## Facts

- Owners of land along Tunkhannock Creek formed a corporation to build a dam and create Lake Naomi; the corporation held a 99-year lease to the land that would be submerged and had exclusive water privileges.
- In 1899, the corporation granted Frank C. Miller, “his heirs and assigns forever,” the exclusive right to fish and boat in all the corporation’s waters at Lake Naomi.
- In 1900, Frank purported to convey Rufus W. Miller a one-fourth interest in fishing, boating, and bathing rights and, the same day, the brothers formed a partnership to operate boat and bath houses and rent boats and facilities for profit.
- From about 1900 until Rufus’s death in 1925, the brothers openly and continuously controlled boating, fishing, and bathing uses as a commercial operation without objection by the owner of the submerged land.
- After Rufus died, his estate and Frank independently issued permissions for lake use; Lutheran Conference & Camp Association, an owner of adjoining shore land, obtained a license from Rufus’s estate to boat, bathe, and fish.
- Frank (later, his estate) sought to stop Lutheran’s use as unauthorized because the lake-use rights were held jointly and could not be exercised separately by a fractional co-owner.

## Issues

1. Whether the rights to boat, fish, and bathe in a nonnavigable lake were held as easements/profits in gross acquired by grant, prescription, or both.
2. Whether an easement/profit in gross granted to “heirs and assigns” is assignable.
3. Whether, if assignable, the rights may be divided for separate exercise by co-owners.
4. Whether one co-owner (or the co-owner’s heirs) may grant a valid license to a third party to use the easement/profit without the other co-owner’s consent.
5. Whether the request for injunctive relief was moot due to claimed cessation of the challenged conduct.

## Decision

- The court affirmed the injunction against Lutheran.
- The boating and fishing rights were an easement/profit in gross created by grant and intended to be assignable.
- Bathing rights, though not mentioned in the deed, were acquired by prescription through long, open, systematic, commercial use without objection.
- Although such interests can be assignable, they are not divisible for separate exercise; they must be used as an entirety by co-owners.
- Rufus’s heirs lacked authority to license Lutheran independently; Lutheran’s use under that license was an unauthorized invasion of the water rights.
- The case was not moot because equitable decrees regulating future conduct remain justiciable despite temporary توقف of the disputed activity.

## Legal Principles

- No riparian rights arise from mere adjacency to a nonnavigable lake when the land under the water is owned by another; unauthorized use of the water is a trespass.
- An easement/profit in gross may be created by grant and may be assignable where the grantor’s intent indicates alienability (including “heirs and assigns” language).
- An easement in gross (including recreational uses such as bathing) may be acquired by prescription when exercised openly, continuously, and systematically for commercial purposes without objection during the prescriptive period.
- When an easement/profit in gross is held by multiple owners, it must be exercised as a single, unified right; co-owners cannot separately exercise fractional parts in a way that expands burdens on the servient estate.
- A co-owner of an easement/profit in gross cannot unilaterally grant a valid license to a third party to use the easement without the other co-owner’s consent.
- A claim for injunctive relief governing future conduct is not rendered moot solely because the defendant temporarily stops the challenged activity.

## Conclusion

The court held that exclusive boating and fishing rights in the lake existed by grant and that bathing rights arose by prescription, but that these assignable easements/profits in gross had to be exercised jointly; therefore, a fractional co-owner’s heirs could not validly license a third party to use the lake without the other co-owner’s consent, and an injunction properly issued to prevent unauthorized use.


Miller v. Lutheran Conference & Camp Ass’n, 331 Pa. 241, 200 A. 646 (Pa. 1938)