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which property can be transferred, and as they are not susceptible of real delivery, the use which the owner of the estate to whom the servitude is granted, makes of this right, supplies the place of delivery.
ART. 740.-Servitudes may be established on all things susceptible of ownership, even on the public domain, on the common property of cities and other incorporated places.
ART. 741.-It is not contrary to the nature of servitudes that the same servitude should be established on several estates for the benefit of one, or that the same estate should be subject to a servitude for the benefit of several estates.
ART. 742.-By the title by which a servitude is established in favour of an estate, a servitude may also be imposed on the estate, for the benefit of the estate from whom the first servitude is due.
In cases where there are reciprocal servitudes, all the rules concerning simple servitudes are applicable.
ART. 743.-A servitude may be established or acquired in favour of an estate which does not exist, or of which one is not yet the owner; but if the hope of becoming the owner be not realised, the servitude falls. It
may also be stipulated that an edifice not yet built, shall support a servitude; or, shall have the benefit of one when it is built.
ART. 744.—A servitude may be established or released for a certain part of an estate provided the part be designated.
ART. 745. He whose estate is incumbered with a servitude, may impose on it other servitudes of any kind, provided they do not affect the rights of him who has acquired the first.
ART. 746.--An estate being mortgaged does not prevent the owner from establishing servitudes on it, saving always to the creditor the right of demanding his
debt, if the establishment of the servitude evidently depreciates the value of the estate, or of causing the estate to be sold as free from all servitudes; but the person who has acquired the servitude, shall have in such case his action for the restitution of the value of the servitude against the owner of the estate.
ART. 747.–The exercise of servitudes may be limited to certain times. Thus the right of drawing water may be confined to certain hours, the right of passage to a part of the day.
ART. 748.- Legal servitudes, and even those which result from the situation of places, may be altered by the agreement of parties, provided the public interest does not suffer thereby.
ART. 749.-Servitudes which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favour of the owner of the property to be affected.
ART. 750.-Servitudes being established on estates in favour of other estates, and not in favour of persons, if the grant of the right declare it to be for the benefit of another estate, there can be no doubt as to the nature of this right, even though it should not be called a servitude.
ART. 751.-If, on the other hand, the act establishing the servitude does not declare that the right is given for the benefit of an estate, but to a person who is the owner of it, it must then be considered whether the right granted be of real advantage to the estate, or merely of personal convenience to the owner.
ART. 752.-If the right granted be of a nature to assure a real advantage to an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.
Thus, for example, if the owner of a house contiguous to lands bordering on the high road, should stipulate for o ex
the right of passing through lands, without it being pressed that the passage is for the use of his house, it would be not the less a real servitude, for it is evident that the passage is of real utility to the house.
ART. 753.-lf, on the other hand, the right from its nature, is a matter of mere personal convenience, it is considered personal, and cannot be made real but by express declaration of the parties.
Thus, for example, if the owner of a house near a garden or park, should stipulate for the right of walking and gathering fruits and flowers therein, this right would be considered personal to the individual, and not a servitude in favour of the house or its owner.
But the right becomes real and is a predial servitude, if the person stipulating for the servitude, acquires it as owner of the house, and for himself, his heirs and assigns.
ART. 754.-When the right granted is merely personal to the individual, it expires with him, anless the contrary has been expressly stipulated.
How Servitudes are acquired.
ART. 755.-Those who can establish servitudes on their lands can also acquire servitudes.
There are some persons who cannot establish servitudes, who nevertheless can acquire them ; such as those who cannot exercise their rights, minors, women not authorized, administrators, tutors, husbands; for the acquisition of a servitude augments the value and convenience of an estate.
ART. 756.—He who assumes the quality of owner, and enjoys an estate as such in good or in bad faith, he who acts in the name of the owner, though he have no mandate from the owner, can acquire servitudes, and
the person granting them cannot afterwards work them, for it is not to the person but to the estatethey are granted.
ART. 757.-Nevertheless, in all the cases mentioned in the preceding articles, if the minor, the woman not authorized, or the owner find the contract onerous, they can annul it or refuse to execute it by renouncing the servitude.
ART. 758.-Even those who are neither owners nor representatives of the owner, and who have not expressly assumed the quality of acting in his name, may acquire a servitude for the benefit of the estate they possess, when such is the condition of the contract they make.
ART. 759.-One of the owners of properly held in common may stipulate for a servitude for the benefit of the property in common, because the partnership, which exists between him and his co-proprietor, authorizes him and makes it his duty to ameliorate the property in common.
Nevertheless, the co-proprietors may refuse to avail themselves of this servitude, and allege that the acquisition of the servitude is not an act of mere administration, but an innovation on the estate, which ought not to have been made without their consent. But this exception exists only in their favour and cannot be taken advantage of by him who has granted the servitude, in order to exonerate himself from his engagement.
ART. 760.–The usufructuary may acquire a servitude in favour of an estate of which he has the usufruct, if he declare that he acts for the owner, or if he stipulates that the servitude is established in favour of all those who shall possess the estate after him ; but if in the act by which the servitude is acquired, he takes merely the quality of usufructuary, without expressing at the same time that he contracts for all those who may succeed him in the possession of the estate, the right terminates with the usufruct, and the owner cannot claim a servitude, which
has not attached to the estate subject to the usufruct, or which has only attached for the time of the usufruct.
ART. 761.-Continuous and apparent servitudes may be acquired by title or by a possession of ten years, if the parties be present, and twenty years if absent.
. Art. 762.-Continuous non-apparent servitudes, and interrupled servitudes, whether apparent or not, can be established only by a title.
Immemorial possession itself is not sufficient to acquire them.
Immemorial possession is that of which no man living has seen the beginning, and the existence of which he has learned from his elders.
ART. 763.-The use which the owner has intentionally established on a particular part of his property in favour of another part, is equal to a title, with respect to perpetual and apparent servitudes thereon.
By this is meant the disposition which the owner of Iwo or more estates has made for their respective use.
ART. 764.-Such intention is never presumed till it has been proved that both estates now divided, have belonged to the same proprietor, and that it is by him that the things have been placed in the situation from which the servitudes result.
ART. 765.—If the proprietor of two estales, between which there exist an apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist actively or passively in favour or upon the estate which has been sold.
ART. 766.—The title by which such servitudes are established, as it cannot be acquired by prescription, can be replaced only by a title, by which such servitude is acknowJedged by the owner of the estate which owes the serviTude, or by a final judgment condemning him to permit the exercise of the servitude.