1 Rob. 321 | La. | 1842
On the 13th of October, 1820, the petitioner purchased of Francois Therriot, a portion of the rear part or double concession of his plantation,, the said vendor engaging in the deed of sale to deliver to him a road of twelve feet wide for ingress and egress to and from the tract purchased to the river, and warranting the peaceable and perpetual opening of said road. On the 22d of August, 1822, the defendant, J. Nolan, bought of Therriot a portion of his front tract or plantation, and in the sale it was stipulated that Nolan should give the use of a road of twelve feet wide on his upper line for the use and benefit of the plaintiff, and the successive owners of the piece of land lying back of his purchase. The petition alleges that notwithstanding this stipulation, Nolan enclosed and stopped up said road, which he has since his purchase continually refused to open upon frequent amicable demands, thus causing to the plaintiff damages to the amount of one thousand dollars. The defendant pleads the general issue, and avers that if any such servitude ever existed in favor of petitioner, the same has been extinguished by non-usage during ten years.
The present suit was instituted only on the 28th of October, 1840, twenty years after the sale to plaintiff, and about eighteen years after the sale to Nolan, both of which established the right of way sought to be recovered in this suit. It has not been shown that the servitude claimed is a natural and necessary one, originating from the relative situation of the two tracts, which would exist independent of any agreement, and against which no prescription for non-usage can run, as provided by article 791 of the Civil Code. Pierre Blanchard, one of the witnesses, says that he cultivates the land of De La Croix, and experiences no inconvenience whatever in getting to the river from the rear tract; that he (the witness), and all his neighbors use a road contiguous to the one claimed, which was reserved for their common benefit on the land of Judge Chinn ; that since 1827 this road has been used by the public, and that since that time plaintiff has always used it, although not included in the reservation made of this common road. It does not appear that
Judgment affirmed.