Vincent v. Michel

A right of servitude which rests solely on the acquiescence of the plaintiif, in the burden imposed on his property, by suffering, without complaint, the drip from the defendant’s house to fall on his lot or grounds for ten years and upwards, is acquired by prescription. Where the possession or continuation of the servitude of right of drip, from the eaves of A’s house on the lot of B, is proven to have existed more than ten years, B is barred from bringing his action of damages, or to abate it as a nuisance, against A. An alteration, within the time allowed to acquire a servitude by prescription, which is made in the eave of the roof of the house of A, and which had a tendency to lighten the burden of the servitude, is not considered as an interruption, so as to prevent prescription from running. A right of servitude •which rests solely oa the acquiescence of the plaintiff, in the burden imposed on his property, by suffering,_ without L-^ hhfot or grounds for wards, isacqui?Pl’esoriP* 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,

APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING. This is an action commenced against the defendant, to compel him to abate a certain nuisance, and for damages sustained by the plaintiff, in consequence of its continuation. The plaintiff states, that the lot of defendant is adjoining his, in the town of Baton Rouge, on which the former has erected his kitchen, so that the water falls from the roof into his lot, and runs on his house and kitchen, thereby causing great decay, injury and damages, by dampness and unhealthiness ; and that the defendant has also erected a necessary, immediately adjoining the residence of the plaintiff, which nuisances occasion him great disquietude, and damage to the amount of three hundred and fifty dollars. He further alleges, that the defendant has been amicably requested to remove said nuisances, but has refused and failed to do so. He prays judgment for his damages, and that the defendant be condemned to remove his buildings, so as to prevent the drip therefrom from falling on his premises; and to abate the nuisance. The defendant pleaded a general denial. He averred that the plaintiff, by planting pickets at each end of his kitchen, on defendant’s lot, had prevented the water from running off, and which caused injury to his houses by decay, &c. That the plaintiff prevented his workmen from making repairs on his own premises, by reason of all of which injuries, he has sustained damage to the amount of five hundred dollars; for which he prays judgment in reconvention, &c. This suit was instituted in May, 1833. The plaintiff alleges, that he had been disturbed and disquieted in the enjoyment of his residence by defendant, who, since the 2d March, 1830, had erected the nuisances complained of. The evidence showed, that the water had continued to run from the eaves of the defendant’s house on to the lot and premises of the plaintiff for a number of years: about ten. or twelve years, the witness stated. But a short time before suit, the defendant had altered the roof and eaves of his house, so as to throw the water in some manner different from what it had previously done. The defendant, on the trial, interposed the plea of the prescription of one and ten years against the plaintiff’s demand and right of action. The cause was, on these pleadings and the evidence adduced by the parties, submitted to a'jury, who returned a verdict “for the defendant by prescription” After an unsuccessful attempt on the part of* the plaintiff, to obtain a new trial, judgment was rendered in conformity to the verdict, from which the plaintiff appealed. that the finding of the jury by prescription, is contradicted by the acts of the defendant, in which, it is admitted, he had no title to the servitude of drip, or, if he even had, that he had renounced it, by causing the roof of his house to be sawed off. La. Code, 34.86. 2. The servitude of drip cannot be acquired, and title claimed to it by proscription. La. Code, 694, 707. 3. A servitude, if acquired, may be lost by a tacit admission of right. La. Code, 779. 4. This could and should set aside a' verdict, when it is not supported by the evidence. 1 La. Reports, 174. 2 Ibid. 396. 3 Ibid. 353, 361.