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ART. 767.-When a servitude is established, every thing which is necessary to use such, servitude is supposed to be granted at the same time with the servitude.
Thus the servitude of drawing water out of a spring carries necessarily with it the right of passage.
But the passage, in this case and in all others in which it is permitted as an accessory to some or other servitude, must be made in the way the most direct, the shorles! and the least inconvenieut to the estate subject to the servitude.
Of the Rights of the Proprietor of the Estate to which
the Servitude is due.
ART.768.-He to whom a servitude is due, has a right to make all the works necessary to use and preserve the same.
ART. 769.-Such works are at his expense, and not at the expense
of the owner of the estate which owes the servitnde, unless the title by which it is established shows the contrary.
ART. 770.--The owner of the estate, to which the servitude is due, has the right to go on the estate which owes the servitude with his workmen, in the place where it is necessary to construct or repair the works necessary for the exercise of the servitude, to deposit there the materials necessary for those works and the rubbish made thereby, under the obligation of causing the least possible damage and of removing them as soon as possible.
Nevertheless, if in the act establishing the servitude, it is said that the owner to whom it has been granted cannot construct works in order to exercise it, or can only construct them in a certain manner, this agreement must be observed.
ART. 771,-Even in the cases where the owner of the estate which owes the servitude, is bound by the title to
make the necessary works for the use and preservation of the servitudes, at his own expense, he may always exonerate himself by giving up the estate which owes the servitude to the owner of the estate to which it is due.
ART. 772.-If the estate for which the servitude has been established, comes to be divided, the servitude remains due for each portion, provided that no additional burthen accrue thereby to the estate which is subject to the servitude.
Thus, for instance, in case of a right of passage, all the proprietors are bound to exercise that right through the same place.
ART. 773.—The proprietor of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.
Thus he cannot change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
Yet if this primitive assignment has become more burthensome to the proprietor of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the proprietor of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due cannot refuse it.
ART. 774.—On the other hand, he who has a right of servitude, can use it only according to his title, without being at liberty to make either in the estate which owes the servitude, or in that to which the servitude is due, any alteration by which the condition of the first may be made worse.
ART. 775.-If the manner in which the servitude is to be used is uncertain, as if the place necessary for the exercise of the right of passage is not designated in the title, the owner of the estate which owes the servitude, is
bound to fix the place where he wishes it to be exercised,
ART. 776.-If the title by which a passage is granted does not designate its breadth, nor the manner in which it is to be used, whether on foot, or horseback, or with carriages, the use, which the person to whom the servitude is granted, previously made of it, will serve to interpret the title.
If there was no such use made of it before, the probable intention of the parties must be considered, and the purpose for which the passage is granted.
If these circumstances can afford no light, it must be decided in favour of the land which owes the servitude, and a foot passage must be conceded eight feet wide, where it is straight, and ten feet wide, where it turns.
ART. 777.-If the passage be agreed upon, without the time or the hour be fixed, it is necessary to make a distinction; if the passage be through a place not closed, it may be used at any hour and even in the night; for at any hour a person may want to pass; but if it be through a place which is closed for the security of the owner, the right of passage can be exercised only at convenient hours; for it would be unreasonable that a yard or house should be left open at all hours of the night.
ART. 778.—The right of opening lights or of view, granted indefinitely to him who is about building, gives him the privilege of opening all the windows which may be necessary to light or embellish his house and the buildings attached to it, to give to the windows the form and size he may think proper to adopt, because such is presumed to have been the intention of the parties.
But after the buildings are all finished, the possession and situation of the ground determine the extent of the servitude, and the owner can neither multiply nor enlarge his windows.
How Servitudes are extinguished. ART. 779.-Servitudes are extinguished :
1. By the destruction of the estate which owes the servitude, or of that to which the servitude is due, or by such a change taking place that the thing subject to the servitude cannot be used;
2. By prescription resulting from non-usage of the servitude during the time required to produce its extinction;
3. By confusion;
4. By the abandonment of that part of the estate which owes the servitude;
5. By the renunciation of the servitude on the part of him to whom it is due, or by the express or tacit remission of his right;
6. By the expiration of the time for which the servitude was granted, or by the happening of the dissolving condition attached to the servitude;
7. By the dissolution of the right of him who established the servitude.
ART. 780.-Servitudes are extinguished when the things are in such a siluation that they can no longer be used, and when they remain perpetually in such a situation,
ART. 781.-If the things are re-established in such a manner that they may be used, the servitudes will only have been suspended, and they resume their effect, unless, from the time they ceased to be used, sufficient time has elapsed for prescription to operate against them.
ART. 782.-If a wall in common, or a house subject to a servitude, or to which a servitude is due, be rebuilt after having been destroyed, demolished or thrown down, all the servitudes, active and passive, which existed on this wall or house, continue to exist on the new wall or house, but they cannol be augmented; provided always, that they be rebuilt within such a time that prescription has not operated againsl them, as is mentioned in the following articles.
ART. 783.-If the house or edifice which has been destroyed, demolished or thrown down by any accident, belonged to the proprietor to whom the servitude is due, the servitude will be extinguished, if he does not rebuild the house or edifice within the time required for prescription, because it depended on him alone, by rebuilding his house to revive the servitude it enjoyed.
Art. 784.-If, on the contrary, it is the house or edifice subject to the servitude, which has been destroyed, demolished or thrown down, the owner cannot, by rebuilding it after the time required for prescription, impair the servilude to which the house or edifice was previously subject, because he to whom the servitude was due, had not the power to compel the other to rebuild the house or edifice thus destroyed.
ART. 785.-A right to servitude is extinguished by the non-usage of the same duriug ten years, ifthe parties · be present, and twenty years, if absent.
ART. 786.-The time of prescription for nonusage begins, for interrupted servitudes, from the day they ceased to be used; for continuous servitudes, from the day any act contrary to the servitude has been committed.
ART. 787.-Acts contrary to the servitude are the destruction of works necessary for its exercise, as the stopping of spouts which carry off rain, or of windows or apertures which are necessary to the exercise of the right of view.
ART. 788.-If the owner of the estate to whom the servitude is due, is prevented from using it by any obstacle which he can neither prevent nor remove, the