Property Outline

Vetter
Fall 2001

I. General
A. Ownership of Property
--ownership—the right and exclusive authority over a thing
1. three real rights:
a. usus
b. fructus—produced by or derived from another thing
without dimunition of its substance (art. 551)
c. abusus—the right to dispose as long as does not go against
health, safety, and welfare
2. the rights in property are exculsive (art. 477)
--enforced by law
--under conditions est. by law
--regulates rights in the interest of public health, safety, and welfare
a. rights include the following (art. 476)
--ownership
--personal and predial servitudes
--such other real rights as recognized by law
--ex: A contracts with B with whoever owns land furnish
strawberries for 20 yrs. Then A sells to C, does C have to supply
berries? No, b/c it is not a real right and this contract would bind the
property and it would not be fully available in commerce.
3. Types of rights
a. real—allowable modifications of ownership; upon sale the
new owner is subject to the real right (ex: owner transfers
use of land to B, that’s a right of passage) (ex: owner
gives usufruct to B)
--bind a thing
--must be recorded to bind a third party (art. 498)
b. personal—binds a person
4. It can only favor a person natural or juridical (art. 479)
5. Note that one of the goals of the code is to keep property in
commerce

B. Distinct from Possession (art. 481)

1. ownership exists independent of the exercise of
a. it can’t be lost from non-use
2. possession becomes ownership only if acquisitive prescription
takes effect

C. Patrimony
1. a personal balance sheet of all assets and liabilities
2. every person has one and only one

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 a. you can get control of another through community property
regime or absentee person
b. it stays with you until death
--it transfers to your heirs as part of theirs
3. the whole thing can only rarely be transferred
a. community property situations
b. it may be rescinded if done to avoid creditors
4. infringement on a patrimonial right creates a patrimonial right to
damages
a. some personal assets in the patrimony can be seized by
creditors including claims against others
5. two possible conditions
a. solvent: assets greater than liabilities
b. insolvent: liabilities greater than assets
6. three propositions created from patrimony
a. only natural and juridical persons have patrimony
b. everyone has a patrimony
c. inseparable and indivisible, couldn’t transfer patrimony as a
whole

D. Trusts (common law)

1. management of property given to someone other than the owner
a. juridical person gets control
--can gain control of anyone’s property regardless of
competence
b. natural persons can also get control
--only in cases of incapacity
--if a person is competent, only that person may manage his
property
2. trustee
a. manages property
b. gets nothing in the way of benefits
--beneficiary gets all the profits
--trustee will get to charge reasonable services
c. if trustee fails in his duties, the beneficiary gets a personal
right against him

E. Protection of Ownership
1. the owner of something is entitled to recover it from anyone who
possesses it without the right to it (art. 526)
a. the possessor of a corporeal movable is presumed to be its
owner
--corporeal—actual ownership
--corporeal movables—whether animent or inaniment, things
that normally move or can be moved from one place to another
(art. 471)

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 2. the evicted possessor
a. entitled to recover compensation for necessary expenses for
preservation of the thing (art. 527)
--whether good or bad faith
--this includes necessary repairs
Voiers v. Atkins Bros.
Def. is a possessor of bad faith, cuts down timber on pl.’s land.
--a good faith possessor is entitled to recover from the owner
his useful expenses to the extent that they improved the land
(enhance the value of the thing) (art. 528)
--constructions by bad faith possessor inseparable
improvements cannot be removed (art. 497)
--owner has to keep them or pay either the cost of materials or
enhanced value of immovable (art. 496)
--the things the owner may keep are those things that will result
in economic waste when removed or demolished
--cabins and sheds are not inseparable from the land therefore
pl. would have to pay in contrast ditches, wells, etc. are
inseparable and therefore owner is not entitled to compensation

b. not entitled to recover for ordinary maintenance or repairs

(art. 527)
c. if good faith possessor:
--may not include landscaping b/c of no enhancement
Sanders v. Jackson
Def. built a dam, pond, and landscape in the area in question.
--possessor in good faith and owner must keep improvements
(art. 496)
--these are useful expenses, but they do not enhance the value
of the land
--def. didn’t fit the legal definition of possessor in good faith,
b/c he didn’t have title of ownership of land (art. 487)
--dam and pond subject to accession

3. right of retention (art. 529)

a. the possessor may retain possession until reimbursed for
expenses and improvements

F. Transfer of Ownership by Agreement

--Nothing in this section applies to movable which have to be registered with
the state such as trucks, cars, and guns
1. Immovable (art. 517)
a. contract b/w the owner and the transferee purporting to
transfer ownership
b. takes effect when filed with the registry office
2. Movable (art. 518)

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 a. contract b/w the owner and transferee purporting to transfer
ownership
b. takes effect when delivery occurs unless otherwise
indicated in the contract
c. when a movable is in possession of a third party the
assignment of the action for recovery constitutes a transfer
of ownership to the party who now recovers (art. 519)
d. corporeal movable may be sold by a person without valid
title if the purchaser is in good faith (art. 522)
--the new owner has valid title\
--the old proper owner has an action against the old improper
owner for conversion
--good faith is present unless the acquirer knew or should have
known the seller was not the owner (art. 523)
3. Lost or Stolen Things (art. 521)
a. if owner loses possession of the lost or stolen thing he may
not transfer ownership
b. stolen = taken without consent of the owner (ignore the
criminal definition)
c. recovery (art. 524)
--owner may recover from a possessor who bought in good
faith at an auction or a merchant
--the owner must reimburse the good faith possessor the
purchase price
--owner may not recover from a possessor anything bought
under authority of law (state auction)

G. Public Record Law

1. any written act giving you a right to an immovable must recorded
to be enforceable to third parties
a. anything gained through acquisitive prescription doesn’t
have to be recorded
2. what servitudes don’t have to be recorded?
a. natural
b. apparent servitude by acquisitive prescription
--therefore, a prudent purchaser must go to the property to see
if there are any apparent servitudes

II. Ownership in Indivision (art. 797)

A. General
1. two or more persons may own the same thing each having an
undivided but not necessarily equal share (art. 480)
2. the divided ownership is presumed to be equal absent law of
juridical act stating otherwise (art. 497)
--any co-owner can sell or mortgage undivided interest (art. 805)
--right of partition

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 --in-kind—give each party an equal share (art. 810)
--by licitation—by sale (art. 811)
--in order to keep thing freely available in commerce
3. when does it occur
a. by contract—purchase thru co-ownership
b. inheretance—most common
c. marriage
4. rights of co-owners
a. the use of the thing according to its destination (art. 802)
--one co-owner cannot prevent the other from using the thing
--the size of the co-owner share is immaterial
Butler v. Hensley
Butler had an undivided one third of property fenced in and
used it exclusively. The two other co-owners leased to
Hensley and cut the wire to use for parking and trailer home,
Hensley then bought one tenth of the land.
--cannot evict another co-owner b/c each co-owner is entitled
to possession
--can lease rights of co-ownership (art. 805)
--a lease must be agreed upon by all the co-owners of the entire
thing
--Butler’s remedy is to file for partition (problem: Butler was
evicted first so Hensley should have filed for partition)

--only if the thing is capable of convenient use by all co-

owners will the ct. issue an injuction against a particular
co-owner using it exclusively
--if the property can only be used by one (a house)
the ct. will order partition if a problem arises
--if they don’t like how it is used, partition is available
LeBlanc v. Scurto
Scurto was using co-owned property, alley, exclusively w/out
permission of other co-owners interfering with their rights.
--alley is destined to be used by a variety of people while the shop
(included in co-owned property) is designed to be used by one
person
--if the ct. is confronted with co-owned property destined to be
used by a variety of people they will go in and regulate use
--the ct. can say, if you can’t come to an agreement on how to use
co-owned property that is being used exclusively then nobody can
use it; but usually says the co-owner in possession stays in
possession and other co-owners bring a suit of partition (exception
of no exclusive use)
5. circumstances under which ct. will manage co-owned property
a. if partition isn’t available (art. 803)

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 Succession of Miller
Wife used property while alive b/c she was given legal usufruct
of husband’s ½ of property, children had naked ownership
(only abuses). Family home usufruct so the wife/husband can’t
be kicked out of home upon death of spouse. Ct. took over
management of property b/c partition wasn’t available b/c
house was already for sale. (art. 803)
--legal reasons—when its use is indispensable for the
enjoyment of another thing owned by one or more co-owners
(ex: pool) (art. 808)
--parties agree not to partition for 15 yrs.
b. type of property destined to be used by a number of people
(Scurto)
6. undivided ownership: ownership is divided, not the thing and
every co-owner is subject to use
7. other real rights may be held in indivision to the extent
compatible with the nature of those rights (ex: usufruct) (art.
818)

B. Fruits (art. 798)

1. divided according to each owners share of ownership
(proportional)
2. if produced by one owner the other owners get their shares minus
production

C. Liability
1. each co-owner is liable to the others for damages caused by him
(art. 799)
2. substantial alterations or improvements (art. 804)
a. must have consent of all co-owners
b. w/o consent and consistent w/ the use of the property, one
choice: co-owners must pay value of enhancement or cost
of material
c. w/o consent and inconsistent w/ the use of property, two
choices: (1) demand the removal and damages for the
actions or (2) co-owners must pay value of enhancement or
cost of material

D. Care and Use of the Thing

1. a co-owner may make necessary repairs for the preservation a
thing w/o concurring w/ the co-owners (art. 800)
2. all co-owners will agree to the use and management of the thing
(art. 801)
a. if there is disagreement partition is the solution
b. if partition is not an option a ct. may decide the destination
(art. 803)

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 3. ordinary expenses from use (art. 806)
a. co-owners must pay their share of the expenses
b. if one co-owner enjoyed the use while the expenses
incurred reimbursement will be reduced

E. Partition
1. each co-owner has the right to demand it at any time (art. 807)
a. exception, if an agreement prevents the partition for a
specified period of time
--it cannot be more than 15 yrs.
--99 yrs. if it is a nuclear plant
b. exception, certain things are excluded which are necessary
to the enjoyment of other things (art. 808)
--ex: walkways in condo buildings and driveways in private
subdivisions
2. mode (art. 809)
a. conventional
--co-owner or co-owners sell their shares to the other co-
owners
--most common
b. judicial—if there is no agreement this may demanded
c. extra judicial—(1)requires consent of all owners and (2)can
be rescinded if the part a co-owner receives is less then
75% of what the market value was (art. 814)
3. types of partitions:
a. in-kind (art. 810)
--when the thing in indivision can be easily separated into as
many lots of equal value as needed
--the thing cannot significantly depreciate in value b/c of the
separation or it isn’t allowed
b. licitation (art. 811)
--when partition in kind isn’t available the ct. will hold a sale
and divide the profits accordingly
c. a combination of the two may occur when feasible
Ben Glazer Co., Inc. v. Tharp-Sontheimer-Tharp, Inc.
Seven burial plots co-owned by four siblings. Mom is buried
in one, dad is buried in one, and one of co-owners made use of
one of plots exclusively w/o permission of others by burying
his wife there. Since the co-owners could not agree ct. ordered
a partition in kind of four of the plots and one by licitation b/c
against public policy to exhume bodies.
4. real rights burdening the thing
a. a real right burdening the thing is not affected by partition
(art. 812)

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 b. if the real right only burdens the share of the thing the co-
owner granting that real right will have his portion
burdened by the real right after partition (art. 813)
--this also hold true for mortgages, liens, and other privileges
(art. 815)
5. partition and usufruct
a. naked owners in indivision may still partition the land but it
cannot affect the usufruct (art. 542)
b. a person with a full share of the indivision may demand
despite the usufruct on the other shares (art. 543)
c. a person with a full share split b/w himself as naked owner
and usufructuary may not demand it (art. 543)
d. if the naked owner and usufructuary both agree they
constitute a full share and may demand partition (art. 543)

III. Possession
A. General
1. three things about possession:
a. what it is
b. potential rights of possessor
(i) sometimes possession is protected
(ii) possession leads to ownership of fruits and the
thing itself
c. when a possessor has these rights
2. two requirements for possession
a. must detain thing (corpus)--what you physically detain or
use (art. 3425)
b. must intend to possess as owner (animus)--detainer’s intent
to act on his own behalf as owner
--lessee is not a possessor in legal sense b/c lacking the animus
b/c not acting on own behalf as if you were the owner by
paying rent (permission of another person)
--Plainol--animus is taken for granted…of a third party
Harper v Willis
Possessor, possession was disturbed so filed a possessory action.
Disturbed b/c recorded sale, a legal disturbance of possessed land.
Pl fenced in land. He had corpus (detention) (art. 3425). Ct says
cant bring possessory action b/c lacked animus.
3.potential rights of possessor
a. possession protected
(i) against disturbance (possessory action)
(ii) only an owner can evict (petitory action)
b. leads to ownership
(i) of fruits of things (accession)
(ii) of the thing itself (acquisitive prescription)

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IV. Accession
A. General
1. ownership of a thing includes the ownership of everything it
produces or is united (art 482)
--the union can be natural or artificial
2. owner of a thing gets the rights of ownership of the fruits of the
thing subject to other rights (art. 483)
a. this applies to the young of animals
b. he must reimbursed third persons for expenses if they were
incurred in a production (art. 485)
3. this is an extreme concept required ownership of something you
don’t want
--the goal is to avoid economic waste at all costs
4. avoiding economic waste is the reason accession is in the code
--is something is unclear it should be resolved in favor of not causing
economic waste
B. Possessor
1. definition of possessor in good faith for purposes of accession
only (art. 487)
a. person who possess by an act translative of ownership and
does not know of defects in his ownership
--a document that would be true title if the seller actually
owned the property
b. good faith ends when he learns of the defects or the suit is
filed by another party
2. non-fruits v. fruits
a. non-fruits (art. 488)--non-fruits are things derived from a
thing by destroying substance; owner is entitled to both
fruits and non-fruits
Harang v. Bowie Lumber
Harang owned a piece of land on which def. cut the timber.
--time for rebirth of a thing is relevant to determine if it is a
fruit or a non-fruit
--timber is not a fruit of the land so good faith possessor is not
entitled to it b/c it takes a long time to grow back, not b/c it
diminishes the land
b. fruits (art. 551)--fruits are things that are produced by or
derived from another thing w/o diminishing of its substance
--two kinds of fruits: (1) natural fruits are products of the earth
or of animals and (2) civil fruits are revenues derived from the
thing by operation of law or by reason of the juridical act such
as rentals, interests, and certain corporate distributions

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 Elder v. Ellerbe
Pl. is a co-owner w/ def. who got money for oil on land and pl.
wants his half. Def. claims possessor in good faith so entitled
to fruits (art. 486)
--fruits are things born and reborn in the soil, minerals are non-
fruits (ex: oil) b/c they diminish the substance of the land b/c
not renewable owner may be reimbursed (art. 488)
--giving fruits to a good faith possessor keeps the land in
commerce (if the owner is not using the land)
--this punishes owner for not using the land
--there is no real harm to owner by letting the good faith
possessor keep fruits b/c they are renewable but keeping
non-fruits destroys owner’s land (they’re gone)
--do not give fruits to bad faith possessor b/c then everyone
would be using others’ land to produce crops
c. Hypo: good faith possessor grows crops which bleach the
land, does he get them? are they fruits or non-fruits?
--the owner gets them b/c they are non-fruits in the way they
diminish the land

3. fruits (art. 486)

a. possessor in good faith
(i) gets the fruits he has gathered
--if the fruits are civil he gets the first fruits which have
accrued even if not yet paid (art. 489)
--reason--it promotes keeping the property in commerce
(ii) gets reimbursement for the fruits not gathered
but produced
b. possessor in bad faith
(i) must restore to the owner what has been
gathered or its value
(ii) he does get credit for expenses
4. non-fruits (art. 488)
a. possessor in good faith
(i) must give back to owner
(ii) gets reimbursement for expenses of production
b. possessor in bad faith
(i) must give them back to owner
(ii) does not get reimbursement

C. In Relation to Immovables
1. General Provisions
a. ownership in land means the ownership of everything
directly above and below (art. 490)
--you can do basically anything w/ your land w/in the law

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 b. owner of land is presumed to owned buildings on it unless
act reflecting other owner is on file at registry (art. 491)
--separate ownership of parts of buildings (floors and rooms) is
permissible by juridical act (art. 492)
c. things attached to immovables are the property of the
owner of the immovable (art. 493.1)
d. constructions--things which involve waste by demolition
2. Improvements (art. 493)
--buildings and constructions permanently attached
Marcellous v. David
A land owner claims that when a thing is moved onto his land he
becomes the owner of the thing (accession). David is not a possessor
b/c he did not intend to own the land but house belongs to her b/c
had consent of the owner. (art. 493)
--removing David’s house would not cause economic waste (art.
494)
a. when made by the owner w/ another person’s materials the
owner keeps the improvement (art. 494) (ex: A is owner
and C is owner of bricks, A takes C’s bricks and builds a
house so now A owns bricks; C has a cause of action
against value of bricks, but A owns them b/c the only other
option would be to destroy the house; A owes C the value
of the materials used to build, plant, or work on the
immovable)
(i) the owner of the improvement must compensate
the owner of materials for their value and any
damages
(ii) reason: if the builder had to tear it down it
would become economic waste b/c of lost labor
--it is better just to buy new materials for the owner
b. when made w/ the consent of owner it is property of the
person who placed them
--when the right to have them there expires the owner of the
building has 90 days from the date of written demand to
remove them or they become the property of the owner of the
land
3. Constructions
a. by possessor in good faith (art. 496)
(i) owner must pay either the enhanced value of the
immovable or the cost of construction
(ii) he cannot demand removal
b. by possessor in bad faith (art. 497)
(i) owner must pay either the enhanced value of the
immovable or the cost of construction or
(ii) a removal can be demanded at the expense of
possessor

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 4. Expenses, the Evicted Possessor
a. entitled to recover compensation for necessary expenses for
preservation of the thing (art. 527)
(i) whether good or bad faith
(ii) this includes necessary repairs (Voiers v. Atkins
Bros.)
b. not entitled to recover for ordinary maintenance or repairs
(art. 527)
c. if good faith possessor
(i) entitled to useful expenses which enhanced the
value of the property (art. 528)
--useful expenses includes wells and cabins (Voiers v.
Atkins Bros.)
--may not include landscaping b/c of no enhancement
(Sander v. Jackson)

D. In Relation to Movables
1. General Provisions
a. two types of movables (art. 508)
(i) principals--the actual thing itself
(ii) accessory--a corporeal movable that serves the
use ornament or compliment of the principal
(iii) if it is unclear which is which (art. 509)
--the most valuable is the principal
--if both of nearly equal value the bigger one is the
principal
b. accession doesn’t apply if the two things are easily
separated
Aetna Business Credit Corp. v. La. Machinery
An owner owns drilling rigs and pump and puts motor in
pump. Another owner buys the pump and leases the rig. Aetna
claims chattel mortgage on the motor, claiming was part of the
part by accession.
--accession doesn’t apply b/c there is no economic waste in
removing motor from pump
2. Adjunction (two movables in union) (arts. 508-510)
--jeweler puts a diamond in the wrong ring
a. when two are united the owner of the principal owns the
accessory as well by accession (art. 510)
--this does not include something as simple as car tires
--the court held it does, but Vetter disagrees
b. the owner of the accessory will get reimbursed for the value
of it
(i) he may demand it be removed even if it causes
harm when (art. 510)

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 --the accessory’s more valuable then the principal and
the accessory was used w/o his knowledge
c. the relevant question is, will the separation cause an
economic waste of some sort?
3. Transformation (use of materials to build a thing) (art. 511-513)
--taking thread and making a coat
--taking paint and brushes and painting a masterpiece
a. if one uses the material of another to make something the
new thing belongs to the owner of the material (art. 511)
--the owner must reimburse the value of the workmanship
b. if the thing built is more valuable than the materials the thing
is owned by the builder (art. 511)
--the builder must reimburse the owner for materials
c. If the builder is in bad faith the ct. may award ownership to
the owner of the materials (art. 512)
--no compensation will be due
d. if the builder uses some of his materials and some of another
person the new thing will be separated (art. 513)
--if it can’t be separated it is owned in indivision by the two
parties
--each share of ownership is proportioned to their share of
materials and workmanship contributed
4. Fusion (mixing of materials so that they cannot be separated)
(art. 514)
--two grains are mixed
a. an owner whose property is mixed w/ the property of
another w/o consent may demand separation
b. if separation is not convenient the new thing is owned in
indivision
(i) each share of ownership is proportioned to their
share of materials contributed
(ii) if one’s value of materials is far superior to the
other, he may claim ownership of the whole
thing, but he must compensate the others the
value of their materials
5. Rights of Non-consenting Owner
a. if a non-consenting owner acquires the ownership of a new
thing b/c his materials were used w/o his consent he may
instead demand new materials of the same amount and
quality (art. 515)
b. one who moves someone else’s property w/o consent may
be liable for damages to the owner (art. 516)
6. Expenses, the Evicted Possessor
a. entitled to recover compensation for necessary expenses for
preservation of the thing (art. 527)
(i) whether good or bad faith

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 (ii) this includes necessary repairs (Voiers v. Atkins
Bros.)
b. not entitled to recover for ordinary maintenance or repairs
(art. 527)
c. if good faith possessor:
(i) entitled to useful expenses which enhance the
value of the property (art. 528)
--useful expenses includes wells and cabins (Voiers v.
Atkins Bros.)
--may not include landscaping b/c of no enhancement
(Sanders v. Jackson)

E. Hypothetical
1. developer accidentally builds one shell square partially on the
land of the adjacent land owner, assumes he didn’t have an
invalid title to it
2. who gets what? (under the laws of accession only--normally art.
670 will cover this)
3. the developer is not in good faith
--he doesn’t have act translative of ownership w/ defect
4. the owner has a choice
--keep the portion on his land and pay the cost of that part of
construction, or
--order demolition at the developer’s expense
5. if developer had an invalid title to it, he would be a good faith
possessor
6. the owner would still have a choice
--buy the materials for construction, or
--pay the enhanced value of the land

V. Modifications of Ownership
A. General
1. What is it?
a. the transfer of all or part of any of the three rights (art. 478)
b. state limits this in order to keep property in commerce
c. the modifications are binding against the thing and not the
owner (art. 478)
d. hypo: A sells uses to B, A sells land to C. B keeps uses b/c
A didn’t have it to sell, C would have a cause of action
against A for fraud.
e. hypo: A loans uses to B, A sells land to C. B loses uses
b/c A sold it to C. B gains a personal right against A for
breach of promise.
f. hypo: A sells right to strawberries grown on land to B, A
sells land to C. B loses the strawberries b/c fructus as a

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 whole including strawberries was sold to C. B gains a
personal right against A for breach of promise.
2. Three types of modifications allowed by law (art. 476) (real
rights)
a. personal servitudes--usufruct, right of use, and habitation
(art. 534)
b. predial servitudes--charge on a servient estate for a benefit
of the dominant estate (art. 646)
c. other rights recognized by law--mortgage is owed to a bank
by new buyer

VI. Personal Servitudes

A. General
1. Two types of servitudes (art. 533)
a. personal servitude--charge of a thing for the benefit of a
person (art. 534)
b. predial servitudes--charge on a servient estate for a benefit
of the dominant estate (art. 646)
2. There are three separate personal servitudes (art. 534)
a. usufruct
b. habitation
c. right of use

B. Usufruct
1. General
a. usufruct is a real right of limited duration (art. 535)
--it is held on the property of another
--can be anything movable or immovable, corporeal or
incorporeal (art. 544)
--it is incorporeal by nature and it is movable or immovable
depending on the thing upon which the right exists (art. 540)
--it can be est. in favor of a natural or juridical person (art. 549)
--the person must exist or be conceived when either (1)
execution of the instrument for inter vivos or (2) death of a
testator for mortis causa
--it can be est. in favor of successive usufructuaries (art. 546)
--it can be to the favor of several usufructuaries (art. 547)
--termination for one acts to the benefits of the others it
doesn’t terminate the whole thing

b. the purpose is the enjoyment of benefits (art. 541)

--the usufruct is divisible
--it can be partitioned among usufructuaries

c. types (art. 544)

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 (i) conventional est. by juridical act (inter vivos or
mortis causa)
--usufruct are valid until they expire in the act or death
(ii) legal est. by operation of law
--surviving spouses get the usufruct of their deceased
spouse’s community property when there is not valid
will (art. 890)
--the usufruct ends at death or remarriage
--parents have usufruct over children’s property (art.
223)
--does not include property earned or property left
to them w/ provision that it is not to be subject to
usufruct (art. 226)

d. modifications (art. 545)

--they can be made as long as the modification remains
consistent w/ the nature of the usufruct
--rights and obligations of usufructuary can be modified unless
prohibited by law or the grantor of the usufruct

e. consumables v. nonconsumables
(i) consumables--things that cannot be used w/o
being expended or consumed (useless unless
used) (art. 536)
--ex: money, harvested agriculture, stocks of
merchandise, food stuffs, and beverages
--note that CD bonds are consumable b/c of the
similarity to money
--when owner creates usufruct of a consumable he gives
ownership to usufructuary so he has no rights to uses,
fruits, or abuses, but rather he becomes the creditor and
the usufructuary becomes the debtor
Vivian State Bank v. Thomason-Lewis Lumber Co.
The creditor is the bank and the debtors are the defs.
Pl. claims that the time certificate was pledged for the
debt. The time certificate was community property and
when the husband died under 890 wife had legal
usufruct. A pledge creates a real right, the only person
who can pledge an object is the owner. The time
certificate is nonconsumable b/c it draws interest, but
when it stops drawing interest it becomes a consumable
and is treated like money under 536 © so wife can
pledge.
--some instruments such as CDs, savings accounts,
promissory notes which seem to be non-consumable but

16
 a ct. held they analogous to money and are held as
consumables

(ii) nonconsumables--things that can be enjoyed

w/o altering the substance (art. 537)
--the substance may be naturally diminished or
deteriorated over time
--ex: houses, land, shares of stock, animals, and
vehicles
--usufruct of a nonconsumable is the only true usufruct
--must be returned at end of usufruct (art. 628)
Leury v. Mayer
Pl. issued suit to be recognized as the owner of an
undivided 1/2 interest in stock issued to def. Husband
had 890 usufruct of stock and had no right to sell b/c he
owns 1/2 and only has the usufruct of the other 1/2 so
the def. became the owner of husband’s 1/2 and
usufructuary of other 1/2 until the husband dies.
--usufruct of stock is a nonconsumable b/c stock
produces dividends which are not useless unless
consumed

(iii) usufruct of nonconsumable that the usufructuary

has power to convert to consumable by selling
the thing (art. 568)
--ex: certain things that are built can become obsolete
after a certain amount of time such as a computer

f. once the property is totally destroyed thru accident or age

neither party must restore it (art. 583)
--if the naked owner decides to do it, it must be done in a
reasonable amount of time
--it must not be inconvenient or onerous to the usufructuary
--hypo: someone has the usufruct of a car, the motor runs out
and the car needs a complete overhaul. Who has to pay for
these repairs?
--first have to determine whether the car simple decayed
from use
--test is, if repairs are more than value of thing after repairs
are made then the usufructuary does not have to make them
--ON EXAM: ANALYSIS UNDER THIS ART.
(i) to determine who makes repairs we have to see if all
or part of the thing is damaged
(ii) here the sole of the shoe is a substantial part so the
repairs are the naked owner’s responsibility

17
 (iii) another art. Says that if destroyed no one has to
make repairs
(iv) if the cost of repair is more than the value of the
shoe once repaired it is destroyed
(v) therefore, the naked owner would normally would
have to make the repair except that it is destroyed

2. Rights of Usufructuary
--temporary rights of uses and fruits
--must preserve the thing minus ordinary wear and tear
a. over consumables (art. 538)
(i) the usufructuary becomes the owner and he may
consume, alienate, or encumber in any way
(ii) at the end the usufructuary must pay the naked
owner the value of what existed at the beginning
of the usufruct or deliver things of the same
quantity and quality (art. 629)
(iii) relationship of a creditor (naked owner) and
debtor (usufructuary)

b. over nonconsumables (art. 539)

(i) the usufructuary has the right to possession and to
derive utility, profits, and advantages they may
produce
--there is an obligation to preserve its substance
--is the property suitable for its original use?
--hypo: a sugar can farm in St. Bernard Parish is owned by
a naked owner subject to a usufruct. The usufructuary
wants to convert to an orange grove. The naked owner
disapproves, can the usufructuary convert despite the naked
owner’s objections?
--art. 558—cane would make more money which is
prudent administration
--art. 539—changes substance of the land
--test is the feasibility to change back to its original
use at end of usufruct
(ii) there is an obligation to act as a prudent
administrator (art. 558)
--when this conflicts w/ preserving the thing’s substance go
w/ preservation
--you end up altering the substance if returning to its
original condition is expensive
(iii) the nonconsumables must be presented to the naked
owner at the end of the usufruct

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 c.over special nonconsumables (art. 568)
--they begin as nonconsumables and can become consumables
--if sold the usufructuary is bound to provide the value to the naked
owner
--the money is due at the end of the usufruct, not the sale
--the value owed is that when the sale took place b/c the usufruct
of a nonconsumable ended when the usufruct of a consumable
began (ex: car)
--they cannot be disposed of unless the right has been specifically
granted (art. 568)

d. over fruits
(i) fruits are things produced by or derived from the thing w/o
dimunition of its substance (art. 551)
--natural fruits are products of the earth
--civil fruits are revenues derived from a thing by operation of law
or by reason of juridical act
(ii) the usufructuary gets them all (art. 550)
--the right begins the effective date of the usufruct (art. 554)
--natural fruits severed from the thing are the usufructuary’s when
the usufruct ends (art. 555)
--any natural fruits not severed are the property of the
naked owner
--civil fruits accrue day by day are due to the usufructuary
regardless of when they are paid (art. 556)
(iii) corporate distributions (art. 552)
--cash dividends are fruits
--stock redemption payment or liquidation dividends are
consumables
--stock dividends and stock splits are consumables
--stock warrant and subscription rights are consumables
Succession of Wengert
Wengert dies and leaves property to wife number two. He sold
stock from his first marriage, but owed the children ½ the value b/c
he was ½ owner and had the usufruct of her ½ but children were
owners of her ½.
--Art. 552—a cash dividend declared during usufruct belongs to
the usufructuary (fruits); a liquidation dividend or a stock
redemption payment belongs to the owner subject to usufruct
(abuses)
--civil fruits—revenues derived from a thing by operation of law or
by reason of juridical act (ex: rent, interests, and corporate
distributions)
(iv) note the difference b/w having usufruct over money and
getting it b/c it is a fruit

19
e. corporeal movables
(i) corporeal movable that gradually and substantially become
useless (appliances, vehicles, equipment) may be disposed
of if the usufructuary acts as a prudent administrator (art.
568)
--the value of the corporeal movable at disposal becomes a cash
consumable that will be due to the naked owner when the usufruct
ends
(ii) if they are not sold but gradually worn down by use, wear,
or decay the usufructuary must restore them to their
original condition at the end of the usufruct (art. 569)
--he is relieved of the obligation if the thing is completely worn out
by normal use, wear, and decay

f. improvements and alterations

(i) improvements need the consent of the naked owner (art.
558)
--they are at the cost of the usufructuary
--if naked owner won’t consent ct. may allow usufructuary would
do what a prudent administrator would do
Kennedy v. Kennedy
Kennedy is the usufructuary of 143 acre tract of pine trees. He
sought a declatory judgment authorized a clear cut on the tract.
Pl., naked owner, opposed to the clear cut.
--art. 551—certain timber is not a fruit (slow growing timber)
--art. 560 is an exception to 551, which says you can cut trees for
improvement to land
--art. 560 does not apply b/c not cutting for his use or
improvement or cultivation of land
--art. 562—when usufruct includes timber, he must manage them
as a prudent administrator and profits belong to usufructuary\
--prudent management would be to harvest the land and cut down
the timber and replant w/ genetically superior seedlings
(ii) they may be removed by the usufructuary before the
usufruct ends (art. 601)
--the property must be restored to its original condition
--anything left behind is the naked owner’s and no compensation is
due
--these improvements can set off damages due to the naked
owner at the end of the usufruct (art. 602)
(iii) note that improvements are treated differently for different
persons
--usufructuary (art. 601)
--possessor (art. 496)
--everyone else (art. 493)

20
g. timberlands (art. 562)
(i) must be managed as a prudent administrator would
(ii) proceeds from the proper management of the timberlands
belong to the usufructuary

h. mineral rights
(i) only those mines and quarries already opened may be
worked by the usufructuary (Mineral Code Sec. 190)
(ii) generally they belong to the naked owner

Gueno v. Medlendka
Pl. claims that def. had no right as usufruct to grant a mineral lease and
that def. has no right to the oil, gas, and other minerals found on the land.
--art. 560—usufructuary has the right to consume the land for cultivation
or improvement
--sec. 190 of Mineral Code—usufruct may enjoy mines and quarries
already opened
--owner had a right to drill unless it interferes w/ the usufruct
--art. 604—the naked owner can go on the land when there are servitudes
--sec. 195 of Mineral Code—if usufruct does not include mineral rights,
naked owner has rights in minerals
--sec. 196 of Mineral Code—naked owner must pay any damages and
must pay usufructuary for the value of such use
--if it interferes w/ the usufructuary’s uses the naked owner must
compensate him
--this is a private right of expropriation
--the goal is to keep property in commerce

i. contract affecting the usufruct (art. 567)

--the usufructuary may make contracts affecting his right
--the contracts end at the end of the usufruct
--usufructuary is responsible for abuse that the person he contracts w/ may
cause

j. other
(i) usufructuary gets the right of voting shares of stock (art.
553)
(ii) usufructuary takes the things in the state they are in when
the usufruct begins (art. 557)
(iii) usufructuary gets accessories to the thing (art. 559)
(iv) trees, stones, and other materials may be taken by the
usufructuary (art. 560)
--they must be put to his use or for the improvement or cultivation
of the land
--they have to stay on the land

21
 (v) treasure is not subject to usufruct (art. 564)
--if the usufructuary finds it he is entitled to ½ as the finder
(vi) predial servitudes are subject to the usufruct (art. 565)
--if the land in the usufruct is enclosed w/ other lands of the
grantor the usufructuary is entitled to a gratuitous right of passage
(vii) claims for damages to the property attaches to the
usufructuary not the naked owner
--any money recovered must be accountable to the naked owner in
the end or the repairs must be made

3. Obligations of Usufructuary
a. must inventory all property subject to the usufruct (art. 570)
--the naked owner can prevent possession from occurring until the
inventory is taken
--there are no instances when inventory is excused by law
--usufruct bears expense of inventory
--if usufruct does not make inventory then no delivery is required by
owner
--reasons why you need accurate inventory:
--inventory of nonconsumables—the usufructuary must return
nonconsumable at the end of the usufruct
--inventory of consumable—give the value of the thing when
usufruct began

b. security
(i) it must be posted by usufructuaries to ensure faithful
fulfillment of all obligations (art. 571)
--if usufruct created in a will, unless it says otherwise a security
will be posted
Succession of Carlisi
Carlisi died and bequeathed the usufruct of all of his property to
his widow. This will did not dispense the usufructuary from giving
bond or security.
--She is not exempt from security under art. 573 b/c she is not legal
usufruct and was not exempt due to will.
(ii) the amount will be the value of the property in the usufruct
(art. 572)
--the ct. can increase or decrease the amount
--amount cannot be less then the value of the movables
(iii) exceptions
--when the grantor dispenses of the requirement of security (art.
573)
--usufruct is created by law (ex: art. 223 and 890) (art. 573)

22
 (iv) delay does not prevent a usufructuary getting the fruits of
the property just the uses (art. 574)
(v) usufructuary gives security that he will use the property
subject to the usufruct
(vi) if not given, an administrator will control the usufruct until
security is given (art. 575)

c. the usufructuary is responsible for loss as a result of his fraud, default,

or neglect (art. 576)

d. repairs
(i) usufructuary must pay for ordinary maintenance and repairs
(art. 577)
--whether due to normal use, accident, or his own fault or neglect
--ordinary repair is anything that is not extraordinary (art. 578)
(ii) naked owner must pay for extraordinary repairs (art. 577)
--exception, those due to usufructuary’s fault and negligence
--extraordinary repairs are for the reconstruction of the whole or
substantial part of the property (art. 578)
(iii) rights of action for repairs (art. 579)
--the naked owner may force the usufructuary to make repairs he is
responsible for
--the usufructuary may not force the naked owner to make repairs
he is responsible for
--the usufructuary may make them and be reimbursed at the
end of the usufruct
--no interest will accrue

e. necessary expenses and repairs

(i) the usufructuary is responsible for expenses, repairs needed
to reserve the property (art. 581)
--ex: fences and security
(ii) if the naked owner makes necessary repairs before the
usufructuary takes possession but after the usufruct begins
he is entitled to compensation (art. 580)
--the naked owner can retain possession until reimbursed

f. other
(i) usufructuary must pay all property taxes (art. 584)
--if he doesn’t the naked owner can pay and have a cause of action
for recovery
(ii) these obligations can be released by abandoning the
usufruct or just the appropriate portion of it (art. 582)
--this is allowed even if suits to compel payment have already
begun

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 --he is still liable for the charges from the enjoyment during
possession and damages
(iii) a usufructuary who loses predial servitude by non-use or
allows it to be acquired by another thru prescription is
liable to the naked owner for the loss (art. 597)
(iv) the usufructuary must notify the naked owner if a third
party encroaches on the property or rights of the naked
owner, if he doesn’t he is liable for damages (art. 598)
(v) herd of animals (art. 599)
--they must be managed as a prudent administrator would
--parts may be disposed of w/in the confines of this art. 600
--animals that die must be replaced by animals that are born
--individual animals may be disposed of but must be
replaced at the end of the usufruct art. 600
--if the whole herd dies w/o fault of the usufructuary the naked
owner takes the loss

4. Rights and Obligations of the Naked Owner

a. the property may be disposed of or alienated subject to the usufruct (art.
603)
--the rights of the usufructuary may not be interfered w/ (art. 605)
b. real rights may be est. as long al they do not interfere w/ the usufruct
(art. 604)

c.the naked owner may not make improvements subject to the usufruct
(art. 606)

5. Termination
a. usufruct ends w/ the death of the usufructuary if it is a natural person
(art. 607)
Sparks v. Dan Cohen Co.
Lease ends w/ usufruct death b/c only has right to lease uses and fruits
until this time, Mrs. Nelson is on record as usufructuary. Heirs take on
debts and obligations of decease. Lease was for 5 yrs. and she died after
2. The usufructuary cannot give more than he has.
--If usufructuary leases longer than usufruct the usufructuary can be held
liable, except when it is made known to the lessee that the lessor is only
the usufructuary, as in this case
--this is a matter of public policy and can’t be contracted against
--this doesn’t prevent the creation of one usufruct w/ successive
usufructuary’s name (art. 546)
--it prevents a usufruct from automatically passing down to heirs
--exception: (1) the usufruct of community property ends at death or
remarriage (art. 890), note how usufructs are created b/c this could be
death only if usufruct is created in a will (art. 880) and (2) the usufruct of
a child’s property ends at the age of majority or emancipation (art. 223)

24
b. usufruct created in favor of a company will expire after 30 yrs. or at the
end of the company (art. 608)
--this doesn’t prevent the creation of one usufruct w/ successive
usufructuaries named (art. 546)

c. of nonconsumables (art. 613)

(i) when there is the permanent and total loss extinction or
destruction thru accident or decay
--when this is due to a third party’s fault neglect an action for
damages is created
(ii) if part of the property subject to the usufruct remains intact
the whole thing does not end, the usufruct remains on that
which isn’t destroyed
Bond v. Green
The def. tore down delapodated houses and put mobile homes in
place where houses were torn down. Pl. bought land, claimed def.
lost usufruct under art. 613 which requires total loss.
--the usufructuary did not have usufruct of the land where the
houses were place, therefore, had to move trailers to the yard
where they still had usufruct

d. changes in status of property

(i) when the property of the usufruct changes form w/o action
from the usufructuary it doesn’t end (art. 615)
--even though the property cannot serve its destined use the
usufruct attaches to it
(ii) when the property is sold the usufruct attaches to the
proceeds of the sale (art. 616)
--the same attaches to insurance benefits (art. 617)
--the naked owner can demand the proceeds be invested properly
(art. 618)

e. misuse non-use of the property

(i) a usufructuary who abandons the usufruct (art. 582)
(ii) prescription of non-use in 10 yrs. (art. 621)
(iii) if usufructuary commits waste, alienation w/o consent,
neglect, or abuse of enjoyment the naked owner can
terminate the usufruct (art. 623)
--the ct. can (art. 624)
--terminate the usufruct
--deliver the property to the naked owner and order an
annuity to be paid to the usufructuary (amount based upon
value of usufruct)
--the usufructuary can prevent this by posting security (art. 624)

25
 f. other
(i) express written renunciation by the usufructuary
(ii) foreclosure by the bank of a mortgage (art. 620)
--the usufructuary would have a cause of action against the grantor
or naked owner for not paying
(iii) when the usufructuary and the naked owner become the
same person (art. 622)
(iv) usufructs set to expire when a condition is satisfied or at a
specific time (art. 610)
(v) usufructs set to transfer to a third person when they reach
an age of majority (art. 612)

g. when the usufruct ends any leases made by usufructuary automatically

end (Sparks v. Dan Cohen Co.) (art. 2730)

h. the usufructuary may hold the property until any expenses owed are
reimbursed (art. 627)

i. the effect is that full ownership is given to the naked owner (art. 628)
--all fruits must be delivered to him since the termination

6.Hypotheticals
a. Gaspard v. Coco
Husband and wife own land and rent it out for $120 a yr., payable in
December. They have children.
(i) husband dies on June 1 w/o a will
(ii) what doest the wife get?
--she gets ½ of 5/12 as the owner before his death ($25)
--she gets ½ of 7/12 as the owner after his death ($35)
--she gets ½ of 5/12 as the usufructuary of the consumable part of
husband’s estate ($25)
--she gets ½ of 7/12 as the fruits of property she has usufruct over
($35)
(iii) note that she owes $30 (the consumable portion of the
estate) to the naked owners (children) at death

b. Person gives naked ownership to X and usufruct to Y over an

antebellum home in the warehouse district.
(i) the land is worth ten times as much in rent if Y renovates
and makes it a warehouse
(ii) X wants to keep it as a house
(iii) Can Y make the changes?
--no, this is a nonconsumable which means the usufructuary must
preserve the substance and deliver the house at the end of the
usufruct (art. 539)

26
 --the usufructuary would make the argument that a prudent
administrator would make the alterations and therefore, it should
be allowed even w/o the naked owner’s consent (art. 558)

c. Person gives naked ownership to X and usufruct to Y of cane field.

(i) the land is worth more to Y as an orange field
(ii) X wants it to stay a cane field
(iii) Can Y make the changes?
--yes, this something that a prudent administrator would probably
do
--also, the substance of the land would probably not change to
much so that the property would still be suitable for its original use
--it would be preserved as to its substance and still
deliverable to the naked owner in the end (cost as a
consideration)

d. What are the differences b/w usufruct of sugar cane and of a sugar cane
field?
--the sugar cane is a consumable that is useless unless consumed, whereas
the sugar cane field is a nonconsumable and must be returned at the end of
the usufruct

e. A is the naked owner of a car which B has usufruct over.

(i) the engine dies and needs a complete overhaul
(ii) who pays?
--usufructuary b/c it is ordinary maintenance under art. 577
--neither if car was worn due to age (art. 583)

f. A is the naked owner of a pair of shoes that B has usufruct over.

(i) the soles wear out
(ii) who pays?
--probably no one, usufruct argues that it is extraordinary b/c it is a
substantial part of shoe (art. 577-578); naked owner argues that the
usufruct ended when the sole ran out b/c then the shoe is totally
destroyed and useless w/o a sole (art. 583 & 613)

g. Husband and wife own a car, they have children.

(i) husband dies w/o a will
(ii) wife gets usufruct of car and children get naked ownership
(iii) wife remarries
(iv) what happens to the car?
--it is owned in indivision by wife and children
--it can be partitioned

C. Habitation
1. The right to dwell in the house of another (art. 630)

27
 a. this right is nontransferable
b. it is a portion of the uses
c. it can only attach to immovables
d. limited to natural persons

2. Establishment and Extinction (art. 631)

a. the same way as usufruct

3. Extent of the Right

a. determined by what is included in the title (art. 632)
b. if the title is silent:
(i) a person can live there w/ his family whether or not married
when the right began (art. 633)
(ii) the right is exclusive (art. 634)
(iii) friends and guests are allowed (art. 634)
(iv) must be handled as prudent adminstrator would (art. 635)
--it must be delivered in the condition it was in when the right
began

4. Taxes, repairs, and other charges (art. 636)

a. when habitation has exclusive use he must pay all taxes, ordinary
repairs, and annual charges (same as a usufructuary)
b. when the habitation has partial use he must pay the taxes, ordinary
repairs, and annual charges in proportion to his enjoyment and the part he
occupies

5. This right is nontransferable and nonheritable (art. 637)

6. Termination (art. 638)

a. at death or
b. a shorter period specified in the title

D. Right of Use
1.The right of specified use of an estate for less than full enjoyment (art. 639)
a. this is the entire uses but no fructus or abuses
b. essentially predial servitude attached to the person and not the land (art.
640)
c. can be est. for a natural or juridical person (art. 641)
d. this can only attach to immovalbes
e. hypo: A is owner and says B can use pool. B records contract. B and
B’s heirs can use the pool and the value of the house will decrease b/c of
the right of use of pool. Only real rights bind property.
--this could be a right of use, personal servitude, that goes on forever; or a
personal contract b/w the parties that can end by sale of property
--if B was a neighbor could be a predial servitude, a charge on servient
estate for benefit of dominant estate

28
 --question is that of intention, and cts. will usually find personal contract
to keep land in commerce

2. Includes all rights contemplated or necessary to enjoyment at the time of

creation as well as rights later there arising (art. 642)
--limitation—if there is a greater imposed on the property then initially
anticipated

3. This right is transferable and heritable (art. 643-644)

--this can be prohibited by the title granting it
--does not extinguish at death of natural or juridical person or at dissolution of any
other entity having right unless the contrary is provided by law or contract

4. This is subject to the rules of usufruct and predial servitudes as much as

possible. Right of use termination is the same as usufruct except for death.

5. Note the existence of a limited personal servitude for the telephone companies
over all lands.
La. Power & Light Co. v. Holmes
Pl. sought to obtain temporary restraining order prohibiting defs. from
constructing any buildings or improvements beneath pl.’s electric lines. Pl.
contends to have a servitude of the land under the St. Julien Doctrine. Pl. had to
prove owner consented to building the power lines.
--not predial b/c power company does not own anything that would benefit from
this

6. Aucoin v. Fontenot
Def. sold to pl. a lot w/ building on it. Def. reserved the right to the use of three
small offices in the rear of the building. Pl. renovated the coffee shop area and
def. did not protest. Was this use or usufruct?
--art. 645—right of use is regulated by the application of the rules governing
usufruct and predial servitudes to the extent that they are compatible w/ rules
governing right of use
--use the conduct of the parties to determine their intent
--in this case def. allowed pl. to use the coffee shop area and did not bring
suit for 6 yrs. so parties did not intend for def. to have exclusive use
--today this property would go to heirs b/c right of use does not end at death (art.
644) (this keeps property out of commerce)
--art. 621 will keep property in commerce under right of use b/c it would not go to
heirs if property is not used

V. Predial Servitudes
A. General
1. a charge on a servient estate for the benefit of the dominant estate; the
two estates must belong to different owners (art. 646)

29
2. there must be benefit to the dominant estate (art. 647); an estate is any
corporeal immovable property

3. servitude is an incorporeal immovable (art. 649)

4. Servitude is inseparable from the dominant estate and passes w/ it. It

cannot be alienated on encumbered separately from the dominant estate.
Continues as a charge on servient estate when ownership changes. (art.
650)

5. Obligation of the servient estate is limited; owner 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 to keep his
estate in suitable condition for the exercise of the servitude due to the
dominant estate. (art. 651)

6. Predial servitude is indivisible (art. 652)

--art. 747 limits art.652 provided that there is no additional burden
imposed on servient estate

7. Division of Advantages. The advantages resulting from a predial

servitude may be divided if they are susceptible to division (art. 653) (ex:
two owners share right to graze 100 cattle, each may graze 50)

8. Owner of dominant estate does not own any of servient estate. (ex:
right of passage across A’s land; oil is discovered on A’s estate, A has
right to oil b/c owner of servitude does not own any part of servient estate)

9. Interpretation in absence of express declaration. When the act does not

declare expressly that the right granted is for the benefit of the estate or for
the benefit of a particular person, the nature of the right is determined in
accordance w/ the following rules. (art. 732)
a. when the right granted confers an advantage on an estate it is
presumed to be a predial servitude (art. 733)
b. when the right granted is merely for the convenience of a
person t is not considered to be a predial servitude unless it
acquired by a person as owner of an estate for himself, his heirs,
and assigns (art. 734)

10. Ex: A and B enter contract. A gives B permission to use his

swimming pool, B is A’s neighbor.
--this could be predial servitude, if B owns land next to A that benefits
from contract; or
--right of use, personal servitude; or
--personal contract creating a personal right

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 11. There are three kinds of predial servitudes: (art. 654)
a. natural--arise from natural situations of estates
b. legal--imposed by law
c. voluntary or conventional--est. by juridical act, prescription, or
destination of the owner

B. Natural Servitudes
--arise from natural situation of estates (art. 654)
1. Natural drainage (art. 655)—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.

2. Obligations of the Owners (art. 656)—The owner of the servient estate

may not do anything to prevent the flow of water. The owner of the
dominant estate may not do anything to render the servitude more
burdensome.

3. Broussard v. Cormier
Two rice farmers, one sued to get the other to open his man made
levee to ease flooding problems. Ct. interpreted burdensome in light of
the code goal of keeping things in commerce, decided legislature didn’t
mean servitude might never be made more burdensome. Servitude must
not be made unreasonably burdensome, a balance of good of society
versus burden on individual.
--In this case ct. held that for agricultural purposes one can make servitude
more burdensome. Economic necessity is the determination, but ct. says it
can’t be more burdensome then what is necessary for proper cultivation.
(ex: A grows tulips in soy bean country and dumps irrigation water on
servient estate, not necessary so not covered under art.655)
--Should have argued that the irrigation water from outside was not
naturally flowing. Water came from irrigation of rice underneath the soil
so it didn’t flow naturally onto the earth. See the next case.

4. McFarlain v. Jennings-Heywood Oil Syndicate

Waters that flow naturally are subject to servitude. Oil mixed w/
salt water was draining from adjacent property.
--ct. said that oil was not naturally flowing b/c it came from the bowels of
the earth so was not covered by the servitude
--Vetter says today McFarlain would be decided differently b/c oil is more
valuable
--comment © under art. 655 rules out subterranean waters so
Vetter’s argument would still not work today b/c comes from
underground

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 5. Adams v. Town of Ruston
Swimming pool water draining across land. Ct. said it was not
more burdensome.
--pl.’s atty. should have used naturally flowing argument from McFarlain,
but only used the more burdensome argument
--change in use of dominant estate renders servitude more burdensome
--water from pool made servitude only slightly burdensome; the benefit to
public outweighed detriment to estate

D. Kinds of Conventional Servitudes

1. Predial servitudes are either affirmative or negative. Affirmative are
those that give the right to the owner of the dominant estate to do a certain
thing on the servient estate. (ex: right of way, drain, or support) Negative
servitudes imposed on the owner of the servient estate the duty to abstain
from doing something on his estate. (ex: prohibition of building and the
use of an estate as a commercial or industrial est.) (art. 706)

2. Predial servitudes are either apparent or non-apparent. Apparent are

those that are perceivable by exterior signs, works, or constructions. (ex:
road way, aqueduct, window in a common wall) Non-apparent have no
exterior sign of their existence (ex: prohibition of building above a
particular height) (art. 707)

3. Examples of predial servitudes (art. 699)

--rights of support, projection, drip, drain, or of preventing drain, those of
view, of light, or of preventing view or light from obstructed, of raising
buildings or walls, or of preventing them from being raised, of passage of
drawing water, of aqueduct, of watering animals, and of pasturage

4. Servitude of Support. Right by which buildings or other constructions

of the dominant estate are permitted to rest on the wall of the servient
estate. Unless title provides otherwise, the owner of the servient estate is
bound to keep the wall fit for the exercise of the servitude; but he may be
relieved of this charge by abandoning of the wall. (art. 700)

5.Prohibition of View. The right of the owner of the dominant estate to

prevent or limit openings of view on the servient estate. (art. 702)

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