(concurring),
I see the issue somewhat differently than do my brothers of the majority. I concur, however, accepting (for the time) the majority’s analysis that the showing before the Public Service Commission indicates the public convenience and interest may be adversely affected should the Commission permit the petitioners to attempt to relocate the switch trackage in question.
Nevertheless, if analyzed according to what I feel to be the correct legal standards, I am not certain the showing should be interpreted as did the majority.
It seems to me the majority errs as a matter of law in holding that a petitioner before the Louisiana Public Service Commission must affirmatively show that the action proposed will not adversely affect the public interest. This burden of pleading and proof implies that,, if the action proposed has neutral effects, it must nevertheless fail. , I do not believe there is any constitutional warrant for imposing such a standard, and no jurisprudential or other authority is cited for it.
In my view, the proper standard is that a petitioner may secure relief within the jurisdiction of the Commission, provided it does not adversely affect the public interest. The burden should thus be upon the opponents to prove, not the petitioners to negate, adverse public interest. The facts of the present case illustrate well the difference in approaches permitted by these contrasting burdens.
The petitioner owns property traversed by servitudes (according to the majority) for railway purposes. These servitudes, crossing the center of the property, prevent its use for valuable industrial purposes. By proceedings before the Public Service Commission, the petitioner is attempting to relocate this railway servitude around the edge of his property, so as to permit its utilization for other purposes.
As the majority found, permission from the Commission must be secured before any relocation can be made. Article VI, Section 4, Louisiana Constitution, provides : “The Commission shall have and exercise all necessary power and authority to supervise, govern, regulate and control all common carrier railroads * * and that “The power, authority, and duties of the Commission shall affect, and include all matters and things connected -/wMi, con*517cerning, and growing out of the service to be given or rendered by the common carriers * *
However, these constitutional provisions do not, as the majority states, provide that the Commission shall not exercise these plenary constitutional powers unless the petitioner alleges and proves no adverse public interest. Thus the Commission may give the petitioner the relief sought under his pleadings, although of course it should not do so if opponents prove any adverse public interest.
The real motivating interests concerning the application for Commission relief are based upon the private interests of the parties. The petitioner bought property subject to a railway servitude and therefore of lessened industrial value. He seeks to greatly enhance the property’s value by relocating the trackage. ■ The opponents’ predecessors sold the property at lower price because of these tracks. They are not enthusiastic about this windfall to result to the petitioner if he can secure the relief sought. Moreover, if the petitioner’s property becomes available for industrial use, their own adjacent property loses the relatively greater value it has because of its unique availability for industrial use in the vicinity.
The Commission’s role, however, should be neutral in the adjudication of these competing private economic interests; at least, insofar as they have no adverse effect upon the public’s interest in the transportation facilities afforded for the general (not the private) good. And the constitutional provision relied upon does not indicate otherwise.
We must bear in mind that the only relief sought by the petitioner is a declaration that the moving of the trackage, at the petitioner’s expense, is consistent with the public interest and will not affect the ability of the railway carriers to continue to render present services.
The petitioner concedes that, before the servitude may be relocated, he must first secure the consent of the carriers, that he must furnish the alternative right of way servitude, that he must secure judicial approval of the relocation of the servitude insofar as it affects the private rights of the parties, and that there must not be any disruption in service to the public caused by the relocation.
If this showing is made, I believe the petitioner is entitled to the relief sought. That is, he need not affirmatively prove any benefit to the public interest, nor affirmatively negate any detriment to the public interest. If the action sought has neutral effects, the Commission should approve; for the Commission’s purpose is to act in the public interest, but to be neutral insofar as any private interests of the parties are concerned.
*519The petitioner apparently seeks ■ this prior Commission approval in order to lay a predicate to exercise his property right, as owner of the land, to secure a judicial adjudication under Civil Code Article 777 for a relocation of the servitude to a less burdensome place on his property. The servitude-owner has refused him this relief.
Without Commission approval, the court might refuse the owner this relief to which he is otherwise entitled.
Article 777 provides:
“The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.”
“Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.”
“Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it.”
In the majority opinion (footnote 2 thereof), incidentally, there is erroneous dicta' affecting the issue of judicial action relocating a conventional servitude as authorized by Article 777.
Civil Code Article 777 is found in Chapter 4 of Title IV of Book II, and it relates thus, both to conventional and voluntary servitudes. Article 777 therefore apparently applies to the present conventional servitude. It not only provides that the owner of the servient estate can do nothing to make the servitude more inconvenient; it also provides, par. 2, that he can’t change the location, but “Yet”, par. 3, if the servitude becomes more burdensome, he may require the owner of the servitude to accept “a place equally convenient for the exercise” of the servitude. This provision comes directly from Art. 701 of the Code Napoleon. The plain intent is to permit the court to displace the site of the previous servitude, even if established by agreement or judgment, when the exercise of the servitude is localized at a place too burdensome upon the encumbered estate; the court, to weigh the competing interests in the exercise of judicial discretion. Planiol, Civil Law Treatise, Volume I, Section 2971 (LSLI translation, 1959).
Thus, all conventional servitudes are created subject to this possibility of judicial modification in the future.
This is in accord with fundamental civilian principles: The interests of society are furthered by the free use of land by pri*521vate owners for its most advantageous social utility. The full ownership of land is favored, as against restrictions upon its use imposed decades or even centuries in the past; provided that no prejudice is caused to property rights 1 conferred -by conventional agreement of the parties or their predecessors in title.
I respectfully concur, subject to these ■reservations.
. Here, the opponents’ property right in the servitude is limited to the right to receive rail access through the petitioner’s property. The particular location contractually agreed upon is an important aspect of this right; hut the right was created subject to judicial relocation, under Article 777, if it becomes unduly burdensome in the course of time.