Explanation of Article 717
The article addressed the right of passage and defined it in the first paragraph as the right of the owner of land distant from a water source to have water flow through land owned by another to reach their land. The right of passage is established for land distant from a water source over all lands located between the water source and that land, whether the passage is natural, like a stream or canal, or artificial by any modern mechanical means.
The second paragraph clarified that if the right of passage is established, the owner of the lands through which these waters flow cannot prevent this right, even if it requires building structures on the land through which the passage runs, such as water pumping and lifting devices, and the like, provided two conditions are met:
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The first condition: The holder of the right of passage must pay an immediate compensation for their benefit, and the landowner may benefit from the structures established by the holder of the right of passage, provided they bear a proportionate share of the costs of establishing and benefiting from them, as stipulated in paragraph (3) of article (712); if the holder of the right does not pay the immediate compensation, the landowner may prevent them from the right of passage.
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The second condition: The passage should not cause a clear disruption to the landowner's use of their land. If the passage causes a disruption to the landowner's use of their land but it is not clear, the landowner does not have the right to prevent the holder of the right of passage from easement, without prejudice to the landowner's right to compensation for any damage caused by the passage, as will be detailed in the following article (708).
The article imposed an obligation on the holder of the right of passage not to cause damage to the land through which the passage runs, whether this damage is from the passage itself or from the structures built on the neighbor's land to direct water to the holder's land. If the use of the right of passage results in damage to the landowner, the landowner can first request the holder of the right of passage to repair the passage and fix the damage; if the holder of the right of passage refuses to do so, the landowner may carry out the repair or restoration at the expense of the holder of the right of passage to the customary extent.
The landowner's right to request the repair of the passage and fix the damage does not preclude their right—according to general rules—to request compensation for any damage incurred due to the holder of the right of passage's failure to fulfill their obligation to repair and fix, such as if they delay in executing this obligation after being requested to do so, or refuse to execute it, leading the landowner to execute it or not, resulting in damage to the landowner; the holder of the right of passage would be liable for this damage.
Related To
Article 717
A claim of the right of easement shall not be heard if such right is not exercised for a period of 10 years.