MOSK, J. I dissent. Unlike the majority, I find the scholarly analysis and conclusion of the Court of Appeal to be persuasive. This is not a case for summary judgment; rather, there is a factual conflict that should proceed to trial.
I adopt as my own the opinion prepared for the Court of Appeal by Acting Presiding Justice Sparks, with appropriate deletions and additions, as follows: †
[ ] We come to the central dispute between the parties—the application of [Civil Code] section 846 [(hereafter section 846)]. Plaintiff claims that defendant’s grazing permit “can be construed as at the very most, a license. As such, a licensee is not entitled to the protection afforded by Civil Code Section 846.” Defendant counters that under the facts of this case his grazing permit is more than a mere license, and suggests that it should be considered as an executed license, and thus the equivalent of an easement. Alternatively, defendant argues that even if the grazing permit constitutes a mere license, a license is an interest within section 846.
In order to determine the interest conveyed by the grazing permit, we first consider the nature of a right to graze cattle on land. We then examine the special character of a federal grazing permit on federal forest lands. Finally, we consider whether such a federal grazing permit is an interest in real property within the meaning of the statute.
A. The Right of Pasture in California
In California, the term “real property” is “defined by section 14, subdivision 2, Civil Code, as ‘coextensive with lands, tenements, and hereditaments’, to which Blackstone gives the appellation ‘things real.’ ” (Callahan [199]v. Martin (1935) 3 Cal.2d 110, 118 [43 P.2d 788, 101 A.L.R. 871]; see also [Civ. Code,] § 658.) By a residual definition, every kind of property that is not real is personal. ([Civ. Code,] § 663.)
As the Callahan court noted, the “common law included, in addition to lands and tenements, in the category of things real, hereditaments, corporeal and incorporeal, and section 14, subdivision 2 of the Civil Code, noted above, preserves this classification. A hereditament, as defined by Blackstone, included not only lands and tenements, but whatsoever passed to the heirs at law, rather than to personal representatives, ‘be it corporeal or incorporeal.’ [Citation.] Blackstone lists ten sorts of incorporeal hereditaments: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents. ... Of the ancient incorporeal hereditaments listed by Blackstone, several either are not recognized at all in this country, or, if they do not involve rights in or to land, are not classed as things real. But a number of the common-law incorporeal hereditaments which involve rights connected with or pertaining to land persist, and are recognized generally as a species of interest in land, or estate in real property- [11] The incorporeal hereditament of common is defined by Blackstone as ‘being a profit which a man hath in the land of another; as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like.’ [Citation.] These are the rights which are described as profits a prendre [] . . .” (Callahan, 3 Cal.2d at pp. 119-120.)
Consistent with this common law history, the right to graze animals on private land, typically called a right of pasture or the common of pasture, has traditionally been characterized as a profít á prendre. (See [,] e.g., Platt v. Pietras (1980 Fla.[Dist.Ct.]App.) 382 So.2d 414, 417, fn. 1 [cattle]; Deseret Livestock Co. v. Sharp (1953) 123 Utah 353 [259 P.2d 607, 610] [sheep].) As we have seen, a profít a prendre, literally a profit to take, “is an incorporeal hereditament; it is a right to take something from the land of another.” (Gerhard v. Stephens (1968) 68 Cal.2d 864, 878, fn. 7 [69 Cal.Rptr. 612, 442 P.2d 692]; see also Lynch v. State Bd. of Equalization (1985) 164 Cal.App.3d 94, 102, fn. 4 [210 Cal.Rptr. 335]; Sehle v. Producing Properties, Inc. (1964) 230 Cal.App.2d 430, 432-433 [41 Cal.Rptr. 136]; Costa v. Fawcett (1962) 202 Cal.App.2d 695, 699-700 [21 Cal.Rptr. 143]; see also 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 439, p. 620.) As Tiffany recounts it, “[t]he most important profit á prendre, historically considered, is that of pasturing cattle on another’s land, usually referred to as ‘common of pasture.’ . . . [U] Common of pasture involves the placing of cattle on the land to eat the herbage, in this differing from a right to take herbage from another’s land by cutting and transporting it.” (3 Tiffany, Real Property (3d ed. 1939) Profits á Prendre, § 845, p. 436.)
[200]At common law a proñt a prendre was distinguished from an easement. “Taking,” a California legal encyclopedia explains, “is the essence of a profit a prendre, and, under earlier cases, was held to distinguish it from an easement, under the rule that one of the features of an easement is the absence of all right to participate in the profits of the soil charged with the easement. However, the Civil Code provisions as to servitudes make no distinction between easements and profits, and in fact enumerate typical profits as easements.” (28 Cal.Jur.3d, Easements and Licenses, § 4, pp. 85-86, fns. omitted.) Thus, under the code, the “following land burdens, or servitudes upon the land, may be attached to other land as incidents or appurtena[n]ces, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; ... 5. The right of taking water, wood, minerals, and other things[] . . .” ([Civ. Code,] § 801, paragraphing deleted.)
It has been further noted that “[n]either the Civil Code nor the Restatement of Property distinguishes easements appurtenant from easements in gross. In fact, Civil Code Section 802 lists the ‘right of taking water, wood, minerals, or other things’ (i.e., a profit) as one of the ‘land burdens’ that may be granted and held, whether the burden is or is not appurtenant to land. The Restatement of Property notes that the law of the United States recognizes both easements in gross and profits in gross and that the rules with respect to easements and profits can be stated in identical terms. Accordingly, the Restatement includes profits under the general heading of easements and treats profits in all respects as a class of easement.” (10 Hagman & Maxwell, Cal. Real Estate Law & Practice (1988 rev.) Easements & Licenses, § 343.13, p. 343-20, fns. omitted; see Rest., Property, § 450, special note, pp. 2901-2902.) Thus, “Civil Code section 802 classifies profits and easements in gross, identically, as servitudes.” (Gerhard v. Stephens, supra, 68 Cal.2d at p. 880, fn. 11, italics in original.) Among the several listed profits in gross described as “land burdens, or servitudes upon land” which may be granted and held though not attached to land is the “right to pasture, and of fishing and taking game.” (§ 802, subd. one.)
Following the classification of the Civil Code and the analysis of the Restatement, [we have] held that for the purpose of determining rights in real property “easements and profits a prendre are indistinguishable.” (Gerhard v. Stephens, supra, 68 Cal.2d at p. 880; see also Callahan v. Martin, supra, 3 Cal.2d at pp. 118-122.) “Following the common law this court has classified profits a prendre, together with easements, as incorporeal hereditaments.” (Gerhard, 68 Cal.2d at p. 880.) It follows from all of this that “[l]ike other easements, a profit is an incorporeal (i.e. nonpossessory) ‘interest’ in real property.” (10 Hagman & Maxwell, op. cit. supra, at p. 343-20.) [201]Thus, a right of pasture on private property in California constitutes an interest in real property.
B. Federal Forest Service Grazing Permit
But this does not end the question because the right to graze in this case does not involve private property. Instead it involves federal property and emanated from a permit issued by the federal forest service. The question then is whether a grazing permit in a national forest is different from a right of pasture on private property. We conclude it is. The controlling federal statute, 16 United States Code section 580/ provides: “The Secretary of Agriculture in regulating grazing on the national forests and other lands administered by him in connection therewith is authorized, upon such terms and conditions as he may deem proper, to issue permits for the grazing of livestock for periods not exceeding ten years and renewals thereof: Provided, That nothing herein shall be construed as limiting or restricting any right, title, or interest of the United States in any land or resources.” This statutory proviso is amplified in the regulations governing grazing permits in national forests. “Grazing permits and livestock use permits convey no right, title, or interest held by the United States in any lands or resources.” (36 C.F.R. § 222.3(b).) [fl] []
[The Court of Appeal] had occasion to consider the nature of such a grazing permit on a national forest in Placer County Water Agency v. Jonas (1969) 275 Cal.App.2d 691 [80 Cal.Rptr. 252], There the water agency brought an eminent domain proceeding seeking to condemn all private claims in certain governmental lands in the Tahoe National Forest. The issue in the case was whether the defendant, who held United States Forest Service livestock grazing permits issued under 16 United States Code section 580/, had any compensable rights. We held that he did not. [It] characterized the permits as “mere licenses.” ([275 Cal.App.2d] at p. 697.) Concluding that such revocable licenses created no estate or interest in the forest property, [it] ruled that the defendant permit holder had no right to severance damages. (Id., at p. 698.) In the course of [its] opinion [it] rejected defendant’s claim that his grazing permits should be characterized as profits a prendre. “Authorities cited by [defendant] on his contention that grazing permits constitute profits a prendre, and hence an interest in the land, are not in point as none of them deal[s] with federal grazing permits or licenses.” (Id., at p. 697.) Finally, [it] found the fact that the state administrative code classified grazing rights on publicly owned land as a “taxable possessory interest” for purpose of state tax assessment to be of no consequence. “The concept of ‘property interests’ for taxation purposes is entirely different from that of compensable interests in eminent domain.” (Id., at p. 698.)
[202]It may well be that most licenses are properly considered to be interests in real property for purposes of section 846. (See [,] e.g., Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1313-1314 [240 Cal.Rptr. 142]; O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 911 [159 Cal.Rptr. 125]; see generally, 4 Witkin, Summary of Cal. Law, supra, § 481, p. 659.) Indeed, the legislative history of the 1980 amendment to the statute clearly reveals that nonpossessory interests in real property, including licenses, were intended to come within the expanded statutory definition.
As originally enacted in 1963, the statute immunized only “[a]n owner of any estate in real property.” (Stats. 1963, ch. 1759, § 1, p. 3511.) In 1980, the Legislature amended section 846 to its present form. (Stats. 1980, ch. 408, § 1.) The amendment inserted the word “or any other interest” and “whether possessory or nonpossessory” into the section’s first paragraph. [ ]
But whatever may be the case with [] interests in real property, it is indisputable that a grazing permit on federal forest lands “convey[s] no right, title, or interest held by the United States in any lands or resources.” (36 C.F.R. § 222.3(b).) As construed by the federal courts, such a permit is a revocable privilege which does not create a property interest in the federal land. “The license to graze on public lands has always been a revocable privilege. ‘It is safe to say that it has always been the intention and policy of the government to regard the use of its public lands for stock grazing, either under the original tacit consent or, as to national forests, under regulation through the permit system, as a privilege which is withdrawable at any time for any use by the sovereign without the payment of compensation.’ The rights of the . . . permittees in their grazing permits flow from three sources: 16 U.S.C. § 580/; Permit, Part 2, § 8(b); and 36 C.F.R. §§ 222.4(a)(1), (6). None of these sources supports their assertion of a property interest in the permits.” (Swim v. Bergland (9th Cir. 1983) 696 F.2d 712, 719, paragraphing deleted.) Since the grazing permit does not create any interest in federal forest lands, defendant’s claim that he is an owner of an “interest in real property” within the meaning of section 846 must fail.
As we have seen, the phrase an “interest in real property, whether possessory or nonpossessory” is a technical one which comes freighted with much legal history. As such it must be construed in its technical sense. “[Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law,. . . are to be construed according to such peculiar and appropriate meaning or definition.” ([Civ. Code,] §13.) Obviously, the Legislature did not intend to immunize tortfeasors who have no interest in the real property where the tort occurred. Rather, it intended to immunize only those who own “any estate or any other interest [203]in real property” and defendant simply does not own any such interest in the federal forest lands. Instead, defendant obtained a personal, contractual right to graze his cattle on the forest service lands. The immunity provided by section 846 is anchored to ownerships of interests in real property and hence does not extend to rights in personalty.
Moreover, given the facts of this case, our construction of the statute reinforces its underlying purpose. “The purpose of section 846,” [we have] noted, “is to encourage property owners ‘to allow the general public to recreate free of charge on privately owned property.’ This purpose is achieved by a basic declaration that owners owe ‘no duty of care to keep the premises safe’ for certain specific recreational purposes.” (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708 [190 Cal.Rptr. 494, 660 P.2d 1168], italics in original and citation omitted.) “In other words, the statutory goal is to constrain the growing tendency of private landowners to bar their land to the public for recreational uses because of the threat of gratuitous tort liability.” (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 256 [193 Cal.Rptr. 336], italics added.) That purpose would not be advanced by applying the statute when the land in question is publicly owned and is already open to the public for recreational purposes.
The defendant here made no showing that the forest service road on which plaintiff was riding was not open to the public. To succeed on a motion for summary judgment, “the defendant must conclusively negate a necessary element of the plaintiff’s case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) In the absence of such a showing, we may presume that plaintiff was lawfully using the forest service roadway. As [the Court of Appeal] explained in another case involving the use of a public right of way, there a public waterway, “we eschew an interpretation of Civil Code section 846 which would discourage the public from exercising its constitutionally protected free and unimpeded use of navigable waterways.” (Pacific Gas & Electric Co. v. Superior Court, supra, 145 Cal.App.3d at p. 259.) Consequently, we held that “the owner of an interest in real property underlying or adjacent to navigable waters is not entitled to the protection of section 846 as against persons injured while using those waters.” (Ibid.) By a parity of reasoning, the immunity of section 846 should not apply in favor of [a] grazing licensee against a member of [the] public lawfully using a forest service road open for recreational purposes.
[204]In any event, defendant did not own any interest in real property by virtue of his grazing permit and hence did not come within the terms of the immunity statute. [End of Court of Appeal opinion.]
I would affirm the judgment of the Court of Appeal.
Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor’s added parallel citations) are, unless otherwise indicated, used to denote insertions or additions. All footnotes in the Court of Appeal opinion have been deleted.