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Moore v. Schultz

Decided: October 7, 1952.


Jayne, Proctor and Schettino. The opinion of the court was delivered by Jayne, S.j.a.d.


The defendants feel aggrieved by the entry on March 21, 1952, of a judgment of the Chancery Division of this court, 18 N.J. Super. 219, and by this appeal challenge its propriety. Those basic elements of the plaintiff's alleged cause of action which are of a purely legalistic nature were submitted to the court for a declaratory determination upon a stipulation of the relevant facts. A concise narrative of the facts will be sufficiently serviceable.

On June 25, 1940, one Louisa Moore, a widow, by agreement in writing and under seal granted to one Frank Schultz the "exclusive right to enter upon her premises" situate in the Borough of Upper Saddle River, Bergen County, and "to remove sand and gravel therefrom," subject to certain specified limitations, as he "sees fit." The terms of the agreement provided that the "privilege" should extend for a period of ten years from the date of the instrument, with the option accorded Schultz to renew the privilege for a further period of ten years. In the exercise of the "privilege" Schultz agreed to pay Mrs. Moore ten cents per cubic yard

for the sand and 20 cents per cubic yard for the gravel which he would remove, subject to certain contingent market price increases. The agreement also contained the stipulation that it could not "be assigned without the written consent of the party of the first part or her son, Benjamin Moore."

Mrs. Moore died testate on November 2, 1941, and her son, Benjamin Moore, the plaintiff in this action, acquired the ownership of the premises as her devisee. Schultz installed machinery and other appropriate equipment on the premises and continued to exercise the so-called privilege in pursuance of the agreement until his death, intestate, on October 17, 1950. He had, however, on June 27, 1949, given written notice to the plaintiff that he exercised his option to renew the agreement as therein stated for the additional period of ten years. The defendants include his widow, who is also the administratrix of his estate, his next of kin and heirs at law, and the corporation through which he conducted his business.

On November 15, 1950, the plaintiff notified Catherine Schultz, the widow, individually and in her capacity as administratrix, and also the corporate defendant that he revoked "any and all licenses through which you or any of you may have been heretofore permitted to enter upon said premises and to remove therefrom any or all materials," i.e. , sand and gravel.

The judge of the Chancery Division resolved that the license was revocable by the plaintiff, had been revoked, and that the defendants were entitled to remove from the property the machinery and other equipment placed upon it by the decedent Schultz.

Broadly stated, the defendants are in accord with the conclusion of the trial judge that the agreement conferred upon Schultz a privilege which in the circumstances became an irrevocable license coupled with an interest, but they impugn his determination that upon the death of Schultz the privilege did not pass by operation of law to his administratrix and next of kin.

Assuredly, a simple license associated with the use of land is in the law a mere privilege or permission which confers upon the licensee no intangible interest in the land to which it is related. Rather does it assume the appearance of an excuse for what would normally be a trespass. But a profit a prendre is known in the law as a right to take something of value from the land of another. It is an incorporeal hereditament, since it is recognized as a right. Its name distinguishes it from such incorporeal hereditaments as the right to rents, franchises, and easements in that it denotes the special right to take something tangible from the land. Perhaps the most common illustrations of it are the right to take marl, loam, peat, sand, gravel, coal, and other minerals.

This form of incorporeal hereditament may be, and sometimes is, owned in connection with and as an appurtenance to land regarded as a dominant estate, or it may be owned as a corporeal right in gross. Vide, Hopper v. Herring , 75 N.J.L. 212 (Sup. Ct. 1907). Where a profit a prendre is in gross, it is true that it is in the nature of a personal privilege, but it is nevertheless a distinct, independent object of ownership which is also in its nature ordinarily alienable, assignable, and inheritable. While the right of profit a prendre in gross and a license coupled with an interest bear a resemblance, there is traditionally in the law a significant difference between them. Probably the nearest relation of a profit a prendre in the law is that which has been denominated an easement in gross. Indeed, any difference in their legal qualities is microscopic.

In the present case, however, the trial judge deemed that the agreement by reason of the action taken by Schultz in pursuance thereof conferred upon him a license coupled with an interest. At least it did that. We find in the stipulation of facts the acknowledgment that between the date of the execution of the agreement and a date approximating December 1, 1949, Schultz "invested substantial sums of money in ...

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