Bingham v. Salene

• Decision Date: 13 June 1887
• Citation: 15 Or. 208,14 P. 523
• Parties: BINGHAM and another v. SALENE and another.
• Court: Oregon Supreme Court

14 P. 523

15 Or. 208

BINGHAM and another v. SALENE and another.

Supreme Court of Oregon

June 13, 1887

A.R. Coleman, for plaintiffs.

H.H Northrup, for defendants.

LORD, C.J.

This is a suit in equity to enjoin the defendants from interfering in any manner with the alleged exclusive right and privileges of the plaintiffs to go upon and over certain lands of the defendants, described herein, for the purpose of shooting killing, or taking wild fowl in the lakes, sloughs, and waters therein and thereon, and to restrain the defendants from inviting or allowing any other person or persons so to do. Briefly the grievances complained of are that the plaintiffs, by virtue of a deed executed to them, whereby the defendants conveyed to them, "their heirs and assigns forever, the sole and exclusive right, privilege, and easement to shoot, take, and kill any and all wild ducks and other wild fowl upon and in any and all lakes and sloughs and waters situate, lying, or upon our lands, lying in Columbia county, state of Oregon, the said lands being more particularly described as follows: ***; and also, for the consideration above mentioned, the right of ingress and egress to and from said lakes, waters, and sloughs, for the purpose of shooting and taking wild fowl as aforesaid,--to have and to hold the said easement and privilege, to them, the said H.T. Bingham and E.W Bingham, and their heirs and assigns, forever,"--which said right and privilege depended for its value on its exclusiveness; and that, in order to protect the same, the plaintiffs posted notices upon the lands of the defendants forbidding all persons from going upon the lands of the defendants for the purpose of shooting wild fowl upon the lakes and waters thereon, and that the defendants, knowing the plaintiffs' rights in the premises, tore down and destroyed said notices, and made threats of assault and personal injury to plaintiffs should they go upon said land to exercise their right and privilege, etc. And further, that the defendants have invited and permitted professional hunters to take and kill wild fowl upon said lakes and waters, to the injury of the plaintiffs, and threaten and will continue to do so unless restrained. After denying the matters alleged, the defendants affirmatively set up that the English language is not their native tongue; that they cannot read or write it, and understand it but indifferently; that they are ignorant of all forms of law; and that plaintiffs are practising attorneys, and were, at the time of making the deed aforesaid, employed by the defendants as their attorneys in certain matters of business, and that plaintiffs asked them for the privilege of going upon the lands to hunt wild fowl, and that the defendants expressed themselves as willing to give them, and no one else but them, the privilege of going upon the lands to hunt wild fowl, and that thereupon the plaintiffs prepared the above grant, but at the time of signing the same the defendants declared that they did not understand its import, and particularly the defendant Christiana, to whom then and now belong said lands, and that the plaintiffs informed her that it was nothing but the privilege to go down upon said lands and hunt, etc., and that the defendants understood that the conveyance, by its terms, granted no more than a permission to hunt upon said premises; that plaintiffs have given other persons permission to hunt upon the premises; and that, during the hunting season, they have come upon the lands, trampled and injured the grass and crops, and by shooting in the vicinity have frightened the stock of defendants, etc.; and asks that the deed be declared null and void. The reply put in issue all the affirmative matter alleged. The suit was referred and reported by the master, which report was set aside, and new findings made by the court, on which a decree was entered, and from which both parties appeal.

By their brief and at the argument, the first inquiry of the counsel was directed to the nature and import of the exclusive privilege granted by the deed; the counsel for the defendants claiming that nothing but a license was created by it, while the counsel for the plaintiffs insisted that it was a grant of a profit a prendre. The distinction between a grant and a license is to be taken as understood, as the contention here is that the right and privilege granted by the terms of the deed do not constitute a grant of a license of a profit a prendre. Rights exercised by one man in the soil of another, accompanied with participation in the profits of the soil thereof,--as rights of pasture or digging sand,--are termed profits a prendre. They are said to differ from easements, in that the former are rights of profit, and the latter are mere rights of convenience without profit. "A right to take something out of the soil of another is a profit a prendre, as the right of common; and also some minor rights, as a right to take drifted sand, or a liberty to fish, fowl, hunt, and hawk." Crabb, Real Prop. 125, c. 1; Phear, Water, 57. In Ewart v. Graham, 7 H.L.Cas. 334, Lord Chancellor CAMPBELL said: "The property in animals feræae naturæae, while they are on the soil, belong to the owner of the soil, and he may grant a right to others to come and take them, by a grant of hunting, shooting, fowling, and so forth. That right may be granted by the owner of the fee-simple, and such a grant is a license of a profit a prendre." It is seen, then, that rights which are said to be prendre are distinguished again into rights coupled with profits, which are called profits a prendre, or rights without any profits, which are called easements. But "the distinction between an interest in the soil, or a right to profit in it, and an easement, is not always palpable. The line of separation is sometimes obscure, in some points unsettled, with no established principles to determine it." DAVIS, J., in Hill v. Lord, 48 Me. 99. "For a profit a prendre in the land of another, when not granted in favor of some dominant tenement, cannot be said to be an easement, but an interest or estate in the land itself." WALWORTH, Ch., in Post v. Pearsall, 22 Wend. 425. And Mr. Washburne says: "This right of a profit a prendre, if enjoyed by reason of holding a certain other estate, is regarded in the light of an easement appurtenant to such estate; whereas, if it belongs to an individual, distinct from any ownership of other lands, it takes the character of an interest or estate in the land itself, rather than that of a proper easement in or out of the same." Washb. Easem. 7. But it has been expressly held that the right to enter upon lands of another to cut grass, for pasturage, for the purpose of hunting, or for fishing in an unnavigable stream, is an interest in the land, or a right to take a profit in the soil. Foxall v. Williams, 1 Croke, 180; Fowler v. Dale, Id. 363; Pickering v. Noyes, 4 Barn. & C. 639; Wickham v. Hawker, 7 Mees. & W. 63; Waters v. Lilley, 4 Pick. 145. A grant of a right to kill and take game on the lands of the grantor is a grant of an interest in the land itself, and within the statute of frauds. Webber v. Lee, 9 Q.B.Div. 315. In Wickham v. Hawker, supra, it was held that a grant to a person, his heirs and assigns, of "free liberty, with servants or otherwise, to come in and upon lands, and there to hawk, hunt, fish, and fowl," is a grant of a license of profit, and not of a mere personal license of pleasure, and therefore it authorized the grantee, his heirs and assigns, to hunt, fish, and fowl by his servants, in his absence, and that such a liberty is a profit a prendre. See, also, Washb. Easem. 8-11; Washb. Real Prop. 313; Gould, Waters,§§ 24, 25, 184, 185.

Now let us turn to the deed, and determine what the parties intended, and what interest passed. By it the defendants, for a consideration expressed, granted in words de praesenti, to the plaintiffs, their heirs and assigns, forever, the sole and exclusive right and privilege to shoot, take, and kill any and all wild fowl upon and in any lakes, sloughs, or waters situate upon their lands, and the right of ingress and egress to and from said lakes, sloughs, and waters for such purpose. As the owners of the lands which included such lakes, sloughs, and waters thereon, the property of animals ferae naturae, while on the lands or such waters, belonged to the defendants by virtue of such ownership. The defendants had the exclusive right to take and kill such wild fowl upon the lakes or other waters upon their lands, and they had the right to grant to the plaintiffs the sole and exclusive right to take and kill such wild fowl at the places designated in their deed. But the sole and exclusive right granted to the plaintiffs to take and kill any and all wild fowl on such lakes, sloughs, and waters is inconsistent with the right of any other persons to take or kill them, or to use and exercise such privilege at such places. It is a right exclusive of all others at such particular or specified places. Holford v. Bailey, 66 E.C.L. 425-447, 55 E.C.L. 1000-1007. If this the plaintiffs...