[15] In Jens' case, the realization of proceeds from the sale of timber on a 10 inch basis was not what he wanted. He was trying to limit the sale of timber to a 12 inch basis so that the land he purchased from Gertrude would have bigger trees on it. Thus, some of the proceeds to Jens may have been welcome, but they were not wanted. They were wanted by Noble and Gertrude. [16] Jens and his siblings sold C.P.S. Investments Inc. a profit a` prendre when they granted it "... a right to remove timber from the properties". In the Queen in the Right of the Province of British Columbia v. David Evans Tener and Gertrude Marina Tener [1985], 1 S.C.R. 533 at 540 and 541, Wilson J. elaborated on the concept of a profit a` prendre. She said: Before proceeding to a detailed consideration of the applicable legislation it is necessary, I think, to analyze with greater particularity the nature of the respondents' interest in the land. I think the learned Chambers Judge may have been in error in treating the respondents as having two separate and distinct interests in the land - the mineral claims and the right to go on the surface for the purpose of developing them - and characterizing the latter interest as a profit a` prendre. It has been held that an owner of a mineral claim with ancillary surface rights cannot dispose of its surface rights as if they were a separate interest. Such rights can be transferred only in con- junction with a transfer of the mineral claim itself: see In Re Reliance Gold Mining and Milling Co. (1908), 13 B.C.R. 482, per Wilson Lo. J., at p. 483. I believe that what the respondents had was one integral interest in land in the nature of a profit a` prendre comprising both the mineral claims and the surface rights necessary for their enjoyment. A profit a` prendre is defined in Stroud's Judicial Dictionary (4th ed.), vol. 4, at p. 2141, as "a right vested in one man of entering upon the land of another and taking therefrom a profit of the soil". In Black's Law Dictionary (5th ed.), it is defined as "a right to make some use of the soil of another, such as a right to mine metals, and it carries with it the right of entry and the right to remove and take from the land the designated products or profit and also includes the right to use such of the surface as is necessary and convenient for exercise of the profit". Wells J. elaborated on the nature of a profit a` prendre in Cherry v. Petch, [1948] O.W.N. 378, where he said, at p. 380: It has been said that a profit a` prendre is a right to take something off the land of another person. It may be more fully defined as a right to enter on the land of another person and take some profit of the soil such as minerals, oil, stones, trees, turf, fish or game, for the use of the owner of the right. It is an incorporeal hereditament, and unlike an easement it is not necessarily appurtenant to a dominant tenemant but may be held as a right in gross, and as such may be assigned and dealt with as a valuable interest according to the ordinary rules of property. It is important to note that it is the right of severance which results in the holder of the profit a` prendre acquiring title to the thing severed. The holder of the pro- fit does not own the minerals in situ. They form part of the fee. What he owns are mineral claims and the right to exploit them through the process of severance. This may be significant when attempting to answer the questions: what constitutes the expropriation of a profit a` prendre? what constitutes injurious affection in the case of a profit a` prendre? Profits a` prendre may be held independently of the ownership of any land, i.e., they may be held in gross. In this they differ from easements. Alternately, they may be appurtenant to land as easements are, i.e., they may be a privilege which is attached to the ownership of land and increases its beneficial enjoyment. In this case the respondents would appear to have a profit a` prendre in gross since they do not own any land to which the profit is appurtenant. Dickson, C.J., concurred with her. The remainder of the Supreme Court panel did not dissent from Wilson J.'s analysis of a profit a` prendre. PREVIOUS PAGE NEXT PAGE