
    Delahoussaye v. Landry.
    Where an act of sale of a tract of unimproved land, made at a time when the cultivation o! sugar was unknown in that part of the State where the land was situated, established a servitude in favor of the land sold on an adjoining tract, authorizing the purchaser “aprendre du hois pour Vuiilité de son habitation sur <§*c., ce privilége restant attaché pourloujours d la dite terré', the purchaser will not be allowed, oh subsequently commencing the cultivation and manufacture of sugar, to take from the land subject to the usufruct, wood to make his sugar. Per Curiam: The provision of the quantity of wood necessary for the manufacture of sugar could not have been contemplated by the parties, at the time; and were we to authorize the taking of that quantity, what was originally agreed to as an ordinary servitude, might destroy the value of the buiihened estate.
    APPEAL from tbs District Court of St. Martin, Overton, J. The facts of this case are stated in the opinion of the court."
    
      Brent and Magill, for the plaintiff,
    cited 3 Toullier, nos. 8, 11, 17, 386, 422, 4.24, 469. Pardessus, nos. 6, 234, 236, 237, 238. Domat, b. 1, tit. 12, sec. 1, no. 2. Codo of 1808, Serv. art. 05.. C. ,C. 749, 774. Orleans Navigation Co. v, New Orleans, 2 Mart. 25, 201.
    
      Simon, for the appellant.
    Our Civil Code, art. 705, which is verbatim the same as art. 686 of the french .code, says, in positive terms, that “ the use and extent of servitudes established by contract, are regulated by the title by which they are granted.” The same proyision existed in the Civil Code of 1808, p. 138, art. 49; and the same rule is repeated in § 3 of .art. 718, with regard to the right of passage, as established bylaw or by convention. Domat, 1. 1, tit. 12, s. 1, § 8, says: “ L© droit et 1’usage dune servitude se régle par le titre qui l'ótablit; et elle a ses bornes et son étendue selon qu’il a été conveuu, si le titre est une convention. Ainsi, celui k qui elle est due, et celui qui la doit, doivent s’en teñir au titre, soit pour laquaiité de la servitude, ou pour les manieres dont 1’un doit user, et 1’autre souffrir.” See also, § 13 and 19, and the same principle is also recognized by Touliier, v. 3, nos. 601, 602, and by Lesage, “ Traite des Servitudes, v. 1, nos. 287, 302, 303, and 305. All these authorities recognize the doctrine that a servitude established by contract, derives its whole force from the stipulations contained in the written act, that its use and extent must be governed exclusively by the terms of the convention under which it was acquired, and that when those terms tire clear and explicit, it cannot be restricted, modified or limited. Pardessus, in his Traite des Servitudes, no. 237, after having in divers preceding articles, examined in what manner the objector intention of the parties could be reached, when the terms of the contract are obscure, uncertain, or doubtful; and after having, in no. 536, adopted the rule that in order to explain the intention of the parties, and suppléer á l’incertitude quelaisse le titre originaire,” “l’état des lieux'et la situation respective des parties el l’epoque si laquelle la servitude a été établie doivent aussi servir a en détermiuer l’étendue et le mode d’exécution,” goes on to say, no. 237: Mais ni l’intention des parties., ni l’usage, ni la position des lieux, ne pourraient l’émporter sur la lettre méme des actes, parce que.ee sent, conformement k 1’art. 686 du Code, ces actes qu.i doivent servir de base.” In no. 18, the same author, speaking of future advantages to be derived from a contract containing the grant of a servitude for the benefit of an estate not in existence at the time .of the deed, says: II ne faut pas toutefois induire que l’ntilité ou l’agrément de Phéritage pour lequel la servitude est crérk doivent exister présentement; un propriétaire peut établir pour son heritage des droits qui ¡ae lui sont pas actuelJement utiles, mais dout il est possible que Pavantage se fasse sentir un jouf &c.; and he further expresses the opinion that a servitude may be acquired for the benefit of an estate whieh does not exist; the object of the stipulation being a future advantage, “ et Pintérét futur n’est pas un motif moins determinant qui Pintérét présent.” So it was in this case: the plantation did not exist at the date of the contract, it was to be subsequently established on the tract of land purchased, .and the servitude was prospective in its operation, or rather in its object or end. See also ¶ 5, no. 56, in relation to conventional servitudes instituted by a title in which the stipulated right is indefinite or unlimited. I conceive this to be also applicable to this case, as, by the terms of the grant, the exercise of the right is indefinitely and indeterminately allowed for the utility (in general) of the defendant’s plantation; and as therefore the owner thereof is not limited to the taking of any particular number of cords of wood, provided such taking has for its object, and be conducive to, any profit which may be derived from the cultivation of the land.
   The judgment of the court was pronounced by

Edstis, C. J.

The defendant claims a servitude on the land of the plaintiff, in favor of a tract of land having ten arpents front by thirty two in depth, .on the bayou Teche, purchased, in 1809, by him from Louis JDelahoussaye, under whom the plaintiff also holds. The clause which gives rise to this controversy is in the following words : “ It est convenu que Joseph Landry est d&ment autorizé par ce present á prendre da bois pour Vutilité de son habitation sur la terre du dit sieur JDelahoussaye, située au grand bois, ce privilége restant attaehé pour toujours k la dite terre de dix arpents stipulée au present acte.” At the time of sale the tract of land of the defendant was unsettled, and entirely uncultivated ; a short time afterwards it was occupied and established as a cotton plantation. In 1829, or 1830, the defendant having converted his estate into a sugar plantation, considered that, under the stipulation above mentioned he had a right to take his wood from the plaintiff’s land for the purpose of making his sugar, and took it accordingly The object of this suit is to restrict the defendant to what the plaintiff considers as a lawful exercise of this servitude. The district judge decided in favor of the plaintiff, and gave damages against the defendant for an abuse of this servitude, and the defendant has appealed.

About the period of the defendant’s purchase, cotton, corn, &c., were the sole products of cultivation in the neighborhood. There was but one sugar house in the whole parish, which was shortly after abandoned. The district judge, in view of the situation of the land, and the condition of the country at the remote period of the sale, was of opinion that the change in the culture of the defendant, twenty years after the purchase, from cotton to sugar, would essentially change and augment the burthen of the servitude, and that the provision of the quantity of wood necessary for the manufacture of sugar from the lands of the vendor, could not have been in the reasonable contemplation of the parties at the time of making their contract; nor did the judge consider that, according to the rules of law, for the interpretation of servitudes, the right claimed by the defendant could be supported.

In this opinion of the judge we concur. At the time this servitude was created, it was not onerous, and the estate' affected could support it without deterioration. Sugar was not then one of the staple products of the State. The present wants of the plaintiff, for the new product of his land, increase many fold, and may increase still more, the burthen; so that what was originally within the province of the parties, agreed to as a common or ordinary servitude may become a devastation, and destroy the value of the burthened estate. The authorities adduced by counsel have been examined, and it is useless to reproduce them in this opinion, in which we confine ourselves to the result of our examination.

The district judge restricted the right of taking wood from the land of the plaintiff to thirty-five cords of wood as the maximum per annum, that being the number of cords of wood sufficient for fuel and rails for the use of the plantation, under the evidence adduced. The appellant objects to this restriction as in conflict with his servitude, and we are not prepared, under the information tion before us, to render it perpetual.

The subject is one of great importance in this portion of the State particularly, aud we feel great reluctance in determining it without further lights. We shall leave the extent of this servitude, as to the quantity of wood and what wood is to be taken, open for further enquiry, and change the judgment appealed from in that particular. The parties themselves may perhaps render a further examination of this subjeet by a court unnecessary.

The judgment appealed from is, therefore, reversed ; and it is ordered that the defendant be perpetually enjoined from cutting or taking from the plaintiff’s land wood for the purpose of making and manufacturing of sugar, and be confined to the exercise of his servitude-to the Wood for the use of his plantation, ¡tour l’utilité de son habitation; and that the plaintiff recover from the defendant the sum of $212 with costs ; the plaintiff paying the costs of this appeal, without prejudice to other matters not included in this decree.  