Council v. Sanderlin

• Decision Date: 05 April 1922
• Docket Number: 289.
• Citation: 111 S.E. 365,183 N.C. 253
• Parties: COUNCIL ET AL. v. SANDERLIN ET AL. SANDERLIN ET AL. v. COUNCIL ET AL.
• Court: North Carolina Supreme Court

111 S.E. 365

183 N.C. 253

COUNCIL ET AL. v. SANDERLIN ET AL.

SANDERLIN ET AL. v. COUNCIL ET AL.

No. 289.

Supreme Court of North Carolina

April 5, 1922

Appeal from Superior Court, Bladen County; Connor, Judge.

Suit by J. P. Council and another for a restraining order against W T. Sanderlin and others, and suit by defendants against plaintiffs. Causes consolidated, and from a decree dissolving the restraining order against plaintiffs and making the restraining order against defendants permanent, defendants appeal. Modified and affirmed.

The right to hunt over lands granted to another, reserved to the grantor in the grant, is not subject to the rule against perpetuities, since the interest is a present interest.

The plaintiffs conveyed to the Southern Chemical Company, July 10, 1902, a tract of 1,319 acres on Lake Waccamaw in Bladen county, in fee simple, with the following reservation:

"But the said J. P. Council and J. A. Council reserve for themselves, their heirs and assigns, the right to hunt on any of the above-described lands as may remain uncleared and uncultivated, and the power to protect the game on said land against the trespass of all persons except the Southern Chemical Company, their executors administrators and assigns."

It is found as a fact by the court that the plaintiffs have never abandoned their rights under the reservation, or exception above mentioned, but have continuously exercised said rights since the execution of said deed, and that the lands in question are chiefly what is known as Savannah lands, and, under present conditions, of little value for anything other than hunting purposes.

On December 22, 1902, the Southern Chemical Company conveyed to the Southern Products Company the above tract of land, with the above clause that the conveyance is subject to the existing rights of J. P. Council and J. A. Council to hunt over the above-described lands that may remain uncleared and uncultivated, and with the power to protect game in said land against trespass, as particularly specified in the above deed from Council and Council to said Chemical Company. On January 1, 1903, J. A. Pickett, acting under power of attorney from the Southern Products Company, conveyed the said land to the Worth Company by a mortgage to secure a loan. The lands were sold under mortgage to Matt J. Heyer on May 3, 1905, and soon thereafter said Matt J. Heyer conveyed the land to J. A. Pickett (the present owner thereof), and on November 11, 1921, Pickett and wife conveyed to the defendant W. T. Sanderlin and H. M. McAllister, by way of lease for five years, the "right of hunting and protecting the game and all wild life on said lands and the right to exclude all persons from entering upon said lands with firearms or dogs or other devices used in the capture of wild life."

The above deeds were all duly probated and recorded. This is a proceeding or restraining order, which was made permanent, to prohibit Sanderlin and McAllister from interfering with the plaintiffs' hunting rights on said land. Said defendants allege that the reservation, in the Council deed above, of the hunting privilege, is void, and that the plaintiffs are trespassing on the rights of Sanderlin et al., and sought a restraining order against plaintiffs from hunting, or trespassing, upon said lands. The causes were consolidated, and upon the facts found the restraining order against Council and others was dissolved, and it was made permanent against the defendants, who appealed.

E. F. McCulloch, of Elizabethtown, Lyon & Johnson, and Johnson & Johnson, of Lumberton, for appellants.

Sinclair, Dye & Clark, of Fayetteville, and R. S. White, of Elizabethtown, for appellees.

CLARK C.J.

The plaintiffs conveyed the land in fee simple in 1902, reserving the hunting privileges thereon, and the court finds in this proceeding, as a fact that the plaintiffs have never abandoned their rights under said reservation, but have continuously exercised same since the execution of the deed of July 10, 1902, and the court held as a matter of law that the plaintiffs "have the exclusive right to enter upon the uncleared and uncultivated portions of the lands in question, in person, and with invited guests and have the power to protect the game thereon, except such injury thereto as may be caused by the owner in the use of said land for purposes other than hunting," and made permanent the restraining order in behalf of said Council et al.

The sole point presented, therefore, is as to the validity and construction of such reservation in a conveyance of the realty. In State v. Gallop, 126 N.C. 979, 35 S.E. 180, this court fully discussed the right of hunting, and held that the ownership of game is in the people of the state, and the right to hunt and kill game may be granted, withheld, or restricted by the Legislature, and that game does not become private properey until reduced to possession. But it further held that landowners can prevent others from hunting on their land in virtue of their right to keep trespassers off the land or under statutory enactment. State v. Gallop has been often cited and approved. See citations thereto in 2 Anno. Ed. It is under the authority of this principle that our laws for the preservation of game have been enacted. Under the game laws applicable to that county there are only two months in the year during which game can be hunted. The legislative restriction is valid against the owners of the hunting privilege, and the rest of the world besides. The question here presented is whether the owner of real estate in conveying the same can dissever from the title to the land, and retain in himself and his heirs and assigns, either solely or jointly with the grantee in the deed, the hunting privilege. The law is summed up with much fullness in the able and interesting brief filed by the plaintiffs' counsel.

Beginning with the earliest English cases, it has been held uniformly that a shooting privilege is a profit à prendre, and in Davies' Case, 3 Mod. 246, it was held that one might acquire a prescriptive right over the lands of another. A right to shoot and take game is a profit à prendre, and was held to be an interest in land within the statute of frauds. Webber v. Lee, 51 L. J. Q. B. 485. It has also been held in numerous cases in England that the right granted by deed to kill and take game was an incorporeal hereditament which Blackstone styles the right of venary. 2 Bl. Com. 415. In Payne v. Sheets, 75 Vt. 335, 55 A. 656, it was held that the exclusive right to shoot and fish upon the lands of another, when not granted in favor of any dominant tenement, is not an easement, but a profit à prendre, and the grantee of such right, though not the owner of the soil, has such interest in land as would entitle him to maintain an action of trespass, under a statute authorizing such an action in respect of lands by the owner thereof.

In Shooting Club v. Barber, 150 Mich. 571, 114 N.W. 399, it was held that a right to shoot over the lands of another, acquired in connection with purchase of a lot carved therefrom, is not a mere revocable license, but an interest which will support an action for specific performance.

There are also numerous cases not necessary to cite that a clause in a lease of land, reserving to the lessor the right of "shooting and sport" over land, is not limited to game in a strict sense, but confers the right to shoot such animals as are ordinarily understood to be a subject of such sport.

In Wickham v. Hawker, 7 Mees. & W. 63, it is held that a grant to one and his heirs and assigns of the liberty to hunt on the grantor's land was a grant, and not a mere revocable license. A deed for shooting privileges on land is a grant of a profit à prendre. Isherwood v. Salene, 61 Or. 572, 123 P. 49, 40 L. R. A. (N. S.) 299, Ann. Cas. 1914B, 542, citing numerous cases.

In 12 R. C. L. 698, 690, the law is thus summed up:

"Acquisition of Hunting Rights in Premises of Another.--Though one person has no natural right to hunt on the premises of another, it is clear that a right to do so may be acquired by a grant from the owner. Or the owner can convey his premises and reserve to himself the hunting and fowling rights thereon. An owner of lands may convey exclusive hunting rights thereon to others so as to bar himself from hunting on his own premises. He may make a lease of the hunting privileges, giving the lessees the exclusive right to kill game or water fowl on the premises, and at the same time reserve to himself the pasturage rights on the premises. The right to hunt on another's premises is not a mere license, but is an interest in the real estate in the nature of an incorporeal hereditament, and as such it is within the statute of frauds, and requires a writing for its creation. Nor is the right of one person to hunt for fowl on premises owned and in the possession of another an easement, for, strictly speaking, an easement implies that the owner thereof shall take no profit from the soil. The right is more properly termed a profit à prendre. Unless the grant otherwise determines the rights of the parties, the

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