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CIV PROP 2

Civ Prop 2

by lbuck110, Nov. 2010

Subjects: 2 civil property

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	Real v. Personal Rights	A real right is a right that a person has in a thing, a matter of property law. According to appearances, a usufructuary and a lessee seem to have the same use and enjoyment of a house in much the same way, but technically, the usufructuary has a right in the enjoyment of a house; the lessee has a right against the owner of a house to let him enjoy it. One has a real right and the other a personal right. A personal right is a right that a person has against another person to demand a performance, a matter of the law of obligations. A personal right may be defined as the legal power that a person (obligee) has to demand from another person (obligor) a performance consisting of giving, doing, or not doing a thing.
	Numerus Clausus	Article 476 of the code declares “One may have various rights in things: (1) ownership; (2) personal and predial servitudes; (3) such other real rights as the law allows.” As under the prior law, ownership may be dismembered, and real rights created within limits prescribed by public policy. Article 476 does not open the door to an unregulated brood of real rights; parties may create only such real rights as legislation or custom allows.
	Art. 535. Usufruct	Usufruct is a real right of limited duration (usually lifetime of usufructuary, never more than the life of the usufructuary) on the property of another. The features of the right vary with the nature of the things subject to it as consumables or nonconsumables. • the right of ownership is a bundle of rights: usus, fructus and abusus – joined to create ownership. • Usufruct – one person is still the owner, but someone else gets to use it but not get rid of it. 2 kinds: consumable or non consumable.
	Art. 536. Consumable things	Consumable things are those that cannot be used without being expended or consumed, or without their substance being changed, such as money, harvested agricultural products, stocks of merchandise, foodstuffs, and beverages. (this is a general distinction that applies to many thing, and bears on many parts of the law) • assumed to be used and practically be destroyed by the first use. • ex. money, usufructuary gets to spend, and must later return the money, but with no interest.
	Art. 537. Nonconsumable things	Nonconsumable things are those that may be enjoyed without alteration of their substance, although their substance may be diminished or deteriorated naturally by time or by the use to which they are applied, such as lands, houses, shares of stock, animals, furniture, and vehicles. • if you give usufructary to a nonconsumable, like a painting, the person can enjoy it, look at it, etc, but not sell it or destroy it.
	Art. 538. Usufruct of consumable things (revised)	Old Art. 538. Usufruct of consumable things: If the things subject to the usufruct are consumables, the usufructuary becomes owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usufruct he is bound to pay to the naked owner either the value that the things had at the commencement of the usufruct or deliver to him things of the same quantity and quality. New Art. 538 Usufruct of consumable things: If the things subject to the usufruct are consumables, the usufructuary becomes owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usufruct he is bound EITHER to pay to the naked owner the value that the things had at the commencement of the usufruct or TO deliver to him things of the same quantity and quality.
	Art. 539. Usufruct of nonconsumable things	If the things subject to the usufruct are nonconsumables, the usufructuary has the right to possess them and to derive the utility, profits, and advantages that they may produce, under the obligation of preserving their substance. He is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct.
	Art. 540. Nature of usufruct	Usufruct is an incorporeal thing. It is movable or immovable according to the nature of the thing upon which the right exists.
	Art. 541. Divisibility of usufruct	Usufruct is susceptible to division, because its purpose is the enjoyment of advantages that are themselves divisible. It may be conferred on several persons in divided or undivided shares, and it may be partitioned among the usufructuaries.
	Art. 542. Divisibility of naked ownership	The naked ownership may be partitioned subject to the rights of the usufructuary.
	Art. 543. Partition of the property in kind or by licitation	When property is held in indivision, a person having a share in full ownership may demand partition of the property in kind or by licitation, even though there may be other shares in naked ownership and usufruct. A person having a share in naked ownership only or in usufruct only does not have this right, unless a naked owner of an undivided share and a usufructuary of that share jointly demand partition in kind or by licitation, in which event their combined shares shall be deemed to constitute a share in full ownership.
	Art. 544. Methods of establishing usufruct; things susceptible of usufruct	Usufruct may by established by a juridical act (declaration of the will that has intended legal consequences) either inter vivos or mortis causa, or by operation of law. The usufruct created by juridical act is called conventional; the usufruct created by operation of law is called legal. Usufruct may be established on all kinds of things, movable or immovable, corporeal or incorporeal.
	Art. 545. Modifications of usufruct	Usufruct may be established for a term or under a condition, and subject to any modification consistent with the nature of usufruct. The rights and obligations of the usufructuary and of the naked owner may be modified by agreement unless modification is prohibited by law or by the grantor in the act establishing the usufruct.
	Art. 546. Usufruct in favor of successive usufructuaries	Usufruct may be established in favor of successive usufructuaries. But it cannot be heritable – you must actually name the people that the usufruct has to go to – you cannot leave it someone heirs, because it must be of limited duration –and you can’t leave property to people that do not yet exist.
	Art. 547. Usufruct in favor of several usufructuaries	When the usufruct is established in favor of several usufructuaries, the termination of the interest of one usufructuary inures to the benefit of those remaining, unless the grantor has expressly provided otherwise.
	Art. 548. Existence of usufructuaries	When the usufruct is established by an act inter vivos, the usufructuary must exist or be conceived at the time of the execution of the instrument. When the usufruct is established by an act mortis causa, the usufructuary must exist or be conceived at the time of the death of the testator.
	Art. 549: Capacity to receive usufruct	Old Art. 549. Capacity to receive usufruct: Usufruct may be established in favor of a natural person or legal entity. New Art. 549. Capacity to receive usufruct: Usufruct may be established in favor of a natural person or A JURIDICAL PERSON.
	Personal Servitudes as Dismemberments of Ownership	The right of ownership, which according to traditional civilian analysis includes the elements of usus, fructus, and abusus, may lawfully be dismembered in a variety of ways either by the intention of the owner or by operation of law. The provisions of the LA code of 1870 were framed for application to predominantly conventional usufructs of immovables. Today, however, more than 90% of all usufructs are legal, bearing on movables and immovables.
	Usufruct definition	Article 535 of the code declares “usufruct is a real right of limited duration on the property of another. The features of the right vary with the nature of things subject to it as consumables or nonconsumables. Usufruct is a combination of usus and fructus – the usufructuary has a limited right to use something and has a right to the fruits but has no right to sell it. It is a dismembership of ownership.
	Consumables	LA courts have classified as consumables: money, promissory notes, certificates of deposit, negotiable instruments to the bearer, bales of cotton, and stocks of merchandise. Article 537 defines consumable things as those that may be enjoyed without alteration of their substance, although their substance may be diminished or deteriorated naturally by time or by the use to which they are applied, such as lands, houses, shares of stock, animals, furniture, and vehicles. A usufruct of consumables differs from a usufruct of nonconsumables in that it transfers to the usufructuary the ownership of things and renders the naked owner a general creditor of the usufructuary. Usufruct of consumables is rarely established under particular title. It is frequently brought about in cases of universal succession in which the patrimony of a deceased person includes both consumables and nonconsumables.
	Nonconsumables	Art. 539 of the code declares that if the things subject to the usufruct are nonconsumable, the usufructuary has the right to possess them and to derive the utility, profits, and advantages that they may produce under the obligation of preserving their substance. A usufruct of nonconsumables may under certain circumstances be converted to a usufruct of consumables, for example, when nonconsumables are converted into money as a result of expropriation for purposes of public utility.
	Things susceptible of usufruct	A usufruct may be established on all kinds of things, movable, or immovable, corporeal or incorporeal. A usufruct is an incorporeal thing.
	Conventional and Legal	A usufruct may be created either by juridical act, either inter vivos or mortis causa, or by operation of law. The usufruct created by juridical act is conventional and by law is legal.
	Plaintiff is the only child of Mr. and Mrs. Leury. Mr. Leury bought 20 shares of stock. Mrs. Leury subsequently died. A few months after her death, Mr. Leury transferred said certificate of stock to the defendant, Mr. Mayer. The certificate was community property and on the death of Mrs. Leury, her undivided interest therein was inherited by plaintiff. Defendant contends that the surviving husband, as usufructuary, had the legal right to sell the stock.	Under arts 536-538 and 629, an imperfect usufruct is one which would be useless to the usufructuary, if he did not consume or expend them or change the substance of them such as money, grains, or liquors. The imperfect usufruct transfers the ownership to the usufructuary so that he may consume, sell, or dispose of them as he thinks proper, subject to the obligation of returning the same quantity, quality, and value to the owner, or their estimated price, at the expiration of the usufruct. It is obvious that the bank stock does not fall within the purview of these articles, but represents an investment of money for the purpose of producing revenue. In such a case, the usufructuary is only entitled to the fruits, as in the case of rents of real property, the interest of money, and annuities. The argument that in the case at bar the usufructuary had the right to sell the stock because it was not producing a revenue is not only unsound in law, but unsupported by the facts of this case. Defendant is not accountable for dividends collected prior to the death of Mrs. Leury, and plaintiff Is awarded the stock plus dividends which have not been declared and paid, and all dividends received after Mrs. Leury’s death.
	The testator died without any ascendants or descendants, but was survived by his brother in law and the descendants of a predeceased half sister. He left an olographic will which provided: “all oil and gas royalty interest payments owned by me shall be paid to Pauline Parker for as long as she may live. After her death the amount of any payments shall be equally divided between my nieces and nephews. The trial court held the will was a prohibited substitution.	A prohibited substitution must contain: (1) a double disposition in full ownership of the same thing to persons named to receive it, one after the other (2) a charge to preserve and transmit the thing, imposed on the first beneficiary for the benefit of the second, and (3) the establishment of a successive order that causes the thing to leave the inheritance of the burdened beneficiary and to enter into the patrimony of the substituted beneficiary. Nevertheless the disposition of a usufruct is not prohibited, nor is the disposition of successive usufructs. In drafting his will, without the benefit of counsel, he used the word “payments” and the deliberate use of that word suggests an intent to distinguish between the legal right he had originally acquired (royalty interest) and the income which subsequently flowed from that right. He could have left his royalty interest to Pauline, but he chose to give her royalty payments. In interpreting testaments, courts should principally seek to ascertain the intention of the testator without departing from the proper signification of the testamentary words. Here, the testator clearly intended for Pauline to receive the payments made on account of his royalty interest in the property until her death and for the other named legatees to receive the payments thereafter in equal proportions. The law permitted him to accomplish this intention by giving the usufruct to one and naked ownership to the others.
	: The mother of three children is married to Mr. Smith who dies. She then remarries Nelson. Some years later she executed a will that left property acquired during her first marriage to her children, the property acquired during her second marriage to Nelson and further declared: Should my children claim the legitime, then I give and bequeath to my said husband the usufruct of all the property, movable and immovable, that was acquired during our marriage. Two smith heirs instituted this suit, the third brother dead, leaving minor children. Nelson has remarried and plaintiffs allege he has lost his usufruct by operation of law and that the minor children and them own the property acquired by the second community. They are unwilling to hold the property in indivision and desire a partition.	The usufruct of Nelson is not affected by his remarriage. The law which confers the right to the partition of a thing held in common has no application to those who hold respectively, the fragments of a dismembered title to the same immovable property, for the reason that in such case, the title being dismembered, each part Is a distinct thing, held by a different owner, and there is no thing held in common. The owner of property may mortgage, sell, or alienate the thing subject to the usufruct without the consent of the usufructuary but he is prohibited from doing it in such circumstances and in such conditions as may be injurious to the enjoyment of the usufructuary. Here, partition is not allowed.
	Plaintiffs bring this action for declaratory judgment to seek declaration that defendant, who owns usufruct on part of the land, has no right or interest in the gas, oil, or other minerals thereunder and was therefore without authority to grant a mineral lease to the other defendant.	Since minerals such as oil are part of the land itself, if follows that they cannot be used by a usufructuary of land if such use will alter their substance. Oil and gas have no use unless their substance is altered and, therefore, it is apparent that the usufructuary of land cannot use any oil or gas which exists under the land, thus they do not have the right to explore for these minerals and withdraw them from the land. The usufructuary only has rights in the natural fruits of the land. Art. 560 declares that the usufructuary has the right to draw all the profits which are usually produced by the thing subject to the usufruct – for example, cut trees, take stones or sand – provided he acts as a prudent administrator and does not abuse the right accorded. Art. 561 restricts enjoyment and proceeds of mines and quarries to those that were already opened before the commencement of the usufruct. Furthermore, the lessee’s rights are not subordinate to the rights of the usufructuary and does not need to obtain consent before entering land.
	LA Mineral Code	mineral rights are not included in usufruct of land except as specifically provided by these articles: 1. conventional usufruct by express provision 2. if mines or quarries are already open 3. if usufruct of land is that of a surviving spouse, whether legal or conventional, the usufructuary is entitled to righs in minerals whether or not mines or quarries were worked at time usufruct was created, but this does not include right to execute a mineral lease without consent of naked owner 4. oil and gas operations are considered open mines when a surface production test shows it is capable of producing in paying quantities. 5.lignite and other coal are considered open mines when the land has been included in a mining plan filed in conveyance records 6. if land is subject to a lease, the usufructuary is entitled only to royalties on actual or constructive production. When lease terminates, usufructuary can grant a lease but it may not extend beyond the period of his usufruct 7. the usufruct of a mineral right is equivalent to full ownership rights and usufructuary not obligated to acount to naked owner for value of mineral production 8. if usufruct of land does not include mineral rights, the naked owner has all the rights in minerals that he would have if the land were not subject to the usufruct, but is responsible for damages caused by mining activities and is liable for damages by his grantees
	The usufructuary of a tract of land sought a declaratory judgment authorizing a clear-cut on the tract (cutting all timber). The naked owner opposed.	Article 562 says “When the usufruct includes timberlands, the usufructuary is bound to manage them as a prudent administrator. The proceeds of timber operations that are derived from proper management of timberlands belong to the usufructuary.” The first issue is whether the right of the usufructuary extends to land that contains valuable timber but has never been exploited or managed as “timberland.” The court found that for the tract not to be considered “timberland” it would have to create an alternative legal definition, requiring that the tract be exploited and managed for timber prior to the initiation of the usufruct. The court declines to do so since it would revert the article back to the original version that was previously rejected. The second issue is whether a clear-cut of the land would be an act of a prudent administrator. The court says that this is a flexible standard and depends on the age, size, location, condition, and density of timber – a finding of fact for the jury. Here, the court found it was a prudent act because the benefits of cutting all trees greatly outweighed the risks of leaving some of them there due to the fact that the tract had been neglected for some time. Accordingly, Mrs. Kennedy is entitled to the proceeds of the timber.
	Art. 550. Right to all fruits	The usufructuary is entitled to the fruits of the thing subject to usufruct according to the following articles. Know difference between fruits and products – products part of the thing itself Minerals are products. Usufructuary does not take products; with exception, 560
	Art. 566. Actions	The usufructuary may institute against the naked owner or third persons all actions that are necessary to insure the possession, enjoyment, and preservation of his right.
	Art. 567. Contracts affecting the usufructuary's liability (revised)	Old: The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct. If the usufructuary leases, alienates, or encumbers his right, he is responsible for the abuse that the person with whom he has contracted makes of the property. New: The usufructuary may lease, ALIENATE, or encumber his right. All such contracts cease of right at the end of the usufruct. If the usufructuary leases, alienates, or encumbers his right, he is responsible TO THE NAKED OWNER for the abuse that the person with whom he has contracted makes of the property.
	Art. 2716. Termination of lease granted by a usufructuary	A lease granted by a usufructuary terminates upon the termination of the usufruct. The lessor is liable to the lessee for any loss caused by such termination, if the lessor failed to disclose his status as a usufructuary.
	Plaintiffs are the heirs of an estate that was given to them when their uncle died. They were given ownership while his widow was given a usufruct. During her life, the widow leased the estate to defendant for a five year term. She then died, and plaintiffs notified defendant that the lease was terminated because she had a life usufruct. Defendant pleaded that the plaintiffs were estopped by their unconditional acceptance of the succession of the lessor, and had no right of action to contest the lease. This was overruled. Plaintiffs the filed a supplemental petition averring that defendant was informed that she did not own the property but only had a usufruct which would terminate at her death. Defendant denies this.	The defense relies on the doctrine of a warranty obligation – they argue that there is an obligation of a lessor, to warrant and defend the lessee’s right of right of possession of the leased premises, and this obligation survives as an obligation of the succession of the lessor, in the event of his death before the expiration of the term of the lease. However, this obligation only applies in cases where the lessor claimed to be or pretended to be the owner of the leased premises. See art. 2716. A lease made by an usufructuary ceases of right at the expiration of the usufruct whether the lessor informed the lessee or failed to inform him, before or at the time of making the lease, that he was only a usufructuary, and not the owner. If the lessor failed to make it known, the lessee must be indemnified by the heirs.
	Art. 570. Inventory	The usufructuary shall cause an inventory to be made of the property subject to the usufruct. In the absence of an inventory the naked owner may prevent the usufructuary's entry into possession of the property.
	Art. 571. Security	The usufructuary shall give security that he will use the property subject to the usufruct as a prudent administrator and that he will faithfully fulfill all the obligations imposed on him by law or by the act that established the usufruct unless security is dispensed with.
	Art. 572. Amount of security	The security shall be in the amount of the total value of the property subject to the usufruct. The court may increase or reduce the amount of the security, on proper showing, but the amount shall not be less than the value of the movables subject to the usufruct.
	Art. 573. Dispensation of security (revised)	OLD: Security may be dispensed with by the grantor of the usufruct or by operation of law. Legal usufructuaries, and sellers or donors of property under reservation of usufruct, are not required to give security. NEW: A. Security is dispensed with when any of the following occur: (1) A person has a legal usufruct under Civil Code Article 223 or 3252. (2) A surviving spouse has a legal usufruct under Civil Code Article 890 unless the naked owner is not a child of the usufructuary or if the naked owner is a child of the usufructuary and is also a forced heir of the decedent, the naked owner may obtain security but only to the extent of his legitime. (3) A parent has a legal usufruct under Civil Code Article 891 unless the naked owner is not a child of the usufructuary. (4) A surviving spouse has a legal usufruct under Civil Code Article 2434 unless the naked owner is a child of the decedent but not a child of the usufructuary. B. A seller or donor of property under reservation of usufruct is not required to give security.
	Art. 574. Delay in giving security	OLD: A delay of giving security does not deprive the usufructuary of the fruits derived from the property since the commencement of the usufruct. NEW: A delay IN giving security does not deprive the usufructuary of the fruits derived from the property since the commencement of the usufruct.
	Art. 575. Failure to give security	If the usufructuary does not give security, a proper (THE) court may order that the property be delivered to an administrator appointed in accordance with Articles 3111 through 3113 of the Code of Civil Procedure for administration on behalf of the usufructuary. The administration terminates if the usufructuary gives security.
	Art. 576. Standard of care	The usufructuary is answerable for losses resulting from his fraud, default, or neglect. (this is NOT a tort action)
	Art. 577. Liability for repairs	The usufructuary is responsible for ordinary maintenance and repairs for keeping the property subject to the usufruct in good order, whether the need for these repairs arises from accident (OR FORCE MAJEURE), from the normal use of the things, or from his fault or neglect. The naked owner is responsible for extraordinary repairs, unless they have become necessary as a result of the usufructuary's fault or neglect in which case the usufructuary is bound to make them at his cost.
	Art. 578. Ordinary and extraordinary repairs	Extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct. All others are ordinary repairs. (usu. is responsible for such repairs that pertain to the use and enjoyment of the property) (usu. cannot compel the naked owner to make any of those repairs, all it means that the naked owner can do it, but if he does not, and the usufructuary does not, then the naked owner has an obligation to pay back (without interest at the end of the usufruct) since there are improvements that the usufructuary made that were not his responsibility) (naked owner can compel usu to make the usual repairs during the term of the usufructuary) (if the usufruct doesn’t do it, the naked owner can do it and then make usu. pay.)
	Art. 579. Rights of action for repairs	During the existence of the usufruct, the naked owner may compel the usufructuary to make the repairs for which the usufructuary is responsible. The usufructuary may not compel the naked owner to make the extraordinary repairs for which the owner is responsible. If the naked owner refuses to make them, the usufructuary may do so, and he shall be reimbursed without interest by the naked owner at the end of the usufruct.
	Art. 580. Reimbursement for necessary repairs	If, after the usufruct commences and before the usufructuary is put in possession, the naked owner incurs necessary expenses or makes repairs for which the usufructuary is responsible, he(THE NAKED OWNER) has the right to claim the cost thereof from the usufructuary and may retain the possession of the things subject to the usufruct until he is paid.
	Art. 581. Liability for necessary expenses	The usufructuary is answerable for all expenses that became (BECOME) necessary for the preservation and use of the property after the commencement of the usufruct.
	Art. 582. Abandonment of usufruct	The usufructuary may release himself from the obligation to make repairs by abandoning the usufruct or, with the approval of the court, a portion thereof, even if the owner has instituted suit to compel him to make repairs or bear the expenses of them, and even if the usufructuary has been cast in judgment.
	Art. 583. Ruin from accident or decay (FORCE MAJEURE, OR AGE)	Neither the usufructuary nor the naked owner is bound to restore property that has been totally destroyed through accident(, FORECE MAJEURE) or because of age. If the naked owner elects to restore the property or to make extraordinary repairs, he must (SHALL) do so within reasonable time and in the manner least inconvenient and onerous for the usufructuary.
	Art. 584. Annual (PERIODIC) charges	The usufructuary is bound to pay the annual(PERIODIC) charges, (SUCH AS PROPERTY TAXES, THAT MAY BE) imposed during his enjoyment (OF THE USUFRUCT.) on the property subject to the usufruct, such as property taxes. The naked owner, in order to avoid a tax sale of his property, may pay the taxes due by the usufructuary and bring against him an action for reimbursement.
	Art. 585. Extraordinary charges	The usufructuary is bound to pay the extraordinary charges that may be imposed, during the existence of the usufruct, on the property subject to it. If these charges are of a nature to augment the value of the property subject to the usufruct, the naked owner shall reimburse the usufructuary at the end of the usufruct only for the capital expended.
	Art. 586. Liability for debts; usufruct inter vivos	When the usufruct is established inter vivos, the usufructuary is not liable for debts of the grantor, (BUT IF THE DEBT IS SECURED BY AN ENCUMBRANCE OF THE THING SUBJECT TO THE USUFRUCT, THE THING MAY BE SOLD FOR THE REPAYMENT OF THE DEBT.) When the property subject to the usufruct is burdened with a mortgage, pledge, or privilege, the usufructuary may discharge the indebtedness and may claim reimbursement only for the capital he has expended. In the case of a gratuitous usufruct, the action for reimbursement shall lie against the naked owner at the end of the usufruct, subject to the provisions contained in the title: of donations inter vivos and mortis causa. In the case of an onerous usufruct, the action shall be against the grantor, subject to the provisions contained in the title: sale.
	Art. 587. Liability for debts; usufruct (ESTABLISHED) mortis causa	Old: When the usufruct is established mortis causa, the position of the usufructuary relative to the payment of the debts of the succession depends upon whether the usufruct is universal, under universal title, or under particular title. The usufruct of an entire succession is universal, of a fraction thereof is under universal title, and of individually determined things is under particular title. New: When the usufruct is established mortis causa, the usufructuary is not liable for estate debts, but the property subject to the usufruct may be sold for the payment of estate debts, in accordance with the rules provided for the payment of the debt of an estate in Book III of this Code.
	Art. 588. Usufruct under particular title (DISCHARGE OF DEBT ON ENCUMBERED PROPERTY; USUFRUCT ESTABLISHED INTER VIVOS)	OLD: The legatee of a usufruct under particular title is not liable for the debts of the succession. When the property subject to the usufruct is burdened with a mortgage, pledge, or privilege, the usufructuary may discharge the indebtedness and may claim reimbursement only for the capital he has expended. The action for reimbursement shall lie against the naked owner at the end of the usufruct, subject to the provisions contained in the title: Of donations inter vivos and mortis causa. NEW: When property subject to a usufruct established inter vivos is encumbered to secure a debt before the commencement of the usufruct, the usufructuary may advance the funds needed to discharge the indebtedness. If he does so, the naked owner shall reimburse the usufructuary, without interest, at the termination of the usufruct, for the principal of the debt the usufructuary has discharged, and for any interest the usufructuary has paid that had accrued on the debt before the commencement of the usufruct.
	Art. 589. Universal usufruct and usufruct under universal title (DISCHARGE OF DEBT ON ENCUMBERED PROPERTY BY MORTIS CAUSA USUFRUCTUARY)	OLD: Neither the universal usufructuary nor the usufructuary under universal title is liable for the debts of the succession. Nevertheless, the property subject to their usufruct may be seized and sold for the payment of succession debts. NEW: If the usufructuary of a usufruct established mortis causa advances funds to discharge an estate debt charged to the property subject to the usufruct, the naked owner shall reimburse the usufructuary, without interest, at the termination of the usufruct, but only to the extent of the principal of debt he has discharged and for any interest he has paid that had accrued on the debt before the commencement of the usufruct.
	Art. 590. Sale of property to pay succession debts (ENCUMBERED PROPERTY; DISCHARGE OF DEBT ON ENCUMBERED PROPERTY BY NAKED OWNER)	OLD: When it is necessary to satisfy a creditor of the succession, the succession representative with the authorization of the proper court or the universal successor may sell so much of the property subject to a universal usufruct or usufruct under universal title, as may be required to yield a sum for the discharge of the indebtedness. The usufructuary may prevent the sale by advancing the funds needed in accordance with the following provisions. NEW: If the usufructuary fails or refuses to advance the funds needed to discharge a debt secured by property subject to the usufruct, or an estate debt that is charged to the property subject to the usufruct, the naked owner may advance the funds needed. If he does so, the naked owner may demand that the usufructuary pay him interest during the period of the usufruct. If the naked owner does not advance the funds, he may demand that all or part of the property be sold as needed to discharge the debt.
	Art. 591. Advance of sums; measure of liability (CONTINUATION OF USUFRUCT AFTER SALE OF PROPERTY)	OLD: The universal usufructuary must advance the funds needed for the discharge of all the debts of the succession. The usufructuary under universal title must contribute to the payment of the debts of the succession in proportion to the value of the property subject to the usufruct. NEW: If property subject to the usufruct is sold to pay an estate debt, or a debt of the grantor, the usufruct attaches to any proceeds of the sale of the property that remain after payment of the debt.
	Art. 592. Return of capital; payment of interest (MULTIPLE USUFRUCTUARIES; CONTRIBUTION TO PAYMENT OF ESTATE DEBTS)	OLD: When the usufructuary advances funds needed for the discharge of the debts of the succession, he shall be reimbursed without interest at the end of the usufruct. When the usufructuary does not make such an advance, the universal successor may make the necessary advance, for which the usufructuary shall pay interest during the period of the usufruct, or sell a part of the property subject to the usufruct. NEW: If there is more than one usufructuary of the same property, each contributes to the payment of estate debts that are charged to the property in proportion to his enjoyment of the property. If one or more of the usufructuaries fails to advance his share, those of them who advance the funds shall have the right to recover the funds they advance from those who do not advance their shares.
	Art. 593. Discharge of legacy of annuity	OLD: The legacy of an annuity must be acquitted wholly by the universal usufructuary. If the legacy of the usufruct is under universal title, it must be acquitted by the usufructuary in proportion to his enjoyment. NEW: Unless there is a governing testamentary disposition, the legacy of an annuity that is chargeable to property subject to a usufruct is payable first from the fruits and products of the property subject to the usufruct and then from the property itself.
	Art. 594. Court costs; expenses of litigation	Court costs in actions concerning the property subject to the usufruct are taxed in accordance with the rules of the Code of Civil Procedure. Expenses of litigation other than court costs are apportioned between usufructuaries and naked owners in accordance with the ensuing(FOLLOWING) articles.
	Art. 595. Expenses of litigation; legal usufruct	Parents who have a legal usufruct of the property of their children are bound for expenses of litigation concerning that property, in the same manner as if they were owners of it; but reimbursement may be ordered by the court at the termination of the usufruct in cases in which inequity might otherwise result.
	Art. 596. Expenses of litigation; conventional usufruct	Conventional usufructuaries are bound for expenses of litigation with third persons concerning the enjoyment of the property. Expenses of litigation with third persons concerning both the enjoyment and the ownership are divided equitably between the usufructuary and the naked owner. Expenses of litigation between the usufructuary and the naked owner are borne by the person who has incurred them.
	Art. 597. Liability of the usufructuary for servitudes	The usufructuary who loses a predial servitude by nonuse or who permits a servitude to be acquired on the property by prescription is responsible to the naked owner.
	Art. 598. Duty to give information to owner	If, during the existence of the usufruct, a third person encroaches on the immovable property or violates in any other way the rights of the naked owner, the usufructuary must inform the naked owner. When he fails to do so, he shall be answerable for the damages that the naked owner may suffer.
	Art. 599. Usufruct of a herd of animals	When the usufruct includes a herd of animals, the usufructuary is bound to use it as a prudent administrator and, from the increase of the herd, replace animals that die. If the entire herd perishes without the fault of the usufructuary, the loss is borne by the naked owner.
	Art. 600. Disposition of animals	The usufructuary may dispose of individual animals of the herd, subject to the obligation to deliver to the naked owner at the end of the usufruct the value that the animals had at the time of disposition. The usufructuary may also dispose of the herd or of a substantial part thereof, provided that he acts as a prudent administrator. In such a case, the proceeds are subject to the provisions of Article 618.
	Art. 601. Removal of improvements	The usufructuary may remove all improvements he has made, subject to the obligation of restoring the property to its former condition. He may not claim compensation (REIMBURSEMENT) from the owner for improvements that he does not remove or that cannot be removed.
	Art. 602. Set off against damages	The usufructuary may set off against damages due to the owner for the destruction or deterioration of the property subject to the usufruct the value of improvements that cannot be removed, provided they were made in accordance with Article 558.
	The issue is whether the executor of a will must furnish security, even though the will specifically states that he does not have to.	LA CCP art. 3154 is mandatory in nature, requiring only a finding that the applicant for security is a forced heir; there-after the discretion is afforded to the trial court in determining the amount of the security. Here, appellees are forced heirs under arts. 1493 and 1495.
	The issues are (1) whether the succession or the usufructuary should bear the costs of repair and maintenance of the family home and (2) whether the testamentary executrix should be held personally liable for penalties and interest assessed against the succession because of the late payment of the federal estate tax. Appellant argues that the expenses for the maintenance of the home should be paid by the usufructuary, while appellee argues they should be borne by the succession.	La. CCP art. 3221 provides: “A succession representative shall preserve, repair, maintain, and protect the property of the succession.” The court finds that this article does not apply when the usufructuary is in possession. Therefore, appellee does not have authority to institute these repairs in her capacity as executrix. Furthermore, the usufructuary cannot compel the naked owner to make repairs – his only remedy is reimbursement for extraordinary repairs at the end of the usufruct. For the second issue, the court found that appellee, as executrix, was not at fault in the handling of these taxes and therefore, the penalties could not be taken from her share of the estate.
	A husband dies leaving his widow and three kids from a prior marriage (forced heirs). The widow becomes administratix and takes the position that the kids are liable for their half of the mortgage debt. The kids take the position that the administricx, as a usufructuary is alone responsible for the mortgage debt.	The usufructuary has no legal obligation to pay the half of the mortgage debt attributable to the forced heirs’ interest in the automobile and property. However, assuming that either the usufructuary or the forced heirs elect to pay the succession debt in order to prevent seizure of the property, art. 592 applies which provides: “when the usufructuary advances funds needed for the discharge of the debts of the succession, he shall be reimbursed without interest at the end of the usufruct. When the usufructuary does not make such an advance, the universal successor may make the necessary advance, for which the usufructuary shall pay interest during the period of the usufruct, or sell a part of the property subject to the usufruct.”
	Art. 607. Death of the usufructuary	The right of usufruct expires upon the death of the usufructuary.
	Art. 608. Dissolution of legal entity; thirty year limitation	OLD: A usufruct established in favor of a legal entity other than a natural person terminates when the entity ceases to exist, or upon the lapse of thirty years from the date of the commencement of the usufruct. (In other modern civil codes there is no termination after 30 years.) NEW: A usufruct established in favor of a juridical person terminates if the juridical person is dissolved or liquidated, but not if the juridical person is converted, merged or consolidated into a successor juridical person. In any event, a usufruct in favor of a juridical person shall terminate upon the lapse of thirty years from the date of the commencement of the usufruct. This Article shall not apply to a juridical person in its capacity as the trustee of a trust. Note:The last sentence explains that a trust is not itself a juridical person and therefore the Article does not apply to it. A trust is a "relationship." La. R.S. 9:1731. Nevertheless, the trustee may be a corporate or institutional trustee which a juridical person and it is intended this article not affect the trust in that event.
	Art. 609. Termination of legacy of revenues	A legacy of revenues from specified property is a kind of usufruct and terminates upon death of the legatee unless a shorter period has been expressly stipulated
	Art. 610. Usufruct for a term or under condition	A usufruct established for a term or subject to a condition terminates upon the expiration of the term or the happening of the condition.
	Art. 611. Term; transfer of usufruct to another person	When the usufructuary is charged to restore or transfer the usufruct to another person, his right terminates when the time for restitution or delivery arrives. -Sanctions the right to successive usu. by clear implication. --If you transfer the usu. to another, you are still the usu., they become a sub-usufructuary, the whole thing passes when the usufructuary dies. You giving the sub-usu. the rights to use and enjoy the property
	Art. 612. Term; third person reaching a certain age	A usufruct granted until a third person reaches a certain age is a usufruct for a term. If the third person dies, the usufruct continues until the date the deceased would have reached the designated age.
	Art. 613. Loss, extinction, or destruction of property	The usufruct of nonconsumables terminates by the permanent and total loss, extinction, or destruction through accident (FORCER MAJEURE) or decay of the property subject to the usufruct. --If property floods and then the water recedes the usu. is not terminated.
	Art. 614. Fault of a third person	When any loss, extinction, or destruction of property subject to usufruct is attributable to the fault of a third person, the usufruct does not terminate but attaches to any claim for damages and the proceeds therefrom.
	Art. 615. Change of the form of property	When property subject to usufruct changes form without any act of the usufructuary, the usufruct does not terminate even though the property can no longer serve the use for which it was originally destined. When property subject to usufruct is converted into money or other property without an act of the usufructuary, as in a case of expropriation of an immovable or liquidation of a corporation, the usufruct does not terminate but (TERMINATES BUT AS TO THE PROPERTY COVERTED AND) attaches to the money or other property (RECEIVED BY THE USUFRUCTUARY).
	Art. 616. Sale OR EXCHANGE of the property; TAXES	OLD: When property subject to usufruct is sold, whether in an action for partition or by agreement between the usufructuary and the naked owner, the usufruct attaches to the proceeds of the sale unless the parties provide otherwise. NEW: When property subject to usufruct is sold or exchanged, whether in an action for partition or by agreement between the usufructuary and the naked owner or by a usufructuary who has the power to dispose of nonconsumable property, the usufruct terminates as to the nonconsumable property sold or exchanged, but as provided in Article 568.1, the usufruct attaches to the money or other property received by the usufructuary, unless the parties agree otherwise. Any tax or expense incurred as the result of the sale or exchange of property subject to usufruct shall be paid from the proceeds of the sale or exchange, and shall be deducted from the amount due by the usufructuary to the naked owner at the termination of the usufruct.
	Art. 617. Proceeds of insurance	When proceeds of insurance are due on account of loss, extinction, or destruction of property subject to usufruct, the usufruct attaches to the proceeds. If the usufructuary or the naked owner has separately insured his interest only, the proceeds belong to the insured party. --Usufructary or naked owner may insure their own interest, and then they get the proceeds. If the insurance is on the thing, then the usu. attaches to the proceeds from the insurance, with the obligation to invest the proceeds wisely. CC 618.
	Art. 618. Investment of money (SECURITY FOR PROCEEDS)	OLD: In cases governed by Articles 614, 615, 616, and the first sentence of Article 617, the naked owner may demand, within one year from receipt of the proceeds by the usufructuary, that the money be safely invested subject to the right of the usufructuary. If such a demand is made, and the parties cannot agree, the nature of the investment shall be determined by the court. This article does not apply to corporeal movables referred to in Article 568. NEW: In cases governed by Articles 614, 615, 616, and the first sentence of Article 617, the naked owner may demand, within one year from receipt of the proceeds by the usufructuary that the usufructuary give security for the proceeds. If such a demand is made, and the parties cannot agree, the nature of the security shall be determined by the court. This Article does not apply to corporeal movables referred to in the second sentence of Article 568, or to property disposed of by the usufructuary pursuant to the power to dispose of nonconsumables if the grantor of the usufruct has dispensed with the security.
	Art. 619. Changes made by the testator	A usufruct by donation mortis causa is not considered as revoked merely because the testator has made changes in the property after the date of his will (TESTAMENT). The effect of the legacy is determined by application of the rules contained in the title: Of donations inter vivos and mortis causa.
	Art. 620. Sale of the property or of the usufruct	Usufruct terminates by the enforcement of a mortgage placed (AN ENCUMBRANCE ESTABLISHED) upon the property prior to the creation of the usufruct (TO SECURE A DEBT). The usufructuary may have an action against the grantor of the usufruct or against the naked owner under the provisions established in the third section of this chapter. The sale of the property by the naked owner after the usufruct has been created or the enforcement of a mortgage placed upon the property by the naked owner after the creation of the usufruct does not affect the right of the usufructuary. The judicial sale of the usu. by creditors of the usu. deprives the usu. of his enjoyment of the property but doesn’t terminate the usu. (The elmination of paragraph 2 is not intended to change the law. It is already covered in art. 603)
	Art. 621. Prescription of nonuse	A usufruct terminates by the prescription of nonuse if neither the usufructuary nor any other person acting in his name exercises the right during a period of ten years. This applies whether the usufruct has been constituted on an entire estate or on a divided or undivided part of an estate.
	Art. 622. Confusion of usufruct and naked ownership	A usufruct terminates by confusion when the usufruct and the naked ownership are united in the same person. The usufruct does not terminate if the title by which the usufruct and the naked ownership were united is annulled for some previously existing defect or some vice inherent in the act.
	Art. 623. Abuse of the enjoyment; (CONSEQUENCES)	A THE usufruct may be terminated by the naked owner if the usufructuary commits waste, alienates things without authority, neglects to make ordinary repairs, or abuses his enjoyment in any other manner.
	Art. 624. Consequences of abuse SECURITY TO PREVENT TERMINATION	In the cases covered by the preceding article, the court may decree termination of the usufruct or decree that the property be delivered to the naked owner on the condition that he shall pay to the usufructuary a reasonable annuity until the end of the usufruct. The amount of the annuity shall be based on the value of the usufruct. The usufructuary may prevent termination of the usufruct or delivery of the property to the naked owner by giving security to insure that he will take appropriate corrective measures within a period fixed by the court.
	Art. 625. Intervention by creditors of the usufructuary	A creditor of the usufructuary may intervene and may prevent termination of the usufruct or AND delivery of the property to the naked owner by offering to repair the damages caused by the usufructuary and by giving security for the future.
	Art. 626. Renunciation; rights of creditors	A usufruct terminates by an express written renunciation. A creditor of the usufructuary may cause to be annulled a renunciation made to his prejudice.
	Art. 627. Right of retention	Upon termination of the usufruct, the usufructuary or his heirs have the right to retain possession of the property until reimbursed for all expenses and advances for which they have recourse against the owner or his heirs.
	Art. 628. Consequences of termination; usufruct of nonconsumables	Upon termination of a usufruct of nonconsumables for a cause other than total and permanent destruction of the property, full ownership is restored. The usufructuary or his heirs are bound to deliver the property to the owner with its accessories and fruits produced since the termination of the usufruct. If property has been lost or deteriorated through the fault of the usufructuary, the owner is entitled to the value the property otherwise would have had at the termination of the usufruct.
	Art. 629. Consequences of termination; usufruct of consumables	At the termination of a usufruct of consumables, the usufructuary is bound to deliver to the owner things of the same quantity and quality or the value they had at the commencement of the usufruct.
	Mrs. Barry gets in a car accident by fault of defendants and alleges $925 in damages. The issue is that Mrs. Barry owns an undivided one-half interest in the car and has only a usufruct of the remaining one half which is owned by the 4 surviving children of the marriage. Defendants contend that under arts. 613 and 614, “the usufruct expires before the death of the usufructuary, by the loss, extinction or destruction of the thing subject to the usufruct.” The defendants argue that when the automobile was destroyed, the usufruct terminated and hence all naked owners are indispensible parties.	The court concludes that the usufruct does not terminate, but instead attaches to the claim for damages due by the wrongdoer. Hence, the naked owners of the interest subject to the surviving spouse’s usufruct are not indispensible parties to the action. The provision of the article contemplates a loss that is purely accidental, namely, a loss that is not attributed to the fault of any person. The fact that the usufructuary gets the proceeds is not contrary to the interests of the naked owners because if the usufructuary had enjoyed the automobile until the end of its useful life, the naked owners would only be entitled to take it as junk.
	Defendants had a usufruct over two houses that were in horrible condition. They were infested with termites and literally falling apart. Because they were not safe to live in, defendants knocked them down with a tractor and moved a mobile home onto the property. Plaintiffs urge that the usufruct should be considered terminated on the ground that the property subject to the usufruct has been totally and permanently lost.	Art. 613 reads, “the usufruct of noncomsumables terminates by the permanent and total loss, extinction, or destruction through accident or decay of the property subject to the usufruct.” The usufruct in the case at hand extended to not only the two houses but the yards surrounding them as well. Thus. the removal of these structures did not effectuate a total loss of the usufruct. Plaintiffs also argue that defendants committed waste or neglected to make ordinary repairs or abused their enjoyment of the usufruct under art. 623. Yet the facts clearly reflect that these structures were old and decayed. Neither the usufructuary nor the naked owner is bound to restore property that has been totally destroyed through accident or because of age. (art. 583). Finally, plaintiffs argue that defendant’s failure to pay property taxes terminates the usufruct. Although art. 584 places the obligation to pay property taxes on the usufructuary, it does not provide for termination of the usufruct. The only action plaintiffs have under this article is reimbursement.
	Mrs. Kimball is convicted of murdering her husband and goes to jail. While in jail, the house that she owned with her late husband burns down. It is suspected that it was arson because many furnishings and fixtures were removed before the fire. Mrs. Kimball as a usufructuary of the property had the property insured and for whatever reason, the insurance company decided to pay her in full without contesting the cause of the fire. With this money, she paid her bail and ran. Her children, the naked owners of the property, want to intervene because they were owners in indivision with Mrs. Kimball. They claim that the proportion of the insurance policy reflective of their ownership interests is due to them.	Article 617 reads: “when proceeds of insurance are due on account of loss, extinction, or destruction of property subject to the usufruct, the usufruct attaches to the proceeds. If the usufructuary or the naked owner has separately insured his interest only, the proceeds belong to the insured party.” Unfortunately, the usufruct of Mrs. Kimball has metamorphosed into a usufruct of insurance proceeds under article 890 which does not terminate until her death or remarriage and she was entitled to insure the full value of the property.
	Mr. Estes executes a mortgage and his wife waived any homestead exemption rights she might have in the encumbered property. He died and left a usufruct on the property to his wife and one fourth interest to each of his four children. Money judgments in favor of the bank were rendered against three of the children, but not Ms. Poussin. A judicial sale was conducted and the proceeds were paid to the bank in partial satisfaction of the money judgments against three of the children. The widow and Ms. Poussin sue to recover these funds.	The issue is whether a usufruct, which was subject to a prior mortgage, applies to any of the excess proceeds after the superior mortgage has been satisfied by a judicial sale. Art. 620 contemplates that the enforcement of a mortgage placed on property prior to the creation of the usufruct terminates the usufruct only to the extent necessary to satisfy the mortgage obligation. Should there by any proceeds remaining after the sale, the usufruct attaches to those proceeds.
	Hayes was both usufructuary and administrator of the succession. So there were bales of cotton that belonged to the deceased and as to those bales of cotton, the administrator also had a usufruct. The administrator sold the cotton for what became useless money after the war – now he is making an accounting for the succession – as administrator, if he sold the cotton in his best judgment, then he is not accountable, nor responsible for the loss. But if he is usufructutary, then he has the obligation to be a prudent administrator – and since the bales of cotton are consumables, the usufructuary owns them, and there is no question of prudent administration and he can do with them as he pleases. So who should incur the loss?	If he was usufructuary, then loss would be incurred by the usufructuary. If he were administrator, the naked owner would have the loss, unless he was negligent. The court holds that since he was usufructuary, he exercised his legal right in selling it and thus contracted the obligation of returning the same or the value of the thing. The court finds him to have been acting as a usufructuary because he was speculating about cotton in this sale, and as administrator, you are not allowed to speculate with someone else’s money.
	There are shares of stock in usufruct and community property to the father after the mother died – ½ belong to naked owners, children and ½ to the father – stock is non consumables, therefore the shares of stock do not belong to the usufructuary. The father remarried and transferred the ownership to the new wife. But the usufruct terminated on remarriage. The children want their shares of stock back, but chose not to sue during the life of the father, and the father died. Now they want the stock back but she pleads prescription of 10 years.	The step mother is pleading liberative prescription for a personal action, but the court rejected that defense of liberative prescription. An action for accounting is a personal action, subject to the 10 year prescription of 3499. But the court does not buy this argument. The court says that because they are the rightful owners, they can bring the revindicatory action, which is for the return of the shares, which is a real action, which does not have a liberative prescription period. The real action here is a revindicatory action, with no prescription. Also, the father could not have transferred ownership to the step mother because he was a precarious possessor for the children, and therefore, she as the transferee could not acquire the ownership through acquisitive prescription.
	There are several kinds of usufructs that are established by operation of law in Louisiana:	1. Article 223: Parental usufruct over property of minor children during marriage. 2. Article 890: Usufruct of surviving spouse. 3. Article 891: Usufruct of parents over separate property inherited in naked ownership by siblings of the deceased child. 4. Article 2434: Marital portion in usufruct over property inherited by descendants.
	Husband died and left to his wife: “I give and bequeath to my wife Dorothy Prejean Rozas, our home property located at 1115 Dietlein Boulevard, together with the vacant lot located to the south of such residence, including all furnishing, furniture and contents. I also will and bequeath to my wife, the personal automobile which she may be using at the time of my death. Subject to the above, I will and bequeath to my wife, Dorothy Prejean Rozas, the usufruct of all properties owned by me, movable and immovable, separate and community, including the usufruct of all royalties and minerals… I further will and bequeath to my wife Dorothy Prejean Rozas, such additional bonds, and stock and cash in order that she would receive, including the above bequest, one-half of the net value of my estate.” Widow gets remarried. Daughters sought to have the usufruct terminated. Was the usufruct granted legal or testamentary? (because if it was legal it terminates upon remarriage)	The court holds the usufruct was legal and ended with remarriage. “In other words, the surviving spouse is enti¬tled to the legal usufruct under Article 890 unless a testamentary disposition is adverse to the legal usufruct. The Louisiana Supreme Court in Succession of Waldron, supra, observed that such an adverse disposition may occur when the testator makes an excessive disposition to persons other than the surviv¬ing spouse of the portion of the estate which is subject to the legal usufruct, or, very simply, if the testator expressly states his intention that the legal usu¬fruct does not apply.” “A testator enjoys testamentary freedom not to con¬firm the legal usufruct under Article 890, and he may by will enlarge or diminish the rights that the surviving spouse has under Article 890 in the absence of a will. As in the past, the question of the nature of the usufruct that the testa¬tor intended to create is a matter of testamentary interpretation. In the ab¬sence of express language qualifying the usufruct as legal or testamentary, the intent of the testator must be gathered from the provisions of the will.” Here, the court finds no indication that the intent was anything more than to confirm the legal usufruct.
	Is there a different between testamentary usufruct in favor of surviving spouse and legal usufruct in favor of surviving spouse?	? In the past, until as late as 1990, you did have a clear distinction and the consequences that were different – 1) in the past, if it was a legal usufruct it did not impinge on legal rights of children and if it was not, it did impinge. 2) it could make a difference with respect to inheretence tax because legal usufruct, as an incident of marriage, was not subject to taxation, but if it was testamentary, then it was taxed. 3)there was the problem of termination of the usufruct – legal on remarriage, testamentary on death, even in absence of specific articulation of that principle. 4) security – if it was a legal usufruct, no security due under 573/571, but if testamentary, security was due. Today these difference do not really exist – not for impingement on the legitime. A disposition in favor of the surviving spouse does not impinge on legitime in that the legitime can be subject of the usufruct. So whether you do testamentary in favor of surviving spouse, or legal, there is no impingement on the legitime (moore case). (no difference in respect to impingement on legitime. No difference with respect to taxation What about termination? When does usufruct of surviving spouse terminate? 590 – whichever comes first, death or remarriage with testamentary, it is death (unless testamentary saying it ends on remarriage). So no real difference with the old law, despite Max Nathans effort to eliminated difference, it still exists. Still is a difference in security necessities – it used to be that if it was legal, there was no requirement of security – the view prevailed that since you are talking about the usufruct of a surviving spouse and the naked owners were generally the children of the marriage, the parent would not be compelled to give security to their child. Anything testamentary would require security. This made sense back then. After the 1975 amendment to article 916, you started having a legal usufruct of separate property – you could confirm a legal usufruct of a separate property – and it was no longer necessary to have children of the marriage – just descendants. So does it makes sense to relieve the usufructuary from giving security when usufruct attaches to property where the naked owners are not the child of the person to whom the usufruct is given. It makes sense that if the usufruct attached to separate property or to property nakedly owned by children not of the marriage, it would make sense that they would get security – that was the law until 1996 – then Max Nathan enters with Article 890 in our text and 1499 and article 1514. Under 1499, this article tells you that the deceased spouse can make a will, and leave the surviving spouse separate and community, and its not an impingment on the legitime. Under 1514, MN preserves what was general law only for forced heirs: he limits what was general to only forced heirs, for security. What if they are not forced heirs? What happens if you have a usufruct controlled by the law before august 15, 2004? There is a new law from 2004 – which became effective on august 15, but it not retroactive, so you use the 1996 on things before August 15. What if deceased has no will, left community property, inherited by children of a former marriage. Is security due? If the person died august 1, what do we do now? The law at the time of his death is the law that controls. Widow claims no security is due… 890 Comment B – “1514 provides and exception for that rule…” Even if there are forced heirs under 890, 890 APPLIES to all descendants, in legal usufruct.
	When is a usufruct testamentary and when is it legal? (therefore does it terminate on remarriage or on death?)	Usufruct of all of my property, community and separate? As to the separate property, it has to be testamentary because there is no legal usufruct of separate property – only community. What about the community property? Did you confer by 890, or by testamentary? Max Nathan would say its testamentary – Yippy says it depends on what is going on in the mind of the testator. The real question is whether you can confirm by will the operation of article 890, or whether that is a testamentary expression, which would not be a legal usufruct. Yippy says that if you track the language of 890, and your intent is clear to basically uphold 890, it can still be legal. Max Nathan would say his comments to the code overruled Succession of Chauvin and now there is no such thing as merely confirming a legal usufruct. If the will says 890, then it is clearly the intent of the testator to confirm the law: remarriage or death. Max nathan’s rule would overrule testamentary purpose. Yippy says Chauvin was not overruled. A testator bequeathed to a legatee the naked ownership of property without making provision for the devolution of the usufruct. See Succession of Burguieres, 612 So.2d 864 (La. App. 5th Cir. 1992). It should be clear that in such a case the usufruct devolves to the heirs of the testator under the laws governing intestate successions. It would be correct to state that this usufruct is established by operation of law. But s this usufruct a “legal” usufruct?
	Marital Portion in Usufruct	If a spouse dies rich and the surviving is poor, a kind of forced heirship is provided. The surviving spouse gets ¼ of the succession, and if there are children they take that ¼ in usufruct. When is a spouse rich? When is a spouse poor? Usually has to do with 1/5, whether the poorer one had less than 1/5 of the rich one – but it only goes up to a million dollars.
	Art. 646. Predial servitude; definition	A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
	Art. 647. Benefit to dominant estate	There must be a benefit to the dominant estate. The benefit need not exist at the time the servitude is created; a possible convenience or a future advantage suffices to support a servitude. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate.
	Art. 648. Contiguity or proximity of the estates	Neither contiguity nor proximity of the two estates is necessary for the existence of a predial servitude. It suffices that the two estates be so located as to allow one to derive some benefit from the charge on the other.
	Art. 649. Nature; incorporeal immovable	A predial servitude is an incorporeal immovable.
	Art. 650. Inseparability of servitude	A predial servitude is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated or encumbered separately from the dominant estate. The predial servitude continues as a charge on the servient estate when ownership changes.
	Art. 651. Obligations of the owner of the servient estate	The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. * Servient estate has no affirmative duties- with the exception of some incidental duties necessary for the exercise of the servitude; like keeping the estate fit for the purpose of the servitude or preservation of the servitude.
	Art. 652. Indivisibility of servitude	A predial servitude is indivisible. An estate cannot have upon another estate part of a right of way, or of view, or of any other servitude, nor can an estate be charged with a part of a servitude. The use of a servitude may be limited to certain days or hours; when limited, it is still an entire right. A servitude is due to the whole of the dominant estate and to all parts of it; if this estate is divided, every acquirer of a part has the right of using the servitude in its entirety.
	Art. 653. Division of advantages	The advantages resulting from a predial servitude may be divided, if they are susceptible of division.
	Art. 654. Kinds of predial servitudes	Predial servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner.
	Predial Servitudes: definition	A predial servitude is a charge laid on a servient estate for the benefit of a dominant estate. This right is for the benefit of an immovable rather than a person. Predial servitudes are due to an estate rather than to the owner of an estate. The estate burdened with a predial servitude is designated as “servient”; the estate for the benefit of which the servitude is established is designated as “dominant.”
	Content of Predial Servitudes	Predial servitudes may impose on the owner of the servient estate the duty either to “abstain from doing something on his estate or to permit something to be done on it.” The taking of mineral substances ordinarily forms the object of rights other than predial servitudes – real rights in the nature of limited personal servitudes rather than predial servitudes.
	Prohibition of Affirmative Duties	The owner of the servient estate is not required to do anything. The owner of the servient estate may bind himself by a personal obligation to perform certain affirmative duties in connection with a predial servitude. These obligations may be heritable, but they are not transferable to a successor by particular title without express stipulation to that effect.
	Nature of Predial Servitudes	The owner of the dominant estate does not “own” the servitude because it is only corporeal things that may be owned. The ownership of an immovable may not be lost by nonuse, but predial servitudes are extinguished if not exercised during the requisite prescriptive period. Further, the owner of an immovable may use it as he sees fit, but the owner of the dominant estate must use his right in accordance with the purpose of the servitude. Predial servitudes are immovable real rights, that is, incorporeal immovables. Once they are established, the rights of predial servitudes may not be alienated or seized separately from the dominant estate to which they belong.
	Things Susceptible of Predial Servitudes: Immovables	Tracts of land, buildings, timber estates, and individual apartments may be burdened with a predial servitude or for the benefit of which a predial servitude may be established. Timber estates and individual apartments qualify be special legislation as distinct corporeal immovables.
	Servitudes on Public Property	Private persons may acquire servitudes on private things of the state only by title and in accordance with the applicable formalities governing alienation of state property. The acquisition of servitudes on such property by prescription is excluded. Private things of municipalities, on the other hand, are subject to the general rules governing prescription; this property may be burdened with servitudes in favor of private persons by title as well as by the effect of acquisitive prescription. Servitudes may be established on public things including property of the state, its agencies, and political subdivisions. Some of these servitudes arise from the natural situation of lands, as drainage through public waterways; others arise by operation of law, as servitudes of public use, dealt with elsewhere; and still others are purely conventional.
	Essential Features of Predial Servitudes	First, it is necessary that there be two different estates. If a servitude is imposed on an estate in favor of a person rather than of another estate it is a personal servitude. Second, it is necessary that the two estates belong to different owners. A predial servitude may be established on the land of one of the partners of a partnership in favor of land belonging to the partnership. The property of a private corporation may be burdened with a servitude in favor of the agency of the state. Third, it is necessary that there be a benefit to the dominant estate. Unreasonable whims of parties, serving no socially useful purpose, may not give rise to predial servitudes.
	Non-essential Features of Predial Servitudes	Although servient and dominant estates are normally located in the same geographical area, close vicinity is not a requirement. It suffices that the two estates are located as to allow one to derive some benefit from the charge on the other. Perpetuity is not an essential feature because they may be stipulated for a term or under a suspensive or resultory condition. The utility to be derived may be exhaustible, and the servitude may be declared terminated.
	Indivisibility of Predial Servitudes	The division of the dominant estate may not result in the placing of an additional burden on the servient estate. Each acquirer of a part is entitled to use the servitude in its entirety but the use made by all of the acquirers may not exceed the limits of the use previously made. If the water, wood, or right of way, to name some examples are not sufficient for the satisfaction of the new needs, the use of the servitude must be apportioned among the various acquirers.
	Natural, Legal, and Voluntary or Conventional Servitudes	Natural servitudes are those that arise from the natural situation of estates; legal servitudes are those imposed by law; and voluntary or conventional servitudes are those established by juridical act, prescription, or destination of the owner.
	Art. 655. Natural drainage	An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.
	Art. 656. Obligations of the owners	The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.
	Art. 657. Estate bordering on running water	- The owner of an estate bordering on running water may use it as it runs for the purpose of watering his estate or for other purposes.
	Art. 658. Estate through which water runs	The owner of an estate through which water runs, whether it originates there or passes from lands above, may make use of it while it runs over his lands. He cannot stop it or give it another direction and is bound to return it to its ordinary channel where it leaves his estate.
	There were two rice farms, one below the other. Due to excessive rain, the lower farmer received excess water. He built a levee to prevent the water flow. Can he do this?	655 grants a servitude of drain in favor of the upper estate against the lower estate by which the lower estate is burdened with recieving the waters which run naturally from the estate situated abovel provided of course, the industry of man has not been used to create that servitude. The lower proprietor is not at liberty to raise any dam or make any other work to prevent this running of water. Plaintiff can get an injunction without showing irreparable harm.
	Oil and water flowed onto the lower estate. Issue: Is this a natural servitude? Or can the P recover for damages?	This is not a natural servitude. Owner not bound to receive oil polluted water; if a flow has been changed or influenced by acts of men, there is no servitude. The servitude is confined to the waters that run naturally from the estate above. The test of the law excludes a service of drain created by the industry of man. That oil and salt water extracted by the laborers of man from the bowels of the earth, and whose natural flow, if any, is a thousand or more feet beneath the surface do not come within the purview of the article of the code cited. Artesian well – lower estate is NOT bound to receive the water – because the water was tapped through the ground, not natural.
	Defendant drained a large pool into a nearby ditch 15 times a year. On the other side of the ditch is the plaintiff who claims the drainage is eroding his land and making it less valuable – the ditch was only a few feet wide when he first moved in and now it is 7 to 8 feet wide.	The court finds that the damage is not as extensive as the plaintiff alleges and is negligible. Scalise disagrees with this case. The reason the court says that they will not grant the injunction is that they say there is no irreparable harm. Should this be the case? Y says this is WRONG. You do not have to show irreparable harm to protect your property. If there is no aggravation, then no injunction, but you don’t need to show irreparable harm. Under our code you do not need irreparable harm for an injunction. The court decided correctly, but was wrong to put it in terms of irreparable harm. If there was no damage, then no relief. But do not put in terms of irreparable harm. Courts will be wrong if they follow this jurisprudence saying that it takes irreparable harm to get relief in a situation like this.
	Plaintiff observed that a beaver dam on defendant's land was preventing drainage from plaintiff's land. Plaintiff filed a petition for damages, alleging that defendant's failure to remove beaver dams on its property caused flooding of plaintiff's land and the loss of timber.	Defendant was not liable for property damage caused by the flooding of plaintiff's land, because there was no evidence that defendant took any action to impede the natural flow of water from plaintiff's land. Pursuant to Article 656, defendant was required to refrain from taking any action which would prevent the natural flow of water from the Bransford Tract. Article 651 obligated defendant to either abstain from doing something or permit something to be done on the Timberlands Tract, but defendant was "not required to do anything." The record shows that the defendant did not take any action to impede the natural flow of water from the plaintiff's land. Nor is there evidence that defendant refused to permit plaintiff's representative from acting in connection with the servitude
	Defendant failed to clear natural growth and underbrush to allow drainage of plaintiff's water. Does he have an obligation to do so?	Yes. Brown v. Blankenship
	UPPER AND LOWER ESTATE How do decide which is which?Can be difficult where the land is many acres side by side	You have to look to particular points on the land. There may be reciprocal natural servitudes. What about where these is no difference between the heights of the land. If both are equal, one owner cannot build a damn, and change the flow of land onto someone else’s.
	Can plaintiifs enjoy a servitude of drain into and through a canal which is on the adjacent property of defendants?	yes in part through natural and in part through conventional if there is a contract or if it was acquired through prescription. There is no prescription of nonuse for natural servitudes, so even if there was no water for 30 years, the servitude would remain in effect.
	Art. 665. Legal public servitudes	Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works. **665 is a LA tradition. No similar Art. in other Civil Codes. --If your land borders on navigable waters, the state can take land for the construction of levees and river roads and pay you nothing. Expropriation—the state takes land for public utilities, but pays full value; a Constitutional guarantee 665 deals with appropriation—the state can take the land without paying for it --Q arose: Is this article constitutional? US SC said anyone who purchased riverfront land in LA purchased sub modo, that is, with the burden or condition of this servitude As lands became more valuable and not so plentiful along riverfronts changes needed to be made as to compensation 1898—compensation of up to 1/4 of value of property paid when land taken (for Orleans mostly) Constitution of 1921—compensation of assessed value of the land Constitution of 1974—most recent, allows for full recovery for land taken (b/f this in LA property owners only got assessed value, while across the border in MS landowners got full value) --These provisions do not apply if the land taken is batture. Batture is alluvial deposits (mainly. Also has been called bank of river, or bed of river in older cases.) Batture may still be appropriated instead of expropriated. So, 665 is unconstitutional, but it won’t be repealed b/c it allows the State Land Office to take the batture without compensation. Yippy would repeal it, but everything Yippy wants Yippy does not get....
	the levee servitude	lands fronting navigable rivers have been burdened in LA, apart from the servitude of public use, by the servitude for the construction and mainteneance of levees. 665 applies only to navigable rivers or streams and not lakes. The levee board enjoys discretion to appropriate lands away from the site of levee construction. Landowners have the burden of proof that the taking should be shifted to someone else's property. The levee board is not required to come forward and justify its action but the levee must be necessary for the control of the flood waters of the river to which the land is riparian. --Land riparian at the time of severance from the sovereign is burdened with the levee servitude. Land not riparian at the time of severance but riparian at the time of taking is not. LA Const of 1921 provides that land taken pursuant to the levee servitude shall be paid for at a price not to exceed the previous year’s assessed value. This does not apply to batture. Ownership of lands used for levee purposes is merely appropriated. The payment is an indemnity for the public use. LA Const of 1974 provides an owner of lands has a right to recover fair market value. Batture may still be taken without compensation.
	Batture	LASC has defined batture as the area b/t the ordinary high and low water marks of a river. SCUS has also adopted this definition. Has been used broadly to denote all alluvial lands and narrowly like above. Owner of batture within limits of a municipality has an action for the recognition of his ownership free of public servitudes of the part of the batture not needed for public use.
	Facts: P wants full value compensation for the taking of land by the Levee board for levee construction that was appropriated. Issue: Whether the property of the plaintiffs which the levee board appropriated for the levee constituction is subject to the levee servitude in 665 in which case the levee board would only owe the assessed value of the property under the constitution.	No, not subject to the levee servitude. The property was not riparian at the time of severance and therefore is not encumbered with 665 levee servitude, even though it may have been riparian at the time of the taking due to changes in the course of the navigable stream. Land that was riparian at the time of severance from the sovereign is burdened with the levee servitude, even if it is no longer riparian. The converse is not true. Land which was not riparian at the time of severance but is now riparian is not burdened with the servitude, and taking of such land requires compensation under the Federal and LA Constitutions. --Is there a servitude of public use on the banks of a river under CC 456 when a river cuts a new channel? Yes. Do you lose the ownership of the bottom of the river if it changes course and flows over your land? If the state pays for it, no problem. State seems to be able to expropriate based on the necessity of keeping navigable waterways open.
	Test to determine whether there is Levee Servitude:	1) The property must have been riparian when severed from the public domain 2) the property taken must be within the range of reasonable necessities of the situation as produced by the forced of nature unaided by artificial causes.
	Art. 450. Public things	Public things are owned by the state or its political subdivisions in their capacity as public persons. Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore. Public things that may belong to political subdivisions of the state are such as streets and public squares.
	La. C.C. Art. 455 (2010) Art. 455. Private things subject to public use	Private things may be subject to public use in accordance with law or by dedication.
	Art. 457. Roads; public or private	A road may be either public or private. A public road is one that is subject to public use. The public may own the land on which the road is built or merely have the right to use it. A private road is one that is not subject to public use.
	Art. 458. Works obstructing the public use	Works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or own them at the instance of the public authorities, or of any person residing in the state. The owner of the works may not prevent their removal by alleging prescription or possession.
	Art. 459. Building encroaching on public way	A building that merely encroaches on a public way without preventing its use, and which cannot be removed without causing substantial damage to its owner, shall be permitted to remain. If it is demolished from any cause, the owner shall be bound to restore to the public the part of the way upon which the building stood.
	Public Use and Private Rights of Enjoyment	In granting a private person the personal right for the enjoyment of a thing subject to public use, administrative authorities enjoy a wide measure of discretion. However, they may not grant a right that excludes public use or substantially interferes with it. Administrative acts are subject to judicial review and are anulled if they are found to be discriminatory, arbitrary, or capricious. Private rights on things subject to public use that are compatible with, and in most instances serve the public interest are termed concessions. The consent of the owner of the private thing is required as well as the requirement that the right not exclude or obstruct the public use.
	Protection of Public Use	The right of a member of the general public to participate in public use is accorded a wide measure of protection. It may not be alienated, it cannot be lost by prescription, and it cannot be abandoned. Moreover, any unwarranted interference with that right gives rise to an action for damages or injunction.
	Incidents and Effects of Public Use	A thing dedicated to public use is not susceptible of private relations that are incompatible with public use. The owner of the thing, however, may still exercise prerogatives and derive advantages that do not interfere with the public use. Things dedicated to the public use may be put by the public authorities to uses other than those for which they are dedicated provided that such uses are not contrary to the public interest.
	Modes of Dedication to Public Use	1. Formal dedication: by virtue of a written act, whether in notorial form or under private signature. 2. Implied dedicaiton - by virtue of the sale of lots with reference to a plan showing streets, squares, and other public places or by an informal offer to the public to use a road and acceptance by the public by actual use 3. statutory dedication - by compliance with the provisions of R.S. 33:5051 which impos on subdividers of land certain duties including the filing of plats and the recordation of a formal dedication. 4. tacit dedication - by virtue of R.S. 48:491 - the maintainance of roads and streets bhy the public for 3 years
	formal dedication	a donation to the public that may be made by a written juridcal act. thus, neither authentic form nor, acceptance of the donation by the public is required. There must be, however, a clear intent to dedicate. A formal dedication may not be revoked by the grantor, but public authorities may revoke the dedication when the street is no longer needed for public use for example. In a formal dedication, the ownership of the property is transferred to the public unless it is expressly or impliedly retained.
	The possessor of a plantation laid off a part of his tract into lots, streets and squares. He prepared a plan of the proposed city, and he published a notice of his intentions and plan. Sheriff wants to sell two squares of land. Can he do so?	The map and advertisement of the plan of the city clearly shows that the squares in question were intended to be dedicated to the public. (formal dedication) There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.
	implied dedication	the essential feature of implied dedication is the absence of requisite formalities. However, there must be a "plain and positive intention to give and one equally plain to accept." Thus there must be proof of an offer and acceptance by the public. The offer may be implied from facts or acts of the owner that exclude any other rational hypothesis except an intent to dedicate and the acceptance may be inferred from actual use of the property by the public. Two generally accepted examples include the sale of lots with reference to an original city plan or with reference to a subdivision plan showing streets, squares, and other public places. In contrast with a sale, a donation does not result in dedication.
	Landowner brought action against citizens' group for trespass and interference with use of his property. Citizen brought action for possession and injunctive relief against landowner, seeking public access to canal and boat launch. Citizens claimed they had peacefully used the boat launch and the canal for several years without objection by plaintiff. Citizen also claims the canal has been dedicated to public use.	The jurisprudence is well settled that immemorial use by the public does not alone establish dedication. An owner's toleration of and acquiescence in long and continuous public use of his land, without more, is insufficient to establish a plain and positive intent to dedicate.
	Defendant alleges that the city constructed a sidewalk on his property and that he is owed damages for the unauthorized taking of his property. He admits he gave the city consent to place the sidewalk on his property on the condition that all other owners do likewise. Yet he denies this consent and testified that when he was approached about a right of way agreement he refused to sign. Yet there is no evidence that he made the attempt to prevent the construction, and asked that the dirt be thrown next to his house. Furthermore, a period of 3 years had passed from the time of the sidewalk construction until the filing of this suit and there is no evidence defendant made any kind of protest.	Implied dedication operates by way of estoppel in pais by acceptance and use on the part of the public with the tacit consent of the owner. In this case we find defendant impliedly dedicated a right of way on his property.
	A recorded plat contained language dedicating the streets and utility easements to public use, but did not include a specific reference to an undeveloped tract labeled "park." Lots in the subdivision were sold that referenced the recorded plat. The property was later sold to the developers, who applied for permission to develop the property as a residential subdivision. Their request was denied after the adjoining landowners and the city claimed that the property was dedicated to public use as a park. The developers brought a possessory action against the adjoining landowners, the city, and the levee district.	The court held that the word "park" inscribed on the recorded plat manifested the original developer's clear intent to dedicate the land to the public and the implied dedication became binding when he sold subdivision lots with reference to the plat. In the present case, the subdivision plat complies with the requirements necessary for a statutory dedication, and we have found that the inclusion of the word, "PARK", at least constitutes an implied dedication. [**11] Thus, it may be said that HN7this case sanctions the inclusion of a statutory and implied dedication in the same recorded document. We cannot discern a reason for making these forms of dedication mutually exclusive.
	statutory dedication § 33:5051. Platting land into squares or lots before sale; filing map of land; limitations on dedications	A. Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same: (1) Cause the real estate to be surveyed and platted or subdivided by a licensed land surveyor into lots or blocks, or both, each designated by number. (2) Set monuments at all of the corners of every lot and block thereof. (3) Write the lot designation on the plat or map, and cause it to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish, a correct map of the real estate so divided. B. The map referenced in Subsection A of this Section shall contain the following: (1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey. (2) The dimensions of each square in feet, feet and inches, or meters. (3) The designation of each lot or subdivision of a square and its dimensions in feet, feet and inches, or meters. (4) The name of each street and alley and its length and width in feet, feet and inches, or meters. (5) The name or number of each square or plat dedicated to public use. (6) A certificate of the parish surveyor or any other licensed land surveyor of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated. (7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys, and public squares or plats shown on the map to public use. C. Formal dedication of property as a road, street, alley, or cul-de-sac shall impose no responsibility on the political subdivision in which the property is located until: (1) The dedication is formally and specifically accepted by the political subdivision through a written certification that the road, street, alley, or cul-de-sac is in compliance with all standards applicable to construction set forth in ordinances, regulations, and policies of the political subdivision, which certification may be made directly on the map which contains the dedication; or (2) The road, street, alley, or cul-de-sac is maintained by the political subdivision.
	Statutory dedication - notes	When a subdivder sells lots with plats annexed in substantial compliance with the statute, the ownership of the land dedicated to public use is conveyed to the public. Courts have not developed a generally acceptable test as to what constitutes "substantial compliance" with the statute. There is no compliance, however, in the absence of recordation of the plat of a subdivision prior to the sale of lots, or when a plat is recorded by persons other than the subdivider or his representatives. Dedication is ordinarily complete upon the recordation of a map or plat containing a description of the streets, alleyways, and other places dedicated to public use. There is no need for formal acceptance of the dedication by the public, nor is use by the public necessary. Proof of intent to dedicate is ordinarily dispensed with, the requisite intent being generally presumed, but the same court has held that the mere designation of an area in the recorded plat of a subdivision as a proposed park is insufficient to establish an intent to dedicate under the statute. A general statement of purpose ought to suffice; specific intent to dedicate each street or other public place appearing on the plat is unneccessary.
	there was a big tract a land with a plat filed in the public records, but it wasn’t signed by anyone and it was very old. There is no real indication as to how it got filed, moreover, it does not comply with other requirements such as a survey certificate, formal or express dedication by the owner, etc. Statutory dedication?	although the plats failed to conform to the provisions of Act 134 in several respects, the court held that it was sufficient that the plats were filed in substantial compliance with Act 134. The court also found that plaintiffs failed to overcome the presumption of the plats' genuineness under La. Rev. Stat. Ann. § 13:3730. The omission of the surveyor's certificate was ruled to be insignificant because it did not "render ineffective the plain intent of the subdivider to irrevocably dedicate the streets." The court also found the absence of a dedicatory clause to be insubstantial because implicit in the act of filing of a plan of subdivision in the map book of the parish, showing sqaures, lots, streets, alleys, and walkways, is the intent on the part of the subdivider of dedicating the streets to public use.
	Tacit Dedication § 48:491. Public roads	A. All roads or streets in this state that are opened, laid out, or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality shall be public roads or streets, as the case may be. B. (1) (a) All roads and streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property. (b) Actual or constructive knowledge is presumed if prior to or during the work the public body notifies the last known adjoining landowners of same by written notice by certified or registered mail, return receipt requested. When such notice is given more than two years and ten months from commencement of such work, it shall suspend the foregoing prescription for sixty days. (c) Actual or constructive knowledge is conclusively presumed within all parishes and municipalities, except as otherwise provided by R.S. 48:491(B)(3), if the total period of such maintenance is four years or more, unless prior thereto and within sixty days of such actual or constructive knowledge, the prescription is interrupted or suspended in any manner provided by law. (2) When a local governing authority for any reason decides to dispose of any road, street, or property used for right-of-way purposes which was originally donated to the authority or its ancestor in title, the property shall revert to the original donor or his heirs or assigns. The authority shall notify the donor or his heirs of its intention to donate the property by sending written notice via certified mail, return receipt requested, to the donor or his heirs at his last known address. The notice shall inform the donor or his heirs or his assigns of the authority's intention to have the land revert and provide him ninety days from receipt in which to respond. If, upon the expiration of the ninety-day period, no response has been received by the authority, it shall dispose of the property in accordance with applicable law. In the donation deed from the authority to the donor or his heirs or his assigns, the authority shall reserve rights of passage for landowners who own property contiguous to the property to be reverted. (3) Repealed by Acts 2003, No. 204, § 1. C. All roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities. D. Notwithstanding any other provisions of law to the contrary, any road or street used by the public is a public road or street provided it is designated as such by the local governing authority, and it shall be within the discretion of the local governing authority to maintain the road up to a private drive; however, no road or street on private property shall be designated as a public road unless ownership is transferred or the right of way is given to the local governing authority.
	The area in question is a grass street, and defendants allege tacit dedication by mowing it once a year. There is also testimony that two or three loads of dirt had been dumped upon the alleged street during a 13 year period before litigation arose.	the court finds that cutting the grass on a grassy road is not enough to constitute tacit dedication. an occasional "brushing up" or token maintenance of private property does not establish a tacit dedication.
	The Dentons own a tract of land next to Little River. When they bought the property there was an existing road which runs parallel to Little River. Contending that the road was private, the Dentons erected gates on the property. The Meyers also own a tract of land that fronts the Little River to the west of the Dentons. The Meyers use the road to access their property. Meyers filed suit seeking removal of the gates arguing the road was a public road. The trial court found the road to be a public because the police jury formally adopted the Road as a public road, and for a period of more than three years performed maintenance work on the road. The Dentons appeal and argue that the Police jury did very little maintenance on the road which would support the dedication of this road as a public road pursuant to La. R.S. 48:491.	Whether a road is private or public is a factual determination. Several police jury testified to working on the road for several years – it had been a school route, and they personally graded the road. Based on the evidence, the court could not find the trial court was clearly wrong in its assessment. The Dentons also appeal the rejection of their claim for reimbursement against the Police Jury for unjust enrichment. They claim they are owed for improvements personally made to the road. A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. There are 5 requirements for unjust enrichment: (1) an enrichment (2) an impoverishment (3) a connection between the enrichment and the resulting impoverishment (4) absence of justification or cause (5) no other remedy available at law. The court found that the police jury was not enriched without cause. Denton knew there was controversy over the status of the road, yet he continued to perform acts of maintenance on the road. Additionally, much of the maintenance he performed was beyond what was necessary for public road purposes in this case. Suppose he had no idea the road was public and he made all of these improvements on the land. He can show detrimental reliance only if he relied on a statement made by an official with the appropriate authority saying that he owned the land. Can you clean up Audubon Park and send the city of New Orleans a bill claiming they were unjustly enriched? Why did you do it? If it was gratuitous, you cannot recover, but if you had a reason to think you owned that portion of the Park, there might be recovery.
	Plaintiffs own a tract of land that is connected to a major highway by a 500 ft long road running across the Cheramie tract. The Cheramies blockaded the road at the point where it junctures with a dedicated road called “Old 30.” Consequently, plaintiffs could not use the road crossing the Cheramie property, although it was still possible to reach the property through “Old 30.” Plaintiffs contend the road was tacitly dedicated to the public use in that it was maintained by the LA dept of Highways for a period in excess of three years. After Hurricane Betsy washed away much of the road, the Highway Department repaired the damage with sand and gravel. Shortly thereafter, the Cheramies refused to permit the state employees to bring equipment upon the area. It was at this time the highway department built a shell roadway on the dedicated strip which we have refered to as “old 30.”	The fact that maintenance was discontinued for whatever reason is of no moment and does not change the character of ownership. Once the road has been maintained for 3 years, the section became tacitly dedicated to public use. Having been dedicated, it could revert to private ownership if the public discontinued using the tract as a public road for a period of 10 years. In this case, 10 years has not elapsed and it remains public. Defendant argues that tacit dedication did not occur because (1) the Cheramies did not impliedly consent to the dedication and (2) the maintenance performed was not sufficient to fall within the category of having been “kept up, maintained or worked for a period of three years” within the contemplation of R.S. 48:491. Yet defendants consented to and invited public maintenance for a period of 13 years before they protested. We agree that a mere “brushing up” or token maintenance is not sufficient to establish tacit dedication, but these are not the facts posed for consideration. Periodic shelling and grading constitute substantial maintenance.
	§ 48:701. Revocation of dedication; reversion of property (termination of public use)	The parish governing authorities and municipal corporations of the state, except the parish of Orleans, may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within the respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes. Upon such revocation, all of the soil covered by and embraced in the roads, streets, or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto. Nothing in this Section shall be construed as repealing any of the provisions of special statutes or charters of incorporated municipalities granting the right to close or alter roads or streets.
	Chestnut street was closed off to the public and the schools argued that the road was not necessary to the public and was much safer for the kids to be closed. Plaintiffs argue that the Council’s action in closing the street was arbitrary and capricious because it is presently being used by pedestrian and vehicular traffic during weekdays.	The mere fact that the street is being used by the public does not mean that it is needed for public purposes. Use and need are relative terms and it is the duty of the Council to determine whether discontinuance of the present use and any inconvenience resulting therefrom would outweigh whatever benefit would flow from the closure. The court determined that the closure of the street would cause vehicles to be rerouted without significantly negative impacts or reduction in service.
	The road in dispute is a rural dirt road in which the Volentines put up a fence, and plowed through the dirt road and planted soy beans. The road is no longer in existence physically. Termination of public use?	In the absence of compliance with statutory provisions, formal action by the police jury, or 10 years nonuse, the public road in question remains a public road and its use cannot be interfered with by the defendants whose property the road traverses. Abandonment in fact is NOT abandonment in law. If the dedication is statutory or formal, 10 years non-use will not terminate ownership – only servitudes. Here we are talking about something owned by the state which is not susceptible of acquisitive prescription.
	A public road had been created by being maintained for a period of three years by the police jury, as provided for by La. Rev. Stat. Ann. § 48:491. By request of the landowners, the police jury abandoned the road as a public road by adoption of a resolution. Thereafter, at the request of residents who used the road, the police jury adopted a second resolution intended to rescind the first resolution. The public continued to use the road until the landowners erected a chain link fence that blocked public access to the road. The police jury responded with an action for injunctive relief against the landowners, which was granted by the trial court.	The court reversed the judgment of the trial court, recalled the permanent injunction, and dismissed the suit. The court concluded that the property had reverted back to the landowners of the road when it was abandoned free and clear of any servitude and constituted a property right. The police jury could not divest the landowners of their property right by the passage of the second resolution. The court pointed out that to hold otherwise would allow the police jury to impair vested property rights in violation of La. Const. art. IV, § 15.
	After a strip of land was statutorily dedicated as an alleyway, the police jury sold the strip to the purchaser under the authority of § 33:4711. The trial court found that the property dedicated to public use in accordance with La. Rev. Stat. Ann. § 33:5051, but never utilized as an alleyway or public road, was not subject to alienation under § 33:4711.	The court affirmed, holding that when a political subdivision formally determined that a thing dedicated to public use was no longer needed by the public, the thing ceased to be public and became a private thing of the political subdivision. As such, the private thing was alienable but only in accordance with applicable law. The police jury could only revoke the dedication. Although § 33:4711 provided the general authority for police juries to dispose of public property, La. Rev. Stat. Ann. § 48:701 was a special law that specifically applied to streets and alleyways dedicated to public use, and required that the land revert to the contiguous owner. The court found that the reversion of the property by revocation of the dedication was not a donation as contemplated by La. Const. art. VII, § 14.
	Art. 667. Limitations on use of property	Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives. * 667: Although a proprietor may do with his estate what he pleases, he cannot make any work on it which deprives his neighbor of enjoying his own, or which may cause damage to him.
	Art. 668. Inconvenience to neighbor	Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor. Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors's [neighbor's] house, because this act occasions only an inconvenience, but not a real damage. * 668: You can still do whatever you want on your land, if it only inconveniences your neighbor.
	Art. 669. Regulation of inconvenience	If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place. * that is, they’re supposed to be regulated by municipalities Nuisance law is the law of torts in common law, not the law of property. The conceptual framework is totally different. But courts in LA were using the doctrine of nuisance to help decide these cases. 1945—LASC finds a railroad liable for damage from smoke to neighboring houses without fault relying on language in 667-69 --Also has been held to apply in a case where the wind blew chemicals from D’s field to the field of a neighbor. --Also has been applied in blasting cases. --Has been applied in situations where there should be liability but there has been no fault (negligence or intentional misconduct). There were excesses however, and this spurred the Revision of 1996 where “barbarians” put general common law tort language in 667. Blasting and piledriving still require no fault, but what about aerial spraying of chemicals? Yippy contends the “barbarians” didn’t know the cases when they amended 667. There is no such new language in 669, does it still apply without fault?
	D digs a well, finds no oil, leaves it uncapped, and thus decreases the productivity of P’s well. P sues to compel D to cap his well. There is no allegation of fault, or that D did not have the right to dig or not cap the well.	a person can do whatever he wants with his property as long as he does not abuse his right. No benefit to you, but you maliciously cause damage to your neighbor; you can’t do that. Abuse of right—a use of a right contrary to the economic and social purpose of the right The court noted that an owner was not bound to do anything to save his neighbor from loss, however, he had to abstain from doing anything that might cause a loss. The court noted that pursuant to La. Civ. Code Ann. art. 505, the neighboring defendant had the right to sink the well. However, he could not interfere with plaintiff's right to sink and operate a well. Plaintiff's allegation, that defendant's well was interfering with plaintiff's production, had to be taken as true for purposes of raising the exception of no cause of action. If so, plaintiff had stated a valid claim that he had suffered injury via the air escaping from defendant's dry well which interfered with plaintiff's production.
	The Yokums complained of a noise nuisance from a bar on Bourbon Street called “the rock.” They claim to have lost the use of enjoyment of their home. Under 667, could defendant be held responsible as the lessor of the property for the lessee’s behavior?	The instant court found that the alleged excessive noise emanating from the lessor's leased premises fell within the concept of "work" as contemplated by La. Civ. Code Ann. art. 667, in that it was an activity that could have been harmful to neighboring proprietors. A proprietor could have been responsible for those constructions or activities on its premises that could cause damage to its neighbors, whether the work or activities were performed by the proprietor or by one who maintained rights that derived from the ownership of the land, such as a lessee. The lessor had not demonstrated how the fact that it did not actually operate the bar on its premises negated its responsibilities as a "proprietor." The lessor had not established an absence of factual support for any element essential to plaintiffs' claim, namely, the requirements concerning its alleged knowledge of the loud noise, or any steps it may have taken to reasonably prevent the noise.
	One landowner was burning a brick kiln very close to another landowner whose house is made out of wood. Can they regulate this in some sort of way?	This situation may cause damage. This is covered under 667. Injunction may be granted.
	Plaintiffs want injunctive relief for defendant’s plan to develop a funeral home in their residential neighborhood. Can they do so?	A nuisance per se is something that is illegal regardless of where it is – a brothel. A nuisance in fact becomes a nuisance under certain circumstances. The court finds that the plantiffs have not provided evidence that the funeral home will be a nuisance and that it is not a nuisance per se. Thus the case is remanded for trial. The dissent finds that a funeral home is a nuisance in fact due to the fact that it is by nature so depressing as to deprive enjoyment of one’s home. It is a lawful enterprise and a mere inconvenience is not enough to sustain an action for an injunction. The land owner still has the right to do what he wants with his land. --nuisance law creeps into the jurisprudence --Ct. will not enjoin the operation of a lawful business --will not enjoin a prospective nuisance (funeral home had not opened) unless there is an imminent danger or there will be irreparable injury --Does having this funeral home constitute an abuse of right? No, it’s a lawful business, there are no agreements or zoning restrictions... no abuse of right. What if there’s wailing in the night, and smell of burning bodies? Different story, now we’re looking at 669 CC 669 does not require an abuse of right. You can be carrying on your lawful business and still violate it. Difference b/t enjoining a business before it opens and limiting its operations after.
	There are horse stables in the French quarter, and the waste products are spread around during the rain. Neighbors want injunctive relief under 669 due to the nauseous smell.	The court can order the stable owner to clean up and deodorize, but there is no grounds for injunction of the business, because there is no irreparable harm. The law does not fix all inconveniences, and sometimes the neighbor must endure. However, the court will look to the intensity of the nuisance in fashioning a remedy if necessary. Nuissance Law: (at law/per se vs. per accidens or in fact) A nuisance at law is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidends are those which become nuisances by reason of circumstances or surroundings. Injunctive process: injunction lies, but there can be a modified injunction to make sure that the nuisance is mitigated to the extent possible.
	There were 4 above ground fuel storage tanks that were used to store gasoline diesel fuel, which emit a fair number of fumes and pressure on the storage tank that is not designed to store gas, but crude oil. The neighbor sued under 667 because it may cause significant damage if it blows up. Plaintiff also relies on 669.	The appellate court denied the property owner's efforts to require the tanks to be moved or placed under ground and found that the tanks did not create a nuisance. On review, the court conceded that the storage of fuel without more did not create a nuisance per se. When, however, the fuel created a substantial hazard to adjoining property, the use ran contrary to permissible uses under La. Civ. Code Ann. art. 667. The court also held that violation of the code articles did not required automatic removal of the tanks, but would require further evidence. The failure of the property owners to complain when the tanks were installed was not a bar to injunctive relief.
	Obligations of the neighborhood: liability without negligence	art 667 was amended to establish liability on grounds of fault and exceptionally liability without regard to negligence for damage caused by certain specified ultrahazardous activities. LA courts, however, have consistently declared that the responsibility under articles 667-669 is "absolute" or "strict." It is the fact that the activity causes damages to a neighbor which is relevant and not the manner in which the activity is carried on. If these articles were interpreted to impose liability merely for inteltional misconduct and negligence, they would be largely unnecessary due to article 2315.
	Obligations of the neighborhood: Acts and Works	It is a matter of policy to assert that arts. 667 and 668 apply to all situations in which constructions or activities cause unwarranted harm to property or persons. The contrary view (limiting the word "work" to constrictions) would eliminate a most important basis of civil responsibility.
	Rizzo lived next to a vacant lot. Nichols purchased said lot and began to build “up” on the land. This caused water to flow on to Rizzo’s land when it rained and he sustained damages from standing water. Rizzo approached Nichols several times about the flooding and Nichols never took any action. Thus Rizzo had to purchase a catch basin to prevent flooding.	Where an aggrieved party seeks recovery under the law of vicinage for damage occaisioned by a neighboring landowner’s activities, that party must demonstrate a causal link between the damage sustained and the neighboring landowner’s action or inaction. Rizzo proved through photos that his land never flooded under the construction began. With respect to recovery for mental anguish, damages are appropriate when: (1) property has been damaged by an intentional or illegal act, (2) where property I damaged by acts for which the tortfeasor will be strictly or absolutely liable, (3) when property is damaged by acts constituting a continuous nuisance, (4) when property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result. Rizzo testified that the standing water kept him from venturing into his backyard to use his shed and provided a breeding ground for mosquitoes. The appellate court found that the trial court did not abuse its discretion in awarding such damages. This case fits into art. 667 because he knew or should have known that his works caused damage. Not a lot of cases award emotional distress damages in property cases.
	liberative prescription: obligations of the neighborhood	: actions under art. 667 are treated as a tort and have a prescription of one year. However, in certain cases prescriptive period begins when the damage becomes apparent.
	Art. 670. Encroaching building	When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known of the encroachment, or in any event complains only after the construction is substantially completed the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered. Before article 670, if you had an encroaching building on someone else’s property, you might have to tear it down. If you are in good faith, the new rule is that you can 1) acquire by acquisitive prescription if it has been 30 years, but 2) if it has not, then the courts have found a solution in 670 - - (estoppel idea) - - If in bad faith, you have to remove.
	Thompson and Hemphill are brothers in law that own tracts of land next to each other. The main issue is that Hemphill’s trailer is encroaching upon Thompson’s tract of land. The trial court grants Hemphill a servitude for encroachment. Plaintiff contends there is no authority for this decision because the trailer is not a “building” under art. 670. The defendant argues it is a “other construction” under art. 463 for which an encroachment servitude may be granted under article 670.	Regardless of whether it was a building or not, the court found that the trial court abused its discretion in granting the servitude. Article 670 allows a court, in the sound of exercise of its discretion, to avoid a situation in which a good faith landowner, in order to remove an encroachment, would be required to demolish or destroy the utility of a building which encroaches, perhaps only slightly, onto adjoining property. Here the structure is an old truck placed on a concrete slab or blocks. The structure also encroaches substantially in that at least one half of it is located on the adjoining property. There is no evidence that the trailer is attached permanently and there is ample space on defendants property to relocate it. There is no reason why it cannot be moved without undue expense and without impairing the utility of the structure. See note on p549 Requirements of 670: Land owner must construct in “good faith” – what does this mean? Unintentionally? Should have known? The courts do not define this specifically, but often do not require one to tear down a building either way. It is more subjective than objective. A “building” – if it is not a building it is an “other construction” permanently attached to the ground. For example, a radio antenna is permanently attached to the ground but not a building. This case finds the structure does not fall within 670 because it is movable and there is ample space to relocate it, but it does not discuss what happens with permanently attached other constructions. You cannot say that an “other construction” has necessarily the same expense or size of a building, but Scalise is reluctant to say the article is limited to buildings because policy justifications might allow otherwise.
	Art. 673. Common wall servitude	A landowner who builds first may rest one-half of a partition wall on the land of his neighbor, provided that he uses solid masonry at least as high as the first story and that the width of the wall does not exceed eighteen inches, not including the plastering which may not be more than three inches in thickness.
	Art. 674. Contribution by neighbor	The wall thus raised becomes common if the neighbor is willing to contribute one-half of its cost. If the neighbor refuses to contribute, he preserves the right to make the wall common in whole or in part, at any time, by paying to the owner one-half of the current value of the wall, or of the part that he wishes to make common.
	Art. 675. Presumption of common wall	A wall that separates adjoining buildings and is partly on one estate and partly on another is presumed to be common up to the highest part of the lower building unless there is proof to the contrary.
	Art. 676. Adjoining wall	When a solid masonry wall adjoins another estate, the neighbor has a right to make it a common wall, in whole or in part, by paying to its owner one-half of the current value of the wall, or of the part that he wishes to make common, and one-half of the value of the soil on which the wall is built.
	Art. 677. Rights and obligations of co-owners	In the absence of a written agreement or controlling local ordinance the rights and obligations of the co-owners of a common wall, fence, or ditch are determined in accordance with the following provisions.
	Art. 678. Cost of Repairs	Necessary repairs to a common wall, including partial rebuilding, are to be made at the expense of those who own it in proportion to their interests.
	Art. 679. Abandonment of common wall	The co-owner of a common wall may be relieved of the obligation to contribute to the cost of repairs by abandoning in writing his right to use it, if no construction of his is actually supported by the common wall.
	Art. 680. Rights in common walls	The co-owner of a common wall may use it as he sees fit, provided that he does not impair its structural integrity or infringe on the rights of his neighbor.
	Art. 681. Opening in common wall	The co-owner of a common wall may not make any opening in the wall without the consent of his neighbor.
	Art. 682. Raising the height of common wall	A co-owner may raise the height of a common wall at his expense provided the wall can support the additional weight. In such a case, he alone is responsible for the maintenance and repair of the raised part.
	Art. 683. Neighbor's right to make the raised part common	The neighbor who does not contribute to the raising of the common wall may at any time cause the raised part to become common by paying to its owner one-half of its current value.
	Art. 684. Enclosures	A landowner has the right to enclose his land.
	Art. 685. Common fences	A fence on a boundary is presumed to be common unless there is proof to the contrary. When adjoining lands are enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences by which the respective lands are separated. When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances.
	Art. 686. Common ditches	A ditch between two estates is presumed to be common unless there be proof to the contrary. Adjoining owners are responsible for the maintenance of a common ditch.
	Art. 687. Trees, bushes, and plants on the boundary	Trees, bushes, and plants on the boundary are presumed to be common unless there be proof to the contrary. An adjoining owner has the right to demand the removal of trees, bushes, or plants on the boundary that interfere with the enjoyment of his estate, but he must bear the expense of removal.
	Art. 688. Branches or roots of trees, bushes, or plants on neighboring property	A landowner has the right to demand that the branches or roots of a neighbor's trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor. A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.
	The defendant rested ½ of her 13 inch thick wall on the plaintiff’s ground. Defendant later made openings in the wall such as windows. Plaintiff claims that defendant has no right to alter the wall as it is a shared wall.	A wall is not a wall in common until the plaintiff pays one half of its value. Until then, defendant has the exclusive right to alter it as he or she pleases. Plaintiff presents the question of whether he can put up his own wall in front of it as to block the windows from view. The court’s dicta says he can do as he pleases.
	Art. 689. Enclosed estate; right of passage	The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.
	Art. 690. Extent of passage	The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.
	Art. 691. Constructions	The owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary for the exercise of the servitude.
	Art. 692. Location of passage	The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.
	Art. 693. Enclosed estate; voluntary act	If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors. * this article gives most of the trouble. See case law
	Art. 694. Enclosed estate; voluntary alienation or partition	When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.
	Art. 695. Relocation of servitude	The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.
	Art. 696. Prescriptibility of action for indemnity	The right for indemnity against the owner of the enclosed estate may be lost by prescription. The accrual of this prescription has no effect on the right of passage.
	§ 9:1254. Enclosed estate; right and servitude of passage on certain waterways	A. The owner of an enclosed estate who has no access to his estate other than by way of an existing waterway passing through neighboring property shall have aright and servitude of passage on such waterway. The existing waterway passing through the neighboring property shall be directly accessible from a publicly navigable waterway, and shall have been and shall still be capable of use for navigation by the owner of either the dominant or servient estate at the time of acquisition by act of sale, inheritance, or otherwise, by the owner of the dominant estate. B. If more than one existing waterway is capable of providing access to the enclosed estate pursuant to Subsection A, the passage shall generally be taken along the shortest route of safe passage from the enclosed estate to the nearest publicly navigable waterway at the location least injurious to the intervening lands and waterways. The owner of the dominant estate shall not be required to traverse open waters which may become hazardous for small watercraft during inclement weather. C. The provisions of this Section shall supersede any other provision of law to the contrary. D. The provisions of this Section are interpretative and are intended to clarify Civil Code Articles 689, 692, and 705 and any other existing law as to the right and servitude of passage on waterways to enclosed estates which have no means of access other than by way of water due to the lack of sufficient land on which to feasibly construct a road, and shall have retroactive application.
	Plaintiff seeks a right of passage onto Keaty’s land. Due to expropriation, plaintiff’s land has become fully enclosed on all four sides, three by subdivisions and the fourth by the State’s closed access highway I-12. Defendant argues that under article 699,the property is not enclosed because it borders a public road. Plaintiff argues that the closed access highway does not apply to this article because the highway does not allow for ingress or egress.	The court agrees with plaintiff in that the property became enclosed within the contemplation of the article because of expropriation and the construction of a non access public road. An argument is made that during the expropriation proceedings, plaintiff was fully compensated for their loss of ingress or egress. The court finds that public policy would dictate that such land as is here involved, located in a desirable and strategic area, should not be taken out of use and commerce. It is against public policy to encourage landlocking a valuable asset. However, plaintiffs here do not seek a right of passage to a public road, but to their other property. The court is concerned with precedent and does not want to allow passages from one property to another but strictly to public roads. There are shorter, more direct, and more feasible routes of passage to public roads. They are suggesting that shortest route is through Drusilla Place Subdivision to the north. See map on p559.
	Land becomes enclosed as a result of an act of partition, and a right of passage reserved in the act is not utilized thereafter for more than 10 years. There was an agreement for passage in the partition agreement but the right of passage was never exercised. The defendants say they lost it through prescription.	Letting the right of passage expire seems to entitle you to a legal right of passage because you did not become enclosed until the passage prescribed. Read art. 693. However the court feels that failure to use the servitude for ten years was not the type of voluntary act or omission contemplated by 693. Therefore, plaintiffs are entitled to claim passage under art. 689. 693 applies when you sell a tract of land and enclose the tract without granting a right of passage. Issue: can the right of passage that results from a partition expressly reserved remain where it has not been utilized for 10 years? Difference between legal and convention servitude: Conventional – 10 year prescription of non-use Natural servitudes – no prescription Legal servitudes – no prescription – not written expressly in the code as it is with natural servitudes, but the rationale is the same, because of the nature. Prescription does not run against the legal servitudes, though not expressly stated in the code. Holding: 689 is the right to demand the right of passage – and there’s no prescription on this legal servitude – so no prescription runs here. P has the right of passage. If you let the 10 year prescription of nonuse run, do you lose your right of passage? The court finds that he did not enclose himself – just because you omit use, you do not enclose yourself – enclosing yourself usually occurs in 693 by an act, like selling surrounding land. RUNNING OF NONUSE OF THE PASSAGE IS NOT AN ACT OF OMISSION CONTEMPLATED BY 693. If you do not ask for a passage for 20 years, can you then do so? You must first ask IF the person has a conventional servitude or a legal one. If it’s a legal one, no prescription. SO look to article 694 and whether this establishes legal or conventional. So after 20 years, you lose your conventional servitude, but still hold onto the legal one by 694. (some justices find 694 to be legal, others find it to be conventional, must do case by case examination?) If you stipulate a right of way, do you still apply 694 as legal, or is it expressly stipulated and then therefore you only have conventional. Yippy says yes, you still have legal right. “By virtue of 689 and 694 an enclosed landowner is entitled to a right of passage irrespective of how the enclosure came to pass. If the owner of the enclosed estate simply has no access to a public road, he must indemnify his neighbor for the damages he causes – 689. If there is a partition, its gratuitously furnished.” It is a right you have under the law if you partition land. “The failure of the use of the servitude for 10 years was not the type of voluntary act or omission contemplated by article 693.” P. 911. Person who encloses himself and his heirs will not have the right of passage – so he must pay to traverse his neighbor’s land.
	: Patin lives along the Gulf of Mexico. His land is bordered to the north by Richard. Richard’s land is bordered to the north by Savoie. Savoie’s land is bordered to the north by a public road. All three properties are bordered by east and west by other properties. After some dispute, Richard fenced off his land making Patin’s land completely enclosed. Patin seeks a right of passage onto Richard’s land.	: The court looks to article 694 and the term “upon which the right of passage was before exercised” and holds that the servitude exists because it was historically granted (701). All three owners were aware of the passage. And the third owner is not indispensable because the second owner is still using the first’s land to cross over. Further when the D bought his land, he knew it was burdened with that servitude. The dissent disagrees and argues you cannot apply 694 because the estate became enclosed as a result of the partition and would apply 689 and have the servient estate locate the most convenient passage. Issue: Can the P get the servitude of passage reestablished, even without the first owner’s participation in the suit? Holding: The court looks to article 694 and the term “upon which the right of passage was before exercised” and holds that the servitude exists because it was historically granted (701). All three owners were aware of the passage. And the third owner is not indispensable because the second owner is still using the first’s land to cross over. Further when the D bought his land, he knew it was burdened with that servitude. If you file suit under 689 or 694, is C an indispensable third party if he is clearly willing to allow the servitude anyway? If the servitude is a legal one then C must be made a party because the suit is to go all the way to the public road, and A cannot sue to go over B’s land only, he must sue to go over C’s land as well. If it is a conventional servitude, there is no need, he is not an indispensable party. C does not have to be a party for a conventional servitude. If suing under 689 C must be a party. But if he suing under 694, then he does not have to make C a party.
	Stuckey bought a lot from Willis that did not have passage to a public road. Wills granted a servitude of passage over his property purportedly all the way to highway 148, the nearest public road. However, the narrow strip of land adjacent to the highway was not owned by Willis, but by defendant, Collins. At first Collins put up a barrier but agreed to let Stuckey pass through and gave him a key to the lock. Eventually Stuckey got tired of locking and unlocking the cable and took it down. Collins quickly replaced it and Stuckey filed suit.	Passage through the vendor’s land is impractical. Here, the most practical solution to the enclosed estate is passage over the small portion of the Ds land. If passage across the vendor’s land is impossible or highly impractical, then you can seek 689 servitude. A 694 passage is highly impractical because of the swamp land – it would cost a fortune to build a passage. In this case, the shortest and only practical route from the Ps property to the public road is a narrow strip at the end of the defendant (neighbor, non vendor’s) land. Therefore, the defendant must take down the impediment to passage. But the plaintiff is bound to indemnify the defendant for damage incurred. Is this in accord with the code? The code strictly speaking is not allowed to do this. But should the code be allowed this equity in this situation. See article 4: about equity – does article 4 allow the court to do this equity in this situation? It seems to – where there is no positive law, no code, etc the courts can proceed in equity. Balance equity (not really in civil code) but where you look at the burden on the neighbor vs. the impractical route over the vendor’s land/burden on the plaintiff in passage. Passage through the vendor’s land is impractical. Here, the most practical solution to the enclosed estate is passage over the small portion of the Ds land. If passage across the vendor’s land is impossible or highly impractical, then you can seek 689 servitude. In this case, the shortest and only practical route from the Ps property to the public road is a narrow strip at the end of the defendant (neighbor, non vendor’s) land. Therefore, the defendant must take down the impediment to passage. But the plaintiff is bound to indemnify the defendant for damage incurred. Is this in accord with the code? The code strictly speaking is not allowed to do this. But should the code be allowed this equity in this situation. See article 4: about equity – does article 4 allow the court to do this equity in this situation? It seems to – where there is no positive law, no code, etc the courts can proceed in equity. Balance equity (not really in civil code) but where you look at the burden on the neighbor vs. the impractical route over the vendor’s land/burden on the plaintiff in passage.
	Art. 697. Right to establish predial servitudes; limitations	Predial servitudes may be established by an owner on his estate or acquired for its benefit. The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the following rules.
	Art. 706. Servitudes; affirmative or negative	Predial servitudes are either affirmative or negative. Affirmative servitudes are those that give the right to the owner of the dominant estate to do a certain thing on the servient estate. Such are the servitudes of right of way, drain, and support. Negative servitudes are those that impose on the owner of the servient estate the duty to abstain from doing something on his estate. Such are the servitudes of prohibition of building and of the use of an estate as a commercial or industrial establishment. ( The prescription of non-use begins to run for affirmative servitudes from the date of their last use, and for negative servitudes from the date of the occurrence of an event contrary to the servitude.)
	Art. 707. Servitudes; apparent or nonapparent	Predial servitudes are either apparent or nonapparent. Apparent servitudes are those that are perceivable by exterior signs, works, or constructions; such as a roadway, a window in a common wall, or an aqueduct. Nonapparent servitudes are those that have no exterior sign of their existence; such as the prohibition of building on an estate or of building above a particular height. (Classification as apparent or nonapparent depends on facts and circumstances rather than the nature of the servitude. Where there is no trace of the servitude, it is not apparent. Nonapparent servitudes may be acquired by title – apparent may be acquired by title, destination of the owner or acquisitive prescription.)
	Art. 708. Establishment of predial servitude	The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply.
	Art. 709. Mandatary	A mandatary may establish a predial servitude if he has an express and special power to do so.
	Art. 710. Naked owner	The naked owner may establish a predial servitude that does not infringe on the rights of the usufructuary or that is to take effect at the termination of the usufruct. The consent of the usufructuary is required for the establishment of any other predial servitude.
	Art. 711. Usufructuary	The usufructuary may not establish on the estate of which he has the usufruct any charges in the nature of predial servitudes.
	Art. 712. Owner for a term or under condition	A person having ownership subject to a term or the happening of a condition may establish a predial servitude, but it ceases with his right.
	Art. 713. Purchaser with reservation of redemption	A purchaser under a reserved right of redemption may establish a predial servitude on the property, but it ceases if the seller exercises his right of redemption.
	Art. 714. Co-owner; servitude on entire estate	A predial servitude on an estate owned in indivision may be established only with the consent of all the co-owners. When a co-owner purports to establish a servitude on the entire estate, the contract is not null; but, its execution is suspended until the consent of all co-owners is obtained.
	Art. 715. Exercise of the servitude	A co-owner who has consented to the establishment of a predial servitude on the entire estate owned in indivision may not prevent its exercise on the ground that the consent of his co-owner has not been obtained. If he becomes owner of the whole estate by any means which terminates the indivision, the predial servitude to which he has consented burdens his property.
	Art. 716. Servitude on undivided part	When a co-owner has consented to the establishment of a predial servitude on his undivided part only, the consent of the other co-owners is not required, but the exercise of the servitude is suspended until his divided part is determined at the termination of the state of indivision.
	Art. 717. Partition in kind	If the estate owned in indivision is partitioned in kind, the servitude established by a co-owner on his undivided part burdens only the part allotted to him.
	Art. 718. Partition by licitation	If the estate is partitioned by licitation and the co-owner who consented to the establishment of the predial servitude acquires the ownership of the whole, the servitude burdens the entire estate as if the co-owner had always been sole owner. If the entire estate is adjudicated to any other person the right granted by the co-owner is extinguished.
	Art. 719. Successor of the co-owner	Except as provided in Article 718, the successor of the co-owner who has consented to the establishment of a predial servitude, whether on the entire estate owned in indivision or on his undivided part only, occupies the same position as his ancestor. If he becomes owner of a divided part of the estate the servitude burdens that part, and if he becomes owner of the whole the servitude burdens the entire estate.
	Art. 720. Additional servitudes	The owner of the servient estate may establish thereon additional servitudes, provided they do not affect adversely the rights of the owner of the dominant estate.
	Art. 721. Servitude on mortgaged property	A predial servitude may be established on mortgaged property. If the servitude diminishes the value of the estate to the substantial detriment of the mortgagee, he may demand immediate payment of the debt. If there is a sale for the enforcement of the mortgage the property is sold free of all servitudes established after the mortgage. In such a case, the acquirer of the servitude has an action for the restitution of its value against the owner who established it.
	Art. 722. Modes of establishment	Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.
	Art. 723. Servitudes on public things	Predial servitudes may be established on public things, including property of the state, its agencies and political subdivisions.
	Art. 724. Multiple dominant or servient estates	A predial servitude may be established on several estates for the benefit of one estate. One estate may be subjected to a servitude for the benefit of several estates.
	Art. 725. Reciprocal servitudes	The title that establishes a servitude for the benefit of the dominant estate may also establish a servitude on the dominant estate for the benefit of the servient estate.
	Art. 726. Servitude on after-acquired property	Parties may agree to establish a predial servitude on, or for the benefit of, an estate of which one is not then the owner. If the ownership is acquired, the servitude is established. Parties may agree that a building not yet built will be subjected to a servitude or that it will have the benefit of a servitude when it is built.
	Art. 727. Servitude on part of an estate	A predial servitude may be established on a certain part of an estate, if that part is sufficiently described
	Art. 728. Limitation of use	The use of a predial servitude may be limited to certain times. Thus, the rights of drawing water and of passage may be confined to designated hours.
	Art. 729. Conventional alteration of legal or natural servitude	Legal and natural servitudes may be altered by agreement of the parties if the public interest is not affected adversely.
	Art. 730. Interpretation of servitude	Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.
	Art. 731. Charge expressly for the benefit of an estate	A charge established on an estate expressly for the benefit of another estate is a predial servitude although it is not so designated.
	Art. 732. Interpretation in the absence of express declaration	When the act does not declare expressly that the right granted is for the benefit of an estate or for the benefit of a particular person, the nature of the right is determined in accordance with the following rules.
	Art. 733. Interpretation; benefit of dominant estate	When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude
	Art. 734. Interpretation; convenience of a person	When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns.
	Art. 735. Persons acquiring servitude	A predial servitude may be acquired for the benefit of the dominant estate by the owner of that estate or by any other person acting in his name or in his behalf.
	Art. 736. Capacity to acquire servitude	An incompetent may acquire a predial servitude for the benefit of his estate without the assistance of the administrator of his patrimony or of his tutor or curator.
	Art. 737. Renunciation of servitude by owner of dominant estate	The owner of the dominant estate may renounce the contract by which a predial servitude was acquired for the benefit of his estate, if he finds the contract onerous, and if the contract was made without his authority or while he was incompetent.
	Art. 738. No revocation by grantor	The grantor may not revoke the servitude on the ground that the person who acquired it for the benefit of the dominant estate was not the owner, that he was incompetent, or that he lacked authority.
	Art. 739. Acquisition by title only	Nonapparent servitudes may be acquired by title only, including a declaration of destination under Article 741
	Acquisition by Title notes	Public policy frowns upon extending ownership rights for usually longer than 10 years. Thus you cannot tie up property and remove it from commerce indefinitely. For example, co-owners can agree to not partition the land for a certain number of years but not indefinitely. The broader the restriction, the more likely a court will strike it down while a narrower restriction is more likely allowed. You can grant a servitude to several estates – there can be multiple dominant estates and servient estates. For example you sell lot A and C to different people, and there is a water well on lot B. After you grant a servitude to use the well to A, you may also grant one to C. A limitation on this comes into play when a well cannot support all estates granted. Suppose you have two tracts of adjoining land that adjoin two separate roads on each end and each owner wants access to both roads – reciprocal servitude.
	Mrs. Pizzolata owned lot X and subdivided it into lots A and B. She sold A to the Security and Loan Association who conveyed this lot to the plaintiff Burgas. In the conveyance records the following stipulation was recorded: “Purchaser has the privilege of using the paved driveway in the rear of the property which is part of Lot B belonging to the vendor herein.” Mrs. Pizza later sold lot B to the Fidelity Homestead Association who conveyed it to defendant Stoutz. Stoutz notified Burgas that he was going to build a fence that would impair the use of the paved driveway. Plaintiff filed suit.	Defendant attacks the recorded stipulation because it doesn’t state the width or length of the right of passage. The court finds that this is easily ascertainable as shown by photographs filed in evidence. Defendant then argues that a servitude of passage, a discontinuous servitude, cannot be acquired by destination de pere de famille, and parol evidence is inadmissible. It is true that such a right of passage can only be established by title. As the right of passage in this case depends upon contract, the court looks to the terms of the contract. The driveway was granted to “the purchaser, its successors, and assigns.” However, in the title it is only granted to the purchaser. It must then be considered as declared in art. 732, whether the right granted be of real advantage to the lot or merely of personal convenience to the owner. Art. 733 states that “if the right granted be of a nature to assure a real advantage to an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.” The court finds that the right of passage over lot B granted to purchasers of lot A is of real utility to the property. It is also significant that the passage was not given to a named individual but to “the purchaser.”
	Vendor (Wendy’s) grants vendee a predial servitude prohibiting use of property as a restaurant with a drive through window, the primary business of which is the sale of hamburgers or chicken sandwiches which makes up 15% of their business. Basically it doesn’t want a burger place opening up next to it and taking away business. Vendee intended to build a KFC franchise on the property.	The court finds that the provision is not ambiguous and that there is a valid predial servitude because KFC can still operate in light of said servitude.
	Servitude came into existence at the time of partition, but then there was also a stipulation that there would be a strip used for exit to the public road. That was not used. Prescription of non use goes against that particular area that was stipulated to be the crossing path. But if 694 is a legal servitude, ie the right to claim a gratuitous passage, then it is not subject to prescription.	Issue: Was there a conventional predial servitude created that is still in effect? Holding: The court holds that there is no right to servitude in this case. Conventional servitudes and personal servitudes affecting immovable property must be in writing. Here it was not in writing, but admitted in court. The two year personal servitude that was created by the defendant by his admissions under oath that the convention create the servitude expired before the cause of action was brought. Court distinguishes between personal and predial servitude. Notes: Granter can convey under oath a servitude – 2275, revised in the 1984 revision. You can have a verbal transaction recognizing a servitude. Side note: 689 – right to demand passage is the legal servitude – once its been put in the ground, it becomes a conventional passage. So then the right to demand 694 may be a legal servitude, or may be an implied condition. So there is disagreement about the nature of 694.
	Art. 740. Modes of acquisition of servitudes	Apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription.
	Art. 742. Acquisitive prescription	The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.
	Plaintiff filed a petition for injunctive relief to prohibit defendant from bricking over windows in the common wall between them. The trial judge held that servitudes of light and view cannot be acquired by acquisitive prescription and court of appeal affirmed adding that even if it were applicable, plaintiff did not have the requisite 10 years of good faith.	Apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription (art. 740), while nonapparent servitudes may be acquired by title only. Apparent servitudes are those that are perceivable by exterior signs, works, or constructions such as a roadway, a window in a common wall or an aqueduct. Nonapparent servitudes are those that have no exterior sign of their existence such as the prohibition of building on an estate or of building above a particular height. The court concludes that a window in a common wall is clearly an exterior sign of a servitude. The second issue is whether plaintiff met the 10 year requirements of acquisitive prescription. Plaintiff must establish that he has possessed the right for 10 years in good faith with just title (742). Here, the adverse possession of 10 years was established but just title was more problematic. For a servitude to be created by title, the instrument must be express as to the nature and extent of the servitude. An ambiguous agreement to establish a servitude is unenforceable. Plaintiff’s title was insufficient because it contains boilerplate language that is too imprecise to establish a servitude of light and view. Plaintiff argues that the new revisions in the law don’t apply to him, but the court says he does not have a vested right and they can deprive him of a nonvested right. Unless prescription has fully accrued by the time of the application of the provision, the court can retroactively apply the revisions.
	Ryan appeals a preliminary injuction permitting Monett a servitude of overhang, allowing him to keep window air conditioning units that hang over Ryan’s property by about a foot. Air conditioning units did not exist at the time the property was erected. On appeal Ryan contends the judge erred in the application of Arts. 743-744 and the law of acquisitive prescription.	The court finds that these units are not “necessary” under 744 in that the owner of the estate can install central air conditioning which would obviate the need for such units and cause less inconvenience. As for acquisitive prescription, no authorities support the presumption of just title. The only “title” appearing in evidence is an instrument dated 1958 but it does not on its face purport to describe any property right that would authorize placement of window units. Without just title, the soonest servitude could be created by prescription of 30 years which would be in 2013. Monet also suggests that his “encroachment” under art. 670 cannot be contested because a reasonable time has passed, but the judge does not buy this argument.
	Plaintiffs own a house that was built 6 inches from defendant’s property line. For more than 30 years there has been a window with blinds that, when opened, pass over the defendant’s property. Defendant’s built a screen at the edge of their property and now plaintiffs can no longer open their window. This screen, while the base was 6 inches away, leaned only 3.5 inches from plaintiff’s house. Plaintiffs allege a servitude of light and view.	: No servitude of light and view can include the servitude of prohibition of building above a particular height. By the same right that defendant builds a wall with apertures, plaintiff may build one facing it with apertures. The screen has since been straightened up, and there was no damage caused by the fact that it leaned 3.5 away at one time. But wasn’t there a case that said that a window is an apparent servitude of light? This difference is that in that case it dealt with a common wall which requires permission of the co-owner. When it is a private wall, you don’t have an apparent sign of a servitude over a neighbor’s property, it is just an incidence of ownership.
	Mineral rights may no be established by acquisitive prescription. true or false	true
	Art. 739. Acquisition by title only	Nonapparent servitudes may be acquired by title only, including a declaration of destination under Article 741.
	Art. 741. Destination of the owner	Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners. When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the destination.
	Defendant buys a house next to a vacant lot and the roof projects over the lot causing rainwater to fall on it. The two lots were once owned by a common vendor. Defendant pleads prescription to the right of servitude. The plaintiff argues that the fact that the house stood in this situation is no evidence of servitude because the common vendor being owner of both lots at the time, could not owe a servitude to himself.	: When the proprietor of the two lots sold to the defendant, and remained silent, that which he retained was burdened with the service. He could not have resisted the exercise of the right and it is unnecessary to say he could not transfer to another that which he had not himself.
	Defendant owned two adjoining lots in which he built a brick building on one and a cottage on another and these buildings were only a couple feet apart. The brick building was built with windows facing the cottage, covered by Venetian blinds with movable or revolving slats. When the defendant built the cottage, he nailed boards across these windows on the outside, thus preventing the opening of the shutters and the view of the cottage lot. 15 years later, plaintiff bought this brick building and insisted on removing these boards so that she may open the window blinds. Thereupon defendant erected screens on his own lot so as to obstruct her view of his lot.	: If the owner of the two estates between which there exists an apparent sign of servitude, the same shall continue to exist actively or passively in favor of or upon the estate which has been sold. The destination made by the owner is equivalent to title with respect to continuous apparent servitudes. By destination is meant the relation established between two immovables by the owner of both, which would constitute a servitude if the two immovables belonged to different owners. Although the purchaser had no reason to think the boards were permanent, it does not change the fact that they had been closed for a considerable amount of time. However, the court emphasizes that the plaintiff could not have determined that the blinds were boarded from inspection on the inside, nor did defendant mention that the windows were closed permanently, nor did the deed mention such servitude. The plaintiff ought to be able to take the boards down because the window was an incidence of ownership. What would stop her from opening up a new window? Nothing. The code expressly provides that in order that the tacit release of a servitude for the erection of works which prevent the exercise of it, it is necessary that the works be of a permanent and solid kind such as an edifice or walls and that they present an absolute obstacle to every kind of exercise of the servitude. There can be no question of prescription in the case at bar since defendant owned both lots up to the sale and he cannot prescribe against himself. Thus Plaintiff has a right to such light and ventilation as may be obtained by the removal of the boards from the outside of the windows, but the screens are equally necessary to protect his cottage from intrusive eyes. There can be no doubt he could build another story on his cottage which would obstruct the view. Thus, boards may be removed but not the screens even though this only allows her to partially open the shutters. On rehearing, the court decides the screens must be removed but Scalise believes they got confused with the ruling of common walls, and this ruling was wrong.
	A hotel was connected to a garage by “Parcel K.” The ownership of the Garage and Parcel K was transferred to different owners and the hotel used a garage across the street for their guests. The owner of parcel K placed a gate upon the doorway connecting it to the hotel. The hotel argues that this doorway had been used over the past several years as a manner of ingress and egress between the hotel and the adjoining street and also argues it serves as a fire exit from the rear of the hotel.	Appellants failed to prove that the former common owners of the property intended to establish a servitude of passage through the garage to and from the adjoining street. Historical usage of the door was for pedestrian traffic from the garage via the door was conditioned upon the hotel parking cars in the garage. There is no evidence to support the contention that the garage was intended as a path for persons to enter or leave the hotel via the adjoining street. The court’s requirement of the former common owners’ intent is not found in 741. An argument could be made that they had a lease with the other owners to let their guests use the garage, and now that the lease is terminated, there is no longer a right to use the premises. Though the fact that there was a lease does not mean there is not a servitude, because you can have both. The court is bothered by the idea that the owner leased the property which means the owner did not intend to have a servitude. Scalise finds this “intent” language problematic. In October this year, the LA Supreme Court found that “intent” is not an extra requirement. They did not overrule this case but discouraged the use of intent.
	St. Julien Doctrine	a public utility can no longer take private property without any just compensation. Utility companies were placing powerlines down on your house and as time went on, people wanted to move or construct things that would get in the way of the powerlines. Acquisitive prescription did not work nor did other legal theories, so the court came up with a servitude of estoppel. It was overruled but the legislature created a statute on p618 (R.S. 19:14) that brings back the St. Julien doctrine.
	Art. 744. Necessary works; cost of repairs	The owner of the dominant estate has the right to make at his expense all the works that are necessary for the use and preservation of the servitude.
	Art. 745. Right to enter into the servient estate	The owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude. He may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible.
	Art. 746. Exoneration from responsibility by abandonment of the servient estate	If the act establishing the servitude binds the owner of the servient estate to make the necessary works at his own expense, he may exonerate himself by abandoning the servient estate or the part of it on which the servitude is granted to the owner of the dominant estate. (generally speaking, you cannot impose obligations on the servient estate, but you can impose ancillary obligations)
	Art. 747. Division of dominant estate	If the dominant estate is divided, the servitude remains due to each part, provided that no additional burden is imposed on the servient estate. Thus, in case of a right of passage, all the owners are bound to exercise that right through the same place.
	Art. 748. Noninterference by the owner of servient estate	The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.
	Art. 749. Extent and manner of use of servitude when title is silent	If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.
	Art. 750. Location of servitude when the title is silent	If the title does not specify the location of the servitude, the owner of the servient estate shall designate the location.
	Plaintiff lives next to a school on defendant’s tract. P uses its tract of land for farming, and has a servitude of passage along western border of defendant’s tract with a specified width of 25 ft. stated in the contract. P alleges defendant has interfered with use of its right-of-way and appeals the trial court findings in favor of defendant for the interference that the building overhangs on to it. The trial court found 1) plaintiff failed to prove the overhang diminished the right of way, 2) having 2 trucks pass side-by-side would be a hazard to the children, and 3) removing the overhang would be an unreasonable burden.	1) Defendant alleges that under Art. 748, plaintiff failed to prove that the overhang has diminished the use of the servitude and that although two larger vehicles may not be able to pass each other, the servitude is so sparingly used that it is not likely to happen. The court disagrees stating that only where the contract does not specify the width of the right of way that its extent is subject to interpretation based upon previous use of the servitude. (479) Thus, plaintiffs were entitled to clear passage for the full width of 25 feet. There is no distinction for encroachments above ground level. Defendants cannot succeed in arguing that the overhang does nothing tending to diminish the servitude because plaintiffs are prevented from using 6.8% of it on one end and 11.6% on the other. 2) Nothing shows that the plaintiffs were using the servitude in a manner which may create a hazard to school children, and such a restriction of prohibiting 2 cars from passing side-by-side would be inconsistent with the nature of the plaintiff’s right-of-way. 3) The court finds that the allegation of an unreasonable burden is not supported by any evidence as to the scope or cost of such work.
	SNG had a judgment against them for failing to dam a pipeline canal it constructed on plaintiff’s (“apples”) property, thereby causing loss and deterioration of many acres of marshland. SNG appeals alleging that the servitude agreement with plaintiffs absolved them from the obligation to dam the canal and owed no duty to do so. The agreement specifically prohibited SNG from backfilling the canal in southern strip of land.	: Plaintiffs argue that irrespective of the language of their agreement, art. 745 establishes a general duty by servitude of the owner to avoid unreasonable damage. The court finds that any duty imposed by this article is subject to the written provisions of the servitude agreement. (art. 697) It seems contrary to public policy to allow erosion of marshland. Rights and obligations of the owner and servient estate are contract obligations – so the remedies are for nonperformance –and prescription that runs for obligations. But is tort liability excluded by contractual provisions? No.
	Art. 751. Destruction of dominant or of servient estate	A predial servitude is extinguished by the permanent and total destruction of the dominant estate or of the part of the servient estate burdened with the servitude. ** it goes without saying that if the estate is PERMANENTLY and TOTALLY destroyed, there can be no more servitude. It is not extinguished if its not total or permanent – like usufruct. If it is not permanently lost but just unusuable for a time, it is not extinguished. But the thing must be reestablished within the prescriptive time.
	Art. 752. Reestablishment of things	If the exercise of the servitude becomes impossible because the things necessary for its exercise have undergone such a change that the servitude can no longer be used, the servitude is not extinguished; it resumes its effect when things are reestablished so that they may again be used, unless prescription has accrued.
	Art. 753. Prescription for nonuse	A predial servitude is extinguished by nonuse for ten years.* it is like liberative prescription in some respects, and in others like peremption because the right is destroyed.
	Art. 754. Commencement of nonuse	- Prescription of nonuse begins to run for affirmative servitudes from the date of their last use, and for negative servitudes from the date of the occurrence of an event contrary to the servitude. An event contrary to the servitude is such as the destruction of works necessary for its exercise or the construction of works that prevent its exercise. * distinction between affirmative and negative servitudes is only important as it refers to this article for determining when nonuse started.
	Art. 755. Obstacle to servitude	- If the owner of the dominant estate is prevented from using the servitude by an obstacle that he can neither prevent nor remove, the prescription of nonuse is suspended on that account for a period of up to ten years.
	Art. 756. Failure to rebuild dominant or servient estate	If the servitude cannot be exercised on account of the destruction of a building or other construction that belongs to the owner of the dominant estate, prescription is not suspended. If the building or other construction belongs to the owner of the servient estate, the preceding article applies.
	Art. 757. Sufficiency of acts by third persons	- A predial servitude is preserved by the use made of it by anyone, even a stranger, if it is used as appertaining to the dominant estate.* what if you are not using the servitude but it is used by the mailman to deliver the mail, or used by trespasser – so the question is whether the servitude is used at all. The answer is yes. Use by third persons can be use of the servitude for the benefit of the owner but only if the use is appertaining to the dominant estate. If a trespasser uses it, it’s not appertaining. A broker showing the property as an agent would be appertaining to the estate.
	Art. 758. Imprescriptibility of natural servitudes	The prescription of nonuse does not run against natural servitudes. * Same for legal servitudes
	Art. 759. Partial use	A partial use of the servitude constitutes use of the whole.
	Art. 760. More extensive use than title	A more extensive use of the servitude than that granted by the title does not result in the acquisition of additional rights for the dominant estate unless it be by acquisitive prescription. * Under the new law you acquire a greater right than what your title is, but the servitude has to be acquired right - - 1) servitude 2) just title 3) registered 4) ten years 5) good faith. Without good faith, need 30 years – So the acquisition of servitude rules apply. If you have a title to a servitude, that does not preclude you from acquiring more by acquisitive prescription.
	Art. 761. Use of accessory right	The use of a right that is only accessory to the servitude is not use of the servitude. *What is an accessory right? The court decides.
	Art. 762. Use by co-owner	If the dominant estate is owned in indivision, the use that a co-owner makes of the servitude prevents the running of prescription as to all. If the dominant estate is partitioned, the use of the servitude by each owner preserves it for his estate only.
	Art. 763. Minority or other disability	The prescription of nonuse is not suspended by the minority or other disability of the owner of the dominant estate.
	Art. 764. Burden of proof of use	When the prescription of nonuse is pleaded, the owner of the dominant estate has the burden of proving that he or some other person has made use of the servitude as appertaining to his estate during the period of time required for the accrual of the prescription.
	Art. 765. Confusion	- A predial servitude is extinguished when the dominant and the servient estates are acquired in their entirety by the same person
	Art. 766. Resolutory condition	When the union of the two estates is made under resolutory condition, or if it cease by legal eviction, the servitude is suspended and not extinguished.
	Art. 767. Acceptance of succession; confusion	Until a successor has formally or informally accepted a succession, confusion does not take place. If the successor renounces the succession, the servitudes continue to exist.
	Art. 768. Confusion; separate and community property -	Confusion does not take place between separate property and community property of the spouses. Thus, if the servient estate belongs to one of the spouses and the dominant estate is acquired as a community asset, the servitude continues to exist.
	Art. 769. Irrevocability of extinction by confusion	A servitude that has been extinguished by confusion may be reestablished only in the manner by which a servitude may be created.
	Art. 770. Abandonment of servient estate	A predial servitude is extinguished by the abandonment of the servient estate, or of the part on which the servitude is exercised. It must be evidenced by a written act. The owner of the dominant estate is bound to accept it and confusion takes place. * you can abandon a real right. So you can abandon the estate that is burdened with the servitude. Abandonment and renunciation are 2 different things. Renunciation is by the owner of the dominant estate saying they no long want the servitude.
	Art. 771. Renunciation of servitude	A predial servitude is extinguished by an express and written renunciation by the owner of the dominant estate.
	Art. 772. Renunciation by owner	A renunciation of a servitude by a co-owner of the dominant estate does not discharge the servient estate, but deprives him of the right to use the servitude.
	Art. 773. Expiration of time or happening of condition	A predial servitude established for a term or under a resolutory condition is extinguished upon the expiration of the term or the happening of the condition.
	Art. 774. Dissolution of the right of the grantor	A predial servitude is extinguished by the dissolution of the right of the person who established it.
	A tract was partitioned into 3 Lots: L1,L2, and L3. There is a deep water well on L3, but all three lots have a conventional servitude to use this well. L3 was owned by Mrs. Hebert who claims that she verbally gave her interest in the well to Abshire, owner of L2. When the well dried up, Abshire re-dug it and replaced the wooden casing with steel and contends the servitude ceased when the well dried up and also by 10 year servitude of non-usage.	Issue: Was paying for the water from the well a use of the servitude? Is the servitude permanent or suspended because the dry up extinguished the servitude? Holding: Dipping in the well was necessary works of the servitude and prescription did not run. The payment for the water from the well does not obviate the fact that the well, and hence the servitude was indeed used, and therefore prescription was interrupted. The court says it was not extinguished and that the servitude was reestablished. When the water table drops, has the servitude been extinguished? Under 752, it resumes its effect when things are reestablished so that they may again be used, unless prescription has accrued. The defendant was not obligated to redig the well in order for it to work.
	Plaintiffs and defendants own adjacent tracts of land separated by a bayou. The parties negotiate a right of way across the bayou and onto the tract that fronts Foster Road. They executed an agreement that stipulated the length of the servitude but not the location. Plaintiff argues that the servitude has not yet been created because it was to be established when the exact location was designated, and that prescription did not begin to run until such location was specified.	Courts do not construe stipulations in a contract as suspensive conditions unless the express contract language compels such construction. Here, neither the contractual provision for designating the exact location of the servitude later in writing, nor any other language in the contract, indicated that the parties intended to create the servitude when its exact location was designated. Thus, prescription of non-use began with the execution of the agreement. Issue: did the right of passage agreement establish a servitude or was it an obligation to establish a servitude? Holding: There is nothing in the contract tha would suggest that the parties intended that the servitude would be created only when its exact location was designated. The agreement refers to the servitude as having been created. If the title is silent as to the extent of the servitude, then the intention of the parties is to be determined in light of the servitudes purpose. Additionally the code says that where there is any doubt as to existence or extent of the servitude, the matter should be resolved in favor of the servient estate. Therefore, Liberative prescription of 10 years for a personal action applies from the time that the agreement was executed and since the action as not brought for more than 10 years, the right is extinguished. 3499 Granting the actual servitude This is not an obligation it’s a grant of a servitude – so 10 years applies for servitude of non use. Grant of servitude under a suspensive condition I assume the obligation to grant you this servitude and it will be effective when you turn 60. Suspensive condition works on a grant or on an obligation. So then what? Prescription does not begin to run until the suspensive condition happens. You cannot sue until the obligation arises. Argue that there was a suspensive condition or that there was no K because there was no agreement.
	Ashland Oil contracts with Palo Alto to have a pipeline run across its land. The terms of the servitude require that Ashland only use the pipeline for the transport of CO2 (for the production of methanol) and that the prescription of non-use is 12 consecutive months rather than 10 years as required by LA law. After a few years, Ashland found that the production of methanol was unprofitable, but to keep its servitude, it sent CO2 down the pipeline on a 11 ½ month basis where it was simply vented into the air, and the pipeline was pressurized with nitrogen to keep it from corroding. Palo Alto argues the servitude had not been used within the 12 month period under the terms of the contract. Ashland argues the trial court erred in admitting parol evidence to interpret the intentions of the parties.	Where, as here, the language of the contract granting the servitude is broadly and generally worded, a determination of the object of the grant does not depend upon the admission of parol evidence because it can be readily seen that any pipeline servitude to transport gas from one location to another must have as its purpose a use other than that availed here. Therefore, we find that even if the trial court admitted parol evidence, it was harmless. The contract did establish an exclusive manner of using the pipeline, and by merely running CO2 through the line was not using the pipeline but merely a gesture by the owners to preserve the servitude. Similarly, if you contract to have a right of way on someone’s property to access a road, but you don’t use it to access the road, but instead to walk your dog along the path, this is an accessory use or token use and the servitude will likely prescribe. Holding: yes. But it has to be reasonable. But you cannot extend the liberative prescription, but you can shorten it. Does this really shorten the prescription or simply grant the servitude for as long as it is being used plus one year? This is a different way to look at it in terms of contractual freedom. Real question: Have you used the servitude? Because if it is given to you for the transportation of carbon dioxide in gaseous or liquid state…and you transport just carbon – does this count as use? ** if you give a servitude for a particular purpose only (like vehicular traffic only), then there are no other rights for partial right or for extended rights, because only that purpose was the servitude. But, by interpretation, the more includes the less – so if you have the rights of more, then you have the rights of less – if you have the right to drive down the road, then you have the right to walk, possibly.
	The power company urged that it had used, or at least partially used, its servitude because the dual purpose service pole and service line to the landowners' house had been present on the servitude area since 1968. The power company also argued that it had maintained clearance over the servitude property in conjunction with the transmission of electric power and this amounted to use of the servitude, even though the precise location of the line was not on the servient estate. The power company added that it should not be penalized with non-use simply because it never had to physically create a clearance on the servitude.	The court found that the power company had not transmitted electricity on the servient estate in a manner consistent with the servitude instruments since 1972. This point was critical because of the distinction between the servitude itself and its accessory rights. Use of an accessory right did not constitute use of the servitude itself. Therefore, the power company lost the powerline servitude by 10 years of non-use. The purpose of the servitude was to run electricity. The power company ran electricity to the house through a newer pole outside the servitude area. Thus because the old pole was not used, the servitude expired. The fact that the pole remained there was an accessory to the contract – it is used to facilitate electricity but is not enough by itself.
	Plaintiff argues that her right of way onto an alley on defendant’s lot has not extinguished because her neighbor’s son used to jump over the fence and walk along the alley to get to the grocery store.	The unauthorized acts of strangers are not within the original intendment of the grantor and grantees and contrary to the purpose in view. Interruption of prescription must be done, if not by the person entitled to the use, by persons representing at least by one going to and from his premises for the ordinary legitimate purposes for which the alley was provided. They cannot be considered as done with sanction or for the benefit of Plaintiff and should be viewed as clandestine acts of intruders or trespassers.
	A canal was cut through the plantation owner's land. Many years later, the owner of the rear tract of land situated behind the plantation owner's land sought to obtain and enjoy a servitude on that canal. He filed a petition in which he asserted, essentially, that the servitude was created in the late 1700's and that the right to enjoy it passed to him through his chain of title.	The parish court rendered a judgment in favor of the owner of the rear tract. On appeal, the court annulled, avoided, and reversed the judgment. The court awarded a judgment to the plantation owner with costs in both courts. The court noted that, prior to the enactment of La. Civ. Code, a servitude such as the one at issue was prescribed against by a non-user for 20 years. The court also noted that there was an exception to the general rule that he who affirmed should prove when the affirmative involved a negative, because a negative could not be proved. The court found that the owner of the rear tract had the burden of proving that he enjoyed the servitude at issue for 20 years after its creation. Because he failed to carry that burden, the court held that the plantation owner was entitled to a judgment. he who affirms should prove. But where the affirmative involves a negative, the burden is thrown to the opposite party, because a negative cannot be proved. Since the D claims non use as a defense, the rule would say that he should prove – but here that would be proving a negative – so the plaintiff must establish evidence that he can prove. Since the P here cannot prove their use in 20 years, then the defendant’s case is proved, that the defense of nonuse holds. See art 764 today for burden. But when would prescription of non use commence here under present law? It is an affirmative servitude – still from the day of the last use. Sooo. 764 tells you that respect to affirmative servitudes prescription begins to run from date of the last use. With respect to negative servitudes, go to the general principle, since this article does not speak to this – owner of the servient estate who erected building contrary to the servitude – gap in the law? Hmmm….
	La Code Civ. Pro. Art. 3653. Same; proof of title; immovable	To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall: (1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or (2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. When the titles of the parties are traced to a common author, he is presumed to be the previous owner.
	La Code Civ. Pro. Art. 3654. Proof of title in action for declaratory judgment, concursus, expropriation, or similar proceeding	When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party: (1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or (2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.
	LA Code Civ Pro. Art. 3655. Possessory action	The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.
	Art. 3656. Same; parties; venue	A. A plaintiff in a possessory action shall be one who possesses for himself. A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself. B. The possessory action shall be brought against the person who caused the disturbance, and in the venue provided by Article 80(A)(1), even when the plaintiff prays for a judgment for the fruits and revenues of the property, or for damages.
	Art. 3657. Same; cumulation with petitory action prohibited; conversion into or separate petitory action by defendant	The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated. When, except as provided in Article 3661(1)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action. If, before executory judgment in a possessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.
	Art. 3658. Same; requisites	To maintain the possessory action the possessor must allege and prove that: (1) He had possession of the immovable property or real right therein at the time the disturbance occurred; (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; (3) The disturbance was one in fact or in law, as defined in Article 3659; and (4) The possessory action was instituted within a year of the disturbance.
	Art. 3659. Same; disturbance in fact and in law defined	Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law. A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment. A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.
	Art. 3660. Same; possession	A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper. Subject to the provisions of Articles 3656 and 3664, a person who claims the ownership of immovable property or of a real right therein possesses through his lessee, through another who occupies the property or enjoys the right under an agreement with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject.
	Art. 3661. Same; title not at issue; limited admissibility of evidence of title	In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue. No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove: (1) The possession thereof by a party as owner; (2) The extent of the possession thereof by a party; or (3) The length of time in which a party and his ancestors in title have had possession thereof.
	Art. 3662. Same; relief which may be granted successful plaintiff in judgment; appeal	A. A judgment rendered for the plaintiff in a possessory action shall: (1) Recognize his right to the possession of the immovable property or real right therein, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction; (2) Order the defendant to assert his adverse claim of ownership of the immovable property or real right therein in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and (3) Award him the damages to which he is entitled and which he has prayed for. B. A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(A).
	Art. 3663. Sequestration; injunctive relief	Sequestration of immovable property or of a real right therein involved in a possessory or petitory action during the pendency thereof is available under the applicable provisions of Chapter 1 of Title I of Book VII. Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to: (1) A plaintiff in a possessory action, during the pendency thereof; and (2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.
	Art. 3664. Mineral rights asserted, protected and defended as other immovables	The owner of a mineral right may assert, protect, and defend his right in the same manner as the ownership or possession of other immovable property, and without the concurrence, joinder, or consent of the owner of the land or mineral rights.
	Petitioner, Louisiana Irrigation and Mill Company, sought an injunction prohibiting defendant, James W. Pousson, from interfering with a described servitude which was a canal. The defendant claimed to be the owner and the possessor of all canals involved in this litigation, particularly for more than one year prior to the institution of plaintiff's suit and for more than one year prior to the disturbance alleged by plaintiff. The Court of Appeal decided that plaintiff lacked the requisite possession to support injunctive relief under C.C.P. art. 3663. The Court of Appeal agreed with plaintiff's classification of the servitude involved as a continuous and apparent servitude, because of the provisions of C.C. art. 727, and as a real right subject to "quasi possession." The court further concluded that the "quasi possession" of the servitude claimed by the plaintiff had not been continuous for the year prior to March 20, 1970, the date found to be the beginning of the disturbance of the possession by defendant.	We agree with the conclusion of the Court of Appeal: before plaintiff can obtain an injunction under C.C.P. art. 3663(2) it must have been in possession of the immovable or real right for a year before the disturbance. In addition, plaintiff contends that the Court of Appeal should have maintained its "plea of estoppel." In effect, plaintiff argues that, since the defendant never objected to plaintiff's use of the canal, and constructed his own canal system, and once asked plaintiff's canal manager to allow defendant to use plaintiff's canal, defendant should be estopped from contesting plaintiff's possession or ownership. There is no substance to the argument. Even if "estoppel" were available in an action concerning possession of an immovable, there is no showing that defendant's actions, with respect to plaintiff's use of the canal, ever amounted to any more than sufferance. Defendant considered the benefit accruing to his neighbors, who did not have their own irrigation system and who depended on plaintiff for water. The plaintiff never relied to its detriment on any act of the defendant, an essential element to any theory of "estoppel."
	Plaintiff brought this possessory action, alleging possession of a servitude of passage on a twenty foot gravel roadway located on the northwestern boundary of land owned by defendant. According to her petition, the road offered P's estate its "only access to a public highway," and D disturbed her use of the servitude by erecting a fence at the junction of the gravel road and Louisiana Highway 412. P began using the servitude in the 1930's and its use by her and her lessees had allegedly been quiet and uninterrupted until D's fence was built on May 23, 1984.	: She and her lessees allegedly exercised a servitude of passage, a quasi-possession, on the road for over a year immediately prior to the disturbance. LSA-C.C. art. 3421 9. According to LSA-C.C. art. 3421, the rules governing possession apply by analogy to the quasi-possession of incorporeals. Thus, the possessory action is available to quasi-possessors. Plaintiff's petition meets the requirements of a possessory action under LSA-C.C.P. art. 3658 as follows: "To maintain the possessory action the possessor must allege and prove that: "(1) He had possession [quasi-possession] of the immovable property or real right therein at the time the disturbance occurred; "(2) He and his ancestors in title had such possession [quasi-possession] quietly without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; "(3) The disturbance was one in fact or in law, as defined in Article 3659; and "(4) The possessory action was instituted within a year of the disturbance." In addition, quasi-possession of a servitude must be exercised "with the intent to have it as one's own." However, there is a presumption that one intends to possess as owner, and intent may be alleged generally, rather than with particularity. Intent to own the servitude can be inferred from plaintiff's petition. Louisiana has fact pleadings and it is not necessary to plead the theory of the case in a petition. Any doubt as to the sufficiency of a cause of action should be resolved in favor of petitioner. Since plaintiff's petition meets the requirements of LSA-C.C.P. art. 3658, the court of appeal erred in sustaining defendant's exception of no cause of action.
	Art. 639. Right of use	The personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment.
	Art. 640. Content of the servitude	The right of use may confer only an advantage that may be established by a predial servitude.
	Art. 641. Persons having the servitude A right of use may be established in favor of a natural person or a legal entity.	A right of use may be established in favor of a natural person or a legal entity.
	Art. 642. Extent of the servitude	A right of use includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property unless otherwise stipulated in the title.
	Art. 643. Transferable right	The right of use is transferable unless prohibited by law or contract.
	Art. 644. Heritable right	A right of use is not extinguished at the death of the natural person or at the dissolution of any other entity having the right unless the contrary is provided by law or contract.
	Art. 645. Regulation of the servitude	A right of use is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude.
	Art. 644. Heritable right	A right of use is not extinguished at the death of the natural person or at the dissolution of any other entity having the right unless the contrary is provided by law or contract.
	Art. 645. Regulation of the servitude	A right of use is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude.
	Notion of Limited Personal Servitudes	They constitute an intermediate category between usufructs and predial servitudes. Like a usufruct, they are charges on a property in favor of a person rather than an estate and like predial servitudes they are necessarily charges on an immovable belonging to another person and are confined to the advantages of use or enjoyment. Although the term "personal" is used, this servitude is a real right.
	Art. 730. Interpretation of servitude	Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.
	Art. 731. Charge expressly for the benefit of an estate	A charge established on an estate expressly for the benefit of another estate is a predial servitude although it is not so designated.
	Art. 732. Interpretation in the absence of express declaration.	When the act does not declare expressly that the right granted is for the benefit of an estate or for the benefit of a particular person, the nature of the right is determined in accordance with the following rules.
	Art. 733. Interpretation; benefit of dominant estate	When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.
	Art. 734. Interpretation; convenience of a person	When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns.
	: Sustainable brought this action against the Harrisons to prevent the Harrisons from interfering with Sustainable's use of a road right-of-way across their rural tract of land. The Servitude Deed granted "an easement for the construction and maintenance of a forest road across" the tract. In response to the suit, the Harrisons filed certain exceptions, including the exception of no right of action. The Harrisons pointed out to the court that IP's 1998 Deed to Sustainable did not specifically describe the 12-foot right-of-way. Therefore, it was urged that the ownership right of the disputed servitude remained in IP.	The Servitude Deed does not describe a dominant estate; it only describes a servient estate. In the absence of a description of a dominant estate in the title instrument, this conventional right of passage and access in favor of IP falls within the category of personal servitudes, which the Civil Code defines as a "right of use." The right of use is not a predial servitude because of the absence of a dominant estate, and the distinction was critical in the case at bar. The 1998 deed to the user from its predecessor-in-title had not conveyed the disputed right of use. Nor did the record show that the user's intermittent use of the road for over 1 year prior to the suit was sufficient adverse possession to the owners, who also had the use of the road during the same period.
	Harrison owns a two-acre tract that he purchased from the Paynes. When the Paynes acquired the property in 1993 from Gilbert and Nancy Ciavaglia and Plum Hill Training Center, Inc., the Paynes acquired the following rights: As additional consideration, Vendor grants to Vendee a non-exclusive servitude of usage of a 5/8 mile horse race track located in Bossier Parish, Louisiana, which servitude shall include the right to gallop and exercise at all reasonable times, a maximum of fifteen (15) horses stabled at Vendee's barn located on the above described tract of land; provided that Vendee shall pay Vendor $ 100.00 per month maintenance fees for any month that any of Vendee's horses are exercised on said 5/8 mile track. From the time when Harrison purchased his property in 1995 until 1999 when the Ciavaglias sold the track to Lifeline, Harrison exercised his horses on the track. Harrison paid the Ciavaglias $ 100 for each month he used the track; the payments were made at irregular intervals. After the Ciavaglias sold the property containing the track to Lifeline, Harrison did not use the track because Lifeline objected to Harrison's use of the track. When Lifeline sold the property to McCormick, Harrison decided to use the track. Without contacting McCormick, on October 26, 2004, Harrison's employee exercised a horse on the track without interference. On October 28, 2004, Harrison's employee attempted to use the track, but McCormick's son arrived and asked him to leave. The employee complied, but the next day Harrison's employee returned to exercise another horse on the track, accompanied by a deputy sheriff. McCormick or his representative again asked Harrison's employee to leave, and that was the last time Harrison tried to use the track. Harrison did not attempt to pay McCormick $ 100 for the use of the track at any time; he testified that he was asked to leave, not to pay $ 100.	The trial court found that the servitude established by the deed was a personal servitude of right of use, and the appellate court agreed. By use of the terms "vendor" and "vendee," the parties made clear their intent that the servitude ran in favor of persons and not estates. Although there was some evidence that the track was in an unusable condition, the trial court accepted the trainer's testimony that it remained useful for a limited purpose. The owner urged that the servitude terminated because the trainer had not paid him $ 100 for the use of the track in October 2004. In October, the trainer used the track one day without interference and thereafter attempted twice to use the track only to be turned away. The evidence did not show that he or his employee offered to pay for the use of the track, nor did the evidence show that the owner or his representative demanded payment. There was no support in the civil code for the argument that a right of use servitude terminated upon the failure of the holder of the right to pay an installment. The obligation of the owner was to allow the trainer, as the holder of the right of use, to exercise his right without interference.
	Art. 630. Habitation	Habitation is the nontransferable real right of a natural person to dwell in the house of another.
	Art. 631. Establishment and extinction	The right of habitation is established and extinguished in the same manner as the right of usufruct.
	Art. 632. Regulation by title	The right of habitation is regulated by the title that establishes it. If the title is silent as to the extent of habitation, the right is regulated in accordance with Articles 633 through 635.
	Art. 633. Persons residing in the house	A person having the right of habitation may reside in the house with his family, although not married at the time the right was granted to him.
	Art. 634. Extent of right of habitation	A person having the right of habitation is entitled to the exclusive use of the house or of the part assigned to him, and, provided that he resides therein, he may receive friends, guests, and boarders.
	Art. 635. Degree of care; duty to restore the property	A person having the right of habitation is bound to use the property as a prudent administrator and at the expiration of his right to deliver it to the owner in the condition in which he received it, ordinary wear and tear excepted.
	Art. 636. Taxes, repairs, and other charges	When the person having the right of habitation occupies the entire house, he is liable for ordinary repairs, for the payment of taxes, and for other annual charges in the same manner as the usufructuary. When the person having the right of habitation occupies only a part of the house, he is liable for ordinary repairs to the part he occupies and for all other expenses and charges in proportion to his enjoyment.
	Art. 637. Nontransferable and nonheritable right	The right of habitation is neither transferable nor heritable. It may not be alienated, let, or encumbered.
	Art. 638. Duration of habitation	The right of habitation terminates at the death of the person having it unless a shorter period is stipulated.
	The grantor alleged that she agreed to convey to her nephew, the grantee, the land at issue if he would built a house on the land for her to live in. The grantor further alleged that the grantee did build a house on the land, but took possession of the premises for his own use and benefit. The grantee argued that his understanding of the agreement was that the parties would live in the house together. The grantor commenced the instant action seeking to cancel the instrument of conveyance.	The trial court entered a judgment for the grantee. On appeal, the court found that the grantor's position was not supported by her actions and attitude during the course of the destruction of the old house and the erection of the new one. At no time then did she complain about or protest the grantee's undertaking, notwithstanding that on numerous occasions she witnessed the progress of the work and was fully aware of the size and type of structure being built. It seemed to the court that she would have voiced objections if the grantee was operating in a manner violative of his contractual obligations.
	Art. 775. Building restrictions	Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.
	The property owner filed an action against the ancestor in title seeking a decree declaring that certain property purchased from another was free from any restrictive covenants. The person who sold the property to the property owner, had purchased the property from the ancestor in title. The trial court found that there existed on the property a building restriction restricting the property to residential use only, and that restriction was valid and enforceable against the property owner	The trial court's judgment was affirmed on appeal. The court noted that the restriction in question was established by title. The restriction had been inserted as an agreement in the act of sale between the ancestor in title as seller and the person who sold the property to the property owner. The court further noted that the agreement stated that the stipulation would be valid and binding upon, among others, the successors to the purchaser.
	The business owners constructed a metal building on their property where they washed, stored, and maintained trucks. The writ application was granted to determine whether the intermediate appellate court erred in reversing the trial court's determination that the action to enforce a building restriction had not prescribed.	La. Civ. Code Ann. art. 781 provided a limitations period of two years. Under the manifest error standard of review, a factual finding could not be set aside unless the supreme court found that it was manifestly erroneous or clearly wrong. In this case, six witnesses testified as to when a noticeable violation commenced. The credibility determination was left to the trial court, as the fact-finder. The supreme court concluded that the testimony provided a reasonable factual basis for the trial court's finding. The trial court's determination that this action was filed within the two-year time period because the violations of the building restrictions were not noticeable until 2001 was not manifestly erroneous.
	Art. 776. Establishment	Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables. Once established, building restrictions may be amended or terminated as provided in this Title.
	Art. 778. Affirmative duties.	Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan. Building restrictions may not impose upon the owner of an immovable or his successors the obligation to pay a fee or other charge on the occasion of an alienation, lease or encumbrance of the immovable.
	Art. 779. Injunctive relief	Building restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.
	Art. 780. Amendment and termination of building restrictions	Building restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them. In the absence of such provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for at least fifteen years, or by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for more than ten years.
	The salon operator cut hair part-time out of her home for three years, and then in 1970 became licensed as a beauty parlor by the state and began operating full-time. Thereafter, the builders brought an action seeking to enjoin her from operating the salon on the ground that the operation violated restrictive covenants applicable to the subdivision property. The salon operator filed a plea of prescription, pursuant to La. Rev. Stat. Ann. § 9:5622(A), claiming that because the violation had continued for over two years, prescription barred any attempts to enforce the covenants.	The district court ruled in favor of the builders and the salon owner appealed. The court affirmed, holding that because the entire subdivision was limited to single family, residential dwellings, and prohibited the carrying on of any business activity, the salon operator's activities were covered by restrictive covenants and prohibited. Further, the court held that the action was not barred by prescription because the salon operator's activities prior to 1970 did not constitute business activity, and that the covenants in place at the time the salon operator purchased her property were valid and binding.
	The case involved an action for declaratory and injunctive relief seeking to enforce restrictive covenants prohibiting commercial use of the properties fronting one of the premiere residential neighborhoods in New Orleans. The residents fronting the area in question filed an action against the corporation, and the trial court granted summary judgment in favor of the residents.	The trial court affirmed, stating that, based on the analysis of the three pertinent documents, the two contractual agreements, the 1931 Act and the 1977 Agreement, and the 1990 decision interpreting those agreements, the parties intended to create building restrictions, La. Civ. Code Ann. arts. 781 and 782. The court thus classified the restrictions as building restrictions. Because building restrictions constituted real property rights on property, the only way in which the restrictions could have been amended before the expiration of the fixed term of April 18, 2027, was with the consent of all of the landowners. The court reversed the granting of the intervention, because the restrictions were at the heart of the action and the intervenors were strangers to those restrictions.
	Art. 781. Termination; liberative prescription	No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.
	The properties located in a certain area were subject to a restrictive covenant that required the owners to keep the lots "reasonably neat and clean." After receiving numerous complaints about the homeowner, the association filed a declaratory action to determine if the owner's property violated the restrictive covenant. After the trial court entered judgment in favor of the owner, the association sought review.	In reversing, the court determined that the association's action was not time barred because the complaints beginning as early as 1998 did not amount to a covenant violation. The owner's argument concerning abandonment was totally without merit because there was no proof contained in the record. The court noted that restrictive covenants were interpreted by using the rules applicable to contracts. The court found that the phrase "reasonably neat and clean" was not ambiguous in the context used. The evidence showed that the owner hung thousands of items from trees in his yard, began painting the house a variety of colors, and placed toilets and signs on the lawn. This behavior was grubby, messy, disheveled, and disorderly, which were the opposition of neat and clean.
	After the neighbors brought an action against the property owner to enjoin him from erecting a commercial building on property that was encumbered with subdivision restrictions, judgment was entered in the neighbors' favor. At the time the suit was instituted, the property owner kept a billboard sign on the property. Over two years later, the neighbors brought a contempt proceeding that alleged the property owner's billboard to be a violation of the prior order, and the trial court ordered the removal of the billboard. The property owner appealed by certiorari	and the court annulled the order and dismissed the contempt proceedings. The court held that the restrictions were valid and enforceable, and it held that the billboards were structures that fell within the restriction against business or commercial ventures. However, the property owner was improperly held in contempt because the injunction issued in the original action did not adjudicate the issue of the billboard. Further, the neighbors' claim was barred by the two-year prescriptive period of 1938 La. Acts 326, § 2.
	The developer filed restrictive covenants as to the property in question that only allowed for residential development. Later, the developer sold a portion of the property to a company that used the property for non-residential purposes. The residents brought an action seeking an injunction and an order requiring that a trailer be removed.	The trial court enjoined any further non-conforming uses as to a portion of the property and ordered the trailer removed. The trial court also found the covenants remained in effect as to the balance of the property. The developer appealed. On review, the court determined that the restrictive plan, as a whole, had been abandoned because there was a significant change in the original scheme of development envisioned by the developer. Further, the portion of the property that was not ordered changed was unlikely to be developed because of the unavailability of municipal utilities.
	The landowners brought an action against the equipment owner which sought to enjoin him from using a arpent tract of land owned by him for storage of various street fair equipment. The landowners alleged that the equipment owner's use of the tract of land for the purpose of storing the equipment was violative of a restrictive covenant which was placed on the land by the landowners' and the equipment owners' ancestors in title. The restrictive covenants were set forth in both the landowners' and the equipment owner's deed of sale. The restrictive covenants provided that the owners and their heirs were not permitted to use the land for trade or business or for any purpose other than of a residential purpose.	The lower court issued a permanent injunction that enjoined the equipment owner from storing his equipment on his property. On appeal the court found that the restrictive covenant provisions in the equipment owner's act of sale were clearly meant to preclude all commercial endeavors from the land affected by the covenant. The court found that the use of the land made by the equipment owner fell within the scope of the restriction intended by the grantor.

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