Du démembrement d'une propriété, pour le service ou l'utilité d'une autre propriété.

CHAP. 52: On the partition of a property, for the service or utility of another property.

If one can partition or divide an immovable, so that one person has enjoyment of it for a determined time, and at the expiration of this time, another person has perpetual enjoyment and disposition of it, one can also partition it with a view to increasing the value or utility of another immovable belonging to a different master. A proprietor, for example, may renounce erecting any building on his land, or planting trees there, in order to preserve a beautiful view for a neighboring property; he may grant a passage over his field for the service of another field; one gives the right to have a watercourse pass through it to water other properties.

When an immovable property is thus partitioned for the service or utility of another property of the same kind, belonging to another person, the name of servitude is given to the charge that weighs upon the first; the estate to which the servitude is due takes the name of dominant estate; that which owes it takes the name of servient estate.

The authors of the Civil Code have distinguished three kinds of servitudes: those that derive from the natural situation of the places; those that are established by legislative dispositions, and those that are established by the act or the will of the proprietors.

They place in the first class the subjection of lower lands to higher ones, to receive the waters that flow naturally from them, without the hand of man having contributed to it. They declare, in consequence, that the lower proprietor cannot erect any dike that prevents this flow, and that the upper proprietor can do nothing that makes it more burdensome.

If it is true, as the Civil Code declares, that a servitude is a charge imposed on an estate for the use and utility of an estate belonging to another proprietor, one is perhaps not very well-founded in placing among the servitudes the obligation in which the proprietor of a piece of land finds himself, to let the water that descends from higher places flow, unless one posits as a principle that the laws of gravitation were made in the interest of a certain class of properties. We see here the prohibition made to the proprietors of certain lands against causing each other any mutual damage: it is forbidden for some to harm the lower proprietors, by making the water that flows from their estates more harmful; it is forbidden for the others to harm the upper properties, by placing obstacles to this flow. But does this reciprocity of obligations, which tends to preserve for each the full enjoyment and free disposition of the things that belong to him, constitute, properly speaking, a double servitude? Are there properties partitioned for their reciprocal use or utility? Must the obligations that are necessary consequences of the nature of things be placed in the rank of servitudes? I cannot think so.

The right that is recognized for a proprietor to use at his will the spring he has on his estate, that of making use of the running water that borders or crosses it, are not servitudes either. When a thing is common to several persons, like public roads and watercourses, the use that belongs to each of them is not a servitude for the others. The right to enclose one's estate, which the Civil Code has also placed among the servitudes that derive from the situation of the places, is no more a servitude than the right to close the door of one's house. The reciprocal obligation to participate in the boundary marking of one's property, when the neighboring proprietor requires it, seems to me likewise to have been wrongly placed in the rank of servitudes; it is quite simply a means of preventing encroachments, and of guaranteeing to each what belongs to him.The Civil Code recognizes a proprietor's right to use the spring on his land only except for the right that the lower proprietor might have acquired by title or by prescription. It adds that prescription, in this case, can be acquired only by an uninterrupted enjoyment for the space of thirty years, counting from the moment the proprietor of the lower estate has made and finished apparent works intended to facilitate the fall and course of the water in his property. A servitude that can be acquired only by means of a thirty-year possession, and of apparent works establishing that one has possessed as proprietor, does not essentially derive from the situation of the places. The legislative disposition that establishes it should, consequently, have been placed in another chapter.

The authors of the Civil Code have put in the chapter relative to servitudes established by law, a multitude of dispositions that have nothing in common with servitudes, and that have no other object than to resolve questions of property. I have made this observation elsewhere, in speaking of the limits that result for each property, from the properties that surround it.

They declare first that the servitudes established by law have for their object public utility or communal utility, or private utility, as if this character were not common to all kinds of servitudes that have been established; as if it were more licit to degrade a main road or a canal, by giving to the waters that descend from higher places an unaccustomed force, than to degrade a private property; as if the lower proprietors, who are bound to let the waters of the upper estates flow, when these estates belong to private individuals, had the right to inundate them by means of dikes, when they belong to communes or to the State!

The servitudes established by law for public or communal utility have for their object, according to the Civil Code, the towpath along navigable or floatable rivers, the construction or repair of roads and other public or communal works. One has been able to see in the chapters relative to the property of watercourses, the property of public roads, and the laws passed at different times on these matters, in what servitudes of this kind consist.

I have previously observed that all immovable properties are limited one by another, and I have demonstrated that the limits they mutually give each other have nothing in common with servitudes properly so-called. Each can, in effect, enjoy and dispose of the things that belong to him, only on the condition of respecting in others rights that are equal to his own: my neighbor has the right to enjoy and dispose of his field, as I have the right to enjoy and dispose of mine. If, therefore, a law forbids us from harming each other by the use or disposition of our estates, it has neither for its object, nor for its effect, to consecrate one property to the use or utility of another. The two properties remaining equal, as to the rights and obligations of the proprietors, there is neither a servient estate, nor a dominant estate; one cannot say, consequently, that there is a servitude of the one for the profit of the other. The authors of the Civil Code, as I have already remarked in speaking of the limits imposed on each property by the properties with which it is surrounded [^321], have therefore committed a grave error, when they classified among the servitudes established by law, the obligations having for their object to prevent proprietors whose estates touch from harming each other, by means of plantings, constructions, or excavations.

There often exist, between two adjoining estates, things that are useful to both, such as hedges, ditches, walls. If these things are common, reciprocal rights and obligations result for the proprietors; but this community engenders no servitude. Every time, in effect, that there is equality of rights and obligations, and that one of the two estates is not partly consecrated to the use and utility of the other, no servitude exists for either. There is no servitude, either, by the sole fact that a hedge, a ditch, a separation wall, belongs to one of the two proprietors. It is therefore without any foundation that the authors of the Civil Code have placed in the chapter relative to servitudes established by law, a multitude of dispositions relative to the joint ownership of hedges, walls, or separation ditches.

There are no true servitudes established by the laws, other than those that weigh upon the properties situated in the vicinity of military fortifications, military posts, national forests, and some walled towns for the collection of octroi duties, and those that are granted to the proprietors of landlocked properties, to reach the public way.

Any person who can alienate an immovable property can subject it to a charge, in the interest of a property belonging to a different master, provided that the services to which he subjects it have nothing contrary to public order. When a property is thus subjected to another by the will of the proprietor, the rights and obligations that result from this subjection are determined by the very act that establishes them. The Civil Code regulates them only in cases that have not been foreseen by the constitutive title.

Servitudes have been divided into several classes: those that are established for the service or utility of a building are called urban, even when the building is situated in the countryside; those that are established for the service or utility of a parcel of land are called rural, even when the parcel of land to which they are due is situated in the interior of a city.

A distinction has also been made between continuous servitudes and discontinuous servitudes; in the class of the former have been put those whose use is or can be continual, without needing the current act of man, such as water pipes, sewers, views; in the second have been placed those that need the current act of man to be exercised, such as rights of passage, of drawing water, of pasturage, and other similar ones.

Finally, a distinction has been made between apparent servitudes and non-apparent servitudes; among the former have been put those that announce themselves by external works, such as an aqueduct, a window, a door; among the latter have been put those that have no external sign of their existence, such as the prohibition to build on a property, or to build beyond a certain height.

The distinction made by the authors of the Civil Code, between rural servitudes and urban servitudes, has led them to nothing in practice; thus, it is no longer a question of it from the moment it has been made; it was therefore useless.

The other distinctions had for their sole object to determine how some could be established or extinguished; for all are not, in this regard, subjected to the same rules.

Continuous or apparent servitudes can be acquired by titles or by the possession of thirty years; continuous non-apparent servitudes, and discontinuous servitudes, apparent or non-apparent, can be established only by titles; these latter cannot be acquired even by immemorial possession.

However, when two estates have belonged to the same proprietor, the destination of the head of a family is equivalent to a title; and there is destination of the head of a family when the person to whom the two properties have belonged has put things in the state from which the servitude results.

If the proprietor of two estates between which there exists an apparent sign of servitude disposes of one of the two, without explaining himself on the servitude, it continues to exist actively or passively in favor of or as a charge on the alienated estate. He who grants a servitude grants by that very fact all the rights necessary to make use of it; if he gives, for example, the right to draw water from his fountain, he is deemed to give the passage necessary to arrive there.

The constitutive title of servitudes that cannot be acquired by prescription can be replaced only by a recognitive title of the servitude, issued by the proprietor of the servient estate.

The proprietor of the estate to which a servitude is due has the right to make at his expense all the works necessary to use and to conserve them; but he cannot demand that these works be done at the expense of the proprietor of the servient estate, unless the contrary has been formally stipulated. In this latter case, the proprietor of the estate by which the servitude is due can free himself from this charge by abandoning the servient estate to the proprietor of the estate to which the servitude is due.

If the estate for the profit of which the servitude is established comes to be divided, the servitude remains due for each portion, without, however, the condition of the servient estate being aggravated; if, for example, it is a matter of a right of passage, all the co-proprietors are obliged to exercise it over the same place.

The proprietor of the estate that has a right of servitude can use it only according to his title, without being able to make, either in the estate that owes the servitude, or in the estate to which it is due, any change that aggravates the condition of the first. For his part, the proprietor of the estate by which the servitude is due can do nothing that tends to diminish its use, or to render it more inconvenient. He cannot, for example, change the state of the places, nor transfer the exercise of the servitude to a place different from that where it was originally assigned. Nevertheless, if this original assignment had become more onerous to the proprietor of the servient estate, or if it prevented him from making advantageous repairs there, he could offer to the proprietor of the other estate a place just as convenient for the exercise of his rights, and the latter could not refuse it.

Servitudes cease when things are in such a state that one can no longer use them; they revive if things are re-established in such a way that one can make use of them. Nevertheless, the extinction would be definitive if the cessation had lasted for thirty years.

Servitudes are extinguished, moreover, by the union in the same hand of the estate that owes it and that to which it is due, and by non-use for thirty years. The thirty years begin to run, according to the diverse species of servitudes, either from the day one has ceased to enjoy them, when it is a matter of discontinuous servitudes, or from the day an act contrary to the servitude has been done, when it is a matter of continuous servitudes. The mode of the servitude can be prescribed like the servitude itself.

If the estate in favor of which the servitude is established belongs to several in indivision, the enjoyment of one prevents the prescription with regard to all. If, among the co-proprietors, there is one against whom the prescription could not have run, such as a minor, he will have conserved the right of all the others.

It can happen that, following some natural accident, the road that leads into a property is destroyed, and that the proprietor, to reach it, has not acquired the right to pass over the neighboring estates. Every time a property is thus landlocked, the proprietor who has no exit onto the public way can claim a passage over the estate of his neighbors for the exploitation of his estate, on the charge of an indemnity proportionate to the damage he must occasion. In such a case, the passage must regularly be taken on the side where the route is shortest from the landlocked property to the public way, unless, by taking it on another side, it is less damaging to him on whose estate it is granted. The right to an indemnity for the passage can be extinguished by prescription like all other debts.

Some jurists have claimed that the part of the Civil Code in which the principles on servitudes are expounded was not complete; they would have wished it to be much more extensive. It seems evident to me, on the contrary, that the title of this code relative to servitudes or land services is too extensive, because a great number of dispositions that belong to other matters have been made to enter into it. If one put, in the study and teaching of law, more logic and especially more method than is ordinarily put there, one would see that, to resolve well the questions that present themselves on each subject, it suffices to know a small number of principles. A legislator must not perform the office of a jurist; he must clearly establish on each matter the principles that must govern it; but, when he has proclaimed them, he has no need to make a commentary on them.

To find the solution to most of the questions to which servitudes can give rise, it suffices to know well their nature and object; one need only recall that a servitude is but the partition of an immovable property, for the service or utility of another property of the same kind. Every proprietor who establishes a charge on his estate, for the service or utility of an estate belonging to another person, alienates, by that very fact, a fraction of his property; he abandons, in part, the right to enjoy it or that of disposing of it. The share of property of which he divests himself becomes an integral part of the estate for the service or utility of which the alienation is made; the latter increases by all that is lost by the former.

From this result the reciprocal rights and obligations of the proprietors of the two estates. To determine the extent of these rights and obligations, there are no other rules to follow than those that serve to resolve all questions of property. Each of the two proprietors pays the maintenance costs required by the thing that belongs to him; each enjoys and disposes of his property as he sees fit, provided that he does not infringe in any way upon that of his neighbor. The servitude being a fraction or a partition of the property on which it is established, is extinguished when this property perishes: the part cannot exist when the whole is annihilated. Having for its sole object the service or utility of another estate, it is likewise extinguished when an estate no longer exists; for there is no service to render to that which no longer has an existence. Being able to be created by the means by which a property is transmitted from one person to another, it can be abolished by the same means.

The partitions of property, which have for their object to create servitudes, generally taking place by the effect of the will of the proprietors, it follows that most of the questions to which servitudes give rise can be resolved only by a good interpretation of the acts that have established them. One must therefore refer, in this regard, to the rules followed for the interpretation of conventions or other acts by means of which properties are transmitted from one person to another.

---

Notes

[^321]: Volume I, chap. XXVI, page 467.