About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 1
|
|
Linvestment CC v Hammersley and Another (634/06) [2008] ZASCA 1; [2008] 2 All SA 493 (SCA); 2008 (3) SA 283 (SCA) (28 January 2008)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
Case no: 634/06
In the matter
between
LINVESTMENT
CC APPELLANT
and
BONNIE PATRICIA
HAMMERSLEY FIRST RESPONDENT
HILTON HAMMERSLEY
SECOND RESPONDENT
Coram:
HOWIE P, MTHIYANE, HEHER, COMBRINCK JJA and KGOMO
AJA
Heard:
21 NOVEMBER 2007
Delivered: 28 FEBRUARY 2008
Summary: Land – servitudes – right of way –
defined and registered – relocation at instance of owner of
servient tenement – when allowed.
Constitutional law – s 173 – development of the common
law – when appropriate.
Neutral citation:
This judgment may be referred to as Linvestment CC v Hammersley
(634/2006)
[2008] ZASCA 1
(28 February 2008).
________________________________________________________
JUDGMENT
________________________________________________________
HEHER JA
HEHER JA:
[1] The issue in
this appeal, simply stated, is whether the owner of a servient
tenement can, of his own volition, change the route
of a defined
right of way registered against the title deeds of his property.
[2] The appellant is
the registered owner of Portion 136 of the Farm Driefontein,
registration division FS, Province of KwaZulu-Natal,
in extent
25,0912 hectares held under Certificate of Consolidated Title No
T66117/2004.
[3] The first
respondent is the registered owner of the Remainder of Sub 3 of the
Farm Driefontein No 1389, KwaZulu-Natal, in extent
20,9085 hectares
held under Deed of Transfer No T19322/1992 and Deed of Transfer No
T28469/1998. The second respondent, her husband,
apparently resides
on this property.
[4]
The appellant’s property is subject to two registered
servitudes in favour of the first respondent’s property
viz
1. An 18
,29 metre
servitude of right of way represented by the figure e.f.h.g on a
diagram created in Deed of Transfer No 4976/1976;
2. A 15 metre wide
road servitude depicted by the figure g.h.G.H.J.m.j on a diagram
created in Deed of Transfer No T17863/1983.
The two servitudes
are so located as to constitute a continuous strip of land over which
the rights can be exercised.
[5] In its
declaration in the High Court the appellant, as plaintiff, made the
following allegations:
1. The plaintiff had
given notice to the first defendant of its intention to amend the
course of the servitudes from that shown
on the diagrams to [another
route over the plaintiff’s property].
2. The plaintiff had
tendered all costs of amending the registration of the servitudes,
including the costs of survey, all consents
required, and
registration and construction of all roads from any point on the new
course of the servitude adjacent to the first
defendant’s
property across the boundary to the place on the first defendant’s
property to which the first defendant
required access.
3. The first
defendant had refused to consent to amend the servitudes as proposed.
4. The first
defendant’s refusal was unreasonable.
5. The present
servitudes constituted undue inconvenience to the plaintiff.
6. The substitution
of the proposed servitudes for the present servitudes would not
excessively inconvenience the defendants.
7.
The plaintiff is
entitled to a declaration which will permit it to substitute the
proposed servitudes for the existing servitudes.
In the premises the
appellant claimed an order declaring that it was entitled to
substitute the proposed servitude route for the
existing route.
[6] The respondents
pleaded that they were under no obligation to accept the alternative
route and that the declaration sought was
not competent in law since
the defined route could only be changed by mutual consent.
[7] For the purposes
of adjudication by the High Court the parties agreed that the
appellant’s averments relating to the unreasonableness
of the
respondents’ refusal, the undue inconvenience to the appellant
of the existing route and the absence of excessive
inconvenience to
the first respondent of the proposed route, were not placed in issue.
[8] The parties
agreed that the question of whether the declaration was competent in
law was to be tried as an issue separated in
terms of Rule 33(1)
according to a stated case containing the facts set out in paragraphs
[2] to [6] of this introduction.
[9] The High Court
(Madondo AJ) answered the question in favour of the respondents and
ordered the appellant to pay the costs.
[10]
With leave of the court
a
quo
the
appellant appealed to this Court against the whole of the judgment
and the order made.
[11]
Mr Gorven, who appeared for the appellant, conceded that the
established law is against his client. In
Gardens
Estate Ltd v Lewis
1
this Court said (
per
De Villiers AJA):
‘
A further
question between the parties is: Did the Gardens Estate Syndicate
have the right to deviate the pipe-line as it did in
1902? In my
opinion it had no such right. A definite servitude having originally
been constituted, it could only be altered by
mutual consent. In this
respect a servitude as constituted differs from a servitude created
simpliciter
(D.
8.1.9.). In the latter case, according to
Voet
8.3.8,
the owner of the dominant tenement has the election where to lay the
line, which he must however exercise
civiliter
.
If he has once exercised his election, he cannot afterwards change.
But the owner of the servient tenement would have the right
to do so
provided the new route
is
as
convenient
as the old one, (
cf.
McCabe v Rubidge
,
1913, A.D. 441).
When
Voet
,
1.50, says that the owner of the servient tenement has the right to
point out another route to that which has been agreed upon
(
vel
conventione designatum fuerat
)
he speaks of servitudes created
simpliciter
.’
(The
reference to
Voet
1.50
is obscure; the passage referred to is in fact in 8.3.8.)
This
dictum has subsequently been referred to without dissent in
Moulder
v Thom
2
and
Smith
v Mukheiber
3
.
[12]
Gardens
Estate Ltd v Lewis
concerned
a servitude of
aquaeductus
constituted
and registered in defined and unambiguous terms against the title of
the servient tenement. The determination of whether
Gardens Estate
Ltd
(the
servient owner) was entitled to relocate the pipeline was the
ratio
decidendi
of
the judgment. That the servitude was one allowing the leading of
water and not a right of way is a distinction without a difference,
as Mr Gorven concedes.
[13]
The first step in determining the nature and extent of a registered
condition is to examine its terms. In the present instance
we are
concerned with servitudes of rights of way which are precisely
defined in relation to the remainder of the servient tenement
by
reference to surveyors’ diagrams and leave no room for
uncertainty. Unless there is a valid reason to distinguish or depart
from the conclusion in
Gardens
Estate Ltd v Lewis
,
the appeal must fail.
[14] Mr Gorven
submitted that the decision was based upon a misinterpretation. His
contention was that Voet, properly construed,
did not distinguish
between servitudes
constituted
in general terms and servitudes specifically constituted (ie in terms
not requiring further definition as to location
or route). I do not
agree. Title 3, sec 8 provides commentary on Justinian’s
Digest
8.3, which deals
with rustic praedial servitudes. D
8.3.13.1
relates to general servitudes of
via
over an entire
estate. See also D 8.1.9 (
via
),
D 8.3.21 (
aquaeductus
)
and D 8.3.26 (
via,
iter, actus and aquaeductus
).
As far as I can ascertain, the Digest does not address the case of
servitudes specifically defined. Nor did Voet
consider
it necessary to do so. That limitation is also inherent in 8.3.8
which is discussed in
Gardens
Estate Ltd v Lewis
.
The conclusion of this Court relating to the servitude against the
title was simply an inference drawn from a contrast with Voet’s
views. With respect to the learned judges, the inference seems
entirely warranted. It is certainly how Gane understood the matter
when he added his introductory notes; hence he prefaced 8.3.8 with
the words ‘In servitudes [of
iter,
actus, via
etc]
dominant owner has choice of route where not fixed.’
4
[15]
In the event of his failing to persuade us of the correctness of his
initial submission, Mr Gorven based an argument on s 25
(1) of the
Constitution of the Republic of South Africa.
5
He contended that
the effect of refusing to allow the appellant to move the servitude
to a more convenient place, was to restrict
the free use of the land
over which the servitude presently extends; thereby it deprived the
appellant of a right
to property.
[16] But that cannot
be so. The appellant acquired and, no doubt, paid for the property in
the knowledge (actual or implied) that
its right of ownership was
limited by the servitude. It is deprived of nothing by the proper
interpretation of the servitude. And
if it had been a party to the
agreement constituting the servitude, it would have suffered no
deprivation of its rights but only
a limitation to which it had
freely consented.
[17]
The conclusion reached in
Gardens
Estate Ltd v Lewis
is
also in accordance with existing principle. As the law stands, once
the servitutal rights of the parties are unambiguously circumscribed
by the terms of their agreement, a court will not order a departure
from such terms in order to bring about a lessening of the
burden on
the servient property:
pacta
sunt servanda -
Van
Rensburg en andere v Taute en andere
6
- except in the case
of constitutional violations:
Barkhuizen
v Napier
7
.
[18]
Selikowitz J summarised the existing state of the law in
De
Witt v Knierim
8
:
‘
Whilst our
law apparently seeks to promote the
bona
fide
development
by an owner of his agricultural land and to optimise its utilization
in the public interest, it also recognises and
enforces the principle
that once a right has been given to another the grantor cannot either
directly or indirectly reappropriate
it.’
That, however, is
what the appellant seeks to do.
[19] A servitude
along a defined route has been said to be analogous to a compulsory
sale
of a particular part of property and can only be altered by mutual
consent:
Beukes
v Crous en ‘n ander
9
,
albeit that the analogy is not exact, cf
Reid
v Rocher
10
.
[20]
The attempt of appellant’s counsel to introduce the rule that
servitudes must be exercised
civiliter
modo
11
as a means of
justifying his client’s attempt to remove the right of way to a
route more convenient to it, is misconceived.
As Van den Heever J
pointed out in
Penny
v Brentwood Gardens Body Corporate
12
‘
Civility is
not in law synonymous with a waiver of one’s rights. The old
authorities when dealing with this obligation, usually
refer to the
choice of a route by the owner of the dominant tenement. No one
suggested he should rest content with a narrower one
than that
stipulated because of the convenience of the servient owner, to the
best of my knowledge, until Hofmeyr AJP (as he then
was) appears to
have done so in
Sussman
v Stabilis Trust Finansieerders (Edms) Bpk
1970
(3) SA 58
(O) at 60E-F. With such a proposition, if it were intended,
I respectfully disagree. The cases on which he relies do not support
such an interpretation of the obligation to exercise one’s
rights
civiliter
modo
.’
[21]
Counsel for the appellant also sought to equate a servitude granted
in general terms with one over a defined route. But the
equation does
not balance. A general servitude of right of way burdens a whole
tenement (
totus
enim fundus servit
).
(This has been variously expressed as ‘over any part of the
land that he likes’,
13
‘
the whole
farm and every clod of it’,
14
and ‘every
inch of the servient tenement’
15
.
See also
Nach
Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd
16
.
But that is not true of a servitude in defined terms. Moreover, the
dominant owner’s right to select the line of a servitude
created simpliciter is an essential incident of the grant:
Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd
17
;
Hollman
v Estate Latre
18
.
But no such incident attaches to a defined grant. Subject to what is
said below, it is both unnecessary and incompatible with
a right
which is unambiguously limited by the terms of its creation. In the
first case the general nature of the servitude remains
even though a
specific route has been fixed by subsequent agreement
19
and it revives as
soon as the servient owner takes away the use of the place over which
it was originally delimited
20
;
the servient owner must then allot an equally convenient way. That
this is so appears from the facts of
Rubidge
v McCabe & Sons
21
where the
substitution of an alternative route by agreement for that under an
original right of way established in general terms
did not, upon the
impracticability of the alternative being established, prevent a
reversion to the original route. In the second
case the right, being
fixed by agreement, is immutable save by consent: see
Van Heerden v
Coetzee
22
.
[22]
According to existing principle, therefore, the conclusion which this
Court reached in
Gardens
Estate Ltd v Lewis
would
appear to be unassailable. But the judgment is founded on the
unstated premise that the law expounded by Voet correctly reflected
the common law of South Africa. The refinements brought about to
Roman-
Dutch
law in the century
between the publication of Voet’s Commentary and the occupation
of the Cape in 1806 are not always readily
ascertainable. Whether the
relevant authorities were available to the judges in 1920 may be
doubted since there exists evidence
that that law, in so far as it
related to the subject of relocation of servitudes, was, by 1806, no
longer consistent with the
inference which was properly drawn from
Voet
8.3.8 in
Gardens
Estate Ltd v Lewis
.
[23]
In order to appreciate the force of the evidence some reference to
history is necessary
23
.
After the kingdom of Holland threw off the French yoke early in the
19th century, an attempt was also made to replace French law
which
had applied there since 1809. A decision was taken to compile a new,
indigenous code of law. A commission was appointed under
the
chairmanship of Prof J M Kemper of Leiden for this purpose. It
completed a draft by 1816. The southern (Belgian) part of the
country
was, however, dissatisfied with the emphasis that it placed on
Roman-Dutch law, and preferred instead a system closer to
the French
Code Civil. The committee published a revised draft in 1820 which
also found no favour in the south. Hahlo and Kahn
24
describe this draft
as ‘a distillation of pure Roman-Dutch law in its final stage
of development’.
[24]
The Seventh Title of the revised draft is of particular significance
in the present context.
25
“
1188. De
eigenaar van het dienstbaar erf mag niets doen, waardoor het gebruik
der erfdienstbaarheid minder nuttig of minder gemakkelijk
zoude
gemaakt worden.
Hij mag derhalve de
gesteldheid der plaats niet veranderen, noch de uitoefening der
dienstbaarheid overleggen of overbrengen op
een ander gedeelte van
het erf, dan waarop hetzelve oorspronkelijk gelegen heeft.
Wanneer
niet te min de oorspronklijke inrigting meer bezwarend voor hom was
geworden, of hem verhinderde eenige noodzakelijke of
nuttige
reparation te doen, mag hij aan dengene, die het regt van
erfdienstbaarheid heeft, eene andere even goede en even gemakkelijke
plaats tot uitoefening van dezelve aanbieden ten zijnen koste; welk
aanbod alsdan niet zal mogen geweigerd worden.”
26
There is nothing in
this passage, or, indeed, in the compilers’ treatment of the
nature of servitudes in Part 1 of the Seventh
Title, to suggest an
intention to draw a distinction between servitudes generally and
specifically created.
If
art 1188 was, as it appears to have been, an authoritative statement
of the Roman-Dutch private law at the date of the British
occupation
of the Cape, it contained principles which should have been applied
in
Gardens
Estate v Lewis
.
That it was apparently overlooked certainly justifies a
reconsideration of the issue.
27
[25]
In addition, this court has always possessed an inherent power to
develop the common law. The fullest discussion of which I
am aware is
to be found in Hahlo and Kahn,
op
cit
582-596
sub
nom
‘
The
Second Life of the Roman-Dutch Law’.
28
The power is
confirmed in s 173 of the Constitution ‘taking into account the
interests of justice’. Thus, without abandoning
our legal
heritage, the courts can and should examine how developed legal
systems cope with common problems. By appropriate application
of the
knowledge thus derived, a modification of our existing law may better
serve the interests of justice when the existing law
is uncertain or
does not adequately serve modern demands on it. The present appeal,
in my view, is just such a case.
[26]
The question of mitigating the burden of servitudes has been
addressed in many systems of law, usually in statute or code.
Although Kemper’s draft was, for reasons which Prof de Vos
explains, not adopted as the codified law in Holland, in 1838
a
Burgerlijk Wetboek was adopted which contained many elements of the
Napoleonic Code, including art 701.
29
In the 19th century,
Laurent,
30
discussing art 701
of the French Code, said that that article dealt with mutability of
title and commented:
‘
As the needs
of the properties change, and society being concerned that servitudes
do not hamper the changes which become necessary,
the law must permit
interested parties to modify the exercise of the servitude’.
31
[27]
According to Prof
Meijers,
32
(writing in the
middle of the 20th century) the right of relocation of a defined
servitude is ‘recognized by most foreign
codes’ including
Switzerland, Italy and Greece, subject to the duty of the servient
owner to prove that the dominant owner’s
right of enjoyment
would not thereby be reduced.
33
[28]
The Belgian Civil Code
34
and the German BGB
35
are to similar
effect.
[29]
Scots law is discussed
in
extenso
by Cusine and
Paisley.
36
There is apparently
an unresolved dichotomy of authority between that which favours
sanctity of contract and that which would allow
a right to relocate
on the grounds of manifest convenience to the servient owner and
absence of detriment to the dominant proprietor.
The authors debate
the arguments for and against the respective views. Within the same
legal environment, an instructive comparative
survey
37
traces the progress
of the law from the common Roman roots of Scotland and the state of
Louisiana until the 21st century, showing
how the tide is turning
from strict adherence to contractual rights toward a utilitarian
power of relocation that is judicially
controlled or to legislative
intervention having similar effect.
[30] Even from this
brief, and necessarily superficial, survey it is apparent that
widespread
civilised practice favours a flexible approach to the relocation of
servitudes. If that flexibility is soundly based
I think we would be
wrong to adhere blindly to an inference drawn from the views of Voet
expressed at the end
of the 17th century, albeit affirmed as late as 1920 by this court.
[31]
I am persuaded that the interests of justice do indeed require a
change in our established law on the subject. The rigid enforcement
of a servitude
when
the sanctity of the contract or the strict terms of the grant benefit
neither party but, on the contrary, operate prejudicially
on one of
them, seems to me indefensible. Servitudes are by their nature often
the creation of preceding generations devised in
another time to
serve ends which must now be satisfied in a different environment.
Imagine a right of way over a farm portion registered
fifty years
ago. Since then new public roads have been created providing new
access to the dominant tenement, the nature of the
environment has
changed, the contracting parties have long gone. Why should a present
owner, on no rational ground, be entitled
to rely on his
summum
ius
derived
from the alleged sanctity of a contract or a grant or prescriptive
acquisition to which he was not privy
38
.
Properly regulated
flexibility will not set an unhealthy precedent or encourage abuse.
Nor will it cheapen
the value of registered title or prejudice third parties.
[32] But even if the
dominant and servient tenements still remain in the ownership of the
original contracting parties, the opportunity
for relocation should
not be excluded if
the circumstances
prevailing at the time of the original agreement have changed and the
dominant owner no longer possesses any acceptable
reason to subject
the servient property to the strict terms of the grant. It seems to
me that, in such a case, the respective interests
of the parties can
fairly be regulated by reliance on the concepts of convenience and
prejudice which I have introduced into the
order.
[33] In line with
the extensive international trend of legal development in this
respect, I therefore propose that, in circumstances
falling within
the problem posed by the stated case, the law be developed to ensure
that injustice does not result.
[34] The appellant
will, in consequence, have been successful in the appeal. This
success may, however, prove illusory if evidence
should show that it
cannot satisfy the terms of the law as declared. The respondents were
satisfied to fight the matter on the
basis of the stated case. Their
opposition has proved empty, but for reasons which they could not
have foreseen. I think it would
be fair if the parties are ordered to
pay their own costs in both courts.
[35] I would make
the following order:
1.
The order of the court
a
quo
is
set aside and replaced by the following-
‘
It is
declared that if the owner of a servient tenement offers a relocation
of an existing defined servitude of right of way the
dominant owner
is obliged to accept such relocation provided that:
(a)
the servient owner is or will be materially inconvenienced in the use
of his property by the maintenance of the
status
quo ante
;
(b) the relocation
occurs on the servient tenement;
(c) the relocation
will not prejudice the owner of the dominant tenement;
(d) the servient
owner pays the costs attendant upon such relocation including those
costs involved in amending the registration
of the title deeds of the
servient tenement (and, if applicable, the dominant tenement).’
2. The parties are
ordered to pay their own costs in both courts.
__________________
J A HEHER
JUDGE OF APPEAL
HOWIE P )Concur
MTHIYANE JA )
COMBRINCK JA )
KGOMO AJA )
1
1920
AD 144
at 150.
2
1974
(1) SA 336
(T) at 339G-H.
3
2001
(3) SA 591
(SCA) at 596I.
4
Counsel
did not refer us to other Roman-Dutch authority which espouses a
different view. My own limited research suggests that
leading
writers on servitudes similarly restricted their opinions to
servitudes generally constituted. See eg Caepolla,
De
Servitutibus
,
Tract 11 Cap 1.7; Brunneman,
Comment
in Pandectas
,
VIII.1.9.
5
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property.
6
1975
(1) SA 279
(A) at 301H.
7
2007(5)
SA 323 (CC) at para 15.
8
1991
(2) SA 371
(C) at 386F.
9
1975
(4) SA 215
(C) at 221G.
10
1946
WLD 294.
11
As
to which see
Texas Co
(SA) Ltd v Cape Town Municipality
1926
AD 467
at 474.
12
1983
(1) SA 487
(C) at 491B.
13
Dig
8.1.9 (Munro’s
translation).
14
Gane,
Voet
8.3.8.
15
Reid
v Rocher supra
at
299.
16
1987
(2) SA 820
(A) at 831D and the cases there cited.
17
1918
AD 1
at 16.
18
1970
(3) SA 638
(A) at 645D.
19
The
‘covenant’ referred to by
Voet
8.3.8.
20
Voet
8.4.12.
21
1913
AD 433.
22
1912
AD 167
at 171, 172.
23
See
Prof W de Vos,
Regsgeskiedenis
,
223 whose historical survey I have adapted for my purposes.
24
The
South African Legal System and its Background
,
564.
25
I
quote from
Ontwerp van
het Burgerlijk Wetboek voor het Koningkrijk der Nederlanden aan de
Staten-Generaal aangeboden den 22sten November
1820
,
2ed, Leiden, 1864.
26
Which
I translate as follows:
‘
1188. The owner of the
servient tenement may not do anything by which the use of the
servitude is rendered less useful or convenient.
He may therefore not change the
condition of the property, nor transfer the exercise of the
servitude to or impose it upon any
part of the property other than
that on which it was originally laid.
Nevertheless, when the original
institution has become more burdensome to him, or hinders him in
carrying out any necessary or
useful repair, he may offer to those
entitled to the right of servitude another equally good and
convenient for their exercise,
at his cost; an offer so made cannot
be refused.’
27
It
should however be noted that Kemper’s art 1188 is a verbatim
translation of art 701 of the Code Napoleon. Presumably
his
committee was satisfied that it correctly reflected the law of
Holland. (Van der Linden’s
Ontwerp
Burgerlijk Wetboek
1807-1808
does not deal with the subject of relocation of servitudes.)
28
Attention
may also be drawn to dicta in
Blower
v Van Noorden
1909 TS
890
at 905,
Pearl
Assurance Co v UG
1934
AD 560
(PC) at 563,
Tjollo
Ateljees v Small
1949
(1) SA 856
(A) at 874-5 and
Cerebos
Food Corporation v Diverse Foods SA
1984
(4) SA 149
(T) at 163D-E.
29
Embodied
in art 279 of the Dutch code (the BW) (now art 73); see Diephuis,
Het Nederlandsch
Burgerlijk Regt
2ed
(1886), Part 3 (Sakenregt) 585; Opzoomer,
Het
Burgerlijk Wetboek
3ed
(1911), Part 3, 760-1.
30
Principles
de Droit Civil Francais
,
2 ed (1876) para 277.
31
Translation
supplied.
32
Ontwerp
voor een Nieuw-Burgerlijk Wetboek (Toelichting)
(1955)
Book 5, 428. As to his role in the development of a new Dutch code,
see De Vos
Regsgeskiedenis
supra
at 224-5.
33
See
also in this regard,
Asser’s
Handleiding tot de beoefening van het Nederlands Burgerlijk Rech,
(Sakenrecht)
2
nd
Part (1996) paras 185, 186,
where a distinction is drawn between a servitude of right of way
which is expressly defined and one
in general terms, and the
authors’ note:
‘
In het laaste geval is de
eigenaar van het dienende erf al krachtens de titel bevoegd aan te
wijzen hoe de wederpartij van zijn
recht gebruik kan maken. Dit
impliceert dus de bevoegdheid tot verlegging, waartegen de
wederpartij alleen kan opkomen, indien
hij bewijst, dat door de
verlegging zijn belangen op onredelijke wijze worden aangetast. Zie
HR 7 mei 1931, NJ 1931, p
1608; HR 22
januari 1982, NJ 1982, 456
m.nt.wmk. Is de weg in de titel echter nauwkeurig bepaald, dan is
verlegging alleen mogelijk, wanneer
de eigenaar van het dienend erf
kan aantonen, dat de werderpartij door de verlegging niet benadeeld
word.’
34
Para
701 based on the equivalent provision in the Code Napoleon.
35
Para
1023; see
Münchener
Kommentar
, 1325‘Recht
auf Verlegung’ from which it is clear that sanctity of
contract yields to equitable considerations.
36
Servitudes
and Rights of Way
,
(1998) sub nom ‘Diversion of the route of the Servitude’
at paras 12.23-12.75.
37
‘
A
New Way:Servitude Relocation in Scotland and Louisiana’ by
John A Lovett
9 Edin
LR
352
(2004-5).
38
Brunneman,
Comment.
in Pandectas
,
VIII.1.9, (freely translated by me) says
‘
And
the place in which the servitude was first located should not be
changed because all change is odious and once a choice is
made a way
ought not to be varied. But if the servient owner asks that the
servitude be constituted in another manner, he should
be heard;
Maevius says that the dominant owner obtains from the determination
through a less burdensome use only what was provided
in a more
oppressive way, because he has no interest beyond that, and malice
must be opposed where something of equal value can
be done. And this
opinion is approved. For it is unfair to deny to another what does
not hurt you and is indeed to the advantage
of the other. Malice
must not be tolerated.’
This principle applies equally
to a servitude initially constituted in specific terms which, for
valid reason, the servient owner
seeks to relocate.