Stanton v. T. L. Herbert & Sons
141 Tenn. 440 (1918)
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Rule of Law:
A non-exclusive right to take resources from another's land (a profit a prendre in gross) is assignable, but it is not divisible. An attempt to divide or apportion such a right among multiple parties results in the extinguishment of the right.
Facts:
- Mary Nolan and William E. Jordan owned Hill's Island in the Cumberland River.
- On June 12, 1911, Nolan and Jordan sold Hill's Island to Elizabeth Stanton and Rush Hawes.
- The deed for the sale included a clause retaining for the grantors (Nolan and Jordan) a non-exclusive "easement, right, or privilege, to remove sand from said property for a period of ten years."
- Nolan and Jordan subsequently attempted to assign this right to remove sand to three separate and distinct commercial entities: W. T. Hardison & Son, T. L. Herbert & Sons, and the Nashville Builders’ Supply Company.
- These three companies, along with Jordan, began removing vast quantities of sand and gravel from the island for use in their separate construction contracts.
Procedural Posture:
- Elizabeth Stanton and Rush Hawes (complainants) filed a bill in a Tennessee chancery court (a court of first instance) seeking an injunction and damages against William E. Jordan and his assignees (defendants).
- The defendants filed a demurrer (a motion to dismiss for failure to state a claim) along with an answer.
- The chancellor (the trial court judge) sustained the demurrer and dismissed the complainants' bill.
- The complainants, Stanton and Hawes, appealed the dismissal to the Supreme Court of Tennessee.
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Issue:
Does the attempted assignment of a non-exclusive right to remove sand from a property to multiple, separate parties extinguish that right?
Opinions:
Majority - Mr. Justice Green
Yes, the attempted assignment of a non-exclusive right to remove sand to multiple parties extinguishes the right. The right retained by the grantors was a non-exclusive profit a prendre, a type of incorporeal hereditament. While such a right is assignable to a single entity, it is not divisible and cannot be apportioned among multiple assignees to be enjoyed separately. The court reasoned, based on long-standing common law principles from cases like Earl of Huntington v. Lord Mountjoy, that allowing the division of such a right would 'surcharge' the land, placing a burden on the property far greater than what was contemplated by the original parties. The grantors' attempt to assign their right to three separate, large-scale contractors constituted an improper division, which had the legal effect of destroying or extinguishing the right entirely. Therefore, the assignees had no legal right to remove sand from the complainants' property.
Analysis:
This decision solidifies the common law distinction between a divisible interest in land (like owning all the minerals) and an indivisible incorporeal right (like a non-exclusive privilege to take some resources). It establishes a clear precedent that attempting to apportion a non-exclusive profit a prendre in gross leads to its complete destruction. This rule serves to protect landowners from an unforeseen and potentially limitless burden on their property that could arise if such rights were freely divisible. The ruling reinforces the principle that the scope of such reserved rights is limited and cannot be expanded in a way that surcharges the servient estate.
