39 La. Ann. 210 | La. | 1887
Tlie opinion of the Court was delivered by
This ease involves the claim to a servitude of drain, and the following diagram exposes the situation of the estates concerned :
The, facts are as follows :
In 1866 the partnership of Levet & Lapeyrollerio acquired the tract A. In 1867 the same partnership acquired the tract C.
The natural drainage of tract C was to the rear, but the owners of the rear lands having obstructed the same, in 1871 the partnership of Levet & Lapeyrollerie, with the consent of Lapeyrollerie, dug the canal indicated in the diagram, running from the tract C across tract B, and emptying into a canal in tract A, which conducted its waters to the rear.
From that date the waters from tract C have enjoyed uninterrupted optlet through this canal.
In 1883 the partnership of Levet & Lapeyrollerie was dissolved by the death of the latter.
A judicial partition was effected between the heirs of Lapeyrollerie and the surviving partner, Levet, which was made by sale of the common property, and the tracts A and C were adjudicated to Levet, to whom the said tracts were duly transferred, “with all the rights, ways, privileges, improvements and appurtenances thereunto belonging.
In 1884 the heirs of Lapeyrollerie, owning tract B, attempted to close the canal, when the present plaintiff, claiming a servitude of drain in favor of tract C, through said canal, acquired by a possession of ten years, brought the present suit for a perpetual injunction, restraining defendants from any acts interfering with it.
The servitude claimed is a real servitude. C. C. 646, 714. It is continuous. C. C. 727. It is apparent. C. C. 728.
The Code provides that “continuous and apparent servitudes may be acquired by title or by a possession of ten years." C. C. 765.
There is no dispute that the servitude here has been possessed or enjoyed for more than ten years, without interruption.
The defendants contend, how ever, that the owner of tract C cannot claim the benefit of such possession, because, up to the death of Lapeyrollerie, said owner was a partnership, of which their said ancestor was a member. The proposition has no support in reason or authority. The partnership was a distinct entity entirely separate from the individual members, capable of acquiring such a servitude by title from the member Lapeyrollerie, and equally capable of acquiring it by possession for the requisite length of time.
It is next claimed that the right of drain here involved is not a real servitude properly so-called, but a mere personal right established in favor of the partnership, and expiring with it, under C. C. 758.
Where a servitude is acquired by title, the act stipulating it may validly declare whether it is in favor of the estate or only in favor of the owner, and such stipulation will receive full effect. But Art. 755 says that in case of silence of the act, it is to “ be considered whether the right granted be of real advantage to the estate, or merely of personal convenience to the owner.” And Art. 756 provides 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.”
Plaintiff is entitled to the full benefit of this presumption in this case, where there was no express title, and where the evidence conclusively shows that the servitude was established for the benefit of tract C, and is of such advantage to it that, without it, the tract could not be successfully cultivated.
Defendant’s pretensions are the less worthy of consideration when raised, for the first time, after the partition sale, at which the price paid for tract C would have been doubtless reduced had it been supposed that its established servitude of drain would be disputed. We think the district judge did justice in the case.
Judgment affirmed.