Vincent v. Michel

7 La. 52

• Court: Supreme Court of Louisiana
• Decided: August 15, 1834
• Status: Published

Opinion

Mathews, J.,

delivered the opinion of the court.

This is an action for damages, and to cause the defendant to abate certain nuisances, of which the plaintiff complains as interrupting him in the quiet and comfortable possession and enjoyment of his property. ■ There was judgment for the defendant in the court below, founded on a verdict of a jury to which the cause had been submitted, and the plaintiff appealed.

selsioiT or6 con" tinuation of the servitude ot right of drip from the f^usc, oíftheiot F^ven more than ten ied lrom bring" ¿bateítas a nuisance’ a°amst A' An alteration, allowed to .ac§™rpresSeriptiont ''vMch is ™.ade mthe eaveofthe roof of the house had^tendeney 1!shte” 1!'6 burden of the servitude, is not j^mptioiT to as t0. Fevent prescription from running,

The case involves a right of servitude, as claimed by the defendant. The parties are separate owners of urban property, situated in the town of Baton Rouge, adjoining. The servitude claimed, is a right of drip from the house of the appellee on tire lot of the appellant.

The verdict of the jury in favor of the former, is based on prescription. The record affords proof of the wate'r having flowed from the roof of the defendant’s house, on the land of the plaintiff, for ten or twelve years previous to the institution of the present action, in the same manner in which it did at , . _ that period.

In the present case, no written evidence of title is shown on the part of the appellee, by which he claims the servitude in question. His right of servitude rests solely on the acquiescence of the plaintiff in the burden imposed on his property, by suffering for ten years and upwards, without complaint, the drip from the defendant’s house to fall on his lot.

The 761st article of the Louisiana Code provides, that “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.” A possession or continuation of the servitude claimed in the present instance, is proven to , 7 , , . , i have existed more than ten years before this suit was brought, We are, therefore, of opinion, that the verdict of the jury is supported by the evidence of the case, as no interruption rr . • i • , r the possession of this servitude is shown on the part of the plaintiff: for, we do not consider the alteration made in the eave of the roof of the house of the appellee, which had a 1 tendency to lighten“he burden of the servitude, as an interruption.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.