Can overriding royalties issue from an interest in land?
Canada (Federal), Canada
The following excerpt is from Bank of Montreal v. Dynex Petroleum Ltd., [2002] 1 SCR 146, 2002 SCC 7 (CanLII):
9 In Berkheiser v. Berkheiser, 1957 CanLII 56 (SCC), [1957] S.C.R. 387, at p. 392, Rand J. held that an oil and gas lease, the interest from which an overriding royalty is created, can be a profit à prendre, an interest in land. A profit à prendre is an incorporeal hereditament. The appellant has submitted that at common law, an interest in land could not issue from an incorporeal hereditament and therefore overriding royalties cannot be interests in land.
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