dissenting.
I am satisfied that the plaintiffs, who are livestock men, have no lease upon the government-owned grazing land with which this suit is concerned. I am also satisfied that the plaintiffs have no interest in that land against which an ad valorem tax can be assessed under OES 307.060. I, therefore, dissent.
The majority’s efforts to adapt the law of landlord and tenant to the needs of this case render it clear that that body of law does not fit this controversy unless liberties are taken with it which this court has never before seen fit to embrace.
Among the principles of real property law which may govern the relationship' which is established when one person, who owns a tract of land, grants to his neighbor a right to pasture cattle upon it there is the principle known as profits a prendre. See “An Analysis of Profits a Prendre,” 25 OLE 217. The majority states, “The grant of the privilege to pasture livestock on lands which is possessed by the grantor is a profit a prendre.” That principle of law which is venerable with age and has been employed by this court appears to fit well this case. The American Law Institute has abandoned the title “profits a prendre” and refers to the principle as an easement. See Eestatement of the Law, Property, §450, comments f and g. Others refer to it simply as “a profit.”
*427The function of the principle known as profits a prendre, to which I will refer as a profit, is to define the rights of two parties when one of them agrees that the other may enter upon his land and take therefrom, let us say, timber or coal. Likewise, it defines, as the majority concedes, the rights of parties when one neighbor grants to another the right to pasture cattle upon his land. In the present case the Secretary of the Interior (Bureau of Land Management) for a valuable consideration gave to the plaintiffs the right to pasture livestock upon the grazing land with which this suit is concerned. The plaintiffs’ lands abut upon the government-owned grazing land.
If we employ in this case the law of landlord and tenant we will have to subject that body of law to some severe strains, and in the end will have to hold (in order to render the law of landlord and tenant applicable) that the plaintiffs had exclusive possession of the vast grazing lands involved in this suit. We will have to hold that they had exclusive possession notwithstanding the fact that:
1. Plaintiffs could use the land only for pasturage purposes and nothing else. In determining the significance of that fact we must bear in mind the statement in the majority opinion which says, “In the sense that he does not have the privilege to use the property for proscribed activities, the lessee’s possession is not exclusive.”
2. The plaintiffs must allow representatives of the Department of the Interior to enter upon the land at will.
3. The plaintiffs must allow “federal agents as well as game wardens” to enter upon the land at any time.
4. The plaintiffs must permit miners, prospectors and those who come to cut timber to enter upon the property and carry on their operations at *428any time; the district manager of the Bums district of the Department of Interior, within whose jurisdiction the land in question is located, testified that the groups of individuals just mentioned had priorities over cattlemen.
5.. The plaintiffs likewise must permit hunters and fishermen to enter upon and have access to the land in carrying on their pursuits.
6. The plaintiffs must permit the government to close the land if depletion of the forage is threatened by drought, epidemic, fire or other causes.
7. The plaintiffs must permit their acreage to be reduced or canceled altogether if the government finds it is excessive or that the land is needed to assure to a community a water supply or it is needed as the townsite for a community or as feeding grounds or for right-of-way purposes.
8. The plaintiffs must permit the cancellation of their rights if they lose, through any cause, the abutting land which they owned when they applied for the grazing rights.
Mr. Donald Z. Robins, of the Department of Interior, Burns Grazing District, which includes the lands in question, testified that there is some timber upon this land and that the Department was engaged in selling it. He explained that the purchaser, upon cutting the timber “must also make skid trails, roads, and so forth, across the lands.” His testimony which is uncontradicted mentioned instances in which ranchers’ rights have been cancelled or curtailed when it developed that the land could be used for better purposes.
Mr. Robins testified that in the grazing districts as well as in grazing land that lies outside of districts in Lake and Klamath Counties the rancher is not permitted to place stock upon the land before April 1 and must have it off by October 31. Thus, seven months *429is the maximum period allowed for grazing. Since the rancher can use the land for grazing purposes only, his interest in it, whatever it may he, extends for seven months of the year only. Mr. Robins mentioned regulations promulgated by the Secretary which authorized the limitations just mentioned and stated that when sufficient personnel was available it would be put into effect in the area in question. He called attention to provisions of the plaintiffs’ lease that enable the limitations to be put into effect in the present instance.
In the face of the above it is impossible for me to believe that the plaintiffs have exclusive possession of the grazing lands. The land, it will be observed, is useful not only for grazing but also for recreation, for the timber upon the land and for mining. It is clear that the government desires to maintain close scrutiny over the land through its agents so as to prevent overgrazing and destruction of wild life. Moreover, it is manifest that the plaintiffs have no need for exclusive possession. They desire only sufficient rights so that they may run their livestock upon the land and keep off the livestock of others. That result can be accomplished by a profit: Restatement of the Law, Property, §450, comment b.
Prom the foregoing we see that the law of landlord and tenant should not be employed in this case. It is impossible to hold that the plaintiffs have exclusive possession without giving to that term a most startling meaning. Moreover, for this court to say that the plaintiffs have exclusive possession will subject them to a tax excessively large. They will be taxed for something for which they have no need whatever. Upon the other hand, the law of profits has governed similar situations through the centuries and fits the needs of this case.
*430This court has many times employed and expounded the principle of law known as profits a prendre. The first of our decisions upon that subject is Bingham, v. Salene, 15 Or 208, 14 P 523, 3 Am St Rep 152, in which Chief Justice Lord, with his usual facility, set forth the doctrine in lucid manner. He stated:
“* * * Rights exercised by one man in the soil of another, accompanied with participation in the profits of the soil thereof—as rights of pasture or digging of sand—are termed profits a prendre.
* *
In that case the owners of some land granted to the plaintiff the right to hunt wild fowl upon their land. The decision of our court held that the right thus given was a profit a prendre. Winslow v. Fleischner, 110 Or 554, 223 P 922, which also employed the rule of profits a prendre in the decision of the case, stated that Bingham v. Salene “is the leading case in this country upon the nature of the right to hunt. It is there held:
“ l* * * the right to enter upon lands of another to cut grass, for pasturage, for the purpose of hunting, or for fishing in an unnavigable stream, is an interest in the land, or a right to take a profit in the soil.’ ”
Winslow v. Fleischner, supra, followed Bingham v. Salene, supra. Forsyth v. Nathansohn, 139 Or 632, 9 P2d 1036, 11 P2d 1065; Salene v. Isherwood, 74 Or 35, 144 P 1175, Ann Cas 1914B 542, 40 LRA NS 299; Salene v. Isherwood, 55 Or 263, 106 P 18; Hume v. Rogue River Packing Co., 51 Or 237, 83 P 391, 92 P 1065, 96 P 865, 131 Am St Rep 732, 31 LRA NS 396, either employed the doctrine of profits a prendre or spoke of it as the law of this state. The Hume decision held that the right to use another’s shore land for *431drawing Ms nets thereon and thereby taHng fish “is a profit a prendre.”
Instead of ruling that the agreement which the plaintiffs and the Secretary of the Interior (Bureau of Land Management) effected is a lease, we should hold it is a profit a prendre (easement). The majority has given no reason whatever for bypassing and in effect overruling the decisions just cited.
The real property against an alleged interest in which Grant County assessed a tax is owned by the federal government and is of the kind commonly called grazing land. It is more than 40,000 acres in area and is subject to the Taylor Grazing Act (48 USCA § 315 through §315o). The plaintiffs, who are ranchers, graze stock upon the land under the privilege given to them by the instrument wMch I have mentioned. The instrument is entitled a lease, but it is agreed that its nature is a principle issue of tMs suit. The fact that the plaintiffs use the land under the agreement wMch I just mentioned caused Grant County to levy the tax challenged by this suit. The county claims that the plaintiffs have an interest in the land upon wMch an ad valorem tax can be assessed. The tax was levied under ORS 307.060 wMch authorizes the taxation of “a lease or other interest or estate less than fee simple” held by a person in real property owned by the government.
The document entitled lease wMch the plaintiffs and the Secretary signed contains some of the expressions which appear in leases. However, it is significant that terms such as “lease to,” “demised and let to,” “grant to,” “rent to,” “to have and to hold for a term of,” which generally appear in leases that confer upon a lessee an interest, are wholly absent from tMs one. Likewise, the words “possess” and “posses*432sion” do not occur even once in this paper. The latter gives no indication of a purpose to confer upon the plaintiffs possession of the grazing lands, if by “possession” we mean exclusive possession and not merely the right to use. The paper employs such terms as “use of the lands,” “grazing use” and “such authorized use.”
In all likelihood the paper with which we are concerned was prepared carefully by a skilled attorney who is a member of the staff of the Department of the Interior. The fact that he avoided such expressions as “demised” and “possess” is significant. It is also significant that in lieu of speaking of possession he chose expressions such as “use of the land” and “grazing use.” The words that appear in the instrument evince a purpose to give to the rancher a very limited use of the land, that is, a “grazing use” only.
The first page of the instrument in question is nothing more than a printed questionnaire in which the applicant gives his name, address, a description of the land which he owns, a description of the land which he seeks and a statement of the kind and number of the stock which he will pasture upon the land. In the upper right hand corner of the instrument in which the applicant is not permitted to write the Secretary enters the amount of the “rental” in the event that the application is granted. In the lower left hand corner the Secretary fills in the number of years (normally not more than ten) for which the applicant may use the land. In the event that the Secretary authorizes the signing of the instrument, then the latter becomes the “lease.”
The remainder of the instrument consists of rules to which the rancher must conform in the event that he is given the use of the land. Those rules are largely *433summations of the provisions of the Taylor Grazing Act and of the regulations which the Secretary has promulgated to facilitate the administration of that act. For example, this part of the instrument provides that (1) the rancher must not overgraze; (2) he must observe all of the laws and regulations for the protection of game animals and birds; (3) he must employ reasonable precautions to prevent grass, brush or forest fires; (4) he must use the land for grazing purposes only, etc. The rancher, upon gaining the right to use the land, would have to comply with those laws and regulations in all events.
The amount of “rental” which the rancher must pay is not determined by negotiation or bargaining, but through the use of a rule which the Secretary of the Interior has promulgated for that very purpose. Thus, it is seen that the so-called “lease” is not effected in the manner that agreements are normally brought about but in the manner in which ordinary licenses are obtained.
Obviously, in determining whether or not the document just summarized granted to the plaintiffs an interest in the grazing land against which an ad valorem tax can be assessed it will be necessary for us to consider the above mentioned provisions. But since the Taylor Grazing Act is the source of the Secretary’s authority to enter into such agreements and governs all federal grazing lands, we must give attention to that statute. In fact, we must deem that it is a part of the instrument itself. In making the latter statement I have in mind the rule controlling the construction of agreements, authorized by statutes, which is expressed as follows in Walker v. Whitehead, 83 US 314, 21 L Ed 357:
“The laws which exist at the time and place of *434the making of a contract, and where it is to he performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge and enforcement.”
The following is taken from Personal Industrial Bankers v. Citizens Budget Co., 80 F2d 327:
“We recognize that in construing a contract which rests upon statute, the statute must be read into the contract.”
In 32 American Jurisprudence, Landlord and Tenant, § 127, page 130, the rule is expressed in these words:
“The rule that the existing statutes and the settled law of the land at the time a contract is made become a part of it and must be read into it except where the contract discloses a contrary intention has been applied to leases.”
I do not believe that the majority observes the rule stated in those authorities. They give attention solely to the words of the instrument which the ranchers and the Secretary of the Interior sign. The majority makes the entire case turn upon its own definition of the word “possession” although it ascribes to that word a meaning which this court has never before recognized. I am satisfied that we must give attention not only to the paper but also to the provisions of the Taylor Grazing Act and the regulations concerning it which the Secretary of the Interior has promulgated. We must take into account that an important objective of the Taylor Grazing Act is the preservation of the natural grasses that grow upon our semi-arid lands and which render them grazing lands. If those grasses are destroyed the land may become a dust bowl. The act preserves the natural grasses through restricted, supervised grazing and by providing that a part (25 per cent) of the income produced by the *435lands shall be expended for the latter’s improvement. Eegnlation of the grazing is achieved in part through supervision of the rancher’s use of the land. As the majority itself recognizes, “In the sense that he does not have the privilege to use the land for proscribed activities, the lessee’s possession is not exclusive.” Thus, we see that the rancher’s use or possession of the land is not exclusive. Further, one of the purposes of the Taylor Grazing Act is the preservation of the wild life upon the grazing lands. In order to accomplish that purpose the rancher, as we have seen, must permit federal officials to enter at will upon the land. We have also noticed that several others, such as federal agents, miners, prospectors, hunters, fishermen, lumbermen, have rights to the use of the land that have priorities over the rancher’s. Those circumstances which are gathered from the act and the regulations written by the Secretary show that the rancher does not have exclusive possession.
The Taylor Grazing Act was enacted in 1934, 48 Stats 1269. Its title indicates its purpose. It follows:
“To stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes.”
Prior to the enactment of the Taylor Grazing Act stockmen helped themselves to the open range. Osborne v. United States, 145 F2d 892, gives an account of the conditions which preceded and induced the passage of this act. That decision says:
“In the pioneer or ‘emigrant’ days of western America immense areas of unappropriated and otherwise unused territory were freely used by *436stockmen for grazing. The government not only refrained from objecting to this practice but in various ways encouraged it and in time this privilege, to use the words of the Supreme Court in Buford v. Houtz, 133 U.S. 320, 326, 10 S.Ct. 305, 307, 33 L.Ed. 618, became * * an implied license, growing out of the custom of nearly a hundred years * * This license was held to be the basis of various rights as between the licensee and other private individuals but not as between the licensee and the government.”
The lax practice which flourished in that manner caused the evil of overgrazing. The principal purpose of the Taylor Grazing Act is the elimination of that evil.
The majority takes note of the fact that the Taylor Grazing Act is applicable to two types of government-owned land. One of the two types consists of large areas which § 315 of the act authorizes the Secretary to constitute into a grazing district. After he has placed the land in such a distirct it is referred to by the designation employed by the Secretary. The other type of land to which the act is applicable lies outside of grazing districts and is unsuitable for inclusion in any. It may be interspersed with privately owned land and is described in the Taylor Grazing Act in this way: “vacant, unappropriated, and unreserved lands of the public domain * * * -so situated as not to justify their inclusion in any grazing district.” The land involved in this suit is of the second type. The majority repeatedly indicates that the act requires that the two types of land must be dealt with in a materially different manner. The fact that they so believe indicates that they labor under a misconception of the meaning of the act. The majority, referring to *437the permit which a rancher secures to run livestock upon grazing district lands, states:
“* * * The grant of a privilege to graze under Section 3 is made by two instruments which are entitled ‘-Year Grazing Permit’ and ‘Application For Grazing License or Permit.’ The latter, when endorsed, operates as the permit itself. The permit is granted for the grazing of a certain number of cattle during a designated period described in the permit as a certain number of animal-unit months. The permit does not describe a specific area of land upon which the permittee is entitled to run his cattle other than the designation of the grazing district to which he is limited. The privilege granted under a Section 3 permit is not exclusive; permits may be granted to more than one person for a single grazing district.
“The form of instrument used to grant the right to graze under Section 15 is quite different. It is entitled ‘Application To Lease and Lease of Lands For Grazing Livestock.’ This application, when accepted by the federal agency, constitutes the lease itself. Unlike the grazing permit granted under Section 3, the lease contains a legal description of the land to which the grazing right extends in terms of range, township, section and government lots. The lessee has the exclusive right to use the described land for grazing as against all other persons. * * *”
Although the majority states that the methods by which the two instruments are issued “is quite different,” I am aware of no material difference. In each instance the rancher submits an application which states upon its face that when signed by the proper federal official it goes into effect in the one instance as a “permit” and in the other instance as a “lease.” In each case the document itself states the number and type of stock which the rancher may place upon the land. It is true that the permit “does not describe *438a specific area of land” and that the so-called lease contains a description. But, we noticed that a grazing district is an area which the Secretary’s order has established and which is known by the designation which he gave to it. Therefore, it needs no description by metes and bounds in the permit. Upon the other hand, the second type of grazing land does not lie in any grazing district and must, therefore, be described in some manner. The amounts which the rancher pays for the privilege of pasturing his livestock, whether he uses a grazing district or the land which has not been organized into one, is substantially the same according to the unchallenged testimony of Donald Z. Robins, district manager for the Bureau of Land Management of the Burns District which includes the land in question. The testimony of Mr. Robins indicates that in administration grazing lands, whether in a grazing district or outside of one, are treated in substantially the same way.
The majority states that “permits may be granted to more than one person for a single grazing district.” That is obviously true, because a grazing district includes tens of thousands of acres. Next, the majority states, the lessee “has exclusive right to use the described land.” I believe that previous paragraphs of this opinion show conclusively that “the lessee” does not have exclusive possession. He must always yield priority to hunters, fishermen, miners, prospectors, officials of the Department of the Interior, agents of other departments of the government and loggers. These individuals may enter upon the land upon all occasions and enjoy there their prerogatives. The land in question consists of more than forty thousand acres. The Secretary of the Interior deems that approximately 5 acres are needed to provide forage for a cow. *439The plaintiffs are seven in number and each has the right to run livestock in the great domain with which we are concerned. When one of the plaintiffs made his application to pasture in the area 500 cattle and 100 horses he described the area of land which he preferred as the pasture. He had no other means of designating what he wanted. The other plaintiffs followed the same course. In assuring himself against overgrazing the Secretary obviously had to know not only the number of livestock which the rancher wished to pasture but also the number of acres which he sought. That data in turn affected the amount to be paid by the rancher. Surely, nothing of significance, so far as this case is concerned, turns upon these simple facts.
The majority quotes § 315p of the act and argues that it shows that “lessees” have a “substantial interest” in the land. I find in § 315p no indication of a purpose to grant to the rancher “substantial interests” in the grazing land. Section 315q which pertains only to those who hold range land under permits and licenses provides that when their rights are canceled on account of appropriation of the land for war or national defense they “shall be paid out of the funds appropriated or allocated for such project such amounts as the head of the department or agency so using the lands shall determine to be fair and reasonable.” That provision certainly does not indicate that the licensee or the permittee has any interest in the land or that his rights, whatever they may be, amount to a lease. Section 315q is comparable to § 315p and the two merely evidence the government’s purpose to treat the ranchers fairly and take no advantage of them when it develops that the ranchers can no longer enjoy the grazing land.
*440The majority has amplified its citations to cases which were concerned with the Taylor Grazing Act. I have examined all of them. None are decisive of any issue involved in this case and none held that rights snch as those possessed by these plaintiffs constituted a lease. Northam Range Association v. Casey (Nev) 339 P2d 384, which is not mentioned by the majority, comes the nearest of any of the precedents to speaking of the issues with which we are concerned. It declares it is “questionable” whether the ranchers’ rights constitute a lease, but since “the distinction was not material” the court did not pass upon the issue. The fact that it went out of its way to declare it “questionable” is significant.
The above is the situation. I am satisfied that in determining whether or not the rancher receives an interest in the government-owned grazing land we must not confine our attention to the paper entitled “a lease” nor must we make the issue turn upon our understanding of the term “exclusive possession.” That term does not appear in the paper entitled “a lease” and there is nothing in the circumstances revealed by the record that shows the rancher wished to gain exclusive possession. Likewise, the record fails to indicate that the Secretary of the Interior wished the rancher to have exclusive possession. We must give material attention to the Taylor G-razing Act and to the regulations which the Secretary has written pursuant to the authority conferred upon him by the act. When the act and regulations are studied it becomes clear that the act does not intend that the rancher shall have anything but the use of the land for grazing purposes together with sufficient other rights so that he may exclude intruders. It is true that the paper entitles itself “a lease” but when that *441term was employed at the trial those who used it explained that it was necessary to use some sort of a word in referring to the relationship of the parties. The chances are that since it was necessary to entitle the paper in some way, the word “lease” was selected as the most understandable. To have labeled it a “profit a prendre” would have frightened the rancher away and defeated the purposes of those who sponsored the Taylor Grazing Act. But, upon entitling the paper a “lease” care was exercised to avoid the use of the terms that we have already mentioned, that is, terms such as “demise,” “grant” and “possession.” The word “use” was given prominence in the act.
I am satisfied that the relationship of the parties should be adjudged a profit a prendre.
Comment b to § 450, Restatement of the Law, Property, says:
“An easement is an interest in land in the possession of another. It is not, itself, a possessory interest. The owner of it, therefore, is not entitled to the protection which is given to those having possessory interests. The fact that the owner of an easement is not deemed to have a possessory interest in the land with respect to which it exists indicates a lesser degree of control of the land than is normally had by persons who do have possessory interests. Thus, a person who has a way over land has only such control of the land as is necessary to enable him to use his way and has no such control as to enable him to exclude others from making any use of the land which does not interfere with his.”
It will be noticed that the last sentence of the quoted paragraph expresses a rule which could meet the needs of the ranchers adequately and yet permit all to enter who have a right to do so under the provisions of the Taylor Grazing Act. A reading of the carefully con*442sidered opinion in Red Canyon Sheep Co. v. Ickes, 98 F2d 309, which was based upon the Taylor Grazing Act, can leave no doubt that the ranchers could exclude intruders even if the ranchers’ rights amounted to nothing more than a license.
I dissent.
Perry, J., joins in this dissent.