Chapter

Servitudes: Extinction by Non-Use

Roderick R M Paisley

in Mixed Jurisdictions Compared

Published by Edinburgh University Press

Published in print October 2009 | ISBN: 9780748638864
Published online March 2012 | e-ISBN: 9780748651443 | DOI: http://dx.doi.org/10.3366/edinburgh/9780748638864.003.0013
Servitudes: Extinction by Non-Use

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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’. As ‘negative’ servitudes have been abolished in Scotland but not in Louisiana, the 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’.

Keywords: praedial servitudes; dominant tenement; dominant estate; dominant proprietor; positive servitudes; affirmative servitudes; prescription of non-use; prescription of liberty

Chapter.  17826 words. 

Subjects: Comparative Law

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