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Mixed Jurisdictions ComparedPrivate Law in Louisiana and Scotland$
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Vernon Palmer and Elspeth Reid

Print publication date: 2009

Print ISBN-13: 9780748638864

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748638864.001.0001

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Servitudes: Extinction by Non-Use

Servitudes: Extinction by Non-Use

(p.67) 3 Servitudes: Extinction by Non-Use
Mixed Jurisdictions Compared

Roderick R M Paisley

Edinburgh University Press

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

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