LECTURE VIII.

RIGHTS IN THE PROPERTY OF OTHERS.

JURA IN RE (Sc. aliena) were rights naturally included in the domini um of the owner, but cut off and given to some one else. One property might be so related to another, that the first was subject to some power or control of any person who owned the second: such relations were called servitutes praediorum rusticorum or urbanorum, according as they pertained to lands or to buildings. Among the former were three rights of way, viz., iter (of simple passing), actus (of driving animals), via (of keeping up a road), across the ground of another; also servitutes aquaeductus, aquaehaustus, pascendi, arenae fodiendae, lapides eximendi, calcis coquendae, etc. Among the latter were servitutes oneris ferendi, tigni immissi, projiciendi or protegendi, stillicidii, fluminis, cloacae, luminum, altius non tollendi, ne luminibus (or prospectui) officiatur. General principles: 1. The two estates must generally (not always) be contiguous; 2. The right secured must be an advantage to the ruling estate, not to its owner merely; 3. The advantage to the ruling estate was a measure of the right; 4. The servitus could never consist in faciendo (by owner of subject estate), but usually in patiendo, sometimes in non faciendo.

Besides the praedial, there were personal servitutes, pertaining to the person, and hence limited to the life, of an individual. The most impor tant was the ususfructus, full right to use and enjoy some property of another. The property, however, must be put to its natural use; and must be so used as to suffer no substantial injury. Hence, in articles of food there could be no usufruct; and none in money (quasi-usufruct). The usufruct might be created for a term of years, and must then cease at the end of the term. It might always be transferred from one person to another. But in no case could it survive the original usufructuary. And if by any transfer it came back to the owner of the property, it

ceased at once. It might also cease by non-user (the opposite of usucapion).

There was a more restricted usufruct, called usus: the usuary could not transfer his right to a third party; and he could only use the property for immediate personal wants of himself and his family; all further use and profit belonged to the owner.

To the servitutes praedial and personal of the jus civile, the prætors added other jura in re. Thus-1. Superficies, a right (resembling usufruct, but of longer duration) in some building erected on the (surface) ground of another. Usually it was perpetual, and subject to transfer or inheritance without limit. If conditioned, as it commonly was, on a ground-rent, it ceased upon non-payment of the rent.

2. Emphyteusis, a similarly perpetual transferable and inheritable right in the land of another; developed in the later empire, and named from the planting of waste tracts which it was designed to promote. If the emphyteuta wished to sell his right, he must first offer it to the owner, who might buy it for the proposed price, or, if another bought it, might claim a fee. It always ceased upon non-payment of the rent.

3. In early Rome, property used to secure a debt came into the ownership of the creditor (who often allowed the debtor to keep it as a precarium), and was called fiducia, as a trust committed to his faith for the restoration on due payment of the debt. But with this kind of security there was another, which finally supplanted it, by which the ownership remained with the debtor, and the creditor had a jus in re entitling him to sell the property in case of non-payment. A pledge of this kind was called pignus, and might be deposited with the creditor, or kept in the hands of the debtor. In the latter case it was a hypotheca. Any kind of property, present or prospective, might be hypothecated, and that over and over again, until its credit was exhausted. Unfortunately, there were no sufficient means for ascertaining previous hypothecations (though the debtor who failed to state them was liable to severe punishment); and the evil was aggravated by the admission of various tacit pledges (as of a tenant's furniture, for payment of the house-rent, etc.), as well as by giving preference to certain privileged debts (especially those to the treasury for public dues) without reference to the time when they were contracted. Such deficiencies in the Roman law of pledge must have added much to the difficulty of obtaining credit.

We have thus far considered property in its completeness, as including all the rights and privileges

connected with ownership. In this fulness of meaning it implies absolute and exclusive control over its object. It is the owner's right to do every thing which can lawfully be done with the object, and to keep all other persons from doing any thing whatsoever with it. This personal dominion, sole, entire, unrestricted, of the owner over the thing owned, belongs to the normal idea of property, and was emphasized by Roman, even more strongly than by modern, jurists. Yet they did not fail to recognize the existence of cases exceptional cases-where property had less than this, its full extent; where the fulness of the owner's right, was limited by some right of a non-owner in the same object. Their theory of law admitted and provided for rights in the property of others, jura in re aliena, or, as they were usually called, jura in re, the word aliena being omitted as unnecessary. The oldest of these rights were mentioned in the Code of the Twelve Tables, and have a peculiar interest, from their connection with the simple agricultural life of the early Romans. They were called by the quaint name of servitutes (servitudes, or subjections). subjection referred to in this case is of things, not persons it is the subjection of one estate to anotherthe liability of one estate to be used for the advantage of another. It is easy to trace the conception which gave rise to the term. A country is free when it is subject only to its own legitimate ruler: if it is sub

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ject to another country, or to the ruler of another country, then it is in a condition of servitude. So an estate may be looked upon as free when it is subject only to its lawful owner; if it is subject in any respect to another estate, or to the owner of another estate, it may be regarded as being so far forth in a condition of servitude. And as one of the two estates was then said to be subject or serving, so the other was called the ruling estate. The relation, once created between the two estates, was permanent, and was not affected by a change of owners in one or both of them.

Among the earliest and most important of these servitutes were four which are often named togetheriter, actus, via, aquaeductus (way, drive, road, waterdrawing). The first three of these were rights of way. The owner of the ruling estate was entitled to pass over the ground of the subject estate, and the owner of the latter had no right to prevent him from doing so. It was this limitation of the power, that naturally belonged to him as owner, to exclude everybody from his grounds, which formed the essence of the servitus. And it was this privilege which did not naturally belong to the non-owner, of using another man's ground for purposes of transit, that constituted the jus in re aliena (or jus in re). But how do these three rights (iter, actus, via) differ from each other? The man who had the iter was entitled to go through his neigh

bor's ground on foot, or even on horseback, and to have his slaves or his hired laborers go through. But there was one curious restriction, belonging evidently to the very earliest period, that no one in passing through should carry an upright pole (hastam rectam ferre), for fear of doing harm to the fruit trees. The man who had the actus was entitled to the privileges just described; but with them he had others which were not included in the iter. He could drive horses, oxen, or other beasts of burden, he could drive carts or wagons, over his neighbor's ground. But he was not allowed to drag heavy timbers or large masses of stone (lapidem aut tignum trahere), by which the surface would be broken up and disfigured. The man who had the via was entitled to all privileges included in the iter and actus; but he had one more which did not appertain to those servitutes: he could lay out and keep up a permanent track, a road, across his neighbor's ground-only just wide enough, however, for his own use; in the absence of any express agreement, the breadth of the track must not exceed eight feet, except at a bend or angle, where a breadth of sixteen feet was allowed. In this case he was not restrained from dragging heavy stones or timbers; if by doing so he injured his own track, he was himself the only sufferer. Nor was he restrained from carrying an upright pole, if, in laying out the way, care had been taken to avoid any fruit trees which might receive