NS Court of Appeal overturns profit à prendre (right to take hay) decision

Back in February, 2014, the Nova Scotia Supreme Court upheld a neighbour's right to take hay or other crops off a portion of a 2.7 acre property that had been severed from the neighbour's farm in 1960 (see my post on that decision here).  The case has gone to the Court of Appeal and the lower court's decision has been overturned.

The Court of Appeal introduced the case as follows:

Rarely does a claim of the property right known as profits à prendre, which has existed since ancient times, come before the courts.  It arises here because a landowner conveyed part of his property subject to a reservation of a right in favour of himself, his heirs and assigns to enter on that property to remove hay.  Throughout the next fifty years, the landowner, his successors in title and their assigns continuously exercised that right, entered the conveyed lot and cut hay.

The current owners of that lot defended an application seeking to confirm the right to cut hay on their property.  They argued that the reservation was void or voidable.  In her decision dated January 29, 2014, Justice Margaret J. Stewart granted an order for a declaration in the nature of a profit à prendre (2014 NSSC 36 (CanLII)).  This is an appeal from her order which issued June 11, 2014.

After reviewing in detail the law relating to profits à prendre, the Court of Appeal concluded that the original grant of a right to take hay was a "profit in gross", which is a "right without limit and separate from any land owned by the profit holder".  Therefore, it was not necessary that the right to take hay benefit the neighbouring property specifically - it just had to benefit the original grantor and his successors.  

However, as noted the Court, that finding (which was not made by the lower court judge) was not of assistance to the neighbour: "Since a profit is an interest in land, to be valid in law it must be conveyed by deed to satisfy the Statute of Frauds.  But none of the 1972 and 1998 deeds in the chain of title of the C lands from GC to the respondent conveyed the right to enter upon and remove hay from the D lot.  The 1998 deed merely excluded that lot from the description of the C lands."  In other words, there was nothing in the chain of title to link the original profit à prendre to the current owner of the neighbouring land.

It was also possible for the right to take hay to continue to exist as a part of the estate of the original landowner.  However, there was no evidence of any disposition or transfer of the profit à prendre (an asset of sorts) by will or otherwise from the original grantor, GC, to the neighbour.  The neighbour's claim failed.

Read the decision at: Snyder v. Chisholm.

Is a 1960 reservation of the right to take hay still enforceable?

The Nova Scotia Supreme Court has recently heard the case of a farmer looking to exercise a right to take hay that was first created in 1960.  The Court explained:

This application involves the interpretation of a reservation of a hay/crop

right in favour of GC, his heirs and assigns” in a 1960 deed from

GC to the respondents’ predecessor in title ID. An area of some 2.7 acres of GC’s 150-acre farm lot in Antigonish County, was conveyed, along with a 100-year old farm house and barn (or its foundation), collectively “the S lot.” After describing the dimensions of the 2.7-acre lot, which runs through GC’s farm lot, the deed then provides the following:

RESERVING however to the said GC, his heirs and assigns the right and privilege to enter upon the said land from time to time for the purpose of removing hay or other crops or improving the land, ...

GC's nephew and successor in title has now come to the Court seeking an order confirming and declaring his right to enter the 2.7 acre parcel "for the purpose of removing hay or other crops or improving the land".

The Court determined that the right reserved to GC when he sold the 2.7 acre parcel was a "profit a prendre" - a right to take the produce or profit from the land.  The Court ruled that GC had reserved to himself and to his assigns (his successors in title) the right to remove hay form a portion of the 2.7 acres and that this reservation was not "repugnant" to the grant of title to the 2.7 acres (i.e. the sale of the land in 1960).

The responding parties (the current owners of the 2.7 acres) argued that the profit a prendre was extinguished years ago "because the purpose for which the condition was created has now expired".  The Court disagreed with this position.  It found that the owners of the GC lands have continued to take hay from the 2.7 acres since 1960 (whether for their own use or by lease to another farmer) and that:

If the profit appurtenant has been extinguished by the permanent alteration of the GC tenement, since it is no longer a cattle farm, then removal of the hay is still held as a right in gross, unaffected by such circumstances. It is a right exercisable by GC, the owner of it independently of his ownership of any land. The reservation is not rendered void or the profit extinguished due to alteration to the GC lot. 

However, the Court agreed with the respondents that the right to take hay on the whole 2.7 acres unreasonably limited their potential use of the property.  The Court made an order allowing the respondents to use the land within a certain tree line, which the Court determined "would not be an actionable infringement of the reservation rights".  The Court did grant the application and declared that the GC land owners hold a profit a prendre.

Read the decision at: Chisholm v. Snyder.