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Show 356 LOUISIANA Apparently the court has not been called upon to consider the con- stitutionality of this legislation as it purports to invalidate pre-1910 grants by the State of navigable waters and their beds. It seems quite likely that the court would recognize a public trust in such waters and beds, and conclude that grants to private parties could not be made in derogation of public rights without express legislative authoriza- tion. And some State courts have held that even a statutory authori- zation is not enough, unless the grant yields a greater public benefit than preservation of the public trust. The most difficult constitutional problem, of course, will be encountered in those cases where pur- chasers between 1910 and 1954 invested in property derived from pre-1910 grants, relying upon the apparent meaning of sections 1101 and 5661. 8.3 Changes, Sales, and Transfers Riparian rights are transferred with the conveyance of riparian land, unless the grantor reserves or restricts exercise of such rights in the instrument of conveyance. Article 756 of the Civil Code recites that: 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. The statutes are more specific:45 It shall be conclusively presumed that any transfer, conveyance, surface lease, mineral lease, mortgage or any other contract or grant affecting land described as fronting on or bounded by a waterway . . . shall be held, deemed and construed to include all of grantor's interest in and under such waterway, ... in the absence of any express provision therein particularly excluding the same therefrom. It seems quite clear that the grantor can reserve or limit, or the parties to a lease or contract can provide for servitudes and special uses. The Civil Code provides: Art. 743.-Servitudes are established by all acts by 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. 752.-Legal servitudes and even those which result from the situation of places, may be altered by the agreement of the parties, provided the public interest does not suffer thereby. The court has stated the same thesis more clearly.46 There can be no doubt that the absolute owners of property have the right to establish, on the portion which they retained, and in favor of that portion which they sold, such servitudes as they think proper, their power in that respect being limited only by considerations of public order; and that the use and extent of such servitudes are to be regulated by the titles by which they are established. In construing grants and conveyances, the court has concluded that when a pattern of drainage is devised for a plantation in a manner different from the natural drainage, and the plantation is then sub- divided and sold, the purchasers accept their parcels subject to the existing drainage system and cannot insist upon natural drainage « Sec. 9 : 2971. MBernos v. Canepa, 114 La. 517, 8 So. 438 (1905). |
