Definition
A discontinuous servitude is a type of easement or servitude over land that exists only when it is being actively exercised — that is, it requires repeated, intermittent acts by the dominant owner rather than a single continuous or passive condition. The servitude does not operate automatically or by virtue of a permanent physical state; it comes into existence each time the right is exercised and lapses in between those acts.
The right of way is the paradigm case: a landowner's right to cross a neighbor's field is a discontinuous servitude because it is exercised only at the moments of actual crossing. The right to draw water from a well on another's land is another classic example. Between acts, there is no ongoing physical expression of the right — no permanent structure or condition that signals the servitude's existence.
Discontinuous servitude is distinguished from a continuous servitude, which operates without the need for human intervention at any given moment. A drainage ditch, a window receiving light and air, or a pipe carrying water under another's land are continuous servitudes: they function without repeated affirmative acts by the holder.
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Common Confusion
Discontinuous servitude is frequently paired with — and contrasted against — continuous servitude in the civil law tradition, and the distinction carries real legal consequences. The confusion arises because common law writers and civil law writers use the category differently. In civil law systems (including Louisiana and the Roman law tradition from which the concept derives), the continuous/discontinuous distinction controls whether a servitude can be acquired by prescription (adverse use) and whether it qualifies for certain methods of implied creation. A discontinuous servitude generally cannot be acquired by prescription in civil law jurisdictions regardless of how long or openly the use has occurred, because the intermittent nature of the acts prevents the kind of uninterrupted possession the law requires.
In common law jurisdictions, the same substantive rights — rights of way, rights to draw water — are recognized as easements, but the continuous/discontinuous vocabulary is rarely used. Common law courts instead address the same underlying problem through doctrines of prescriptive easement, implied easement by prior use, and easement by necessity, each of which has its own requirements for openness, continuity, and duration. Researchers moving between civil law materials and common law materials on easements must be alert to this terminological mismatch: the civil law "discontinuous servitude" is not an exotic category but rather describes precisely the kind of easement most litigated in common law courts.
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Why It Matters in Research
The continuous/discontinuous distinction is essential infrastructure for navigating historical property law materials, particularly any sources drawing on Roman law, French civil law, or the Louisiana Civil Code tradition. The distinction appears constantly in treatises on easements and servitudes written before the mid-twentieth century, and researchers who do not recognize it may misread arguments about whether a particular right was validly created or transferred.
Several specific traps:
First, historical sources organized around this taxonomy may deny that a right of way was ever validly acquired by prescription — a conclusion that would strike common law lawyers as strange — without explaining that the denial rests on the civil law rule that discontinuous servitudes are not prescriptible. The reasoning is embedded in the category, not stated separately.
Second, American materials are jurisdictionally split in ways that do not track the common law / civil law divide neatly. Louisiana property law continues to employ the continuous/discontinuous framework. Researchers analyzing Louisiana servitude cases must use this vocabulary; researchers working in other states may find it absent from judicial opinions entirely even when the underlying legal question is identical.
Third, in older treatises — including those that influenced Bouvier — the categories of continuous, discontinuous, apparent, and non-apparent are crossed against each other to produce a four-part matrix (continuous apparent, continuous non-apparent, discontinuous apparent, discontinuous non-apparent) that governs both prescriptibility and implied creation. A researcher encountering any one of these four categories in historical sources needs to understand all four to follow the argument.
Fourth, the encyclopedia entries most relevant to this term (Property Entries 80 and 81) address equitable servitudes and the implied reciprocal servitude doctrine — areas where the question of how servitudes are created without express grant is central. The civil law discontinuous/continuous distinction informs background assumptions in many of those creation-and-requirements debates.
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Historical Dictionary Support
Both Bouvier and Rapalje & Lawrence define discontinuous servitude consistently and briefly: a servitude depending on the performance of repeated acts rather than a single continuous act, with right of way and the right to draw water as standard examples. Neither source develops the definition at length, which reflects the status of the term as a term of art assumed to be understood within the civil law taxonomy it belongs to.
Bouvier cross-references EASEMENT, signaling that for practical American legal research the concept maps onto the common law easement. This cross-reference is useful but incomplete: it elides the difference in prescriptibility rules between the two systems. Rapalje & Lawrence's entry is garbled in transmission — it runs together the definition of discontinuous servitude with material about discontinuance of actions — but the substantive definition is consistent with Bouvier.
Neither source explains why the distinction matters procedurally or substantively, nor does either engage the civil law prescriptibility rule. Historical readers were expected to bring that background. Modern researchers should not assume they will find the analysis spelled out in these dictionaries; they will find only the taxonomy and must supply the consequences from treatise-level sources.
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Jurisdictional Note
The continuous/discontinuous vocabulary is operative and consequential in Louisiana, which follows the civil law tradition, and appears in the Louisiana Civil Code's treatment of predial servitudes. In the remaining common law states, courts and treatises generally do not use this classification, though the substantive rights it describes are fully recognized under easement doctrine. Researchers working across Louisiana and common law jurisdictions should treat the terminology as a translation problem rather than a substantive divergence.
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