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But the release which he makes will deprive him from the right of personally using the servitude.
ART. 815. — The release of the servitude is tacit, when the owner of the estate to which it is due permits the owner of the estate charged with the servitude, to build on it such works as pre-suppose the annihilation of the right; because they prevent the exercise of it; for example, if he should permit the field, through which he has a right to pass, to be closed by a wall.
ART. 816. In order that the tacit release of the-servitude be inferred from the permission which the owner of the estate to which it is due has given for the erection of works which prevent the exercise of it, it is necessary :
1. That the permission or consent for the erection of these works should be given expressly, verbally or in writing. From the mere sufferance of works contrary to the servitude, the release cannot be presumed, unless it has continued for a time necessary to establish prescription:
2. That the works thus constructed be of a permanent and solid kind, such as an edifice or walls, and that they present an absolute obstacle to every kind of exercise of the servitude.
ART. 817.— Servitudes are also extinguished, when they have been established for a certain time only, or under a condition that in a certain event they shall cease; for when the time expires, or the event takes place, the servitude becomes extinguished of right.
ART. 818.-Servitudes are in fine extinguished by the destruction of the right of him who established them; for no one can transmit to another more right than he has himself; from thence it follows: that if any one establish a servitude on an estate in which he has only a right suspended by a condition, or defeasible at a certain time or in certain cases, or subject to rescision, the servitude becomes extinguished with his right.
It is the same, if his title to the estate, charged with the servitude, is annulled by reason of some defect inherent to the act.
Of fixing the Limits, and Surveying of Lands.
ART. 819. - When two estates or lands contiguous, in cities or in the country, have never been separated, or have never had their boundaries determined, or if the bounds, which have been formerly fixed, are no longer to be seen, each of the proprietors of the contiguous estates has a right to compel the other to fix the limits of their respective properlies.
ART. 820. — The action of boundary is derived from the same source as the action of partition. No one being bound to hold an estate in common, no one is bound to leave undecided the boundary lines, which separate his estate from that of his neighbour.
ART. 821. — The action of boundary, like that of partition, cannot be prescribed against; every one is at liberty, at all times, to separate his part from an estate in common, so it is permitted to each proprietor to have ascertained the limits of contiguous estates, to have them fixed, as each has enjoyed his cstate separately without having acquired any part of his neighbour's estate by prescription.
ART. 822. — By bou ndary is understood, in general, every separation natural or artificial, which marks the confines or line of division of two contiguous estates. Trees or hedges may be planted, ditches may be dug, walls or inclosures may be erected, to serve as boundaries.
But we most usually understand by boundaries, stones or pieces of wood inserted in the earth on the confines of two estates.
ART. 823. — The fixing the boundaries takes place not only between two neighbouring proprietors, but between a proprietor and several others, when they have contiguous estates, or between several co-proprietors, when a partition of the property in conimon takes place.
ART. 824.- When two estates are separated by a public road or by a water course, which serves as a common limit, the action of boundary cannot be sustained in relation to them, unless the road or water course has experienced some change in its situation.
ART. 825.-The action of boundary may be instituted, not only by the owner, but by any person who possesses as owner, and his neighbour cannot require proof of his right of property.
ART. 826.-It may be instituted by the usufrucluary, but the determination of the limits will be only provisional, unless the owuer has been made a party to the suit; and in this case the owner may require the limits to be fixed anew at the termination of the usufruct.
ART. 827.-The lessee has no right to instilute the action of boundary, but he may resort to his lessor, and oblige the latter to have the limits of the leased estate ascertained and fixed.
ART. 828.—The fixing new boundaries, or the investigation of old ones, may be made extra-judicially and by mutual consent, if the parties are of full age.
But if one of the parties be a minor, or interdicted, it must be done judicially.
ART. 829.-Whether the liinils be fixed judicially or extra-judicially, il must be done by a sworn surveyor
of this state, who shall be bound to make a procès-verbal of his work in the presence of two witnesses, called for the purpose, who shall sign the procès-verbal with him, or mention shall be made therein of the causes which prevented them froin signing.
ART. 630.--Whenever any surveyor is called on to fix the limits between adjacent estates, it is his duty to notify in writing the proprietors interested therein to be present at the work, if they think proper, and to informa them of the day and hour when he will proceed to fix the limits; and he is bound to make mention in his procès-verbal of the notice he may thus have given, of the names of the parties notified, and of the date of the notice; and the surveyor shall make a record of his proceeding, and of the plans drawn by him, in order that copies may be delivered to the parties who may require them.
Art. 831.-If the parties thus notified, their representatives or attornies in fact, appear at the fixing the limits, the surveyor appointed for the purpose is bound to demand of them their respective title papers, which they are bound to deliver to him, in good faith, if they have them in their possession, in order that the surveyor may determine, by examining them, in what place to fix the boundaries.
If the parties thus notified, or their representatives or attornies in fact, refuse to deliver their title papers, the surveyor, shall make mention of their refusal in his procès-verbal, and of the causes they have alleged, if they have assigned any, for their refusal. .
ART. 832.—The surveyor shall not set up his boundaries, until he shall have finished the whole work, and until then he must mark his lines of separations by pickets stuck in the ground for that purpose.
ART, 833. If before the surveyor has finished the work, or set up the boundaries, the parties interested, or any of them, shall make opposition thereto, the surveyor must desist, and refer the parties to the court, to have a decision on their respective rights after having made mention of the opposition in his procès-verbal, and the reason for the same, if any be alleged.
ART. 834.-It is forbidden to every proprietor of lands to fix the limits between him and his adjoining neighbours, without giving them notice to be present; and without this formality, every such proceeding is null, and will produce no effect against his neighbours, who, besides, have their action for damages against him, if they have suffered any injury thereby.
ART. 835,-When the limits have been fixed after due notice to the parties, and no opposition being made, the parties do not thereby lose their right of resorting to a court of justice to rectify the operation if they think if for their interest; but the limits will remain provisionally as fixed, until otherwise determined.
ART. 836.- The action of boundaries must be brought before the court, within the jurisdiction of which the land is situated, without regard to the domicil of the parties.
ART. 837.-It is the duty of the judge who has cognizance of suits on the subject of limits, lo appoint surveyors to inspect the premises in question; the court, on their report, ought to decide according to the titles of the parties, and the plans which shall be presented to the court.
ART. 838.-The action of boundary, instituted against several co - proprietors of land in common, continues, notwithstanding they have divided it among themselves, or alienated it, if the partition or alienation is made after the institution of the suit.
ART. 839.-In matters of limits, reference must be had to ancient titles, unless it be proved that the bounds have been since changed, or that the land has been increased or diminished by changes caused by successions, by the will of the owner or by other events.
ART. 840.-When an owner has alienated one or two estates, which belonged to him; and the property of any part of it is contested, the limits assigned to it by the vendlov at the time of the sale, must be consulted. The limits