The possible conflicts between profits a prendre and property rights under the Marine Fish Culture Ordinance

Abstract

At common law, a right to be entitled to the natural produce of another person's land - profits a prendre, or simply profits - is capable of being a legal right. It is a legal estate: a kind of right which is capable of binding whoever comes upon the land and is operative outside the ambit of contract; it is independent of who are the owners of the servient tenement and the dominant tenement; it is a kind of right "binding the whole world". The Marine Fish Culture Ordinance, Cap 353, Laws of Hong Kong, confers upon the Director of Agriculture, Fisheries and Conservation authority to grant a licence whereby a party is given the right to culture fish within the provisions of the Ordinance. Culturing fish without the appropriate licence is an offence under the Ordinance. These two kinds of rights differ at least in that one is a right relating or attaching to land and the other is a right given to a person by statute; one is a legal estate and is independent of the person and the other is a personal right which is granted to a specific person. However, the two are interrelated in that both could relate to fish culture and there may be conflict between them at times. This study compares these two kinds of rights and identifies the areas in which one may affect the other. Discussion is included in this paper concerning situations where the two may be in conflict, and suggestions are made to improve this.