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Hill v Tupper (1863) 159 ER 51

A profit à prendre must be closely connected with the land.

Facts:

The plaintiff, Hill, was granted a lease of land on the side of the Basingstoke Canal by the canal company. The lease also gave the plaintiff the sole and exclusive right to put pleasure boats for hire on that stretch of the canal. The defendant, Tupper, was the landlord of an inn which adjoined the canal bank. The defendant put his own boats for hire on the canal, disturbing the plaintiff’s business and causing him loss of profits. 

Issues:
Tupper admitted using pleasure boats on the canal and that these were used by his customers at the inn. However, he argued that the plaintiff was not entitled to the sole and exclusive use of the canal. The plaintiff claimed that his right amounted to a profit à prendre. A profit is the right to take or use something from another’s land. The question here was whether such a right was recognized by law.

Held:

The court held that this was only a personal right and not a profit. The right to have the sole and exclusive use of land covered by water was not an established right in law, and new types of incorporeal rights in property could be created at will. The right was not analogous to any previously recognised by law, such as the right to take fish or turf. If the plaintiff had needed to get from one side of the canal bank to the other this could have been an easement as the right would clearly have benefitted the land. Here, the right was not connected with the land. Consequently, this was not a valid profit.


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