Durel v. Boisblanc

The judgment of the court was pronounced by Eustis, C. J. The only questions in this case are of fact, as to the establishment of certain servitudes between two tenements, which, at the sale ofthe effects of a succession by an administrator, were purchased by different persons. There was no designation of the servitudes in the advertisements which .preceded the sale, nor was any declaration made of their existence by the auctioneer. The lots were described as having each thirty feet front French measure on Toulouse street, and as adjoining each other. The lot having a house on .it, which covered the whole front of thirty feet, was purchased by one of the defendants, Boisblanc, and was described in the advertisement as offered for sale “ with the brick house upon it and other dependences.” On the lot purchased by the defendant Rivereau, the house, constructed of brick between posts, covered twenty-six feet three inches of the front, leaving a passage of three feet nine inches between the two houses. It was described as sold with the house and kitchen built thereon. There were windows in the Boisblanc house [408] opening on the passage, and there are no means of access to the yard of Bois-blanc, except through the house or this passage. The house is a dwelling house, and evidently intended and used for the ordinary purposes of a family. Both houses are of one story. The only servitudes which can, under any circumstances, be held to be established in relation to these two estates, are those of way and of lights. Those attempted tobe setup as to the well and privy, want the essential requisites of servitudes, and have not that permanence and caractére de perpetuité, which the law requires for their establishment. Civil Code, art. 763. 3 Toullier 615. The servitudes of way and of lights are appparent, and necessary for the occupation, and use as a dwelling house,of the property purchased by Boisblanc, and as such are of a permanent character, and can in no sense be said to have been concealed from Rivereau, the purchaser of the contiguous estate. The passage of three feet nine inches being thus charged with the servitudes of way and of lights, it is contended by the counsel of Rivereau that he is not bound to take his purchase; but we think the law obliges him to complete it. If the ser-vitudes were of such a nature as would render it probable that he would not have purchased the estate had he known of their existence, and could we believe that he was ignorant of them, a very different case would have been presented. But these servitudes are visible and palpable, and, on examining the property, he must have seen them, and we have no reason to believe that he has been misled or deceived in relation to their existence. Merlin, Rep. verbo Ga-rantie, § 8. The judgment of the Parish Courtis therefore reversed.and the defendants Boisblanc and Rivereau are hereby ordered forthwith to comply with the conditions of the adjudication; and it is hereby decreed that the servitudes of lights and of way, as described in the plan on file, be held to be established in favor of the property purchased by Boisblanc, and adversely to that purchased by the defendant Rivereau; that the passage between the two tenements be extended three feet nine inches French measure beyond the rear line of the dwelling house of Boisblanc, so as to give an entrance in the rear to the proprietor, and that from thence the said Rivereau have the full measure of his lot, to wit, thirty feet French measure free from any servitude; and, inasmuch as the terms of payment stipulated in the adjudication have expired, it is further decreed that the judgment be entered in favor of the plaintiff, against the defendant Boisblanc, for the sum of $2,850, with interest, to wit, on one-fourth of said sum from the 6th of December, 1844, at five per cent, and on the remaining in-stalments of one-fourth each, from their maturity at six, twelve, and eighteen months from said date, at eight per cent; and that judgment be entered in favor of the plaintiff against Rivereau, for the sum of $3,175, without interest, he not being in default, and not having taken possession; and that the plaintiff and the defendant Boisblanc each, pay one half the costs of the court below, and of this appeal.