HIGHLIGHTS
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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