Schilling, Edwin C., Jr.

English

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Louisiana Law ReviewVolume 8 | Number 1November 1947Natural Servitude of Drainage - Extent of BurdenUpon Owner of Servient Estate - Article 660,Louisiana Civil Code of 1870Edwin C. Schilling Jr.This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationEdwin C. Schilling Jr., Natural Servitude of Drainage - Extent of Burden Upon Owner of Servient Estate - Article 660, Louisiana Civil Codeof 1870, 8 La. L. Rev. (1947)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol8/iss1/241947] E'reasoning would lead to the conclusion that Article 2319 applies tocurators only and not to anyone having mere custody of an insaneperson.Still unsettled in Louisiana, however, is the question of thegrounds on which recovery can be had under Article 2319. Does thecurator care for the interdict at his peril, or is he liable only when atfault? By express codal provisions the majority of civil law jurisdic-tions render the curator liable only if he is negligent. 2The liability of the parent for torts of the minor is imposed re-gardless of fault." The parent escapes this responsibility only when-the residence of the minor has been legally changed. 4 Applying thesame rule to Article 2319, the curator should be liable regardless offault where the insane person is residing with him or is under hiscare. Whenever the court authorizes the interdict to reside else-where,' 5 the curator should not be liable. However, if the curator,without the protection of a court order, permits the interdict to re-side elsewhere he should remain responsible for the acts of the inter-dict-even though he be free of fault.The court's refusal to apply Article 2319 in the instant case be-cause the defendant was not the curator appears entirely correct. Foran action to be successful under Article 2319 the plaintiff shouldallege that the defendant is the curator and that the insane person"8is under his care. In such a case there should be recovery withoutthe necessity of showing fault on the part of the curator unless thetort is one that requires malice or intent.OTHO L. WALTMAN, JR.NATURAL SERVITUDE OF DRAINAGE-EXTENT OF BURDEN UPONOWNER OF SERVIENT ESTATE-ARTICLE 660, LOUISIANA CIVIL CODE OF'1870-Plaintiff and defendant were adjacent landowners. As plain-:12. German Civil Code, Art. 832; Civil Code of Japan, Art. 714; SpanishCivil Code, Art. 1903; Civil Code of the Province of Quebec, Art. 1054.13. Mullins v. Blaise, 37 La. Ann. 94 (1885); Taylor v. Doskey, 1 La. App.399 (1925); Maloney v. Goelez, 12 La. App. 33, 124 So. 607 (1929). But see,Miller v. Meche, 111 La. 143, 147, 35 So. 491, 492 (1903).14. Taylor v. Doskey, 1 La. App. 399 (1925).15. Art. 417, La. Civil Code of 1870.16. Another problem raised relative to Article 2319 is why did the redactorsuse the words "insane person" instead of the word "interdict." An analysis ofthis problem is beyond the scope of this note, however see Arts. 31, 32, 389, and422, La. Civil Code of 1870.NOT SLOUISIANA LAW REVIEWtif's land was of slightly higher elevation than defendant's drainagewas through a natural channel across defendant's land. This naturaldrain became so choked with underbrush and silt that surface watercould not drain off plaintiff's land. Suit was brought to compeldefendant to remove the obstructions. Held, plaintiff's demand wasgranted even though defendant had committed no positive actionaffecting drainage of the land. Brown v. Blankenship, 28 So. (2d)496 (La. App. 1946).The problem of natural servitude of drainage is of practicalimportance to the landowners of Louisiana. Article 6601 providesfor a servitude "due by the estate situated below to receive the waterswhich run naturally from the estate situated above." The proprietorbelow may not obstruct this natural drainage, nor may the proprietorabove render the servitude more burdensome. This servitude origi-nates from the natural situation of the places2 and exists even thoughthe difference in elevation is only a few inches!In the early case of Darby v. Miller' the defendants, owners ofthe servient estate, actively modified plaintiff's drainage by construct-ing extensive causeways over their low land. However, openingswere left for the passage of the water from above and bridges werebuilt over the bayous and natural gullies. Had defendants not builtthe causeways, water from plaintiff's land would have drained acrossthe entire surface of the defendant's lands. The court held that itwas the duty of defendants to keep open sufficient drains to permitthe water to flow off plaintiff's land.' The instant case extends thisdecision by imposing a duty of affirmative action upon the ownerof the servient estate to keep drains open, even though he had takenno positive action affecting the drainage of the land.1. Art. 660, La. Civil Code of 1870:"It is a servitude due by the estate situated below to receive the waters whichrun naturally from the estate situated above, provided the Industry of man hasnot been used to create that servitude."The proprietor below Is not at liberty to raise any dam, or to make anyother work, to prevent this running of water."The proprietor above can do nothing whereby. the natural servitude due bythe estate below may be rendered more burdensome." (Numerous cases haveinterpreted and applied various portions of this article and it has been referredto in several periodicals: (1941) 8 LouiSIANA LAW REvIEW 281, (1941) 8 LoU-XSANA LAw Rzvuiw 722, (1942) 5 LOUISIANA LAW Ravxw 144, 7 TurxE L.Rav. 267, and 17 TULANE L. Rav. 667, but the problem here presented has notbeen put directly at issue In any prior case).2. Art. 659, La. Civil Code of 1870.3. Broussard v. Cormler, 154 La. 877, 98 So. 408 (1928).4. 6 La. Ann. 645 (1851).5. By virtue of the second paragraph of Art. 660, La. Civil Code. See note 1,supra.[Vol. VillNOTESOn first impression the ruling in the instant case may seemrather severe and not easily reconcilable with certain articles of theCivil Code. Article 655 states that one of the characteristics of aservitude is that it does not oblige the owner of the servient estateto do anything, but only to abstain from doing a particular thingor to permit a certain thing to be done on his estate. Also Article709 states that no servitude can be established which imposes servicesupon the person. However, as pointed out in the commentary ofHuc,' an important function of these articles is to aid in distinguish-ing servitudes from such real rights and obligations as are referredto in Articles 2010 et seq. Huc also states:"As to the owner of the servient estate, he can, on principle, beheld to do only that which may be required for the maintenanceof the servitude. That is what is meant by saying that theservitude cannot consist in the performance of an act.""In Louisiana & Arkansas Railway Company v. Winn ParishLumber Company' the court pointed out that certain codal articlesprovide that the owner of an estate may compel his neighbor to doa positive act, for example, to fix and mark the limits of his estate,to demolish or prop up his building when it threatens ruin,"0 tocontribute to the making and repairing of a fence held in commonin cities or towns and their suburbs," and to cut off branches of treeswhich extend over his estate.'2 It is readily seen that compelling the6. 4 Hue, Commentaire Theorique et Pratique du Code Civil (1898) 495-496:"403. A servitude can only be imposed upon an estate and in favor of an estate.Undoubtedly, services can be imposed upon a person, but only under the title ofan obligation. Thus, two neighbors can enter into a contract according to theterms of which one Nfill obligate himself to procure for the other a certainquantity of water every day, or even, if he so desire, will bind himself to beathis pond every night (a method of fishing In France). The text does not prohibitagreements of this nature; it does not even prohibit one from obligating himselfto accomplish some similar or analogous promises for the profit of those to whomthe creditor could sell his estate, because the creditor can cede his credit, eventacitly. But what the Code forbids is the Imposition of like services upon aperson under the title of a servitude; that is, to combine things in such a mannerthat whoever becomes the proprietor of the estate will owe, by that fact alone,the services agreed upon, to whoever becomes the proprietor of such otherestate. It is necessary that the service imposed under the title of servitude havefor its object the maintenance of the servient estate in a certain material condi-tion useful to the exploitation or even to the benefit of the dominant estate.Any service which would not have this character could not then be stipulated asa servitude. Thus one could not stipulate to his neighbor, under this title, thathe will not hunt on his land, that he will not shoot firearms . . .7. Id. at M8, § 482.8. 181 La. 288, 59 So. 408 (1912).9. Art. 668, La. Civil Code of 1870.10. Art. 671, La. Civil Code of 1870.11. Art. 686, La. Civil Code of 1870.12. Art. 691, La. Civil Code of 1870.19471LOUISIANA LAW REVIEWowner of the lower estate to remove obstructions in the natural drainis not unlike the other duties imposed on estate owners mentionedabove."'In Becknell v. Weindhall,4 the Louisiana Supreme Court statedthat Article 660 is derived from the Roman law, which is the bestsource for ascertaining its practical meaning. The ruling in theinstant case is in accord with the Roman view. Labeo described asituation where the neighbor below did, not remove obstructionsfrom a drainage ditch. This commentator said that suit can bebrought against the person owning the land below to compel him toclear the ditch himself, or to permit the owner of the dominantestate to restore it to its former condition. 5In view of Articles 772" and 7737 it might appear that a moreequitable remedy would be to permit the owner of the dominantestate at his own expense to restore the drainage ditch to its formercondition. But since these articles have been held to relate exclu-sively to conventional servitudes, 8 the decision rendered in theinstant case is proper.'"EDWIN C. SCHILLING, JR.18. Some light is shed on the problem by looking to the influence In Francewhich led to the establishment of the principle that a servitude cannot obligatethe owner of the servient estate to do anything. This rule was intended for therelief of the peasants who, under the feudal regime, were bound during their lifeto the estate on which they were born. See Louisiana & A. Ry. v. Winn ParishLumber Co., 181 La. 288, 804, 59 So. 403, 408 (1912).14. 7 La. Ann. 291 (1852).15. 9 Scott, The Civil Law, A Translation (1982) 6.16. Art. 772, La. Civil Code of 1870. "He to whom a servitude is due, has aright to make all the works necessary to use and preserve the same."17. Art. 773, La. Civil Code of 1870. "Such works are at his expense and notat the expense of the owner of the estate which owes the servitude, unless thetitle by which it is established shows the contrary."18. Landry v. McCall, 8 La. Ann. 184 (1848). This reasoning is also sup-ported by Pardessus, Traite Des Servitudes (1817) 96, 147: "'6 .... However,as we have observed, n. 53, this principle (referring to Articles 697 and 698 ofthe French Code which correspond to Articles 772 and 773 of our code) cannotbe applied in its entirety to natural servitudes .... 92 .... If the passage oftime, or some unforeseen accident has filled up the bed of the waters, the pro-prietors of the lower estates can be compelled to attend to the cleansing of eachone in the extent of his domain. Nothing can be accomplished in refusing to doso, whether by pretending that this bed would have been filled up by a naturalevent of which he does not wish to change the effects; whether by invoking thegeneral rule, which does not permit that the servitudes consist, on the part ofthe servient estate, in the exercise of the servitude, when he Is not particularlyobligated to do so. We have already observed, n. 58 and 66, that the naturalservitudes are laws of neighborhood and of necessity, ruled by different prin-ciples than conventional servitudes, to which the third chapter of the first partis principally applicable."19. Also the ruling is in accord with the policy of the court as stated in thecase of Guesnard v. Executors of Bird., 38 La. Ann. 796 (1881), to the effect thatArticle 660 is to be liberally construed in favor of the estate to which it is due.[Vol. Vill

Natural Servitude of Drainage - Extent of Burden Upon Owner of Servient Estate - Article 660, Louisiana Civil Code of 1870

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Natural Servitude of Drainage - Extent of Burden Upon Owner of Servient Estate - Article 660, Louisiana Civil Code of 1870

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