produce. The catalogue is not closed; anything severable from land and capable of ownership may be the subject of a profit, and modern grants of sand and aggregate, of geothermal fluids, and of carbon-sequestering biomass have all been analyzed on the model.

Two boundaries limit the category. A right to take water flowing in a natural watercourse is not a profit, because flowing water is not owned as part of the soil; a right to draw water in vessels, or to take ice, is a profit. And a right conferring general and exclusive possession of a defined space is not a profit but a lease, however the parties label it. The distinction between taking and possessing is examined at § 22.7.

The profit is older than the easement. In the manorial economy of the twelfth and thirteenth centuries the arable strips of the open field were held in severalty, but the waste — the wood, the moor, the fen, and the rough pasture — was subject to rights exercised in common by the tenants of the manor. Those rights were not held of a dominant estate by grant in the modern sense; they were incidents of tenure, appendant to the arable holding because the holding could not be worked without them. A villein who could not pasture his beasts, cut his fuel, dig his turves, or fish the manorial waters could not survive on his strips. Pollock and Maitland describe the waste as the economic complement of the arable, and the commoner's right as the legal form of that complementarity.

The earliest legislation is accordingly legislation about commons, not about easements. The Statute of Merton, 20 Hen. 3, c. 4 (1235), permitted the lord to approve — that is, to enclose and take into severalty — part of the waste, provided sufficient common remained for the tenants; the Statute of Westminster II, 13 Edw. 1, c. 46 (1285), extended the principle. The measure of sufficiency is the earliest statutory statement of what modern law calls overburdening: a finite resource, allocated among holders whose rights are quantified by need. The assizes of novel disseisin and nuisance, and later the actions on the case, supplied the remedies; Baker traces the protection of incorporeal rights through these forms.

Coke's classification in the Institutes fixed the vocabulary that survived into American law. Common appendant arose by operation of law, was limited to beasts levant and couchant on the arable — that is, to the number the dominant holding could support through the winter — and could not exist in gross. Common appurtenant arose by grant or prescription, might extend to beasts of any kind, and was likewise measured by the needs of the dominant tenement. Common in gross was annexed to the person and might be granted without stint, though a common sans nombre was construed as limited to the capacity of the servient land. Common pur cause de vicinage arose where the wastes of two manors lay open to one another and the beasts of each strayed into the other; it was, as Blackstone observed, rather an excuse for trespass than a true right.

Blackstone's Commentaries grouped the four species that dominate the historical literature: common of pasture, common of estovers, common of turbary, and common of piscary, to which the practical treatises added common in the soil — the right to dig sand, gravel, stone, or minerals. These are developed at §§ 22.9 through 22.14. From the eighteenth century the Inclosure Acts progressively extinguished commons in England, exchanging them for allotments in severalty; the Commons Registration Act, 1965, and the Commons Act, 2006, completed the transformation by requiring registration and extinguishing what was not registered.

The American reception took a different course, and the difference explains the modern importance of the doctrine. Rights of common in the English sense scarcely crossed the Atlantic, except in the New England town commons and in the Spanish and Mexican ejidos of the Southwest. What did cross was the analytical category. Kent and Washburn state the profit as a general incorporeal right, and Tiffany's synthesis in the 1930s applies it to the interests that American land development had by then made central: severed mineral rights, standing-timber conveyances, grazing rights on rangeland, and exclusive hunting and fishing rights. Hall's treatise of 1871, written at the close of the English enclosure era and devoted specifically to profits and rights of common, remains the fullest doctrinal statement of the classical law and is the source to which American courts turned when the question was the measure or the divisibility of a profit.

The Restatement (First) of Property in 1944 restated the profit as a distinct interest governed by the rules of easements, and the Restatement (Third) in 2000 completed the assimilation. The modern law is therefore doubly inherited: a medieval vocabulary of stint and sufficiency applied to a commercial subject matter of coal seams, timber stands, gravel pits, and hunting rights.

Classical law divided hereditaments into corporeal and incorporeal. A corporeal hereditament was the land itself — substantial, visible, capable of livery of seisin. An incorporeal hereditament was a right issuing out of or annexed to land: an advowson, a tithe, a rent, an office, a franchise, a common, a way. Blackstone lists commons and ways among them. The classification carried real consequences. Incorporeal hereditaments lay in grant, not in livery; they required a deed to pass, which is one historical root of the writing requirement now supplied by the Statute of Frauds. They were not susceptible of possession in the ordinary sense, so the possessory assizes did not lie for them, and their protection depended on other forms. And they could not, on the older view, be the subject of adverse possession, though they could be acquired and lost by prescription — the doctrine developed precisely to fill the gap.

The profit occupies a peculiar position in this scheme, and the peculiarity persists. It is incorporeal in that the right itself is intangible and confers no seisin; but its exercise produces a corporeal result, since the severed mineral or felled tree becomes a chattel owned by the taker at the moment of severance. Classical writers describe the profit as an incorporeal right in a corporeal subject. From this hybrid character flow several modern rules: that title to the severed substance passes at severance rather than at grant; that a wrongful taking is both a breach of the servitude and a conversion of the chattel; that the measure of damages for excessive taking is the value of the thing removed, often with statutory multipliers in the case of timber; and that limitations may run differently on the servitude and on the conversion.

The American law of severed minerals fractured the classical scheme further, because in most states a grant of the minerals themselves creates a corporeal estate in fee — a mineral estate — rather than an incorporeal profit. That development is examined at § 22.8; it is enough here to note that the incorporeal-corporeal distinction, which appears purely antiquarian, in fact decides whether a dormant-mineral act may extinguish the interest, whether the interest may be adversely possessed, whether it is separately taxable, and whether it is subject to the rule against perpetuities in its classical form.

The line between easement and profit is the line between using and taking. A right to cross land, to drain across it, to run a pipeline through it, to draw light and air over it, or to restrain building upon it is an easement: the holder takes nothing from the land. A right to cut and remove timber, to mine coal, to quarry stone, to pasture cattle upon the herbage, to cut peat, or to shoot game is a profit: the holder severs and carries away part of the corpus or produce of the servient land.

The distinction is not merely descriptive. Four consequences follow. First, the subject matter of a profit is exhaustible, and the law therefore polices the quantum of taking in a way it does not police the intensity of a mere use. Second, the profit in gross has been freely alienable since long before the modern law made commercial easements in gross transferable; profits were treated as commercial from the beginning. Third, the rules of apportionment differ, because dividing a right to take divides a finite stock, whereas dividing a right of passage ordinarily does not. Fourth, valuation and taxation treat the profit as an interest with independent capital value, which is why severed profits are separately assessed in many states and separately insured in title practice.

Certain interests sit near the line. A right to take water from a spring is generally treated as a profit if the water is taken in vessels or diverted for consumption, and as an easement if it merely permits flow through a pipe from a natural source. A right to depasture animals is a profit as to the herbage consumed, though the incidental right to enter is easement-like. A right to enter and cut brush in order to preserve a view is an easement, not a profit, because the severance is incidental to the use rather than its object; where the cutter takes the wood for its value, the interest becomes a profit. Restatement (Third) § 1.2 cmt. e resolves such cases by asking whether the removal is the purpose of the grant.

A license is permission to do on the land of another what would otherwise be a trespass. It is not an interest in land, requires no writing, is revocable at will, is personal to the licensee and hence neither assignable nor inheritable, and does not bind a purchaser of the servient land. Permission to fish a pond for a season, to gather firewood for the winter, or to hunt over a farm for a weekend, given informally, is a license.

Because a profit must satisfy the Statute of Frauds, the oral grant of a right to take is the commonest source of the distinction in litigation. Two doctrines soften the result. The first is the license coupled with an interest: where the licensee has acquired property in the thing to be taken — timber already sold and identified, minerals already severed, chattels already owned — the license to enter and remove is irrevocable so long as the interest subsists. The second is estoppel: where the licensee, with the licensor's knowledge, has expended substantial sums in reliance — building a mill to saw the timber, sinking a shaft, constructing an access road — the license becomes irrevocable to the extent of the reliance, and most American courts treat the resulting interest as a profit measured by the reliance. Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938), applies precisely this analysis to an oral licence to construct and operate bathing facilities, holding that expenditure in reliance converted the licence into an irrevocable interest in the nature of a profit.

The practical counsel is straightforward. A taking right of any commercial consequence should be reduced to a recorded instrument with a legal description, a stated measure, a stated duration, and express terms on access, assignment, and restoration. Every year courts decide cases in which a decades-old handshake permission to cut firewood or graze cattle is asserted as a property right against a purchaser who bought without notice.

A profit appurtenant is annexed to a dominant estate and exists for its benefit. It passes automatically with a conveyance of the dominant land whether or not mentioned in the deed, cannot be severed from that land and transferred separately, and is measured by the needs of the dominant tenement. Common of estovers appurtenant to a farmhouse entitles the occupier to take wood for the repair of the house and its fences and for its hearth — housebote, haybote or hedgebote, ploughbote, and firebote — but not to cut timber for sale. Common of turbary appurtenant entitles the taking of peat for fuel consumed in the dominant dwelling, not for a peat-selling business. Common appurtenant of pasture is measured by the beasts levant and couchant on the dominant holding: the number the holding can maintain through the winter on its own produce, a self-adjusting stint that prevents the dominant owner from importing beasts and consuming the whole herbage.

A profit in gross is annexed to a person rather than to land. It exists independently of any dominant estate, is inheritable, is devisable, and — unlike the classical easement in gross — has long been freely assignable at common law. Blackstone and Coke both recognized common in gross as an interest that might be granted and transferred, and American law has never doubted the alienability of a severed right to mine, to cut timber, or to hunt. The Restatement (Third) § 4.6 makes transferability turn on the intention manifested in the creating instrument, with a strong presumption of transferability for commercial interests, and the profit is commercial almost by definition.

Where the instrument is ambiguous, the law of easements presumes appurtenance. The presumption is weaker for profits, and for a reason: a taking right is frequently created as an investment asset with no relation to neighbouring land — a coal right, a gravel right, a hunting right sold to a club — and construing it as appurtenant to a parcel the grantee happens to own would defeat the transaction. The better statement is that a profit is appurtenant where the instrument identifies a dominant estate or where the measure of the right is fixed by reference to the needs of one; otherwise it is in gross. Where the profit is unstinted and unrelated to any parcel, appurtenance is impossible, since there is nothing by which to measure it.

A profit is exclusive where the grant entitles the holder to take to the exclusion of everyone including the servient owner; it is nonexclusive where the servient owner or other holders may take the same substance concurrently. Exclusivity must be expressed or clearly implied; the default is nonexclusivity, because a grant is construed to burden the servient estate no further than its language requires.

Exclusivity is doctrinally decisive at three points. In apportionment, an exclusive profit in gross may be divided among assignees without limit, because the aggregate taking cannot exceed the whole and no other holder's share is diminished; a nonexclusive profit may not, and is governed by the one-stock rule of § 22.20. In valuation and taxation, an exclusive profit in a mineral or timber stand approaches the whole economic value of that resource and is assessed accordingly. And in classification, an exclusive and perpetual right to take all of a substance may be construed as a conveyance of a corporeal estate in the substance rather than an incorporeal profit — the point at which the profit shades into the severed mineral estate.

The lease is distinguished by possession. A lease of a quarry or a coal seam conveys exclusive possession of a defined space for a term and creates a possessory estate; the lessee may exclude the world, including the lessor, and the landlord–tenant regime applies. A profit confers no possession: the holder may enter for the purpose of taking and may exclude others only from interfering with the taking. The consequences are practical. A lessee may bring ejectment and is liable for waste; a profit holder may bring trespass on the case for disturbance and is liable for overburdening. In the oil and gas states the so-called "oil and gas lease" is classified variously — as a fee simple determinable in the minerals in Texas, as a profit à prendre in California, Oklahoma, and Kansas, and as a real-property interest sui generis elsewhere — and every consequence from taxation to limitations turns on which characterization the state has adopted.

Hunting leases present the same question in miniature. An instrument styled a lease that grants "the exclusive right to hunt and fish over the described lands" for a term, with no right to occupy, is a profit; if it grants exclusive possession of a camp and its curtilage, it is a lease as to that space and a profit as to the surrounding lands. Courts consistently look to the operative words, not the caption.

American conveyancing produced four instruments that are functionally adjacent to the profit and that must be distinguished by their operative language.

• The severed mineral estate. A conveyance of "all the coal, oil, gas, and other minerals in and under" a parcel conveys a corporeal estate in fee in the mineral stratum, leaving a surface estate in the grantor. The mineral owner holds an estate, may possess and adversely possess it, is separately taxed, and holds an implied easement of reasonable surface use. A conveyance of "the right to mine and remove coal" conveys an incorporeal profit. The distinction governs the application of dormant-mineral acts, the running of adverse possession, the availability of partition, and the classical operation of the rule against perpetuities upon executory limitations in the mineral.
• The timber deed. A conveyance of standing timber may be a sale of an interest in land (a profit, or in some states a corporeal interest in the trees) or a sale of goods to be severed, under UCC § 2-107. Where a removal period is stated, the prevailing construction is that title to timber not removed within the period reverts to the landowner: the removal period operates as a limitation on the profit, not as a covenant. Where no period is stated, courts imply a reasonable time.
• The hunting or fishing lease. Sporting rights are profits because game and fish reduced to possession become chattels of the taker. Their exercise is everywhere conditioned upon compliance with the fish and game laws, and a profit confers no immunity from licensure, bag limits, or closed seasons: the private right regulates access, and the public law regulates the taking. Anderson v. Gipson, 144 S.W.2d 948 (Tex. Civ. App. 1940), and Figliuzzi v. Carcajou Shooting Club, 516 N.W.2d 410 (Wis. 1994), illustrate the classification and its consequences for successors.
• The grazing permit. Permits issued under the Taylor Grazing Act, 43 U.S.C. §§ 315–315b, and administered under the Federal Land Policy and Management Act are licenses, revocable and non-compensable, not profits; the statute says so expressly, and the point recurs whenever a rancher asserts a property right in a federal allotment. Private grazing rights over private land, by contrast, are ordinary profits of pasture.

Common of pasture is the right to depasture beasts upon the servient land, the profit consisting in the herbage consumed. Coke's fourfold classification governs the historical material. Common appendant arose by operation of law in favour of the arable holdings of a manor, extended only to commonable beasts — horses, oxen, cows, and sheep, the animals that manured and ploughed the arable — and was limited to those levant and couchant on the holding. Common appurtenant arose by grant or prescription, might extend to goats, geese, swine, and other beasts, and might be granted for a fixed number, a stint. Common in gross belonged to the person; where granted sans nombre it was construed as limited by the capacity of the servient land, since an unlimited right would destroy the resource. Common pur cause de vicinage arose from the intercommoning of adjacent open wastes.

The doctrine of levancy and couchancy deserves attention because it is the medieval solution to the problem of the commons. The right is quantified not by an arbitrary number but by the winter-carrying capacity of the dominant holding, so that a commoner may pasture on the waste in summer only as many beasts as his own land will support in winter. The stint therefore adjusts automatically to the productive capacity of each holding and prevents the accumulation of rights disproportionate to need. Modern institutional analysis, notably Ostrom's, recognizes the mechanism as a durable common-pool governance rule; the Statutes of Merton and Westminster II supplied the complementary rule that the lord's approvement must leave sufficient common for the tenants.

American grazing profits are almost always in gross, created by express grant, and stinted by number of animal units and by season. Where a grant is silent, the measure is reasonable use in light of the capacity of the servient land, and exceeding it is overburdening. Where a grazing right is asserted by prescription, the claimant must show that the pasturing was adverse rather than neighbourly sufferance, a burden that fails in most unfenced-range states, several of which presume permission for grazing on open land.

Common of estovers — from the Norman French estoffer, to furnish — is the right to take wood from the servient land for the reasonable requirements of the dominant tenement. The classical subdivisions are housebote, wood for the repair of the dwelling and for its fire; haybote or hedgebote, wood for the repair of fences and hedges; ploughbote or cartbote, wood for the repair of implements; and, in some accounts, firebote as a separate head. The measure is need, and the limitation is absolute: estovers may not be sold. A commoner who cuts wood for market has exceeded the profit and is liable in trespass and conversion, and the servient owner may enjoin the taking as well as recover the value.

The modern successor is the commercial timber profit, created by a timber deed or a cutting contract. Its characteristic terms — the tract described, the species and minimum diameter, the removal period, the access routes, the seasonal and weather restrictions, the requirement to repair roads and to reseed or replant — are attempts to specify precisely what the medieval doctrine left to the measure of need. Two recurring litigated questions arise. The first is the effect of the removal period: the prevailing rule construes it as a limitation, so that title to standing timber not cut within the period revests in the landowner without the necessity of re-entry. The second is the measure of damages for cutting beyond the grant: most states provide statutory multipliers for wilful timber trespass, and the measure is generally stumpage value trebled, with restoration damages available where the trees had non-timber value.

Sustainable-forestry practice has added a further layer. State forest-practices acts condition the exercise of timber profits upon permits, stream buffers, and reforestation obligations; certification regimes impose contractual constraints; and a timber deed executed today typically incorporates a management plan whose obligations run with the profit.

Common of turbary is the right to dig and carry away turf or peat from the servient land for fuel. Like estovers, turbary appurtenant is measured by the fuel requirements of the dominant dwelling and may not be exercised for sale. The right is exhaustible in the strictest sense — a peat bog regenerates over centuries — and the classical authorities accordingly limited both the quantity and the place of digging, and required the commoner to dig in a workmanlike manner so as not to destroy the remainder of the bog. Hall's treatment of turbary is the fullest in the literature.

Common of piscary is the right to take fish from waters on the servient land. Its analysis is complicated by the public trust doctrine: in navigable waters the public right of fishery exists independently, and no private profit is required or possible in derogation of it; in non-navigable waters overlying privately owned beds, the right to fish is an incident of ownership and may be granted as a profit. Several profits of piscary — the several fishery, the free fishery, and the common of fishery — were distinguished in the classical law by whether the right was exclusive and whether the soil beneath passed with it, and American courts occasionally resurrect the distinctions when construing colonial grants of shore and river rights.

Common in the soil is the residual head: the right to dig and take sand, gravel, stone, clay, marl, loam, or minerals from the servient land. It is the historical ancestor of the modern aggregate and mineral profit, and its classical limitations — that the digging be reasonably conducted, that the taker not render the surface useless, and that the right be measured by the terms of the grant — survive as the modern doctrines of reasonable surface use and overburdening. Beckwith v. Rossi, 175 A.2d 732 (Me. 1961), sustaining a prescriptive right to take seaweed from a shore, shows the category accommodating an unusual subject matter on ordinary principles.

Three families of profits dominate current American practice.

Sporting rights. Hunting and fishing profits are commonly granted to clubs and to individuals for terms of years, frequently with rights of renewal, and frequently drafted as "leases." The recurring issues are exclusivity — whether the landowner may also hunt, and whether he may grant to others; assignability and guest privileges, which determine whether the burden may be multiplied; liability, allocated by recreational-use statutes in most states; and the interaction with public wildlife law, which is unaffected by the private grant. A sporting profit is an interest in land and survives conveyance of the servient estate where recorded or where the purchaser has notice; blinds, stands, food plots, and posted signs generally supply inquiry notice.

Mineral rights. Where the interest is a profit rather than a severed estate, it carries an implied right of surface use reasonably necessary for exploration, extraction, and transport — the accommodation doctrine requiring the profit holder to accommodate existing surface uses where reasonable alternatives exist. Oil and gas leases in California, Oklahoma, and Kansas are classified as profits à prendre, and the classification carries through to recording, taxation, and the running of limitations. Williams and Meyers collect the state variations.

Aggregate rights. Sand, gravel, stone, and clay profits raise the sharpest overburdening questions, because extraction consumes the land itself and leaves a void. Grants are drafted with volume limits, phased-extraction plans, setback and slope requirements, reclamation bonds, and restoration covenants, and state mined-land reclamation statutes supply mandatory minimums. Where a grant is silent, the servient owner's protection lies in the implied obligation to take reasonably and to leave the residue of the land usable.

The ordinary and much the safest mode of creating a profit is an express grant satisfying the Statute of Frauds: a writing, signed by the grantor, identifying the servient land with a legal description, describing the substance to be taken, and stating the measure, the duration, the access, and the terms of transfer. Because the profit lies in grant rather than in livery, no delivery of possession is required or possible, and the instrument itself is the whole of the conveyance.

Six terms repay attention in drafting. The substance should be described with precision, since "minerals" has generated a century of litigation over whether it includes coal, lignite, gravel, limestone, or groundwater, and the prevailing rules of construction vary by state. The measure should be stated — tonnage, board feet, animal units, bag limits, or a defined area — because an unstinted grant is construed against the grantee and limited to the capacity of the servient land. The duration should be stated, with express provision for what happens to substances not removed. Exclusivity should be addressed explicitly, since the default is nonexclusive. Transferability and apportionment should be addressed, since the default rules are unstable and the one-stock rule may frustrate the parties' expectations. And the ancillary surface rights should be specified: routes of access, permitted structures, weight and season limits, restoration and reclamation obligations, insurance, and indemnity.

A profit may also be created by express reservation or exception in a conveyance of the servient land. The classical distinction is that an exception withholds from the grant a part of the thing conveyed, while a reservation creates a new right in the grantor. The distinction retains force in the mineral context, where an exception of "the minerals" withholds a corporeal estate while a reservation of "the right to mine" creates an incorporeal profit. As with easements, the older rule that no interest could be reserved in favour of a stranger to the deed has been widely abandoned; Willard v. First Church of Christ, Scientist, 498 P.2d 987 (Cal. 1972), stated the modern position for easements, and its reasoning applies to profits.

A profit may be acquired by prescription. The elements mirror those for prescriptive easements: use that is open and notorious, adverse or under a claim of right, continuous through the statutory period, and uninterrupted. Exclusivity in the adverse-possession sense is not required, since the taking is by definition shared with the owner unless the claim is to an exclusive profit.

Three features distinguish prescription of profits in practice. First, continuity is harder to establish, because takings are frequently seasonal — cutting firewood each autumn, pasturing each summer, digging peat each spring, netting each run. The rule is that continuity is measured by the nature of the right claimed: a seasonal taking exercised in every season for the statutory period is continuous. Second, the quantum acquired is fixed by the quantum taken: prescription grants no more than the use that ripened, so a prescriptive right to cut ten cords a year does not authorize commercial logging. Third, several jurisdictions have narrowed or abolished prescriptive acquisition of recreational profits, by statutory presumption of permission for unenclosed land, by recreational-use statutes declaring such uses permissive, or by recording procedures on the model of Cal. Civ. Code § 813 permitting an owner to record a notice of consent that defeats adverse claims while allowing continued enjoyment.

In England the Prescription Act, 1832, §§ 1 and 3, fixed thirty years as the period after which a claim to a profit could not be defeated by proof that it began after 1189, and sixty years as the period conferring an absolute right. American statutes generally apply the ordinary limitations period for recovery of land, and a number of states additionally require payment of taxes or colour of title. Beckwith v. Rossi, 175 A.2d 732 (Me. 1961), upholding a prescriptive right to cut and carry seaweed, is a serviceable modern illustration; Othen v. Rosier, 226 S.W.2d 622 (Tex. 1950), illustrates the evidentiary difficulty of proving adversity where use may have been permissive.

Implication is available for profits but is narrower than for easements. An implied profit from prior use may arise where a parcel is severed and, before severance, the owner had used one part to supply the other with a natural product in a manner apparent, continuous, and reasonably necessary — a farm woodlot supplying fuel to the farmhouse, a quarry supplying stone for the maintenance of a mill, a spring-fed pond supplying a dairy. Courts scrutinize such claims closely, on the ground that a right to consume the substance of the servient land ought not to be implied from silence when it can be stated in a deed. Implication by necessity, familiar in the law of ways, is essentially unavailable for profits: a landlocked parcel needs access, but no parcel is strictly incapable of use for want of the right to take fuel, forage, or stone from a neighbour.

Custom is a separate and historically important source. A customary right — enjoyed by the inhabitants of a defined locality from time immemorial, exercised as of right, certain, reasonable, and continuous — could authorize takings such as the gathering of driftwood, the digging of sand, or the drying of nets. English law denied that a custom could create a profit properly so called, on the reasoning that a fluctuating body of inhabitants cannot hold a proprietary interest, though it permitted customary easements. American courts have been less rigid; several New England and coastal states recognize customary rights of clamming, seaweed gathering, and shore access, and Oregon's beach cases rest expressly on custom. The doctrine remains narrow and is best treated as an exception rather than a mode of creation.

Finally, statutes create profits directly in a few settings: colonial and state grants of fisheries and shore rights; allotments in lieu of extinguished commons under enclosure legislation; and public grants of grazing, mineral, and timber rights, though modern federal grants are usually structured as revocable permits or as leases rather than as profits.

The scope of a profit is fixed in the first instance by the instrument or, in the case of a prescriptive profit, by the use that ripened. Where the instrument is silent or general, three principles supply the measure. The taking must be reasonable in relation to the capacity of the servient land and the evident purpose of the grant. An appurtenant profit is limited to the needs of the dominant tenement and may not be exercised for sale off that land. And the grant is construed to burden the servient estate no further than its language requires, so that doubtful extensions are resolved against the profit holder.

Every profit carries by implication the ancillary rights necessary to its exercise. The right to take timber implies the right to enter, to cut, to skid and stack, to build and use haul roads, and to remove; the right to mine implies the right to sink shafts, to erect necessary structures, to dispose of overburden within reason, and to transport; the right to pasture implies the right to enter, to drive and gather stock, and in most jurisdictions to water them at accessible sources. The measure of the ancillary right is reasonable necessity, judged by the ordinary methods of the industry at the time of exercise, tempered by the accommodation principle: where the servient owner has an existing use and the profit holder has reasonable alternatives, the holder must accommodate.

Technological change tests the principle. A right granted in 1890 to "mine and remove coal" was exercised by pick and mule; whether it authorizes strip mining, longwall extraction with subsidence, or hydraulic fracturing has produced conflicting decisions. The prevailing analysis asks whether the new method is a normal development of the granted right or a change in kind imposing a materially greater burden, and courts have frequently held that surface-destructive methods exceed a grant made when only underground methods existed, unless the instrument expressly waives surface support. Chicago & N.W. Transportation Co. v. Pedersen, 259 N.W.2d 316 (Wis. 1977), applies the ordinary scope analysis to removal rights.

Maintenance follows the easement rule. The profit holder bears the cost of maintaining the works, roads, and structures used in the exercise of the right, must repair damage caused by the exercise, and, increasingly by statute or by covenant, must restore and reclaim on completion. The servient owner owes no duty to maintain and no duty to make the land productive, but may not obstruct the exercise of the profit.

Overburdening is the characteristic wrong of the profit, and because the subject matter is exhaustible, the law treats it more severely than the analogous surcharge of an easement. The wrong takes four forms. Excess in quantity — taking more than the stint, the stated volume, or the reasonable measure. Excess in kind — taking a substance not granted, as where a grant of gravel is used to remove building stone. Excess in method — employing a means of extraction materially more destructive than the grant contemplates. And excess in destination — exercising an appurtenant profit for the benefit of land other than the dominant tenement, or selling the produce of a profit measured by domestic need.

The remedies are cumulative. The servient owner may enjoin the excessive taking; may recover damages measured by the value of the substance wrongfully removed, frequently trebled by timber-trespass or mineral-trespass statutes; may recover for injury to the land itself, including restoration costs where the injury is reparable and diminution in value where it is not; and, in cases of persistent and wilful excess, may seek forfeiture where the instrument so provides. The classical rule that surcharge of a common did not extinguish the right but only exposed the commoner to distress and damages remains the general position: overburdening suspends and compensates, it does not ordinarily terminate.

The most difficult modern cases concern excess by multiplication of holders rather than by any single taking, which is the problem of apportionment considered at § 22.19. The analytic point is that the servient owner is entitled to the benefit of the stint as a whole, and that the holder may not defeat it by subdivision.

Assignment. A profit appurtenant passes with the dominant estate and cannot be assigned apart from it; an attempted severance is ineffective and, on the older authorities, destroys the right. A profit in gross is assignable at common law and under Restatement (Third) § 4.6, unless the instrument provides otherwise. The presumption in favour of transferability is strongest for commercial profits — mineral, timber, aggregate, utility-related — and weaker for rights evidently personal, such as a grant to a named individual to hunt "during his lifetime for his own recreation."

Apportionment. Apportionment is the division of the benefit among several holders. Where the dominant estate of an appurtenant profit is subdivided, each resulting parcel takes the benefit, but the aggregate taking may not exceed the original measure; where the measure is levancy and couchancy, subdivision is self-limiting, since each parcel's stint is fixed by its own capacity. Where a profit in gross is assigned in fractions, the governing distinction is exclusivity. An exclusive profit in gross may be apportioned freely, because the assignees among them can take no more than the whole that the single holder could have taken, and no one else is entitled to any part. A nonexclusive profit in gross may not be apportioned in a manner that increases the burden.

The one-stock rule. Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938), is the leading American authority. Frank Miller and his brother Rufus held boating, bathing, and fishing rights in a lake — rights in gross, nonexclusive — and Frank purported to license a camp association to use the bathing right. The court held that the interests, though assignable, could not be divided so as to permit independent exploitation by multiple holders; divided holders must use the right "as one stock," jointly and by common consent, so that the aggregate burden on the servient land is not enlarged. The rule is best understood as a default protecting the servient owner from multiplication of the burden, displaceable by an express provision permitting independent apportionment.

A profit terminates on the grounds that terminate an easement, with two additions peculiar to a finite subject matter.

• Release. A written release from the profit holder to the servient owner, satisfying the Statute of Frauds and recorded. The cleanest mode and the only one that reliably clears the record.
• Expiration. By the terms of the instrument: a stated term, a removal period, a stated event, or a determinable limitation. Timber deeds with removal periods terminate by their own limitation as to timber not removed.
• Merger. Where the profit and the servient fee come into the same ownership in the same quality of estate, the profit is extinguished and does not revive on a later severance. As with easements, the trap is that a subsequent conveyance must expressly recreate the interest.
• Abandonment. Nonuse plus conduct manifesting an intent never to resume: removing and selling the machinery, filling and sealing the shafts, executing a disclaimer, allowing the workings to collapse. Gerhard v. Stephens, 442 P.2d 692 (Cal. 1968), is the leading modern analysis, holding a profit in oil and gas abandonable and examining what conduct suffices. Mere nonuse, however prolonged, is not abandonment.
• Prescription by the servient owner. Open, notorious, adverse, and continuous obstruction of the taking for the statutory period — fencing out the commoner's beasts, barring the quarry, posting and excluding the sporting holder — extinguishes the profit.
• Estoppel. Where the holder represents that the right will not be exercised and the servient owner substantially and reasonably relies, the profit is extinguished to the extent of the reliance.
• Exhaustion of the subject matter. A profit measured by a finite stock ends when the stock is gone: the seam worked out, the bog cut over, the stand felled, the pond permanently drained. Exhaustion is peculiar to profits and has no analogue in the law of easements.
• Condemnation and destruction. A taking of the servient land for a use inconsistent with the profit extinguishes it, and the holder is constitutionally entitled to compensation for the value of the interest taken — a valuation exercise of some difficulty where the resource is speculative.
• Statutory extinguishment. Dormant mineral acts extinguish severed mineral interests unused and unclaimed for a statutory period unless preserved by recorded notice; Texaco, Inc. v. Short, 454 U.S. 516 (1982), sustained the Indiana act against due process and takings challenges, and the Uniform Dormant Mineral Interests Act (1986) supplies the model. Marketable-title acts extinguish ancient interests not appearing in the root of title, subject to savings clauses. Commons legislation in England extinguished unregistered rights outright.

The interaction of abandonment doctrine with dormant-mineral legislation is the practical heart of the subject. Because nonuse alone never abandoned a profit at common law, severed mineral and timber interests accumulated over generations into a lattice of unexercised fractional rights that clouded titles across the coal and oil states and made surface land unmarketable and undevelopable. The dormant-mineral statutes were the legislative answer: they convert prolonged nonuse into extinguishment unless the holder records a simple statement of claim, thereby preserving genuine interests at trivial cost while clearing the record of the rest.

Profits are conveyances and fall within the recording acts. A recorded profit binds all subsequent purchasers of the servient land. An unrecorded profit is subordinated under a notice or race-notice statute to a subsequent bona fide purchaser for value without notice, but notice is broadly construed and the physical evidence of a taking is usually conspicuous: stumps and skid trails, adits and spoil heaps, quarry faces and haul roads, wellheads and tank batteries, blinds and food plots, grazing fences and stock tanks. Each imposes a duty of inquiry.

Title examination for profits differs from examination for easements in one important respect: the severed interest has a chain of its own. Where minerals or timber were severed a century ago, the examiner must trace the devolution of that interest through intestacies, probates, tax sales, and fractional conveyances that may never have touched the surface chain. Tract indices make the search feasible; name indices make it laborious and unreliable. The recurring pathologies are the unlocated profit ("the right to quarry stone upon the grantor's land"), the unstinted profit, the profit granted to a dissolved corporation or a deceased individual whose heirs are unknown, and the fractional mineral interest divided among dozens of remote successors.

Curative practice accordingly relies on four instruments: the recorded release, obtained by negotiation and often by purchase; the quiet-title decree, fixing location, measure, and existence; the statutory notice under a dormant-mineral act, either to preserve or, by the holder's failure, to extinguish; and the marketable-title act, extinguishing ancient interests by operation of law. Title insurers except severed mineral and timber interests as a matter of course, and removing the exception requires curative work of exactly this kind.

The doctrinal differences between the easement and the profit are best displayed side by side, because nearly every rule of the profit is either identical to the easement rule or a modification of it explained by the exhaustibility of the subject matter.

Comparative systems reach the same functional results by different routes. Civil-law systems classify the profit among the servitudes réelles or as a usufructuary right, and the German Reallast and the French droit d'usage cover much of the same ground; the civilian numerus clausus is stricter than the common law in limiting the permissible forms, and the finite subject matter is handled by rules of usufruct requiring the holder to preserve the substance of the thing. English law after the Commons Registration Act, 1965, and the Commons Act, 2006, has effectively frozen the historic rights of common into a register and prohibited the creation of new ones over registered common land, a course American law has not taken and, given the commercial centrality of severed resource rights here, could not take.

The profit is not an antiquarian survival. Four modern fields depend on it. Extractive industry rests on severed mineral rights and on oil and gas instruments classified as profits in several producing states, with all the consequent rules of recording, transfer, and dormancy. Forestry rests on timber deeds and cutting contracts, now overlaid with forest-practices regulation and certification obligations. Recreational land management rests on hunting and fishing profits, an established market in the South and Midwest, increasingly documented and recorded rather than transacted by handshake. And aggregate supply rests on sand, gravel, and stone rights whose exercise is regulated by mined-land reclamation statutes.

Conservation practice has begun to use the profit affirmatively rather than merely to restrict it. A conservation easement under the Uniform Conservation Easement Act is a negative servitude; but conservation transactions increasingly acquire the profit itself — buying and retiring the timber right, the grazing right, or the mineral right — because extinguishing the taking right protects the resource more reliably than restricting the surface owner. Where the profit is acquired and merged into a conserved fee, it is extinguished; where it is acquired and held, it must be held affirmatively and its non-exercise documented, since abandonment doctrine may otherwise be asserted against the holder. Instruments should therefore state expressly that non-exercise is intentional and does not evidence abandonment.

Resource management raises the deeper question that the medieval law of stints addressed directly: how a finite common-pool resource is allocated among holders whose incentives are individually rational and collectively destructive. Levancy and couchancy, the requirement of sufficiency on approvement, the prohibition on selling estovers, and the one-stock rule are all governance devices, and Ostrom's work identifies them as characteristic of durable common-property regimes. Modern analogues — animal-unit-month allocations, harvest quotas, individual transferable fishing quotas, and volumetric extraction caps — reproduce the same logic in statutory form. The doctrinal lesson for the draftsman is that a profit without a measure is a profit without protection, for either party.

Reform proposals concentrate on three points: extending dormant-interest legislation from minerals to other severed profits, so that ancient timber and quarry rights may be cleared on the same terms; standardizing the treatment of removal periods, which vary considerably among states; and providing recording mechanisms by which the measure of an unstinted profit may be fixed administratively rather than by litigation. The Uniform Dormant Mineral Interests Act remains the model for the first; the second and third await attention.

1. "A profit is just an easement by another name." The rules largely coincide, but the profit authorizes removal of a finite substance, and the doctrines of measure, exclusivity, apportionment, overburdening, and exhaustion have no full analogue in the law of easements.
2. "A profit holder owns the minerals or timber from the moment of the grant." Title to the substance passes at severance. Before severance the holder owns only the right to take.
3. "An oral agreement to let a neighbour cut firewood creates a profit." It creates a revocable licence. A profit is an interest in land within the Statute of Frauds.
4. "A profit in gross cannot be transferred." Profits in gross have been freely alienable at common law for centuries; the old inalienability rule applied to easements in gross, not to profits.
5. "The holder of a profit may exclude the landowner from the resource." Only if the profit is exclusive. The default is nonexclusive, and the landowner may take concurrently.
6. "A profit that has not been exercised for fifty years is gone." Nonuse alone never extinguished a profit at common law. Abandonment requires nonuse plus conduct manifesting intent never to resume — which is precisely why dormant-mineral statutes were enacted.
7. "An appurtenant profit may be sold to whoever will pay for it." It passes only with the dominant estate; severance is ineffective and may destroy the right.
8. "A profit holder may take by whatever method is now customary." Only where the method is a normal development of the granted right. A change in kind that materially increases the burden — surface mining under a grant contemplating underground work — exceeds the profit.
9. "Dividing a profit in gross among several assignees is always permissible." An exclusive profit may be apportioned; a nonexclusive one must be used as one stock. Miller v. Lutheran Conference.
10. "A hunting lease is a lease." Absent exclusive possession of a defined space it is a profit or a licence, whatever it is called, and the landlord–tenant rules do not apply.
11. "A profit of piscary lets the holder fish free of the game laws." The private right governs access; the public law governs the taking. Licences, seasons, and limits apply.
12. "Estovers may be cut and sold if the quantity is modest." Estovers are measured by the needs of the dominant tenement and may never be taken for sale, in any quantity.
13. "Overburdening forfeits the profit." Ordinarily it does not. Excess is enjoined and compensated; the right survives at its proper measure unless the instrument provides for forfeiture.
14. "A federal grazing permit is a property right in the range." It is a revocable licence under the Taylor Grazing Act, not a profit, and confers no compensable interest.
15. "Buying the servient land preserves the profit for later resale." Merger extinguishes it and it does not revive; the interest must be expressly recreated on the next conveyance.

A profit à prendre is a nonpossessory interest in the land of another authorizing the holder to enter, sever, and carry away part of the soil or its natural produce. The element of taking distinguishes it from the easement, and everything peculiar to the law of profits follows from the fact that what is taken is finite. Because the profit is an interest in land, it must ordinarily be created in writing, is within the recording acts, endures beyond its creator, and binds and benefits successors; because the subject matter is exhaustible, the law measures the right, polices its quantum, restricts its division, and terminates it on exhaustion.

Historically the profit precedes the easement. The rights of common of the manorial waste — pasture measured by levancy and couchancy, estovers measured by the needs of the dominant dwelling, turbary, piscary, and common in the soil — were the economic complement of the arable strips, regulated from the Statute of Merton onward by the requirement that approvement leave sufficient common. Coke's classification of common as appendant, appurtenant, in gross, and pur cause de vicinage, Blackstone's account of the four species, and Hall's monograph of 1871 supply the doctrinal vocabulary that American law inherited and applied to a wholly different subject matter: severed minerals, standing timber, rangeland forage, aggregate deposits, and sporting rights.

Classification governs consequence. An appurtenant profit is annexed to a dominant estate, passes with it, cannot be severed, and is measured by its needs; a profit in gross is annexed to a person, is freely alienable at common law, and is measured by the grant or, if unstinted, by the capacity of the servient land. An exclusive profit excludes the servient owner and may be apportioned without limit; a nonexclusive profit must be exercised as one stock, so that division does not multiply the burden. Neither is a lease, which conveys possession; neither is a licence, which is revocable and no interest at all; and neither is necessarily a mineral estate, since a grant of the substance conveys a corporeal estate while a grant of the right to take conveys an incorporeal profit — a distinction that decides the application of dormant-mineral acts, adverse possession, separate taxation, and the classical perpetuities rule.

Profits are created by express grant, by reservation or exception, and by prescription; implication is available but narrow, necessity essentially unavailable, and custom exceptional. Every profit carries the ancillary rights of entry, access, and surface use reasonably necessary to its exercise, tempered by the accommodation of existing surface uses. Scope is fixed by the instrument or by the prescriptive use, and excess in quantity, kind, method, or destination is overburdening, enjoinable and compensable, frequently with statutory multipliers for timber and mineral trespass. Termination follows the easement catalogue — release, expiration, merger, abandonment, adverse prescription, estoppel, condemnation — with the additions of exhaustion and of statutory extinguishment under dormant-mineral and marketable-title legislation, the legislative answer to the common-law rule that nonuse alone extinguishes nothing.

Chapters 21 and 22 have together examined the affirmative nonpossessory rights that one person may hold in the land of another: the right to use, and the right to take. Both are conveyances; both arise from grant, implication, or prescription; both bind successors; and both are limited by the measure of the interest created. Chapter 23 turns to a different mechanism entirely. Real covenants and equitable servitudes are not conveyances but promises respecting the use of land, enforceable against successors at law and in equity through the requirements of intent, notice, privity, and touch and concern. With them the core law of servitudes is complete, and the Restatement (Third)'s unification of the whole field into a single body of doctrine can be assessed on its merits.

• John Edward Hall, A Treatise on the Law Relating to Profits à Prendre and Rights of Common (1871) — the principal historical monograph on the subject.
• Restatement (Third) of Property: Servitudes §§ 1.2, 2.1–2.18, 4.1–4.13, 5.1–5.9, 7.1–7.15 (Am. L. Inst. 2000).
• Restatement (First) of Property §§ 450 cmt. f, 493–498, 512–519 (1944).
• 2 William Blackstone, Commentaries on the Laws of England *32–*35 (1766).
• 4 Herbert Thorndike Tiffany, The Law of Real Property §§ 839–851 (3d ed. 1939).
• Emory Washburn, A Treatise on the American Law of Easements and Servitudes (4th ed. 1885).
• 1 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers, Oil and Gas Law §§ 201–219.
• Uniform Dormant Mineral Interests Act (Unif. L. Comm'n 1986), with Prefatory Note.
• Carol M. Rose, The Comedy of the Commons, 53 U. Chi. L. Rev. 711 (1986).
• Elinor Ostrom, Governing the Commons (1990).
• Chapter 21 — Easements (Foundations of Property Law, Second Edition).
• Chapter 23 — Real Covenants and Equitable Servitudes (forthcoming).