## Facts

- In 1959, Henry and Hazel Fairbrother conveyed a roughly three-acre parcel of their farm (with a camp) to W.B. Adams and Allen C. Adams.
- The deed also stated that “the hunting and fishing rights on the other lands of the Fairbrother farm” were conveyed, and the habendum clause ran to the grantees, “their heirs and assigns forever.”
- The parties agreed the hunting and fishing rights constituted a profit à prendre, an interest in land.
- A later dispute arose over whether the hunting and fishing rights were exclusive, whether they were personal or transferable, and what land was burdened by the rights.
- The Fairbrothers sought a declaratory judgment construing the deed; one grantee (Powell, in the chain of title) counterclaimed for breach of warranty, alleging interference with the conveyed rights.
- The trial court construed the deed to limit the scope of the hunting and fishing rights, allowed consideration of extrinsic evidence to determine intent, and rejected the breach-of-warranty counterclaim.

## Issues

1. Whether the deed’s grant of “hunting and fishing rights on the other lands of the Fairbrother farm” was ambiguous and, if so, how it should be construed.
2. Whether the deed granted exclusive hunting and fishing rights, eliminating the grantors’ concurrent rights.
3. Whether the hunting and fishing rights (a profit à prendre) were merely personal or were alienable and inheritable.
4. What land was burdened by the hunting and fishing rights described as applying to the “other lands” of the farm.
5. Whether parol evidence was admissible to resolve ambiguity regarding scope and character of the rights.
6. Whether Powell established a breach of warranty based on the rights actually conveyed.

## Decision

- The Supreme Court of Vermont affirmed the declaratory judgment construing the deed and affirmed the denial of Powell’s breach-of-warranty counterclaim.
- The deed conveyed a profit à prendre in hunting and fishing rights, which is an interest in land.
- The grant was not construed as exclusive absent clear expression of exclusivity.
- The profit was treated as a property interest not limited to a purely personal privilege, given its nature and the deed language running to “heirs and assigns.”
- Because the deed was ambiguous on key points, the trial court properly considered parol evidence to determine intent.
- On the deed as construed, Powell failed to show a breach of the grantors’ warranty.

## Legal Principles

- A deed granting hunting and fishing rights can create a profit à prendre, which is an interest in land rather than a revocable license.
- Deed interpretation begins with the instrument; if the language is ambiguous, courts may apply interpretive canons and consider extrinsic evidence to determine the parties’ intent.
- The canon construing ambiguities against the grantor is subordinate to the controlling aim of determining intent from the entire instrument and relevant circumstances.
- Exclusivity in a grant of use rights over retained land is not inferred from general language; it requires clear indication in the deed or convincing evidence of that intent.
- Where deed language is ambiguous as to scope or character of the rights conveyed, parol evidence is admissible to clarify intent without contradicting an unambiguous writing.
- A breach-of-warranty claim fails where the alleged interference concerns rights broader than those actually conveyed and warranted under the deed as properly construed.

## Conclusion

The court held that the deed conveyed a profit à prendre in hunting and fishing rights, construed the ambiguous grant as nonexclusive and limited in scope based on the deed and admissible extrinsic evidence, and affirmed rejection of a breach-of-warranty counterclaim premised on a broader reading of the rights than the deed supported.


Fairbrother v. Adams, 135 Vt. 428, 378 A.2d 102 (Vt. 1977)