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The Nova Scotia Court of Appeal has reviewed the law with
respect to the ancient and seldom considered property right known
as a profit à prendre in relation to a right reserved in a
deed to remove hay from farm lands. The Court observed that in
order to constitute a valid profit à prendre
"appurtenant", the right must be limited to the benefit
of another parcel of land -- the dominant tenement. While a profit
à prendre "in gross" can be unlimited and need not
be connected with a dominant tenement, the person claiming the
profit à prendre in gross has to be able to prove valid
transfer of ownership from the person who had created it. In this
case, the profit à prendre appurtenant could not be
established as the right to cut hay was not expressly for the
benefit of farm lands which were still owned by the vendor after
the Deed (the dominant tenement) and because the hay was no longer
used to feed cattle on the farm in any event. The right to a profit
in gross belonged to the heirs of the farmer who created the
reservation, not the current owner. The current owner of the farm
had not established that he owned the haying right, as this right
was not conveyed to him with the farm. (Chisholm v. Snyder, CALN/2015-021,[2015] N.S.J. No. 167, Nova Scotia Court of
Appeal)
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