Real Property – Easements – Right to Take Water From a Pond as Absolute, Exclusive Profit in Gross

One Divine owned a small natural lake and a mill nearby. He dammed the lake, and ran a pipe from it to his mill. At times he sold water after it left the mill to defendant’s assignor, who owned a hotel near the mill. In 1919 Divine sold the lake to plaintiff’s assignor, reserving to himself the right to dam the lake and draw off water from it, so long as the level stayed between high and low water marks. Then Divine sold the mill lot to defendant’s assignor, who closed it down, but continued to take water through the pipe for his hotel. Plaintiff brought suit for a declaratory judgment, an injunction, and damages, claiming that defendant had no right to draw water, except for use at his mill. The trial court granted plaintiff an injunction, but the appellate division reversed, holding that defendant could use the water for any purpose for which it was being used in 1919. On plaintiff’s appeal, held, affirmed. The right which passed to defendant is a profit a prendre, an absolute and exclusive right in defendant to draw water at any place and for any purpose within the limits stated in the deed. Loch Sheldrake Associates v. Evans, (N.Y. 1954) 118 N.E. (2d) 444.