Servitudes: Extinction by non–use

INTRODUCTION This chapter examines servitudes and their extinction by non-use. The type of right investigated is limited to “praedial” or “predial” servitudes benefiting a plot of land, known in Scotland as “the dominant tenement” and in Louisiana as “the dominant estate”. Although it will touch upon “legal” servitudes the coverage will exclude “natural” servitudes that are implied by law from a certain state of affairs without reference to the will of the owners of the dominant and servient tenements. As “negative” servitudes have been abolished in Scotland but not in Louisiana, this chapter concentrates on the common element: servitudes which afford the dominant proprietor the right to carry out certain activities on the servient tenement. These are known in Scotland as “positive” servitudes and in Louisiana as “affirmative” servitudes. The doctrine at the heart of the analysis is known in Louisiana as extinction by “prescription of non-use”, and in Scotland as “negative prescription”, or more anciently as “prescription of liberty”. POLICY OF EXTINCTION Prescription by non-use in Louisiana and negative prescription in Scotland, albeit existing in statutory form, are ultimately both generated by public policy. They ensure the marketability of land by freeing it from useless and unused restrictions. Grounded as they are in the general public interest, the doctrines are intended to override the will of individuals in specific cases. Consequently, in Louisiana parties may not by agreement renounce a prescription before it has occurred.