Académique Documents
Professionnel Documents
Culture Documents
Fall 2002
Equity- what is right through reason and analogy – use reason, justice and prevailing
usage
PROPERTY (defn) Exclusive right to control an economic good; refers to rights and
obligations, privileges and restrictions that govern relations of man with respect to
things of value.
Civil law of Property – has direct and immediate authority over real rights, ownership,
personal servitudes, predial servitudes and mineral servitudes
1
• cannot be owned by anyone—Air and High Seas
• Things that are to be used freely by everyone comfortably with the use for which
nature intended
1. Public things that belong to the state – running waters, the waters and
bottoms of natural navigable water bodies (river and lake beds),
the territorial sea, and the seashore.
A. Imprescriptible
B. Inalienable (La Const. Art. 9, sec. 3, 4)
C. Mineral rights on property sold by the state shall be reserved
2. Public things that may belong to the political subdivisions of the state:
streets and public squares
• Imprescriptible
4. Importance of Navigability
a. Is the water body a public thing? (art. 450(2))
b. Is the water body subject to public use? (art. 452)
c. Is bank of river/stream subject to public use? (art. 456)
d. General test of navigability: Is it capable of being used, in
ordinary condition, as highway of commerce over which trade or
travel are or may be conducted in customary modes?
Note: STATE has two capacities- private (car) and public (park)
2
1. Imprescriptible-
• public things of state or political subdivision
• All things owned by the STATE
• Lands and Mineral interests of the State
• Note private things of political subdivision are prescriptible
2. Not subject to Seizure- no public property of either State or Political Sub.
Private Things
• owned by individual, other private person and/or the state in private capacity
Art. 452 Public Things and Common Things Subject to Public Use
• Subject to public use in accordance with applicable laws and regulations.
• Use freely provided do not cause damage to property of adjoining land owners
The right to fish in the rivers, ports, roadsteads, and harbors, and the right to land on
the seashore, to fish, to shelter himself, to moor ships, to dry nets, etc. provided that
he does not cause injury to the property or adjoining waters.
Excludes the rights of individuals in the general public to build cabins on seashore.
3
Owned by individuals, other private persons, and by the state or its
political subdivisions in their capacity as private persons.
Landry v Council of East Baton Rouge- airport closed no longer suitable for intended
purpose
• Is the airport public property in the private or public domain?
• Private- has the right to close; Public- no right to close- remains open to the
public
• Andersen v Thomas- public property belongs to the municipality by which it has
been acquired and may be dealt with as the municipality sees fit
• Art 458- not open to general public and quasi proprietary in fact charge fee
Determination of Navigability
1. Public Thing (Art 450)
2. Subject to Public Use (Art 452)
3. Banks of river and streams are subject to Public Use
Navigability-
determines the classification of a natural body of water as a public
thing
if proven “highway of commerce” then public thing
4
General Test- is it capable of being used, in its ordinary condition,
as a highway of commerce over which trade or travel are or may be conducted?
Once its navigable it is always navigable
5
River Bay
Bed Bank
6
Batture
• alluvial accretions annually covered by ordinary high water, the highest stage the
river can be expected to reach annually in the seasons of high water
7
Art. 505 Island and Sandbars in Navigable Rivers
• Island and sandbars that are not attached to a bank, formed in the beds of
navigable rivers or stream, belong to the STATE
• Prescription does NOT run against the state.
8
This article includes sea, seashore, and the bottom of natural navigable waters,
or on the banks of navigable rivers.
Works includes buildings, wharves, and other facilities for the mooring of vessels
and the loading or discharging of cargo and passengers
Lakes
• Article 450- Navigable beds are owned by the State
• Article 500- Riparian owners have no rights to alluvions or derelection in regards
to lakes
• Article 506c- Non navigable lakes are private things- ie swamps
• State v Class Co Oil- The bed of the lake extends to the ordinary high water mark
• When lake erodes or causes Riparian land to submerge- to bad State gets
• Distinguish between a lake from river or Stream- size, depth, width,
banks, channels, current, historical destination
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Moveables and Immovables
Immovables Movables
10
Tracts of land and component parts Cut trees
Component Parts- timber owned by another harvested Crops
Other Constructions if belong to ground Construction own other than owner
Unharvested Crop belonging to owner Unharvested crops not belonging to owner
Incorporated things – building material Building material not yet incorporated
separated for a purpose of repair
Component parts of a building and other Demobilized things
construction
Immoveables by declaration Everything else not immovable
Buildings when they belong to the owner Separate immovables when owned by other
of the ground persons
11
• Materials separated from a building or other construction for the purpose of repair,
addition, or alteration to it, with the intention of putting them back, remain
immovables.
Landry v LeBlanc
• Immovable objects require written permission if a transfer of ownership is to
occur
• Contract to sell Immovable title must be in writing and have the mandate
authority of the owner to dispose of the land
12
Equibank v. IRS and Shell v. Boze
• Chandeliers removed/ carpet
• When deciding if an object is an immovable or a movable consider Art. 466 and
societal expectations
The court decided to satisfy the third requirement it must be placed for improvement and
actually be used
Standing timber
Art. 463
• standing timber is a component part of a tract of land when it belongs to owner of
ground
Art. 464
• separate immovable when belongs to someone else
When dealing with timberland, be careful about status if separate ownership has been
declared in public record the sale of the land does not include the timber
If no public record act translative of ownership and must be recorded to affect the third
party
Act does not have a fixed time for removal, court can do it.
For separate owner of growing crops to assert his rights against third persons, his interest
must be recorded.
Willets v. Concordia
• Fixed time for removal decided by court
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c) detatchment or removable by owner, in absence of t hird person
ex: Equibank – bank held mortgage therefore, Johnson’s could not remove
• Rights, obligations, and actions that apply to a movable thing (e.g. bonds, annuities,
and interest/shares in entities possessing juridical personality)
• Interest or shares in a juridical person that owns immovables are considered as
movable as long as the entity exists; upon dissolution, the right of each individual to a
share in the immovables is an immovable
Income beneficiary – get the profit and the income generated during the term
Principal beneficiary – get the corpus when the trust terminates; during the term he
receives nothing
Art. 475
• All things corporeal or incorporeal that the law does not consider as movable will be
immovable
Art. 471
• Corporeal movables are things, whether animate or inanimate, that normally move or
can be moved from one place or another.
Examples – Cash, funds in savings accounts, bearer bonds, certified cashier
checks.
14
Art. 477
Ownership is a right that … direct, immediate and exclusive authority over a thing within
the lilmits of the law.
Resolutory condition – dependant on certain event, Immediately enforced but will come
to end when uncertain event occurs
Art. 481
• Ownership is distinguishable over possession.
• Ownership cannot be lost by non-use
09/18/02
Comment b-real rights confer direct and immediate authority over a thing.
15
Art. 478 Resolutory Condition; real right in favor of other person
• The right of ownership may be subject to a resolutory condition, and it may be
burdened with a real right in favor of another person as allowed by law.
• The ownership of a thing burdened with a usufruct is designed as naked ownership.
Patrimony
All assets and liabilities accumulated throughout a lifetime that are inherited.
16
Art. 3183
• the property of the debtor is the common pledge of his creditors, and the proceeds of
its sale must be distributed among them pro rata, unless there exists among the
creditors lawful causes of preference.
• Debtor’s property common pledge of creditors: exceptions to pro rata distribution
• Original acquisitions:
1. Occupany
2. Accession
3. Acquisitive prescription
• Derivative acquisition:
1. Sale
2. Donations
3. Successions
Comment (d) transfer must be in writing provided the transferor confesses when
interrogated that actual delivery has been made
17
Art. 518 Voluntary transfer of ownership of a movable
• The ownership of a movable is voluntary transferred by a contract between the owner
and the transferee that purports to transfer the ownership of the movable.
• Unless otherwise provided, the transfer of ownership takes place as between the
parties by the effect of the agreement and against third parties when the possession of
the movable is delivered to the transferee.
• When possession has not been delivered a subsequent transferee to whom possession
is delivered acquires ownership provided he is in good faith
• Creditors of the transfer may seize the movable while it is still in his possession
• DELIVERY IS THE KEY
18
Autochephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts
Planiol on Co-Ownership
“A thing belonging to several co-owners is in indivision when the right of each owner
bears upon the whole (and not upon a given part) of the thing held in common. “
• Shares are not tangible shares, but fractional shares
• The rights of each co-owner must be pictured as striking every molecule of the
thing… Section 2497
• Indivision ends by partition, i.e. by division of thing
• Expressed traditional civil law professor of co-ownership
Harrell on Co-Ownership
Butler v. Hensley
partition was the suggested remedy and the co-ownership is legal so should be viewed as
such even though it was a bit of a sham
• Correlative right to use property without regard to extent of his fractional interest.
LeBlanc v. Scurto
partition was the suggested remedy and one co-owners use cannot interfere with the
others
• Party’s use of alley was wasteful and spiteful according to the court
19
Art. 797 Ownership in indivision; def.
• Ownership of the same thing by two or more persons is ownership in indivision
• In the absence of other provisions of law or juridical act, the shares of all co-
owners are presumed to be equal
1. share the fruits and products in proportion to ownership, less deduction of costs,
but not co-owner’s own labor, Art. 798, cmt. (c)
2. take necessary steps for preservation, repair of thing, without consent of co-
owners. Art. 802 cmt. (c)
• entitles to reimbursement for expenses paid to third persons for same, less
deduction for value of enjoyment. Art. 806
3. use thing according to its destination. Art. 802
4. petition court for determination of use and management in absense of agreement
and when partition is not available. Art. 803
• see Succession of Miller
5. Lease, alienate or encumber his or her share. Art. 805
6. Demand partition in absence of law or agreement. Art. 807
Obligations
1. liable to other co-ownrs for damages caused by their fault. Art. 799
(only actions, not inactions can be cause for fault)
2. obtain agreement from all other co-owners on use and management of thing. Art.
801
3. allow other co-owners to use thing according to its destination. Art. 802
• co-owner cannot use thing exclusively and cannot dispose of thing without
consent of co-owners. Cmt. ( c)
4. Obtain consent of all co-owners for substantial alterations or improvements. Art.
804
• Penalties for doing so without consent parallel accession art. 496 and 497
5. obtain consent for lease, alienation or encumbrance of entire thing. Art. 805
6. May not demand partition when:
• There is agreement, for period up to fifteen years in general and up to 99
years for nuclear power plants. Art. 807 and LA. R.S. 1112 & 1702, or
• Use of things is indispensable for enjoyment of another thing owned by
one or more co-owners. Art. 808
• Partition of kind-when thing can be divided into as many lots as there are shares
and values of all lots is not significantly less than value of property as whole. Art.
810
• Partition by licitation-when not susceptible to partition in kind
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Effects of partition on real rights
• Regardless of mode of partition, a real right burdening the entire thing is not
affected. Art. 812, see cmt. ( b)
• When real right burdens one co-owner’s share, real right attaches to part of thing
allotted (in partition by kind) or share of proceeds (in partition by licitation) Arts.
813 and 815
Glazer v. Sontheimer
Family plots could not be partitioned
Value – graves would allow the children to rest next to mom and dad
ACCESSION
1. Fruits and Products
a. Article 482 – Accession
• The ownership of a thing includes by accession the ownership of
everything that it produces or is united with it, either naturally or
artificially.
b. Basic ownership of fruits and products belong to the owners from which
they were derived
c. Accession is the consequence of ownership
d. Article 483 – Ownership of fruits by accession
In the absence of rights of other persons, the owner of a thing acquires the
ownership of its natural and civil fruits
e. Article 551:Fruit- things that are produced by or derived from another
without diminution of its substance
1. Natural Fruit- products of earth and animals
2. Civil Fruit- revenues derived from a thing by operations of
law or juridicall acts- rentals, interest...
f. Article 488 – Products; reimbursement of expenses
• Products derived from a thing as a result of diminution of its substance
belong to the owner of that thing.
• When they are reclaimed by owner, a processor in good faith has the
right of reimbursement of their expenses.
• A processor in bad faith does not.
g. Article 487 – Possessor in good faith
21
• A possessor is in good faith when he possesses by virtue of an act
translative of ownership ( ie act of sale) and does not know of any
defects in his ownership.
• Needs some legal act
• Ceases to be good faith possessor when the defects are made known to
him or an action is instituted against him by the owner for recovery of
the thing.
• Comment f: example of patrimony - Universal successor occupies the
same position as his ancestor. Particular successor possesses by virtue
of an act translative of ownership.
k. Art 490 – Accession above and below surface – unless otherwise provided
by law, the ownership of a tract of land carries with it the ownership of
everything that is directly above it or under it.
l. Mineral Code Article 6
• Oil and gas in place (under ground) are not owned by the land owner
or any other person
• Not subject to absolute ownership as specific things apart from soil
• Own right to explore—once produce and possess then own it
22
• However, they are presumed to belong to the owner of the ground
unless separate ownership is evidenced by instrument filed for registry
in conveyance records of parish in which immovable located
b. Article 492- Separate Ownership part of a Buildings
• Separate ownership of a past of a building (floor, apartment, room)
may be established only by a judicial act of the owner of the entire
building when and in a manner expressly authorized by law
c. Marcellous v David – moving house?
• Ct held that the house belongs to the defendant because ownership
never transferred.
• Was to transfer in will; however, still alive—therefore overcame the
presumption of land
• To transfer ownership of immovable need authentic act
d. Graffagnino v Lifestyles – O Dome
• Verbal agreement and lease not recorded therefore could not preserve
ownership
• Appellate court felt Lifestyles had time and should have protected
itself by: recording lease or remove property or negotiate with new
owners
e. Article 493- Ownership of Improvements
• Buildings, other constructions permanently attached to ground and
plantings made on the land of another belong to owner of ground when
made without consent
• When owner of ... no longer has right to keep them on the land of
another, he may remove them subject to his obligation to restore the
property to its former condition
• If does not remove within 90 days after written demand, the owner of
the land acquires ownership of improvements and owes nothing to
their former owner
f. NOTE> Preserve ownership with respect to third party—RECORD!!!!!
g. Article 493.1 – Ownership of Component Parts
• Things incorporated in or attached to immovable so as to become its
component part belong to the owner of the immovable
h. Article 493.2 – Loss of Ownership by Accession; Claims of former owner
• One who has lost the ownership of a thing to the owner of an
immovable may claim against him or against a third person in
accordance with the provision
i. Article 495 – Things incorporated in or attached to an immovable with the
consent of the owner of the immovable
• Concerns the consensual attachment of things that component parts of
immovable
• In absence of provision of law or judicial acts, owner may remove
them provided he restores the land
j. Constructions, Planting or works by Good and Bad Faith Possessors
Good Faith Constructions Bad Faith Constructions
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a) Article 496- owner of immovable a) Article 497- owner of immovable
may not demand demolition and may keep or demand removal or
removal demolition at expense of the
possessor and demand damages
b) Owner is bound to keep them b) If does not demand demolition,
and at his option to pay the he is bound to pay at his option the
possessor the cost of the materials current value of materials and
and workmanship OR current value workmanship OR enhanced value
OR enhanced value
3. Accessions to Movables
a. Article 508- Things principal and Accessory
• Things are divided into principle and accessory
• For purpose of accession between movables, an accessory is a
corporeal movable that serves the use, ornament or complement a
thing.
b. Article 509- Value or bulk as a basis to determine principal thing
• The most valuable, or the most bulky is value is nearly equal, shall be
deemed to be principal
c. Article 510- Union of a principle or accessory thing
• Two corporeal immovables united to form a whole and one is an
accessory of the other, the whole belongs to the owner of the principal
thing
• The owner of the principal thing is bound to reimburse the owner of
accessory its value
• Owner of the accessory may demand that it be separated and returned
to him, although separation may cause some injury to the principal
thing, if the accessory is more valuable than the principal thing and has
been used without his knowledge
d. Aetna v LA Machinery Corp – caterpillar engine
• Ct held that the two pieces were easily detached with no harm.
24
• Lease was temporary therefore the machine was never intended to
remain
• Two items always retained separate identities only temporarily
connected therefore no ACCESSION
• No unity of ownership between unit and pump
4. OCCUPANCY
• A mode of acquiring a thing that belongs to nobody.
• It is done by taking possession with the intent of becoming the owner
of the thing.
• This mode of acquisition therefore consists solely in the taking
possession.
25
• If the treasure is found in a thing belonging to a owner, half the
treasure belongs to the owner and half belongs to the person who
found it
i. United States v Peters- Gold Certificate in mattress
• Legal question was this: Lost, abandoned or treasure?
• Not treasure because could determine the true owner by the
preponderance evidence
• Therefore, lost- 3 years to find owners and heirs were waiting.
DISMEMBERMENT OF OWNERSHIP
Personal –
Right or legal power one has against another to demand performance – obligation
relationship between you and another person
USUFRUCT
26
1. Article 630 – Habitation
The non-transferrable real right of a natural person to dwell in the house of
another (right of use only)
2. Article 639 – Right of Use; Limited personal servitude
Right of use confers in favor of a person a specified use of an estate less than full
enjoyment
3. Article 534 – Usufruct
Real right of a limited duration on the property of another
The features of the right vary with the nature of the things subject to it as
consumables and nonconsumables
Usufruct can be established on corporeal, incorporeal, movable and immovable
Conventional Usufruct
Legal Usufruct
Operations of law imposed usufructs in certain situations
Ex: surviving spouse
27
Has a right to possess them and derive the utility profits and advantages that they
may produce under the obligation to preserve the 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 in good condition.
Dad did not have right to transfer Mom’s stock because it was non-consumable.
P gets mom’s portion of stock and dividends after dad died.
Mom was valid in giving away $5k because it was a consumable asset. She is entitled to
use and enjoy the property as she sees fit.
Article 545 – Generally there is a wide berth for exercise of contractual and testamentary
freedom with a few key limits
Article 548 – One limitation – usufructuaries must exist at the time of creation of the
usufruct
Michel v. Knox – husband dies and leaves movable prop to wife and usufruct of
immovable
Nature of usufruct can be altered by testament
Usufruct
What is the purpose? It gives a property owner an ability to do different things to his
property. You can provide a home for the living spouse with one sentence in a will. A
way of preserving assets and avoiding co-ownership.
28
• 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.
• Cmt B- Terminates when the person’s share transfers to another usufructuary
29
What kinds of things are considered fruits and thus belong to usufructuary and what kind
are not fruits and thus belong to naked owners?
*564 – Treasure
If find get ½ If not found Usufruct – get full ownership
Mineral Code §191 when oil and gas wells and lignite operations considered open mines
§195 usufruct over land only not minerals; right of naked owner of land to
enjoyment of minerals
30
What kinds of things are considered fruits and thus belong to usufructuary and what kind
are not fruits and thus belong to maked ownership?
Fruits-usufructuay Not fruits-naked owner
Rule art. 195 in regards to Gueno-surviving spouse would get the mineral and usufructary
rights
Extention of Usufruct
Right of usufruct extends to?
What kinds of rights may be enjoyed or what kind of actions may be taken by
usufructuary?
31
If does any of the above, he is responsible for any of the abuse that the person contracted
with may cause.
2. Security
• Art. 571 Security
The usufructuary shall give security that he will use the property subject to the
usufruct as a prudent admin. and that will faithfully fulfill all the obligations
imposed on him by law or by the act that established the usufruct unless
security is dispensed with.
32
a. security may be dispensed with by grantor or by operation of
law. Art. 573
b. legal usufructuaries and sellers or donors of property under
reservation of usufruct NOT required to give security. Art. 573
c. IE buy bond
Succession of Carlisi
• What was Lucas Carlisi’s mistake? He imposed this obligation to secure by
testament – if he hadn’t she wouldn’t have to post a security
• What is your advise to charities and collateral relatives?
Just wait and be patient may get her portion
33
5. Abandonment and Ruin
34
What property is subject to a mortgage?
Loss of property subject to usufruct ad there is a damage to the fault of a 3rd party,
usufruct does not terminate but attaches to any claim for damages and the
proceeds therefrom.
Instances when it does not terminate is when the naked owner sells the property,
the mortgage is placed upon the property by the naked owner after the creation of
the usufruct does not affect the right of the usufructuary.
Art. 626 – Usufruct renounces his rights in writing. Can do it without court
approval.
Creditor of usufructuary can prevent if he chooses.
35
Art. 613: Loss that is purely accidental and jurisprudence has said the survivor’s
usufruct does not terminate “merely because the property to which the usufruct
attached was changed in form”
Usufruct over house and land; Did usufructuary have the right to continue to use
property and place a mobile home on it.
Usufructuary bound to pay annual charges imposed during his enjoyment … such
as property taxes
Even usufructuary does not pay annual charges, usufruct does not terminate.
Naked owner ultimately responsible.
Art. 615: When a property changes form for a variety of reasons, usufruct does
not terminate, but attaches to proceeds or thing that replaces property. Changes
form without any act of usufructuary.
Art. 616: Sale of property – usufruct attaches to proceeds of sale unless parties
provide otherwise.
Art. 617: Insurance Proceeds- when proceeds of insurance are due, on account of
loss or extinction or destruction of property subject to usufruct. Usufruct attaches
to proceeds
If usufructuary or naked owner has separately insured his interests only, the
proceeds belong to the insured party.
Kimball v. Standard Fire Insurance Co. (Bobbie murdered husband and house
burned down suspisciously)
Art 617: Because she bought separate insurance policy, she was able to keep
proceeds.
36
Naked ownership should demand safe investment but will be unlikely to get it.
Art 628: General rules nonconsumables upon termination, full ownership is restored
If property lost or deteriotated through fault of usufructuary, owner gets value property
otherwise would have had at termination. Id.
Art. 629: General rule consumable upon termination, usufructuary bound to deliver
to owner … same quantity or quality or value they had at commencement of usufruct.
Art. 627: Right of retention upon termination of usufruct, the usufructuary has the
right to retain possession of the property until reimbursed for all expenses and advances
Succession of Heckert – naked ownership does not expire regardless of how long they
wait to make a claim
HABITATION
37
A person having the right of habitation is entitled to the exclusive use of the house or the
part assigned to him, and provided that he resides therein, he may receive friends, guest,
and boarders
Ct. finds that it is a habitation. Implied party’s intent in regards to their actions.
However, problem is the use exclusive or not… therefore, check the party’s actions
PREDIAL SERVITUDES
Predial Servitudes
A. General principles
What are the key characteristics or features of a predial servitude? What is its purpose?
Art. 646 – Predial servitude is a charge on a servient estate for the benefit of a dominant
estate. 2 estates must belong to different owners.
• Who benefits from the charge imposed by a predial servitude? Any owner
• How long does predial servitude last? forever-perpetual, but can be extinguished
for nonuse after 10 years
Owner servient estate cannot place specific obligations on the dominant owner
• What kind of obligations can be imposed on servient estate and its owner?
Cannot put oblig on the owner but has the duty to keep up the estate
There must be a benefit to the dominant estate. The benefit need not exist at the time
the servitude is created; a possible future advantage suffices to support a servitude.
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Art. 648 Contiguity or proximity of the estates
What kind of relationship must exist between the dominant and servient estate?
NONE
Inseparable from dominant estate and passes with it. The right of using the servitude
cannot be alienated or encumbered separately from the estate.
Corporeal or incorporeal?
Can it be separated from the dominant estate, does it run w/ the servient estate when
ownership changes?
No it is an inherent thing
Art. 651 Servient estate does not have to have active service to the dominant estate,
mostly just maintenance to keep it fit for the servitude
Contractual obligation can bind a servient to do certain things but that is only to the
individual not everyone
Art. 652 a predial serv. is indivisible, every one should be able to use it as long it is not a
burden
Natural Servitudes
39
Ex. An higher elevation track of land, drill some oil wells, find oil mixed with water, let
it drain to get the oil, but damages the property next to it, does he have the right to the
drainage servitude- no it is not surfact water!
Legal Servitudes
All that relates to this kind of servitude is determined by laws or particular regulations.
When is riparian property subject to the levee serv. expressed by Art. 665?
Ancient Servitude – imposed for the benefit of public for purpose of constructing a levee.
40
Art. 667 Limitations on use of property
Although a proprietor may do with estate whatever he please 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 …
• Proprietor may do what pleases but can not deprive neighbor to do what want to
do with own property
• He is answerable for damage if knew or should have known
• Exception: an ultra hazardous activity which is specifically limited to pile driving
or blasting with high explosives
You cannot use your property anyway you want! You must consider your neighbor!
Encroaching Buildings
41
• Compensate landowners and if it can be easily moved without damage or
destroying utility must go
Enclosed Estates
Hypo: Buy land with enclosed estate does the seller have the obligation to provide right
of passage?
Predial servitude created the day the land becomes landlocked.
In the spirit of commerce—some sort of servitude will be allowed
42
When in the case of partition or a vol. Alienation of an estate or of a part thereof,
property alienated or portioned (lost land) becomes enclosed, passage shall be furnished
gratuitously by the owner of the land on which the passage was previously exercised…
Vendor must furnish a right of passage to the one who purchased the estate even if not
the shortest distance.
• Right to demand a passage arises only when lands alienated or lands partitioned
become enclosed as result of vol. Alienation or part.
• Conversely, no right to a gratuitous passage when lands retained become enclosed
as result of vol. Alienation
• Covers vendeer, buyers, donees, acquires of enclosed estates with respect to estate
that previously provided passage, but it does not cover vendors donors who
become enclosed as result of alienation of parts of their own estates (prohibited
prior to art. 693)
• BC Art. …
Stucky v Collins
• But when right of passage across vendor’s land is impossible or impractical
enclosed owner may seek Art. 689 servitude across a neighbor’s land
Patin v Richard
• Art. 694 can be asserted by successors of buyer against selle. But see Patin v.
Richard
• Conventional servitude may be loss by nonuse for 10 yrs
• Article 689- Imprescriptable is what serves the servient estate—ie right of passage
• But if granted to a person than can prescribe in 10 years.
Rockholt v. Keaty
• What is primary Motivation for finding that Rockholt is entitled to servitude of
passage? The govt. build Int. 12 and created to separate properties.
• Were they entitled to a legal serv. under art. 689? TC said no it wasn’t enclosed.
But Barham found otherwise, the laws underlying contention was to solve civil
problems. The interstate was a limited access road.
• What did he do wrong to prevent him from getting one in this case?
• Interstate ran on property but there was no exit
• Rockholt wanted to cross Keaty’s property to get to his other property. Told him
he could have sued to Art 689 – given access to drive through subdivision.
• Lovett disagreed- tie up court—and also nearest public road was long distance as
opposed to cutting through subdivision.
Leblanc v. Thibodeaux
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5 children own property. They divide all property but 72 acres of marsh land. That
prop. remains indivision. That property is surrounded by the 5 piece’s of prop. they
divided. They agreed on an access route at the time of partition. This prescribed
due to non-use 10 years later. Court decides they do have right of passage. Π argues
that Predial servitude was voluntarily surrendered by non-use prescription. Article
689
Who is more right? Majority or Lemmon?
Majority relied on art. 693 but Lemmon relied on art. 689 (more accurate and straight
answer)
Art. 689
Servitude never prescribes
Conventional Servitudes
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• Restraints on Use? -allow some objects – height and set ups—ie can not build
house over so many stories
• Building restrictions?- mainly for new subdivisions—place certain covenants into
order
Kinds of Servitudes
Acquisition of Servitudes
A. By title
• Art. 708 Est. of predial serv.
• The est. of a predial serv. is an alienation of a part of the prop. to which
the law
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What kind of act will create a conventional predial servitude by title?
General rule:
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 of the owner of the dominate estate
constitutes tradition.
Needs formality—must be written—can be transferred from testament, sale, donation…
delivery occurs when act transferred or dominate estate starts using
Art. 730-734: Rules of Interpretation and Construction for agreement that may create
predial servitude
• Doubt resolved in favor of servient estate. Art. 730
• Express charge for benefit of another estate is predial servitude even if not so
designatied Art. 731
Langevin v Howard
Issue 1 notation on check- create servitude?
Notation on check too vague
Testimony—admissable but stated under oath that only 2 years which would have already
prescribed.
Langevin would get a right of passage over Turk’s property gratutiuosly Art. 693
Art. 3483 Just Title – juridical acts sufficient to transfer ownership or real right
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2 estates owned by same owner predial servitude when ceases belonging to same
owners, unless express provisions to the contrary apparent servitude comes into existence
Nonapparent servitude comes into existence when the owner has filed for registry
Why did the Π in each case fail to est. the existence of a predial servitude?
Ryan v. Monet
Why wasn’t the overhang of the ac units a predial serv. by title? Art. 647 Future
advantage, wouldn’t apply bc it is too specific and ac’s weren’t considered
Language in the agreement specifically stated overhang and gutters which excluded a/c
units under the predial servitude.
Acquisitive prescription couldn’t apply …30 years had not yet passed
Art. 670 Encroaching bldg.? The ac units are not component parts of the building, they
could be removed.
Was there destination of the owner? Some sign that they wanted to est. an apparent serv.
and evidenced by exterior signs. The evidence was found inside the bldgs. not outside,
there wasn’t any wording in the surveys, there was previous contractual oblig. so there
was no intent to preserve a servitude.
The condition was placed on the contractual obligation that once the contract ended, the
servitude ceased.
What can the owner of the dominant estate do or demand from owner of servient estate?
He can make any works necessary for the use of the dominant estate. Art. 744
Are there any limits to what the owner of the dominant estate can do or demand?
Art. 745 least possible damage
What duties/limits are imposed on servient estate? Art. 748 – can do nothing to diminish
or make inconvenient
Location/Relocation burdens?
Art. 748 How you move a servitude from one location to another? He may relocate the
servitude but it has to be an equally convenient location and all relocation costs are paid
by servient estate
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Art. 747: Division of dominant estate – if dominant estates divide, servitude remains due
at the same place
Ryan relies on Art. 745 removal with the least possible damages-did not apply because of
the agreement . Contractual freedom overrides suppletive rules.
General rule about prescription of non-use: a predial serv. is extinguished by nonuse for
ten years. Art. 753
Art. 755
If the owner of the dominant estate is prevented from using the servitude by an obstacle
that he can neither remove nor prevent. Prescription suspended up to ten years.
New art. Imposes ten year limit on suspension. Obstacle creates suspension, not
interruption. Cmt b & c
Suspension due to material obstacle under Art. 755 occurs only when obstacle arises…
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Art. 765 Confusion – 2 owners of dominant estate become one
Pertinent questions:
When does prescription of non-use
What events extinguish a predial servitude – at least 7 ways mentioned in the code?
Comment c: if destruction is partial, the servitude continues to exist for the benefit of
the remaining part by virtue of the principle of indivisibility.
3. Art. 765: Confusion: A predial servitude is extinguished when the dominant and the
servient estates are acquired in their entirety.
7. Art. 774: Dissolution of the right of the grantor: The predial servitude is
extinguished by the dissolution of the right of the person who established it.
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Art. 754: Commencement of nonuse:
Affirmative servitudes – from the date of their last use
Negative servitudes – from the date of the occurrence of an event contrary to the
servitude
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.
Art. 766: Resolutory condition: When the union of the two estates is made under
resolutory condition, or if it ceases by legal eviction, the servitude is suspended and not
extinguished.
Art. 758: Imprescriptibility of natural servitudes: prescription of nonuse does not run
against natural servitudes.
Tilley v. Lowery
Q: What is the source of key rule that determined the outcome of the case:
A: Servitude commences when parties agreed to it Since contract was not specific, the
court resolved in favor of servient estate.
Q: What is the key rule? (When does prescription of nonuse run when owner of
dominant estate never actually commences use?
Lovett’s comment: Court said suspensive condition does not apply here because
language said “servitude was created” … Seems like courts could have applied
suspensive condition but it that would have prevented the servitude from coming into
condition relying on Art. 730
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Ashalnd Oil v. Palo Alto
A: Ashland transported CO2 through pipeline when they closed plant – they still
transported CO2 across the pipeline and released it into the air for the purposes of
maintaining the servitude. Court said use was inconsistent with intent of creation of
servitude … use of pipeline was a “mere gesture”
Majority said contract was for production of methanol. Lovett’s comment: could have
been saying that the “mere gesture” of transporting the CO2 was not a socially useful
purpose.
Dissenting opinion: Servitude’s purpose was not specific and should not necessarily limit
the use.
Lovett: the long term effects of a decision like this will result in more complicated
contracts between parties
Broomfield v. LP&L
1) pole’s existence did not constitute use and was not an integral and essential part of
the line
2) accessory use – LP&L’s entry of property to maintain clearance was accessory
use. Did not constitute enough use to interrupt prescription because it was not
enough to constitute partial use.
Article 759: Partial use: a partial use of a servitude constitutes use of the whole.
Comment b: this article speaks to the mode of the exercise of the servitude rather than
the different problem of the partial use of the area subject to the servitude.
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Article 761: Use of accessory right: the use of a right that is only accessory to the
servitude is not use of the servitude.
Comment b: Example – someone with servitude of drawing water from neighbor’s well
passes over the servient estate and goes to the well without drawing any water, he will
lose the servitude because the passage is merely accessory to the right of drawing water.
Pipeline in swamp buried in swamp. D quit using pipeline and did not want to pay for
removal.
Did pipeline servitude here contain a resolutory condition that if met could trigger a
termination?
A: Art. 764: Burden of proof use: When the prescription of nonuse is pleaded, the
owner of the dominant estate has the burden of proving that he has used the servitude
during the prescriptive period .
A: Court applied occupancy articles – Art. 3418 that they were owners by way of
occupancy. P gave up all rights in relation to pipeline. Parties never intended to own the
servitude.
A: Art. 493 but did not say who pays … court said leave it where it is.
Look at the intent of parties. Check terms of contract, circumstances. Read into the
distinctions, if wanted Art. 493 if unwanted improvement, do more facts weighing
custom and usage.
LP&L v. Holmes
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Holmes wants to build something on his lot:
- LP&L says its encroachment of their servitude – unsafe & dangerous if broken
Court determined right to be a real right not a personal right. If someone posseses a real
right for over a year, they are entitled to protection of that right.
Art. 639: Right of use – confers in favor of a person a specified use of an estate that is
less than full enjoyment
Example: draw under from a well
Intermediate category between usufruct and predial servitudes
Rights of use
What kind of advantage? Established by predial servitude can only grant affirmative
right (right to do something) Art. 640
Extent of servitude? Greater burden cannot be imposed on the property unless otherwise
stipulated. Art. 642
Art. 645 – How is it regulated? By application of rules governing ususfruct and predial
servitude as long as it is compatible with rules governing right of use servitude
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Did it create a right of use in favor of Wagner’s and binding on all subsequent owners of
the resort? No.
Court said use of land was dependent on monthly payment, service agreement was an
obligation and not a personal servitude. Terms were too vague. When in doubt, find in
favor of servient estate.
What was dissent’s viewpoint? Service agreement was personal servitude. Agreement
was clear. Art. 645 – allows delineation from definition of conditions of usufruct or
predial servitude.
Legal Servitudes
Servitude of passage – previously owned by P’s vendor and now vendor’s son
P seeks to enjoin son from interfering with servitude
Issues:
(1) Was conventional servitude established by P and vendor which is enforceable?
(2) Is P entitled as owner of enclosed estate, to demand a forced passage?
Plantation divided into 8 lots. In negotiations π was allowed a right of passage. Passage
was not in actual deed of sale. Court ruled that a conventional servitude was not created
as not in actual public record documents. Final court agreed that he did have legal
servitude. He did lose this servitude when he acquired an additional lot that was adjacent
to road.
sui generis – can be imposed “in pursuance of general plan. Government building,
standards, specified uses and improvements”
generally regulated like conventional predial servitude or rights of use. Title recorded,
enforced like property rights. 2 years non-use prescriptive period. Owners of more than
½ area can agree to terminate.
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Possession - Art. 3421 – detention or enjoyment of a corporeal thing. One holds or
exercises by himself.
Right to possess (1 year of undisturbed possession and the intent to possess as owner)
Planiol on Possession
• Art. 2263 Definition
Possession is a state of fact which consist in holding a thing
in an exclusive manner and in carrying out on it the same
material acts of use and of enjoyment as if its possessor were
the owner
• Art. 2264 Progresive Extension of the idea of Possession
Under Roman law, possession has two elements: physical or
corpus, and inten or animus
a. corpus: physical acts of detention, use, enjoyment
and transformation carried out on a thing that
constitute possession. Not juridical acts.
b. Animus: possessor’s intent
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• Art. 3428 Acquiring corporeal possession through aid of
precarious possessor
Art. 3429 Maintained by aid of precarious possessor, e.g. lessor
Art. 3420 Juridical person acquires it through reps.
If possession established the other party has to prove that they have claim to the property.
When two conflicting constructive possession, the one first established with a valid title
has the right
Plaisance had constructive possession because he only used part of land and held valid
title
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Art…..
Harper v. Willis
He said that he wanted to become the owner but he initially got permission to use the
land—so he started out as a precarious possessor, an informal lease.
Liner v. LLE
Liner claimed some property between 2 bayous. LLE had title to bayou including Liner’s
claimed property. Lanier maintained the property, trapped on it and camped on it. LLE
removed his property stakes etc but never tried to force him to leave. Finally LLE came
out w/ deputies and removed stakes. Liner then hired lawyer to pursue possessory action.
Liner finally won.
Liner filed action immediately upon interruption of his property. That’s what won the
case for him.
Disturbance – possessor does not lose possession against his consent unless he is forcibly
expelled or unless the disturber usurps possession and holds it for more than a year
Meaning of “quietly and without interruption” – Art. 3658(2) – not a literal interpretation;
stands for whether he lost possession of property.
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Evans v. Dunn – possessory action
Court wanted to see more definite actions of possession he could have torn down the
fence; cut a hole, etc.
He lost right to possess due to interruption; he did not show he had possessed the
property before the alleged disturbance
Δ and π arguing over a strip of land 36’ wide and 210’ feet long. Δ owned the property
but π had used it for several years. Δ built a fence around it and π did not challenge this
for more than a year. Court ruled that year had passed and π (possessor) lost possession.
Clandestine Possession.
3436 Definitions
a. violent – when acquired or maintained by violent acts.
b. clandestine when not open or public.
c. discontinuous when it is not exercised at regular intervals
d. equivocal ambiguity as to the intent of the possessor to own the thing.
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Good faith possessor – would need act of translative ownership.
Bad faith possessor – person must intend to possess as owner.
Look at 493.
Falgoust v. Innes
P tries to evict Innes because he’s leaving daughter; built gas station; no recordation
D says – 5 year oral contract but court said No – can’t really prove it
Is Innes?
IRONY: If Innes were BFP, Art. 497 – Falgoust would be better off because she could
have kept gas station. Owner is in position to impose restrictions on whose responsibility
is what.
Antulovich v. Whitley
What kinds of activities are sufficient to constitute actual corporeal possession and
enclosure?
Administrative Model
Limitations Model – Put down rules on person not taking care of his property.
Development Model –
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Ten Year Acquisitive Prescription
Good Faith 3480 Possessor reasonable believes in light of objective circumstances, which
he is the owner of the thing, he posses. Art. 3480.
3481 Good Faith presumed – Neither error of law or of fact defeats presumption.
Art. 3483 - Just Title Juridical act, such as a sale, exchange, or donation, sufficient to
transfer ownership or another real right. Must be written, valid in form and filed for
registry.
Art 3484 –
Thing must be susceptible of prescription.
3485 All private things are susceptible of prescription, unless excluded by legislative.
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