Petition for rehearing denied June 7, 1932. ON PETITION FOR REHEARING (11 P.2d 1065) Appellant's counsel argues that the instrument signed by the parties conferred upon the defendant a profit a prendre, and not merely a license. His argument is reinforced by citations toBingham v. Salene, 15 Or. 208 (14 P. 523, 3 Am. St. Rep. 152);Wickham v. Hawker, 7 Mees. W. 63; Ewart v. Graham, 7 H.L. Cas. 331; and Crabb's Real Property 125. The authorities cited by him to which can be added Council v. Sanderlin, 183 N.C. 253 (111 S.E. 365, 32 A.L.R. 1527), hold that the right to hunt or trap wild game upon the lands of another and carry away the game or fowl killed or trapped is a profit a prendre. Agreements creating profits a prendre are subject to the Statute of Frauds:Bingham v. Salene, supra; Council v. Sanderlin, supra; Woodv. Leadbetter, 13 Mees. W. 838; State v. Mallory,73 Ark. 236 (83 S.W. 955; 67 L.R.A. 773, 3 Ann. Cas. 852); 1 Thompson on Real Property, § 234; note Ann. Cas. 1914B, p. 545.
A profit a prendre confers two rights: a license which authorizes the licensee to enter upon the lands of the licensor, and a grant to the licensee of the things *Page 638 which he is permitted to carry away from those lands. If it were clear that the agreement of the parties contemplated that the trapping of muskrats was to be done upon the plaintiff's property, then the privilege conferred by the instrument mentioned in our previous decision would amount to a profit a prendre. But the evidence, as well as the answer, suggests that possibly the trapping was to be done not upon the plaintiff's land but in Gray's Lake and its marshes adjacent to the land in question, and that the plaintiff's property was useful only as a ready means of access to the water. It may be that the trapping was to be done directly upon the plaintiff's property, but after reading the testimony again the impression remains that the plaintiff's land was wanted principally as a site from which the trapping operations could be pursued. Our opinion is reinforced by the statement made by the defendant's counsel in the circuit court that "the document is a license." If the instrument conferred only a license, and was not a lease (the defendant previously has urged this court to hold it a lease) then it was not subject to the Statute of Frauds. Since it was evident that neither party intended that the instrument should be void, and since it was reasonably capable of construction as a license, we adopted the construction of it suggested by the defendant in the circuit court and held it a license. We still believe that that conclusion is warranted.
But in the event that the instrument confers a profit a prendre, the Statute of Frauds offers no insurmountable obstacle to a recovery. A profit a prendre, like a lease, operates as a conveyance. Two of the trappers whom the defendant sent upon the expedition to trap muskrats in the marshes and lake testified that they reached the plaintiff's land for the *Page 639 purpose of proceeding with the work. The plaintiff testified that they not only reached his land but remained in possession with traps and other equipment until they were ordered to return to Portland by the defendant, due to his inability to finance the venture. The evidence indicates that the defendant paid an installment upon the consideration exacted by the contract. These circumstances made the imperfect description of the land a matter of no moment and took the contract out of the Statute of Frauds so far as the description of the premises was concerned: Bitneyv. Grim, 73 Or. 257 (144 P. 490); Zinn v. Knopes, 111 Wash. 606 (191 P. 822); Tiffany, Landlord and Tenant, p. 257; 27 C.J., Statute of Frauds, p. 355, § 434; 25 R.C.L., p. 655, § 287.
It follows from the foregoing that the petition for a rehearing will be denied.
BEAN, C.J., RAND and KELLY, JJ., concur. *Page 640