Gray v. Handy

In Gray v. Handy, 349 Mass. 438, 208 N.E.2d 829 (1965), the profit right originated from a deed conveying "the privilege of taking sand from the lands of the grantor for sanding said swamps and building dike along the edge of said Lake." 349 Mass. at 439. The Land Court found that the grantor intended to permit the removal of sand sufficient to build a bog and associated roads and dikes, and it having been accomplished, the privilege had terminated. Id. at 439-40. Contrary to the Land Court's construction of the deed, the Supreme Judicial Court held that the deed contained no provisions limiting the exercise of the privilege. Id. at 440. The grantor could have expressly limited the extent of the privilege, and not having done so, the Court ruled that the sanding right had not terminated, and instead, the dominant estate benefited from a continuous and perpetual right--a profit a prendre. Id. "A profit a prendre is a right in one person to take from the land of another either a part of the soil, such as minerals of all kinds from mines, stones from quarries, sand and gravel; or part of its produce, such as grass, crops of any kind, trees or timber, fish from lakes or streams, game from the woods, seaweed, and the like. . . . A profit a prendre is appurtenant when created for the benefit of a dominant estate. It is then in all respects, except the character of the user, of the same nature as an easement, passing with the dominant estate as an incident thereof whenever the estate passes by deed, devise or inheritance, so that the person entitled to the enjoyment of the profit at any time will be the person who is at that time the immediate owner of the dominant estate." Gray, 349 Mass. at 441 (1965).