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prescription of non-usage does not run against him as long as this obstacle remains.
ART. 789.-To preserve the right of servitude and prevent prescription from running against it, it is not necessary that it should be exercised exclusively by the proprietor to whom it is due, or by those who use his rights, or who represent him directly, as the usufructuary, the lessee or tenant, the attorney in fact or agent. It suffices if the servitude has been exercised by workmen employed by the proprietor, his slaves, his friends, or those who come to see him.
ART. 790.–The servitude is preserved to the owner of the estate to which it is due, by the use, which any one, even a stranger, makes of it, provided it be used as appertaining to the estate.
Thus the servitude is preserved to the owner by the use which a possessor in bad faith, who is in possession of the estate to whom it is due, makes of the servitude.
But if any one passes over the land of another, considering the way as public, or as belonging to another estate, the owner of the estate to whom the servitude is due, cannot avail himself of the use thus made of the servitude, to protect himself against the prescription which may have been acquired against himself.
ART. 791.-Prescription for non-usage does not take place against natural or necessary servitudes, which originate from the situation of places.
ART. 792.-The mode of servitude is subject to pre. scription as well as the servitude itself, and in the same manner.
By mode of servitude, in this case, is understood the manner of using the servitude, as is prescribed in the title.
ART. 793.-If he to whom a servitude is due, enjoys a right more extensive than that which is given him by the act establishing the servitude, he will be considered
as having preserved his right of servitude; because the less is included in the greater.
But he cannot thus prescribe for the surplus, and can be compelled to confine himself to the exercise of the servitude granted by his title, unless it be a continuous or apparent servitude, which he has acquired by prescription.
ART. 794.-If, on the contrary, the owner has enjoyed a right less extensive than is given him by his title, the servitude, whatever be its nature, is reduced to that which is preserved by possession, during the time necessary to establish prescription.
Art. 795.-If the owner has merely enjoyed an accessory right, which was necessary to his right of servitude, he will not be considered as having used his right of servitude.
For example, he who has the right of drawing water from the well of his neighbour, has passed often through the land of the latter, and gone to the well without drawing any water during the time required for prescription, he will have lost his right of drawing water, without acquiring that of passage, which was merely accessory to the right of drawing water.
ART. 796.--If the owner has used another servitude than that granted to him, without using the latter, he may lose this last for non-usage during the time required for prescription, without acquiring that which he has used, if it be an interrupted or non-apparent servitude.
ART. 797.-Ifthe estate in whose favour the servitude is established, belongs to several, and has never been divided, the enjoyment of one bars prescription with res
pect to all.
ART. 798.--If among the co-proprietors there be one against whom prescription cannot run, as for instance a minor, he shall preserve the right of all the others. ART. 799.-When the estate to which the servitude is
due, ceases to be undivided, by means of a partition, each of those who were the co-proprietors, only preserves the servitude by the use he makes of it and the others lose it by non-usage during the time required for prescription.
If a servitude be due to several persons, but on different days, as the right of drawing water, he who does not exercise his right, loses it, and the estate subject to the servitude becomes free from it, as respects him.
ART. 800.- When the prescription of non-usage is opposed to the owner of the estate to whom the servitude is due, it is incumbent on him to prove that he, or some person in his name, has made use of this servitude as appertaining to his eslate, during the time necessary to prevent the establishment of the prescription.
ART. 801.-Every servitude is extinguished, when the estate to which it is due, and the estate owing it, are united in the same hands.
But it is necessary that the whole of the two estates should belong to the same proprietor; for if the owner of one estate only acquires the other in part or in common with another person, confusion does not take effect.
ART. 802.—If the union of the two estates be made only under a condition, or if it cease by legal eviction; if the title be thus destroyed either by the happening of the condition or by legal eviction, the servitudes revive which, in the mean time, will have been rather suspended than extinguished.
Thus the exercise of redemption, the happening of the condition on which the estate terminates, the eviction from a succession by a nearer heir, the abandonment or relinquishment of an estate on account of mortgages, will revive all the servitudes active and passive.
ART. 803.-Confusion takes place by the simple acceptance of an inheritance, if there be but one heir, · If the heir who lias thus accepted an inheritance, disposes of any estate belonging to the succession which is subject to any servitude lowards his estate, without any stipulation for the preservation of his right of servitude, the estate thus alienated, which owed the servitude, remains free from it, in consequence of the confusion which had taken effect while the estate remained in his hands.
ART. 804.-But if the heir, under a simple acceptance, sell to a person the whole of his rights in the succession he has received, the sale prevents the confusion, and the estate belonging to the succession will continue to have the rights of servitude previously due to it, or be charged with the servitudes imposed on it, in the same manner as if it had not passed through the hands of the heir; because, in this case, the purchaser is not presumed to have purchased more or less than all the ancestors possessed.
ART. 805.-Confusion does not take effect if the heir has only a temporary possession of the estale subject to the servitude, or enjoying it for the purpose of delivering it to another person to whom it has been bequeathed, or when his right in it terminates at a certain fixed time.
ART. 806.-If the heir has accepled the succession under benefit of inventory, the confusion does not take effect; and if the heir is obliged to abandon the succession at the instance of the creditors, the servitudes resume their former state.
ART. 807.-The acquels, which the husband and wife make during the marriage, do not become confused with the private property of each ; and if these acquets are sold during the marriage, the servitudes, active and passive, which existed previous 10. their being acquired by the husband and wife, continue to exist, without any stipulation to that effect.
ART. 808.-Except in the cases herein mentioned, and similar cases, services extinguished by confusion do not revive, except by a new contract; with the exception of continuous and apparent servitudes, with respect to which the disposition made by the owner of both estates is equivalent to a title.
ART. 809.—The renunciation or abandonment of the land extinguishes the serviludes charged on it, of whates ver nalure they may be, because the owner of the estate to which the servitude is due, is bound to accept the abandonment, which produces in his hand a confusion which puts an end to the servitude.
ART. 810.-It is not necessary to produce a discharge of the servitude, that the proprietor of the estate which owes it, should abandon the whole estate; it suffices, if he abandon the part on which the servitude is exercised.
ART. 811.-If a proprietor is bound to support a building or beams of his neighbour on a part of his wall, and to make the repairs necessary to keep up this wall, he may discharge himself from this servitude by abandoning to the owner of the estate, to whom the servitude is due, that part of his wall upon which this servitude is exercised.
ART. 812.-Servitudes arealso extinguished by the renunciation or voluntary release of them by the owner of the estate to which they are due.
This renunciation or release may be express or tacit.
ART. 813. The express release must be made in writing, and is confined to what is clearly expressed in the act containing it, because one is not easily presumed to have renounced his right.
Besides, the owner who makes the release, must be capable of disposing of immoveables; this release of a servilude being a real alienation.
ART. 814.-When the estate to which the servitude is due belongs to several owners, one of them cannot make a release of the servitude so as to discharge the estate owing the servitude, without the consent of his co-proprietors.