3 La. Ann. 549 | La. | 1848
The judgment of the court was pronounced by
The defendant claims a servitude on the land of the plaintiff, in favor of a tract of land having ten arpents front by thirty two in depth, .on the bayou Teche, purchased, in 1809, by him from Louis JDelahoussaye, under whom the plaintiff also holds. The clause which gives rise to this controversy is in the following words : “ It est convenu que Joseph Landry est d&ment autorizé par ce present á prendre da bois pour Vutilité de son habitation sur la terre du dit sieur JDelahoussaye, située au grand bois, ce privilége restant attaehé pour toujours k la dite terre de dix arpents stipulée au present acte.” At the time of sale the tract of land of the defendant was unsettled, and entirely uncultivated ; a short time afterwards it was occupied and established
About the period of the defendant’s purchase, cotton, corn, &c., were the sole products of cultivation in the neighborhood. There was but one sugar house in the whole parish, which was shortly after abandoned. The district judge, in view of the situation of the land, and the condition of the country at the remote period of the sale, was of opinion that the change in the culture of the defendant, twenty years after the purchase, from cotton to sugar, would essentially change and augment the burthen of the servitude, and that the provision of the quantity of wood necessary for the manufacture of sugar from the lands of the vendor, could not have been in the reasonable contemplation of the parties at the time of making their contract; nor did the judge consider that, according to the rules of law, for the interpretation of servitudes, the right claimed by the defendant could be supported.
In this opinion of the judge we concur. At the time this servitude was created, it was not onerous, and the estate' affected could support it without deterioration. Sugar was not then one of the staple products of the State. The present wants of the plaintiff, for the new product of his land, increase many fold, and may increase still more, the burthen; so that what was originally within the province of the parties, agreed to as a common or ordinary servitude may become a devastation, and destroy the value of the burthened estate. The authorities adduced by counsel have been examined, and it is useless to reproduce them in this opinion, in which we confine ourselves to the result of our examination.
The district judge restricted the right of taking wood from the land of the plaintiff to thirty-five cords of wood as the maximum per annum, that being the number of cords of wood sufficient for fuel and rails for the use of the plantation, under the evidence adduced. The appellant objects to this restriction as in conflict with his servitude, and we are not prepared, under the information tion before us, to render it perpetual.
The subject is one of great importance in this portion of the State particularly, aud we feel great reluctance in determining it without further lights. We shall leave the extent of this servitude, as to the quantity of wood and what wood is to be taken, open for further enquiry, and change the judgment appealed from in that particular. The parties themselves may perhaps render a further examination of this subjeet by a court unnecessary.
The judgment appealed from is, therefore, reversed ; and it is ordered that the defendant be perpetually enjoined from cutting or taking from the plaintiff’s land wood for the purpose of making and manufacturing of sugar, and be confined to the exercise of his servitude-to the Wood for the use of his plantation, ¡tour l’utilité de son habitation; and that the plaintiff recover from the defendant the sum of $212 with costs ; the plaintiff paying the costs of this appeal, without prejudice to other matters not included in this decree.
