ing the possessor of it with an interest in land, and is claimable only by grant or by prescription. Such is the right of depasturing cattle on another's land; the right to cut therefrom and carry away turf or wood for burning within the dwellinghouse; the right to dig for and carry away stone, slate, coals, and minerals; the right to shoot and sport over another's land, and carry away and consume the game killed; or the right to fish in the waters of an estate or of a manor, and carry away and consume the fish taken.' Bracton, in his books of the laws and customs of England, enumerates the different servitudes with which the estate of one proprietor may be burdened for the benefit and convenience of another, such as rights of depasturing cattle, rights of common, of cutting and carrying away turf, or digging for and gathering minerals, stones, or sand, rights of way, rights of 1 A profit à prendre differs from an easement in this, that an easement simply confers a right in the soil of another for some special or particular purpose, without giving any profit in the land or estate to the owner of the right, Bowen v. Tearn, 6 Rich. (S. C.) 298; Washburn on Easemen's, 3, 4, 7, 12, 126; while a profit à prendre is a right or interest in the estate itself to the extent of taking certain profits therefrom, and can only be claimed by grant or prescription; Huff v. McCauley, 53 Penn. St. 209: Post v. Pearsall, 22 Wend. (N. Y.) 425; or in certain instances by custom; Hills v. Miller, 3 Paige Ch. (N. Y.) 254; Brakeley v. Sharp, 1 Stockt. (N. J.) 9 as to take water from a certain well, spring, or stream, on the lands of another, which may be acquired in favor of the inhabitants of a village, by custom, or to bathe in a certain stream, or occupy a particular close for a special purpose, as to hold a fair, or to come together to dance. These rights, are not strictly speaking embraced under the head of profits à prendre, for they do not embrace the rights to take any profits from the land itself, nor can such a right exist except in favor of a person, corporation, or other body capable of taking by grant. Waters v. Silby, 4 Pick. 145; Cobb v. Davenport, 4 Vroom (N. J.) 226. Mr. Washburn in his work on Easements, 3 ed., p. 7, in speaking of the distinction between profits à prendre and ordinary easements says: This right of profit à 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 inter est or estate in the land itself, rather than of a proper easement in or out of the same." See Buffum v. Harris, 5 R. I. 253; Bissell v. Grant, 35 Conn. 288; Goodrich v. Burbank, 12 Allen, 459; Hill v. Lord, 48 Me. 100; Hurd v. Curtis, 7 Met. (Mass.) 114; Borst v. Empire, 5 N. Y. 40. The distinction is easily made. In all instances where the right simply extends to the user of another estate for a certain purpose, such right is an easement, but when the right is to enter upon and take anything from another estate, as coals minerals, water, sand, or anything that is a part of the estate itself, this is a right to a profit in the land and is a profit à prendre. Huff v. McCauley, ante; Post v. Pearsall, ante; Chatfield v. Wilson, 28 Vt. 49; Buffum v. Harris, ante. drawing water from a neighboring well, rights of water-course, of a passage for water through another's land, rights of hunting thereon, rights of estover, or of cutting wood for burning in the dwelling-house, or for building, or repairs; all of which servitudes he tells us, were originally imposed upon land by the will, or ordering, or consent of the lord, or have grown up, and have become appurtenant to property, without having been expressly constituted, through long-continued, peaceable, and uninterrupted enjoyment. The long-continued exercise of the privilege on the one side, and the sufferance and endurance of it on the other, must not, he observes, be due to force or intimidation. If it has been exercised and enjoyed by stealth, or if the privilege has been sought for, and has been conceded, as a kindness and matter of favor, to be enjoyed during the pleasure of the grantor, it will fail to create a servitude. () 115. Unlimited claims in the nature of easements, profits, and servitudes.-There can be no prescriptive right in the nature of an easement or servitude so large as so preclude the ordinary uses of property by the owner of the lands affected by the privilege, and to extinguish or destroy all the profits or produce ordinarily derivable from the soil. Therefore an unlimited claim of a right to go at all times and in all directions over every portion of a close for purposes of recreation and amusement is bad. Such an easement is claimable only by the inhabitants of particular villages over open and uninclosed vil- . lage greens and village playgrounds, which have been immemorially dedicated to the recreation and amusement of the inhabitants of the village. (1) Claims of a right of profit à prendre in alieno solo must in like manner, in order to be valid, be made with some limitation and restriction. Where, therefore, a defendant claimed a prescriptive right as the occupier of a brick(h) Bract. lib. 4, fol. 220-222. (i) Dyce v. Hay, 1 Macq. 305. In order to acquire a prescriptive right of any kind, the user must be open, and of such a character that the owner of the estate upon which the burden is sought to be imposed, from the manner in which the right is exercised, will be presumed to know that the user is exercised, and is claimed as a matter of right. Fish Co. v. Dudley, 37 Conn. 136; Nichols v. Aylor, 7 Leigh. (Va.) 546; Smith v. Miller, II Gray (Mass.) 148; Evans v. Dana, 7 R. I. 306; Geringer v. Summers, 2 Ired. (N. C.) 229; Parker v. Foote, 19 Wend. (N. Y.) 307; Hart v. Vose, 19 Id. 365; Luce v. Cunley, 24 Id. 451. kiln to dig and carry away from an adjoining close of the plaintiff as much clay as was required for the making of bricks in the brick-kiln, it was held that an unlimited claim and demand of this nature upon the soil of the plaintiff could not be sustained, for it would, as claimed, enable the defendant "to take all the clay, or in other words, to take from the plaintiff the whole close." (k) So, a privilege claimed of taking sand without limit is bad; (7) and so is a claim by the customary tenants of a manor having gardens, parcels of their customary tenements, to dig and carry away turf from the waste within the manor, for the improvement of their garden-walks, or for making and repairing banks and mounds of grass on their customary tenements. (n) But a custom to dig sand and gravel in the waste for the repair of a dwelling-house, when out of repair may be supported. (2) 116. Grants of rights of servitude-Licenses.-A parol license or permission to go upon another man's land will, so long as it has not been countermanded, justify an entry upon the land; but it confers no indefeasable right at law, and may be recalled at the pleasure of the grantor, unless the license or permission be under seal. A mere parol agreement or license for the enjoyment of a right of way over the land of the licensor or promisor may at any time be put an end to by the latter. The locking. of a gate across the way is a manifest revocation of the license, and a plain statement to everybody that the way is no longer to be used. And if the license has been granted by agreement for good consideration, there will be a breach of the agreement and a claim for damages; but no right to the enjoyment of the way, unless relief can be obtained in equity. (0)1 (*) Clayton v. Corby, 5 Q. B. 419, 422. Wilkes v. Broadbent, 1 Wils. 63. (4) Blewitt v. Tregoning, 3 Ad. & E. 554 27. (m) Wilson v. Willes, 7 East. 121. 1 A parol license is a mere authority, personal to the licensee, and revocable at any time; Ex-parte Colburn, I Cow. (N. Y.) 568; Mumford v. Whitney, 15 Wend. (N. Y.) 379; Cook v. Prigdon, 45 Ga. 331; even though the authority was given in writing and for a consideration; Veghte v. Raritan Wat. Power Co., 19 N. J. 142; Hetfield v. The Centl. R. R. Co., 5 Dutch. (N. J.) 571; Miller v. R. R. Co., 6 Hill, (N. Y.) 61; and confers no interest in the land itself. Ex-parte Colburn, ante, Brown v. Bowen, 30 N. Y. 543. It differs from an easement in this essential respect. An easement in a privilege without profit, which the owner of one estate has in another by grant or prescrip "A right of passage for waste water through an artificial drain or water-course in another man's land, where the party claiming the right has no interest in the land through which the water flows, or ought to flow, is an incorporeal right lying in grant, and is claimable only by deed or by prescription." (p) Therefore a mere parol permission to cut a drain, or make a water course, and use it for the passage of water, may be revoked at law, and the drain or water-course stopped up by the proprietor who has given the permission, and through whose land the water runs. (9) "In the case of a parol license," observes ALDERSON, B., "to come on my land, and there to make a water-course for water to flow through my land, there is no valid grant of the water-course. The license remains a mere license, capable of being revoked; but if the license were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the 229. (p) Hewlins v. Shippam, 5 B. & C. (2) Cocker v. Cowper, I Cr. M. & R. 421. Fentiman v. Smith, 4 East, 108. tion, which operates as a restraint upon the owner of the servient estate to the extent of the right, and is an incorporeal hereditament that is annexed to, and passes by a grant of the dominant estate the same as the land itself, and the servitude imposed thereby is not affected by a conveyance of the servient estate. While a license does not confer an interest in the land, and has no other effect than to make certain acts done in pursuance of it, lawful, which would otherwise be a trespass or an actionable injury; Wolfe v. Frost, 4 Sand. Ch. (N. Y.) 72; Bridge v. Purcell, 1 Dev. & Bat. (N. C.) 492; Houston v. Laffer, 46 N. H. 508; Allen v. Fiske, 42 Vt. 462; Cumberland Valley R. R. Co. v. McLanahan, 59 Penn. St. 23 ; it can never ripen into an easement, for it can not be adverse; Blaisdell v. Portsmouth, &c. R. R. Co., 51 N. H. 483; and, in law, is revocable at any time by the licensor or his grantees, and does not operate as a defense to an action for any act done under it after such revocation; Selden v. Del. & Hud. Canal Co., 27 N. Y. 634; Wolfe v. Frost, ante; Bridge v. Purcell, 1 Dev & But. (N. C.) 492; Mumford v. Whitney, 15 Wend. (N. Y.) 379; R. R. Co. v. McLanahan, 59 Penn, St. 23: Foot v. N. H. & Northampton R. R. Co., 23 Conn. 214; Kimball v. Yates, 14 Ill. 464; Woodard v. Sedley, 11 Id. 157; Roberts v. Rose, 1 L.. R. Exchq. 82; but, if upon the faith of the license permanent improvements have been made, or even if such improvements have been made under such circumstances that a license can be implied, equity will not permit a licensor to take advantage of the form of the consent, even though it was not in strict accordance with the strict mode of the common law, o was within the statute of frauds, but will enjoin him from doing anything which would operate as a fraud upon the license; Raritan Power Co. v. Veghte. 21 N. J. 463; Pierson v. Cin., &c. Canal Co., 2 Dis. (Ohio) 100; Cook v. Prigdon, 45 Ga. 331; so, when it is coupled with an interest and supported by a valid consideration. Miller v. State, 39 Ind. 267. But see Babcock v. Utter, 1 Abb. (N. Y.) Ct. of Appeals, 27; Hamilton v. Windolf, 36 Md. 301; Sterling v. Warden, 51 N. H. 217. water-course; and if it did, then the license would be irrevo. cable.” (r)' But in equity, if a landowner has granted to his neighbor by parol an easement to be enjoyed over his land, and the neighbor incurs expense, with the sanction of the landowner, in constructing permanent works for the enjoyment of the privilege, the landowner will not be allowed to withdraw his consent and prevent the enjoyment of the privilege, without making compensation to the licensee. (s)' Thus, where persons desirous of supplying a town with water, applied to the defendant for permission to make a water-course through his land, and permission was granted by word of mouth, and the water-course was made at considerable expense, and was enjoyed for nine years, when disputes arose, and the defendant cut off the water, the Court of Chancery restrained the defendant by injunction from obstructing the flow of water, on compensation being made to him for the use of his land. (t) A license to put goods on the licensor's land can not be revoked without allowing the licensee a reasonable time for the removal of his goods. (u)' "A dispensation or license," observes VAUGHAN, C. J., "properly passeth no interest, nor alters or transfers property in any thing, but only makes on action lawful, which without it had been unlawful. Thus a license to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licenses as to the act of hunting and cutting (7) Wood v. Leadbitter, 13 M. & W. 845. Lee v. Stevenson, E. B. & E. 512; 27 Law J., Q. B. 263. (s) Beaufort (Duke of) v. Patrick, 17 Beav. 60. Moreland v. Richardson, 22 Beav. 596. And see post, ch. 23, IN- (t) Devonshire (Duke of) v. Eglin, 14 Beav. 530. (u) Cornish v. Stubbs, L. R., 5 C. P. 334. 1 Selden v. Del. & Hud. Canal Co., 29 N. Y. 634; Brown v. Brown, 30 N. Y. 543; Rose v. Roberts, 1 L. R. Exchq. 82; Ex-Parte Coburn, 1 Cow. (N. Y.) 568. 'Cook v. Prigdon, 45 Ga. 331; Houston v. Laffee, 46 N. H. 508; Raritan Power Co. v. Veghte, 21 N. J. 463; Cumberland Valley R. R. Co. v. Lanahan, 59 Penn. St. 23. In all cases where a person has been in the occupation of premises for a specific purpose, under a license from the owner, if the occupancy is under a mere license, it may be revoked; Allen v. Fiske, 42 Vt. 462; but the licensee is entitled to any reasonable time to remove his property, and as to what is a reasonable time is a question for the jury, in view of the nature of the use. Druse v. Wheeler, 22 Mich. 439 |