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Show LOUISIANA 357 patterns.47 The court has also said that when a grantor and grantee agree to establish a common drain and the grantee abandons the drain, the grantor can enforce his natural drainage servitude across the grantee's land.48 And a conveyance carries rights to future allu- vion, particularly where the grantor had reserved no riparian land to which the alluvion could attach.40 3.4 Loss of Rights Water rights and servitudes may either be acquired or lost by prescription. The Civil Code contains a number of interesting pro- visions relating to prescription, and article 3458 declares that own- ership of property is acquired when "a mere possessor acquires the ownership of a thing which he possesses by the continuance of his possession during the time fixed by law." Abandonment seems to be suggested by article 3461, which says that "renunciation of prescrip- tion is either express or tacit," and that a "tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription." With respect to prescriptive periods, article 3474 states that the time shall be 10 years when the possessor "has been in good faith and held by a just title during that time;" whereas article 3475 says that a 30-year period gives prescriptive title whether the possessor be in good faith or not." With respect to loss of servitudes, article 789 says that a "right to a servitude is extin- guished by the nonusage of the same during 10 years." Article 795 then offers the following clarification: "Prescription for nonusage does not take place against natural or necessary servitudes, which originate from the situation of the places." The cases speak in language more readily understood. The court has said that servitudes for ditches and drains are continuous ap- parent servitudes which can be acquired by prescription after 10 years.50 And, while a drainage servitude may be abandoned, such an abandonment will not be presumed, but must be established by posi- tive and unmistakeable proof.61 Consequently, silence is not an ade- quate basis upon which to predicate an abandonment of a drainage servitude, but such silence may bar any claim for damage to crops from overflow (estoppel).52 Speaking of rights for legal redress for damage claims, two statutes of limitation should be noted. The first53 provides that when private property is damaged for public purposes, all claims for damage are barred if not brought within 2 years of the date the damage was sustained. The second54 provides that when lands are taken and used for levees or levee drainage purposes, or where im- provements are thereby damaged or destroyed, all claims must be brought within 2 years from the date the property was actually occupied, used, or destroyed. Otherwise, the claims are barred, in- "Hebert v. Champagne, 144 La. 659, 81 So. 217 (1919). 48 Fontenot v. Smith, 37 So. 2d 872 (1948). Compare Robertson v. Lebermuth, 132 La. 318,61 So. 388 (1913). 49 Succession of Delaohaise v. Maginnia, 44 La. Ann. 1043,11 So. 715 (1892). 50 Wood v. Pinder, 41 So. 2d 479 (1949). slBarrilleaux v. Delaune, 176 La. 377, 145 So. 776 (1933) ; and Foley v. Godchaux, 48 La. Ann. 466, 19 So. 247 (1896). 62 Robertson v. Lebermuth, 132 La. 318, 61 So. 388 (1913). 53 Sec. 9 :5624. w Sec. 9 :5626. |
