DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A. P., INDIA.

PROJECT TITLE:

NUISANCE WITH REFERENCE TO SERVITUDES

SUBJECT:

LAW OF TORTS

NAME OF THE FACULTY:

DR. Prof. P. SRI DEVI

(B.Sc., M.L., Ph.D)

(DEAN ACADEMIC AFFAIRS AND RESEARCH, DSNLU)

NAME OF THE STUDENT:

SIMRAN GAHUNIA

ROLL NO:

2017091

SEMESTER – I

SECTION – B

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 ACKNOWLEDGMENT

I am highly indebted to my Hon’ble Lot of Torts Professor, Dr. P. SRI DEVI, for giving me a
wonderful opportunity to work on the topic: “NUISANCE WITH REFERNCE TO
SERVITUDES”, and it is because of her excellent knowledge, experience and guidance, this
project is made with great interest and effort . I would also like to thank my seniors who have
guided my novice knowledge of doing research on such significant topic. I would also take
this as an opportunity to thank my parents for their support at all times. I have no words, to
express my gratitude to each and every person who have guided and suggested me while
conducting my research work.

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 PROJECT ABSTRACT

. The kind of nuisance that causes material damage to land includes collapse of defendant’s
property onto claimant’s land, drenching or flooding, damage by noxious fumes and damage
by vibration etc in which cases almost indisputably the tort of private nuisance is established.
The second is that of the location of the claimant’s premises. This is given importance by the
courts because the expectations of the claimant in terms of comfort, quiet and peace varies
according to the location of his house or business; also interference which is permissible in
one area may not be permissible in another. A good illustration of the same would be a
successful claim of private nuisance resulting in an injunction on the practice of prostitution
in an adjacent land. There are also secondary requirements like ‘nuisance to servitude’, where
in some rare cases law provides remedy for the interference to luxury of right to a view or
right to light.

Ownership, the most absolute of the real rights, includes the right of enjoying the property
which is the object of the right in the most absolute manner, provided that no use be made of
the property "which is prohibited by law or by regulation". The only other limitations on this
absolute right which are expressly imposed by the Code are the natural and legal servitudes

A servitude is a qualified beneficial interest severed or fragmented from the ownership of an

inferior property (servient estate) and attached to a superior property (dominant estate) or to
some person (personal beneficiary) other than the owner. At civil law, ownership (dominium)
is the only full real right whereas a servitude is a subordinate real right on par with
wayleaves, real burdens (i.e. real covenants), security interests, and reservations. There are
two types: predial, attaching to property, and personal, attaching to a person.

A servitude cannot impose the performance of a positive duty on the owner of the burdened
property but only duties either to refrain from exercising certain rights to which an owner
could be otherwise entitled (negative servitude) or to suffer certain things to be done to his
property which an owner otherwise could be entitled to forbid or resist (positive servitude).
Servitudes arise from express agreement, adverse possession, or as a matter of law.

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 CONTENTS

 DEFINATION OF TERMS………………………………………………..5
 SOME TECHNICAL TERMS …………………………………………….5
 POSITIVE CHARACTERISTICS OF NUISANCE IN SERVITUDE …...3
 DEFENCES ………………………………………………………………..7
 CASE LAWS ………………………………………………………………8
 SERVITUDES ……………………………………………………………..13
 TYPES OF SERVITUDES ………………………………………………...16
 CONCLUTION …………………………………………………………….19
 BIBILOGRAPHY…………………………………………………………..20

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 DEFINATION OF TERMS

Ownership, the most absolute of the real rights, includes the right of enjoying the property
which is the object of the right in the most absolute manner, provided that no use be made of
the property "which is prohibited by law or by regulation". The only other limitations on this
absolute right which are expressly imposed by the Code are the natural and legal
servitudes.There is yet another limitation, though, which has been steadfastly imposed by the
jurisprudence in Quebec; its roots are to be found in the general principles which underlie art.
406 .That limitation, expressed by the Latin maxim sic utere tuo ut alienum non laedas and
known in the old French law as the obligations du voisinage, is to be found in the sources
used by the Codifiers in drafting art. 406.

The broad area of obligations du voisinage can be broken down still further into the areas of
abuse of rights, with which this paper does not purport to deal, and what has come at
common law to be known as nuisance," the subject-matter of these pages. While both abuse
of rights and nuisance are concerned with the damage caused by an obnoxious act which
interferes with the beneficial interest of a proprietor in his land, there is a fundamental
difference between the two. Abuse of rights applies stricto sensu to the exercise of a right
which, having all the appearances of a perfectly normal and licit act, is illicit solely because it
is exercised with the intention of causing harm to a neighbour

Nuisance, on the other hand, results from the continued exercise by a proprietor of his right of
ownership in such a way that he compromises the equivalent right of his neighbour to enjoy
his own property, irrespective of the motive which prompted the author of the interference to
so exercise his right." It consists in the continuing invasion of the neighbouring property, the
air space above it or the depths beneath by the ejection of dust, smoke, deleterious gases,
steam, noxious or offensive vapours, fetid odours, noise or vibrations.

SOME TECHNICAL TERMS

This area of the law appears to have lain dormant in Quebec since 1940 in the sense that, to
this writer's knowledge, there has been but one reported case since that date,whereas in
France, on the other hand, the number of reported cases appears to be steadily.

increasing. In addition to the jurisprudence, a great deal of doctrinal attention has been paid
to these legal problems in France, while the jurists in Quebec have paid them scant notice. It
is hoped, therefore, that this paper may serve some purpose in collecting and analyzing the
abundant case material before 1940, particularly since there is every reason to expect that
litigation in this area will increase because of the present focusing of attention on the
problems of air and water pollution. The reasons for the lack of reported cases in Quebec
since 1940 are not clear, but perhaps some of the following may be suggested. First, the
passage of municipal "nuisance" by-laws has probably shunted a great number of potential
damage suits into inferior courts as infractions of by-laws at an early stage.-' Second, more
highly sophisticated urban planning has undoubtedly resulted in zoning which keeps

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 POSITIVE CHARACTERISTICS

1. The measure of reasonable inconvenience

Although a nuisance may result only from what may be called the exteriorization of one's
right of proprietary enjoyment, it is only logical that in a modern society not every
exteriorization will be an actionable nuisance The rights of vicinage are reciprocal and, to
avoid the multiplicity of actions which the law abhors, certain inconveniences must be borne
by neighbours. It is for the court to determine whether, in a given case, the inconveniences of
which the plaintiff complains are reasonable or extraordinary.

If, having regard to the criteria which will be discussed below, they are reasonable, they must
be borne. If the line of reasonableness is crossed or the "mesure des obligations ordinaires"
exceeded, this fact will be significant in determining whether the defendant has been rendered
liable in damages to the plaintiff. Sir W. Erle, C.J., of the English Court of Queen's Bench,
articulated this principle a century ago

The cause of action, if any, lies in the excess of damage beyond what is considered
reasonable ... This cause of action is immersed in undefined uncertainty; there is no standard
by which to measure degrees of annoyance, or to estimate the effect of circumstances; each
neighbour is a source of some annoyance; proximity necessitates mutual forbearance; the
degree of forbearance to be required is measured by the sensibility to feelings of delicacy of
the tribunal which has to decide the case, and cannot be foreseen until that decision is given.

2. The necessity of damage

Before the courts will even consider the criteria by which they determine whether the
measure of reasonableness has been exceeded, two conditions must be met. First, as is the
case in any delictual action, it must be shown that there exists damage, and then that this
damage is substantial, direct and distinct from that common to the inhabitants at large. The
nature of the damage is measured by an objective, not a subjective, standard. Second, the
complainant must show that the prejudice which he suffers results from the deprivation, not
merely of a certain advantage which he has derived from his property, but of a right to which
he is entitled by reason of his ownership. For instance,-if an owner erects on, his land a
building which deprives his neighbour of the prospect which he previously enjoyed, this only
deprives his neighbour of an advantage which he previously enjoyed, but to which he had no
legal or positive right and would therefore be no violation of his ownership It follows that
the erection of any building which depreciates the value of a neighbour's property by its mere
presence is not an actionable nuisance, for it only deprives the owner of an advantage he
previously enjoyed but to which he had no absolute right Such a building could only give
rise to an action if the use to which it were put created a nuisance.

3. The character of the neighbourhood

Once damage is proved, the court must determine whether it has been caused by a reasonable,
and therefore unsanctionable, or by an unreasonable, and therefore sanctionable, use of
property. The standard of reasonableness is based almost wholly on the character of the

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neighbourhood and the level of inconvenience which must be supported in cities is greater
than in the country. Within cities themselves there is a clear division in the jurisprudence
between the responsibility for obnoxious activities carried on in residential districts and those
carried on in manufacturing areas. "What would be tolerable in a manufacturing district
would be intolerable in a residential district." ' The courts have generally been careful not to
apply the "residential" decisions to "manufacturing" situations and vice versa, when the
reasonableness of the nuisance is a point in issue.Although the word "residential" is nowhere
defined by the cases, it would appear to apply to any area in which there are a substantial
number of dwelling-houses, however humble or poor the homes may be. Thus, an area in the
vicinity of the Montreal harbour has been held to be residential Because of the nature and
low level of inconvenience which one home-owner would expect from his neighbour, the
courts have been very harsh in dealing with nuisances caused by offensive trades in
residential areas. A specific example of what the Court of Chancery was willing to tolerate in
a residential area a century ago may be found in the following dictum: (W)hen in a street like
Green Street the ground floor of a neighbouring house is turned into a stable, we are not to
consider the noise of horses from that stable like the noise of a pianoforte from a neighbour's
house, or the noise of a neighbour's children in their nursery, which are noises we must
reasonably expect, and must to a considerable extent put up with. The Quebec courts have
held the following to be abnormal and unreasonable uses of property in residential areas: an
electric water pump in a City reservoir, city dumps, a soda-sulphate pulp producing process
giving off malodourous fumes, a coal-unloading station raising coal dust, a stone-cutting
operation stables releasing fetid odours, a power-house equipped with enormous generators
producing noise, smoke and vibrations a fox-pen discharging noxious smells, lime-kilns, an
asbestos mine, a quarry, and a pork-curing factory.

DEFENCES

1. The industrial character of the neighbourhood

It has repeatedly been held in each of the three jurisdictions mentioned in this paper that what
would assuredly be a nuisance in a residential district might be none in an industrial area
where the level of inconvenience to be expected is considerably higher. It would of course be
absurd to say that one who establishes a manufactory in the use of which great quantities of
smoke are emitted, next door to a precisely similar manufactory maintained by his neighbour,
whose works also emit smoke, commits a nuisance as regards the latter. It follows that where
the courts have found that the nuisance complained of is not an uncommon or unique case in
the neighbourhood or where the plaintiff had carried on a similarly objectionable trade
himself, the action has not been maintained. An exception to this rule exists where the
defendant has not conformed with building or health regulations ( or where it is obvious that
no attempt has been made to eliminate a nuisance where the court recognizes that it could
easily be done. Thus the courts have maintained actions against a stable, a laundry and
dyeing plant and an establishment producing electric light for a town, while rejecting suits
instituted against a tar manufacturer, a stable, a coal yard and a tannery. The French courts

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and jurists have arrived at the same result as the Quebec and common law courts regarding
the availability ofthe industrial character of the neighbourhood as a defence by juxtaposing it
with the defence of prior occupation and emerging with a theory of "pro-occupation
collective" which, unlike "pr&occupation individuelle", is a good defence to the action.

2. The defence of reasonable care

Is proof by the defendant that he has taken all reasonable care to avoid interfering with the
proprietary rights of his neighbour sufficient to exculpate him from liability? In France and at
common law the answer is clearly no. In Quebec 'the answer is not clear.

A. The solution at common law

Briefly, the liability of the tortfeasor in an action for damages caused by a nuisance is strict.
When there is injury or inconvenience exceeding that to be expected having regard to the
locality, the action will be maintained whether one has used the property negligently or with
all possible care in the exercise of his business.

At common law, if I am sued for a nuisance, and the nuisance is proved, it is no defence on
my part to say and to prove that I have taken all reasonable care to prevent it. The principle
dates back to the old Case of the Thorns : In all civil acts the law doth not so much regard the
intent of the actor as the loss and damage of the party suffering... for though a man doth a
lawful thing, yet if any damage do hereby befall another, he shall answer if he could have
avoided it. It may be that the damage can only be avoided by cessation of the activity itself,
but this is no defence to the action. If they cannot have two hundred horses together, even
when they take proper precautions, all I can say is, they cannot have so many horses together.
The Court of Common Pleas went even further in the case of Humphries v. Cousins,
holding the defendant liable although he was unaware of the existence of the cause of the
nuisance on his property and f6r this reason was precluded from taking care to ensure that the
pipe would not become defective and thereby leak waste matter into the basement of the
plaintiff; per Benman, J. :Indeed, if it be once established that the plaintiff's rights have been
infringed by the defendant, and that the plaintiff has been thereby damnified, the fact that the
defendant infringed them unknowingly and without negligence cannot avail him as a defence
to an action by the plaintiff.

B. The problem in Quebec

The problem in Quebec and in France regarding the availability of the defence of reasonable
care to an action to abate a proprietary nuisance results from the fact that the action, having
no foundation in the articles on Real Property in the Code, has always been taken under art.
1053. To most civilian legal minds, art. 1053 means "fault' and "fault" connotes an illicit act
82 or at least an actor who has not acted "en bon pare de famille", who has not, in other
words, taken all reasonable care to avoid the damage. If this is the correct view to take of the
article, then proof by the defendant that he had used the most advanced scientific techniques

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and engineering methods and had sought the best advice, in other words, that he had taken all
reasonable care, would be sufficient to repel the action.

a. The jurisprudence

Although a few isolated Quebec cases support the above view, that is, the traditional view,
the jurisprudence almost uniformly supports the proposition that the proprietor is subject to
liability as regards the damage caused once he is shown to be the author of the nuisance. In
general, the Quebec courts have not boldly articulated this principle and have been content,
upon finding the existence of a nuisance of unreasonable dimensions, to close their inquiry
there without deciding whether reasonable care was, or could have been, taken to avoid the
damage, thus coming to the same thing in the end. Where there is clear evidence that
reasonable care has not been taken or that the nuisance may, by means available to the party
causing it, be removed, the courts will, of course, not hesitate in maintaining the action.88
The problem, not surprisingly, arises where there is unequivocal evidence to the effect that all
reasonable care has been taken to avoid the damage. On the several occasions when the
Quebec courts have been faced with the situation where the greatest care had evidently been
taken to avoid the nuisance, they have held that it was no defence to the action. Thus, in
Chartier v. British Coal Corporation, McDougall, J., ruled : Evidence has been adduced to
show that the defendant's plant is operated with modern equipment, is well and efficiently
conducted, and efforts made to cause as little inconvenience as possible. Since defendant has
occupied the premises, improved methods have been installed and extensive alterations made
to the buildings and plant with a view to minimizing discomfort in the neighbourhood ...
Merely to show that great care has been taken in the use of one's property cannot, in law, be
deemed sufficient to justify the continuance of a nuisance arising therefrom. The duty of the
defendant goes further. The care taken in the construction of an electrical plant in Montreal
Street Railway v. Gareau was no defence to'the action In the leading case of Drysdale v.
Dugas, Sir Henry Strong, C.J., held, in spite of the uncontested proof that the stable which
was the cause of the nuisance has been constructed on the basis of the most improved and
scientific plans, according to the municipal regulations and by-laws and with the best possible
system of drainage and ventilation, that the defendant was liable for the damages caused to
the plaintiff. It was much insisted upon at the argument here and in the courts below also,
that the fact that the appellant acted with extreme care and caution in carrying on his business
constituted a justification of the acts complained of. This contention is, however, met and
shown to be entirely without foundation in Bamford v. Turnley. The jurisprudence in
France has definitively established the liability of the proprietor causing the damage in
question whether he has taken all possible precautions or not. The French courts have
accepted the principle of liability without fault (or at least without its classical component,
culpability ) for a century and a half. Although it is thus clear that in France the courts will
not hesitate to apply art. 1382 C.N. to a case where the "mesure des obligations ordinaires"
has been exceeded whether fault in its classical sense is present or not, the jurists have long
sought to rationalize or explain these decisions by imputing to the defendant's conduct a
measure of blameworthiness, culpability, heedlessness, negligent conduct or the like.

b. The doctrine

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Briefly, and somewhat broadly, the French jurists are divided into two schools in so far as the
basis for the liability for nuisance is concerned. The first, apparently conceding that fault is
necessary to the action under art. 1382 C.N., is composed of jurists variously defining that
fault as an act which exceeds "la mesure des obligations ordinaires de voisinage",' generates
an immissio onto the property of the neighbour " imposed by the Code Napoleon, or abuses
one's right of ownership. The second school espouses the theory of risk "sous le masque de la
faute", say Mazeaud et Tunc. In fact, Josserand, 08 for one, appears to mask nothing. He goes
as far as the common law theorists who advocate risk as the only admissible theory of
allocation of tort loss liability in the modern world. It was recognized as long ago as 1900 by
Hauriou that the theory of fault functioned well when an individual was able to oversee all
the details of his industry, the exploitation of which exceeded neither the strength of his
personality nor his diligentia. The existence of the "grande entreprise" is incompatible with
the notion of the pater familias as the basis of delictual liability in this area.

c. A suggested solution It is clear then that the classical notion of fault has little, if any, place
in the law of nuisance, but if fault as a concept need still be retained in some form, it is
submitted that it may be reconciled with the Quebec jurisprudence and the traditional
understanding of. art. 1053 in the following way. If "fault", as it is used in that article, be
interpreted as "the breach of a legal duty","" then the intensity of the obligation imposed by
art. 1053 may, in each case, be determined by first ascertaining the intensity of the legal duty
in question. This approach would free the courts from the rigid and unyielding scope of
applicability of the general artic!e on delictual responsibility and would obviate the present
"forcing" of situations into the confines of fault and reasonable care. This interpretation
would give the article the flexibility it must have been intended to possess: the application
indifferently to breaches of any legal duty, whether its intensity be that of means, result or
warranty. The wording of the last clause of the article supports this view by stating that fault
may consist in the mere performance of a "positive act", independently of "imprudence,
neglect or want of skill".' It is true that one may argue, in support of Prof. Cr6peau's
interpretation of art. 1053, that one is not using the care of a "bon pare de famille" in
establishing the nuisance-generating industry in a residential neighbourhood in the first place,
but this is to confuse the improper manner of doing something which, if done properly, would
not be sanctionable with impropriety in doing the thing at all. The first is negligence; the
second stricto sensu is not. Furthermore, such an approach cannot be reconciled with the line
of cases concerning the prior occupation of the author of the nuisance, which will be
discussed in the following section.

3. The defence of prior occupation With the exception of three cases, all involving tanneries,"
the Quebec courts have consistently held that the prior occupation of the defendant gives him
no right to continue the nuisance without indemnifying the plaintiff for the damage which he
has caused. In Drysdale v. Dugas, Wurtele, J., held that "Everyone is bound to know the
law and he (the defendant) must be presumed to have foreseen this consequence when he
built his livery stable."

Every right, from absolute ownership in property down to a mere easement, is purchased and
holden subject to the restriction that it shall be so exercised as not to injure others. Though at

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the time it be remote and inoffensive, the purchaser is bound to know at his peril that it may
become otherwise by the residence of many people in the vicinity, and that it must yield to
by-laws and other regular remedies for the suppression of nuisances. 121 Thus, in a case
where the defendant had erected his lime-kilns "en pleine campagne" forty years before the
plaintiff had purchased his property and the city had spread out to the nuisance, the court held
that the defendant was liable to pay damages although not to suffer the suppression of his
trade.122

The English Court of Chancery went even further than merely protecting the right of a
subsequent acquirer to build and live upon his land in peace and comfort in Sturges v.
Bridgman. 1 24 In that case the court ordered the indemnification of a long-time possessor
against an anterior nuisance of which he had not previously complained and which had not, in
fact, been a nuisance to him until the tortfeasor had put his land to a new purpose which made
it so. The fact that the man has made a noise which has not injured me or interfered with my
comfort or enjoyment in any way, cannot deprive me of my right to the land, or interfere with
my right to come to the Court when it does seriously interfere with my comfortable
enjoyment.125

4. Public necessity of the activity

The value, usefulness or even necessity of the industry or trade to the public at large is no
defence against an action taken by a proprietor who has proven that he has suffered
substantial, direct and distinct damage which the Court has found to be unreasonable with
respect to the character of the neighbourhood. It is no answer to say that the defendant is
only making a reasonable use of his property, because there are many trades and many
occupations which are not only reasonable, but necessary to be followed, and which still
cannot be allowed to be followed in the proximity of dwelling-houses, so as to interfere with
the comfort of their inhabitants. I suppose that a blacksmith's trade is as necessary as most
trades in the kingdom; or I might take instances of many noisy and offensive trades, some of
which are absolutely and indispensably necessary for the welfare of mankind that some
houses and pieces of land should be devoted; therefore I think that is not the test.1 27 The
Supreme Court has followed this statement of the law on two occasions, 28 issuing an
injunction in one of the cases despite the fact that the industrial process in question
represented a material advantage to the company on which the prosperity of the town in
which it was situated depended; per Idington, J. :

The argument, that because the exercise by appellant of powers it arrogates to itself but are
non-existent in law, may conduce to the prosperity of the little town or village in which the
appellants' works are situated, seems to have led to a mass of irrelevant evidence being
adduced, and as a result thereof the confusion of thought that produces the remarkable
conclusion that because the prosperity of said town or village would be enhanced by the use
of the new process therefore the respondent has no rights upon which to rest his rights of
property. I cannot assent to any such mode of reasoning or that there exists in law any such
basis for taking from any man his property and all or any part of what is implied therein. A

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contrary view was expressed by Dorion, C.J., of the Court of Queen's Bench in the case of
Claude v. Weir,130 affirmed by the Supreme Court,131 but the remarks are obiter.132

5. The defence of statutory authorization

Generally speaking, corporations constitute "ideal or artificial persons". 33 They are thus
subject to the ordinary laws respecting delictual liability 3 4 except in the case where they are
statutorily endowed with the right to do certain acts. 35 No liability can arise from the
performance of those acts, provided that the rights are exercised properly, without negligence
on the part of the corporation, in the place and manner indicated by the legislation. 13 By
such a grant or authorization a corporation gains the right to do not only what is convenient,
or what is usual, or what is common in the district, or what is simply reasonable, but what is
necessary for the use and enjoyment of the right granted. 3 7 It follows that there is complete
immunity for any damage which is the inevitable result of the exercise of this right.138 (Y)et
when the legislature has sanctioned and authorized the use of a particular thing, and it is used
for the purpose for which it was authorized, and every precaution has been observed to
prevent injury, the sanction of the legislature carries with it this consequence, that if damage
results from the use of the thing independently of negligence, the party using it is not
responsible.139 Although the immunity may work a special injury against an individual, that
individual has no action and will not have any remedy unless one is provided in the statute
granting the powers.40 It must be remembered that "such powers are not in themselves
charters to commit torts and to damage third persons at large"'141 and that there is no
protection afforded to a corporation negligent in the exercise of the powers granted to it.142
Furthermore, negligence need not even be proved when a statutorily endowed corporation
does something which it has not been expressly authorized to do and which is not incidental
to those purposes which it has been authorized to pursue. 143 This will also be the case where
the right is not exercised in the ordinary mode of exercising such a right and "in such manner
as to cause the least possible inconvenience or injury to the Public.''114 Thus, in the case of
Adami v. The City of Montreal,4 5 the City was held liable for installing a noisy electric
water pump as a substitute for the quieter and less efficient steam pumps used formerly. Now,
there is no dispute that the respondents can pump water up to the high level reservoir without
using an electrical pump of this kind. They have committed themselves to a pure experiment,
and they cannot be permitted to work this out at the cost of the health and suffering of an
extended neighbourhood. If express and statutory concession or authority existed for the use
of such a pump, then whatever the results, they would need to be borne. But no such law
exists. A public duty authorized by statute must be distinguished from the manner of its
execution. 146 It should also be noted that no action can be maintained against the municipal
corporation which authorized another corporation to undertake certain projects when a
nuisance is caused by the grantee corporation.147 The basis for the protection of the
statutorily endowed corporation against actions for damages occurring in the exercise of the
exercise of the rights conferred is the doctrine of the supremacy of the legislature, 48 coupled
with the presumption that the legislature conferred the rights for a purpose which it does not
intend should be defeated. 49 Thus the exercise of that right cannot constitute a delict or tort
no matter how great the inconvenience to the public or to an individual,3 0 provided that the

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authority has been obeyed to the letter and that there has been no negligence (which the
legislature cannot be presumed to have authorized).

CONCLUSION

We may conclude by observing that, whatever be the role of French and English authorities
in the courts of this Province, these jurisdictions and our own share, in terms at least of
practical consequences, a nearly common set of principles in this area of the law. Where
differences exist, not of nomenclature but of substance, as in the case of "r6ceptivitM
personnelle" and the defence of statutory authorization, it is the law of France which, on the
basis of the jurisprudence, appears to be the "odd man out". The most significant of the
principles held in common is, of course, that of responsibility without fault and the approach,
as a corollary, to a theory of risk: ubi emolumentum est ibi onus esse debet. We may
conclude from this that the fact that an area was commercially or industrially zoned would be
no defence to an action except in so far as it tended to show, in the presence of other factors
as well, that the area was industrial in character and that the inconvenience caused did not
exceed that which might be expected in the area. The fact that the defences of reasonable
care, prior occupation and public necessity of the activity are generally rejected by the courts
has hidden the fact, due to the limited scope of this paper, that they may play a determinative,
role in the assessment of damages or the willingness or refusal of the court to grant an
injunction. These questions, along with the problem of future damages, are properly the
subject of a separate paper devoted to that subject alone. The problems in the law of delict
which have been raised in this paper are not limited to this narrow area of the law and it is
hoped that, with the revision of the Civil Code, provision will be made for the more flexible
and progressive attitude toward civil responsibility necessitated by our modern industrial
society.

SERVITUDES

A Servitude is a limited real right in terms of which a burden is imposed on an immovable

property restricting the rights, powers or liberties of its owner to a greater or lesser extent in
favour of either another person or the owner of another property.

Servitudes are classified as either personal or praedial. A personal servitude entitles the
holder of the real right to exercise some right in the property of another or to prohibit another
from exercising a normal ownership right, whereas a praedial servitude is a real right entitling
one piece of land from receiving the benefit of the right and the other piece of land being
subject to the right.

PRAEDIAL SERVITUDES:

Praedial Servitudes are divided into rural and urban servitudes and as there is no legal
significance in this distinction, certain servitudes may be both rural as well as urban.

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The most important rural servitudes are:

1. Rights of way: - These may take the form of the right to walk across another person's
land or to drive cattle or vehicles across it. The route of such right of way may be specified
or granted in general terms, depending on the intention of the parties involved in the creation
of the servitude.

2. Way of necessity:

The consent of the owner whose property is subject to such servitude is not necessary and this
servitude may be claimed as a right by an owner of land which is hemmed in by other land to
such an extent that he or she has no direct or reasonably sufficient access to a public road and
is therefore compelled to cross adjoining privately owned land.

3. Water Servitudes:

This servitude generally grants the person holding the real right the right to draw water from
the property over which the servitude is granted. It may also grant the person the right to lead
the water across the land in furrows and pipes and also to discharge surplus water or to store
water on it.

The principal urban servitudes are servitudes of light, of view, of projection, of affording
support and of discharging water onto another’s urban tenement. Restrictive conditions
imposed on plots sold in a new township development are also classified as urban servitudes.
With the modernisation of building methods and styles and the advent of planning law
regulating the construction of buildings and general health matters, these servitudes became
of minor importance.

The important urban servitudes are:

1. Light, view:

A servitude of light is a right of access of light from another’s land unimpeded by buildings
or trees or both. A servitude of view is the right to an open view; this restricts the rights of
the owner of the servient tenement to impede the view by buildings or trees or both. As in
the case of a servitude of light, a servitude of prospect (view) may take the form of a right to
prevent the owner of the other property from raising the height of buildings on his land.

Support: The servitude of support takes the form of either the right to require one’s neighbour
to support the weight of one’s house or wall or the right to drive a beam into one’s
neighbour’s building.

3. Projection: A servitude of projection is the right to have a balcony or another projection

over a neighbour's land.

4. Water: An urban servitude of water may take the following forms: (a) The right to receipt
or non-receipt of dripping rainwater (b) the right to receipt or non-receipt of water coming

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down in a stream and (c) the right to have an artificial pipe or canal crossing or issuing on a
neighbour’s land

5. Restrictive conditions: Restrictive conditions are by far the most important category of
urban praedial servitudes.

Restrictive conditions create non-statutory limitations on the use of land inserted by the
original township owner, in favour of each and every purchaser of land in the township, as
part of a general township scheme and registered in the title deeds of the erven for the
purpose of preserving the specific characteristics of the area.

The earliest and most common examples of restrictive conditions are the following:

(a) Conditions prohibiting ownership or occupation by persons of specific race groups; (b)
Conditions restricting the alienation and transfer of land to persons of certain race groups; (c)
Restriction on the subdivision of land; (d) Conditions relating to the use to which the stands
may be put; and (e) Conditions relating to the imposition of further conditions of title.

Restrictive covenants prohibiting ownership or occupation by persons of specific race groups

have statutorily been deleted from title deeds, and are in any event in conflict with the Bill of
Rights incorporated in the Constitution.

Conditions of title are statutory restrictions imposed on the owner of land in pursuance of
specific township establishment legislation and registered against the title deeds of the erven
for the reciprocal benefit of owners and for the purposes of retaining the specific character of
the neighbourhood.

Conditions of title originating from township legislation usually include the following types
of conditions: (a) The erf is subject to a servitude for sewerage or other purposes along one or
two boundaries; (b) No building or other structure may be erected within the servitude area;
(c) No large-rooted trees may be planted within the servitude area;

(d) The local authority shall be entitled to deposit temporarily on the land adjoining the
servitude such material as may be excavated during the construction, maintenance or removal
of sewerage works; (e) Proposals to overcome detrimental soil conditions shall be contained
in the building plans submitted for approval; (f) Screen walls or fences shall be erected and
maintained to the satisfaction of the local authority; (g) The design of all structures and
buildings to be erected shall be approved by a professional structural engineer; (h) Except
with the written approval of the local authority the roofs of the buildings shall be of tiles,
shingles, slate or thatch; (i) Neither the owner nor any other person shall have the right, save
and except to prepare the erf for building purposes, to excavate therefrom any material
without the written consent of the local authority; (j) The erf shall be used for the erection of
a dwelling house only; (k) Not more than one dwelling house together with such outbuildings
as are ordinarily required to be used in connection therewith shall be erected on the erf; (l)
The erf is subject to a servitude for transformer purposes; (m) The erf is subject to a servitude
for municipal purposes; (n) The making of bricks, tiles or earthenware pipes is prohibited;
and (o) No shop, factory or industry may be erected on the erf.

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From these examples it is clear that restrictive conditions can play a definite role in
determining the character of a specific township, and that they have certain economic
implications.

Praedial servitudes may be changed or modified in one of the following ways: (a) By
agreement; (b) By application to court, either ex parte or on notice; (c) In terms of the
Immovable Property (Removal or Modification of Restrictions) Act78 a beneficiary,
interested in immovable property subject to any restriction imposed by means of a will or
other instrument, may apply to the High Court for its removal or modification; (d) the
Administrator has the power to alter, remove or suspend certain restrictions or obligations
binding an owner of land situated in his or her province; (e) the Minister of Public Works
may, in terms of the State Land Disposal Act,81 consent to the amendment or cancellation of
any condition embodied or registered in a title deed; (f) in terms of the Subdivision of
Agricultural Land Act 82 the Minister of Agriculture may impose, cancel or vary conditions
imposed by him or her; (g) in terms of the Development Facilitation Act,83 servitudes and
restrictive conditions may be suspended and removed by a tribunal, if necessary for land
development and where suspension of these servitudes and restrictive conditions would
unnecessarily delay the development of the land; (h) Where a less formal township is
envisaged or established, the Premier may suspend servitudes and conditions of title where
these servitudes or conditions are inconsistent With the development of the land or
cancellation of the servitude or condition in accordance with formal procedure will delay the
opening of the township; (i) In terms of the Advertising on Roads and Ribbon Development
Act, 85 upon written application by the registered owner of land the Registrar of Deeds is
under certain circumstances empowered to cancel a condition inserted in the title deed;

(j) Provision is made in the Transfer of Certain Rural Areas Act 86 for the removal of
restrictive conditions which relate to the period for which a land right was granted or the
alienation or transfer of land; and (k) Provincial legislation contains (or will contain)
procedures to remove restrictions on the subdivision of land or the purposes for which the
land may be used.

PERSONAL SERVITUDES:

As has already been pointed out, personal servitudes are established in favour of particular
persons over things and may confer a variety of benefits on their holders. They are real rights;
however they cannot be transferred. They may be constituted for a fixed term of years or be
granted until the happening of a future event or for the lifetime of the beneficiary, but not
beyond his or her death.

The main three personal servitudes are: usufruct, use and habitation

A usufruct may be defined as a real right in terms of which the owner of a thing (often
referred to as the grantor) confers on the “usufructuary” the right to use and enjoy the thing to
which the usufruct relates. A usufruct may be constituted over a collection of things such as
a herd of cattle or flock of sheep and even over the entire estate of the grantor. It furthermore
extends to the accessories of the thing that is subject thereto. A usufruct over a farm, for

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example, will normally extend not only to all buildings but presumably also to the livestock,
farming equipment and the furniture in the homestead, provided of course a contrary
intention does not appear from the will or agreement, as the case may be.

As the usufructuary is only entitled to the use and enjoyment of the property he or she does
not acquire the ownership over it, though he or she is of course entitled to its possession. The
usufructuary has no entitlement to consume and destroy the thing and is obliged to preserve
its substance. But he or she has the right to take, consume or alienate its fruits, whether they
are natural, industrial or civil. The obligation to preserve the substance of the property means
that the usufructuary is bound to maintain it and to defray the costs of all current repairs
necessary to keep it in good order and condition, fair wear and tear only excepted, and all
rates and taxes.

As the usufructuary is not the owner of the property that is the subject matter of his or her
right, he or she cannot alienate or encumber it. Nor may he or she alienate the real right of
usufruct as a personal servitude is inseparably linked to its holder.

A servitude of use resembles a usufruct, but the holder’s rights are far more restricted. He or
she may possess and use the thing to which the right relates if it is a movable and occupy it
together with his or her family and visitors if it relates to land. The holder may take the fruits
of the thing for his or her daily needs as well as for the daily needs of his or her household,
but nothing in excess of that. The holder cannot sell any fruits. Nor may he or she grant a
lease in respect of a building, though this rule is subject to a number of exceptions. His or
her use must be without detriment to the substance of the property and he or she may be
required to give security for the due fulfillment of his or her obligations.

Finally, the servitude of habitation confers on its holder the right to dwell in the house of
another together with his or her family without detriment to the

substance of the property. Unlike a servitude of use, it carries with it the right to grant a lease
or sublease to others.

As in the case of praedial servitudes, personal servitudes are normally created by agreement
between the owners of the respective properties, followed by registration. Registration either
takes place by means of a reservation in a deed of transfer, in the circumstances envisaged in
section 67 of the Deeds Registries Act 47 of 1937, or by the registration of a notarial deed
accompanied by an appropriate endorsement against the title deed of the property in respect
of which the servitude is granted.

As with the praedial servitude, a personal servitude can be cancelled by notarial agreement
between the owner of land encumbered by the servitude and the holder of the servitude by
Bilateral Notarial Deed of Cancellation or Unilateral Notarial Deed of Cancellation, if no
obligation is imposed. A personal servitude also lapses where it is granted for a specific
period only or on the death of the holder of the servitude.

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 CONCLUSION

From this project we get to know all the information about nuisance with reference to
servitudes Ownership, the most absolute of the real rights, includes the right of enjoying the
property which is the object of the right in the most absolute manner, provided that no use be
made of the property "which is prohibited by law or by regulation". The only other
limitations on this absolute right which are expressly imposed by the Code are the natural and
legal servitudes. And further more information is explained about the topic.

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 BIBILOGRAPHY

BOOKS

1 R.K.Bangia, LAW OF TORTS, Allahabad law agency, Faridabad, 2010

2 Ratanlal and Dheerajlal, the law of torts, Wadhwa and company, Nagpur, 2007

3 Avatar Singh Harpreet Kaur, Introduction to the torts and consumer protection, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2009

ONLINE WEBSITES

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