si quis eas fluctibus expulsas vel etiam in ipso mari nactus. lucrandi animo abstulerit, furtum committit. nec longe discedere videntur ab his, quae de rheda currente non intellegentibus dominis cadunt. II. DE REBUS INCORPORALIBUS. Quaedam praeterea res corporales sunt, quaedam incorporales. Corporales eae sunt, quae sui natura tangi possunt : 1 veluti fundus homo vestis aurum argentum et denique aliae res innumerabiles. Incorporales autem sunt, quae tangi non 2 possunt. qualia sunt ea, quae in iure consistunt: sicut hereditas, usus fructus, obligationes quoquo modo contractae. nec ad rem pertinet, quod in hereditate res corporales continentur: nam et fructus, qui ex fundo percipiuntur, corporales sunt et id, quod ex aliqua obligatione nobis debetur, plerumque corporale est, veluti fundus homo pecunia: nam ipsum ius that when property was thrown overboard to lighten and thereby save a ship, a proportionate share of the loss should be borne by the owners of the ship and cargo saved; Dig. 14. 2. 1, Paul. sent. rec. 2. 7. Tit. 2. The division of res into corporeal and incorporeal was in origin a philosophical one derived from the Stoics (Diog. Laert. 7. 140, 141): 'rerum definitionum autem duo sunt genera: unum earum rerum, quae sunt, alterum earum rerum, quae intelleguntur. Esse ea dico, quae cerni tangive possunt : non esse rursus ea dico, quae tangi demonstrarive non possunt, cerni tamen animo atque intellegi possunt' Cic. Top. 5. If this distinction is to be used in law, it must be remembered that a res which is, philosophically, corporalis or incorporalis need not be either legally; it becomes so only if the law takes notice of it. Thus the sea is a res corporalis in Cicero's sense, but not in that of the Roman lawyer ; it cannot be the object of rights. Similarly many objects of the intelligence have no legal existence whatever. By res corporalis (sensu legali) is to be understood any limited portion of external nature which is not a person, or any tangible object over which ownership can be asserted in a real action by res incorporalis is to be understood any legal right except the right of ownership itself. When Gaius (from whom, ii. 12-14, Justinian literally transcribes the whole of this Title) describes obligatio and hereditas as res incorporales, he explains that he means the right of the creditor in the former case, and in the latter the right of the person to whom the hereditas is delata to become heres actually by acceptance. Why Gaius excludes the right of dominium alone from the category of res incorporales is explained by Mr. Poste (Gaius p. 160) by reference to the Roman system of pleading, 3 hereditatis et ipsum ius utendi fruendi et ipsum ius obligationis incorporale est. Eodem numero sunt iura prae under which, in an action asserting ownership over an object, the object itself was brought into the foreground of the formula, whereas, in the formulae of all other actions, whether real (asserting a ius in re aliena) or personal, the stress was laid, explicitly or implicitly, on the existence of the plaintiff's right. But perhaps the true explanation of the seeming anomaly is that given by Mr. Hunter (Roman Law p. 142), who points out that the most striking difference between the right of dominium, and all other rights, was that the former could be transferred only by actual delivery of the object, which for the conveyance of the latter was unnecessary and often impossible. § 3. A right over a definite tangible object is called a ius in re, or real right if the object be our own, it is ius in re propria: if some one's else, ius in re aliena. The rights comprised in the complex notion of dominium are so indefinite that no satisfactory enumeration of them seems possible (see Holland's Jurisprudence p. 133); conceivably, any one or more of these might be separated from the rest, and vested in some other person than the dominus, so as to become a ius in re aliena: but practically no system of law recognises by specific names and rules more than a limited number of such rights. Those known to Roman law are divided into (1) those which were recognised by the old civil law, and which are called generically servitudes, and (2) those which were not so recognised, and are denoted by specific names. Servitudes are either praedial (divided into rustic and urban) or personal, the latter comprising usus, ususfructus, habitatio, and operae servorum or animalium; the second class of iura in re aliena consists of three distinct rights, emphyteusis, superficies, and pignus. Properly speaking, the term servitus denotes the quasi-nonfree condition of an object over which rights are enjoyed by a person other than its owner ('posteaquam ius suum deminuit, alterius auxit, hoc est, posteaquam servitutem aedibus suis imposuit' Dig. 39. 1. 5. 9); but more commonly it is used to express the deducted right itself. So understood, it may be defined as a real right, vested in or annexed to a definite person or piece of land, over some object belonging to another, and limiting the enjoyment of that object by that other in a definite manner. The following general points deserve notice :— (1) Servitudes may be either positive or negative, the former being said to consist in patiendo (i. e. the dominus has to allow the other party to do something which otherwise he could legally hinder him from, such as walking across his field), the latter in non faciendo (the dominus being obliged to refrain from doing some act which otherwise he would be at perfect liberty to do, e. g. servitus altius non tollendi, inf.). But no servitude can consist in faciendo; in other words, the obligation of the dominus cannot be to perform some positive duty, for this would give rise to a right in personam only, whereas a servitude is a right in rem, diorum urbanorum et rusticorum, quae etiam servitutes vo cantur. Dig. 8. 1. 15. 1. (2) The right of servitude is extinguished so soon as the person in whom it is vested becomes dominus of the res serviens, or vice versa 'nulli res sua servit' Dig. 8. 2. 27. (3) One servitude cannot be the object of another: 'servitus servitutis esse non potest' Dig. 33. 2. 1. (4) A servitude must not merely limit the rights of the dominus, but it must confer a positive advantage on the other party, Dig. 8. 1. 15. (5) Servitudes being created solely for the advantage of a definite subject, they are intransferable, or inseparable from the subject itself, Dig. 10. 2. 15; 8. 4. 12. The meaning of the distinction between praedial (or real) and personal servitudes is explained in § 3 of the next Title. (1) A praedial servitude can belong to a man only as being owner of a parcel of land or a house (praedium); he can have a personal servitude without any such limitation. The latter can be enjoyed over any object of property; the former only over another praedium, adjoining (Dig. 8. 3. 5. 1) that in whose favour it exists, and to which it is appurtenant. Thus there cannot be a praedial servitude without two praedia, called the praedium dominans and the praedium serviens. (2) The right must be of such a nature that by it the use and enjoyment of the praedium dominans is increased, or rendered more complete and effectual. It is consequently inseparable from the latter, passing with it when conveyed, and its maximum extent or orbit is determined only by the requirements of the praedium to which it is attached, Dig. 8. 3. 5. 1. (3) But the owner of the praedium dominans must exercise his right with proper regard for the other party, civiliter modo, Dig. 8. 1. 9, while the latter is bound to permit him to do all acts necessary for its due enjoyment, such as repairs, ib. 10. (4) The nature of a praedial servitude is further illustrated by the rule 'omnes servitutes praediorum perpetuas causas habere debent' Dig. 8. 2. 28; i. e. no right can be a praedial servitude whose enjoyment necessitates constant action on the part of the owner of the praedium serviens, or which can in the nature of things be enjoyed only for a limited time, ' ideo neque ex lacu neque ex stagno concedi aquae ductus potest' Dig. loc. cit. (5) 'Servitutes (praediorum) ipso quidem iure neque ex tempore, neque ad tempus, neque sub condicione, neque ad certam condicionem constitui possunt' Dig. 8. 1. 4. Different views are held as to the rationale of the division of praedial servitudes into rustic and urban. According to some, it turns upon the nature of the praedium dominans, the question being whether this is a building merely, or a piece of land comparatively free from buildings, such as a farm or a country estate others regard only the nature of the praedium serviens; while a third school determines the species of servitude purely by reference to its content, holding that where the right consists in faciendo, it is rustic, where in habendo or prohibendo, urban. The following Titles will make the distinction clear. III. DE SERVITUTIBUS. : Rusticorum praediorum iura sunt haec iter actus via aquae ductus. iter est ius eundi ambulandi homini, non etiam iumentum agendi vel vehiculum: actus est ius agendi vel iumentum vel vehiculum. itaque qui iter habet, actum non habet. qui actum habet, et iter habet eoque uti potest etiam sine iumento. via est ius eundi et agendi et ambulandi: nam et iter et actum in se via continet. aquae 1 ductus est ius aquae ducendae per fundum alienum. Praediorum urbanorum sunt servitutes, quae aedificiis inhaerent, ideo urbanorum praediorum dictae, quoniam aedificia omnia urbana praedia appellantur, etsi in villa aedificata sunt. item praediorum urbanorum servitutes sunt hae: ut vicinus onera vicini sustineat: ut in parietem eius liceat vicino tignum immittere: ut stillicidium vel flumen recipiat quis in aedes suas vel in aream, vel non recipiat: et ne altius Tit. III. Via differs from iter and actus (1) in implying a regular roadway, the minimum width of which, in the absence of express agreement, was fixed by law at eight feet where straight, and sixteen where it curved, Dig. 8. 3. 8; (2) in entitling one to the use of the road for heavy traffic, which is expressly excluded from actus in Dig. ib. 7. pr. Iter, unless otherwise specified, included the right of riding or being carried in a litter, ib. 7 and 12; and though actus usually comprehended iter, it could be excluded by express agreement, Dig. 8. 5. 4. 1. In all of these three rights of way the person entitled might use only the road or path assigned to him by the owner of the praedium serviens, or that which he had once selected for himself. § 1. In Dig. 8. 1. 3 Paulus defines urban servitudes as those quae in superficie, as contrasted with those quae in solo, consistunt. They are either positive, e. g. tigni immittendi, oneris ferendi, stillicidii avertendi, proiiciendi (right of building some structure such as a balcony out over one's neighbour's land) and cloacae-or negative, securing an advantage to the praedium dominans of which it could be deprived by some alteration in the praedium serviens, e. g. altius non tollendi, the right of preventing one's neighbour from raising the height of his house, and ne luminibus or prospectui officiatur. In this section, as well as in Gaius ii. 31, iv. 3, and many passages of the Digest (e. g. 8. 2. 1. pr. ; 8. 3. 2. pr. ; 8. 4. 7. 1 ; 44. 2. 26. pr.), an urban servitude is mentioned which has occasioned considerable difficulty, viz. the servitudes altius tollendi, officiendi luminibus vicini, and stillicidii tollat quis aedes suas, ne luminibus vicini officiatur. In rusti- 2 corum praediorum servitutes quidam computari recte putant aquae haustum, pecoris ad aquam adpulsum, ius pascendi, calcis coquendae, harenae fodiendae. Ideo autem hae servitutes praediorum appellantur, quoniam 3 sine praediis constitui non possunt. nemo enim potest servitutem adquirere urbani vel rustici praedii, nisi qui habet praedium, nec quisquam debere, nisi qui habet praedium. Si 4 quis velit vicino aliquod ius constituere, pactionibus atque non avertendi, which seem to operate only in the way of freeing a building from some pre-existing obligation. Mr. Poste (Gaius p. 179) explains this by supposing that an urban servitude can be extinguished only by the acquisition of a contrary servitude by the praedium serviens. But perhaps it is better to suppose that these anomalous servitudes occurred only where the laws limited the rights of owners by forbidding them to build above a certain height, compelling them to receive their neighbours' rainwater, etc. A law of Zeno of this nature, enacted originally for Constantinople only, was extended to all the cities of the empire by Justinian (Cod. 8. 10. 12 and 13). If this is so, it is difficult to conceive the right in question as a servitude at all. § 2. The rights mentioned in this section are treated as rustic servitudes by Neratius (Dig. 8. 3. 2 sq.), and by Papinian, Paulus, and Ulpian. The word 'recte' seems to imply that by some they were not so considered, though there is no trace in the authorities of a difference of opinion. § 4. The old mode of constituting servitudes between the parties had been in iure cessio, Gaius ii. 29. 30, rustic servitudes in Italy also admitting of creation by mancipatio. These processes, however, could be employed only in respect of objects which could themselves be transferred in the same manner, so that (Gaius ii. 31) servitudes over praedia provincialia, which were not 'in patrimonio,' could not thus be created. In default, the occupiers of land in the provinces resorted to bare agreements (pactio), subsequently expressed in a formal and solemn contract (stipulatio), by which the owner of the land which was to be subjected to the servitude bound himself to allow its enjoyment, or in default to pay a penal sum, e. g. 'per te non fieri neque per heredem tuum, quominus mihi heredique meo ire agere liceat ; si adversus ea factum sit, tantum dari' Dig. 45. 1. 2. 5. A right thus created could not in itself avail in rem, or 'run with the land;' yet it seems clear from Gaius (ii. 31) that in his time such pactiones and stipulationes were as effectual to create servitudes over provincial soil as in iure cessio and mancipatio over praedia Italica. We must consequently suppose that the praetor had intervened, and by the introduction of an utilis actio (confessoria) for the protection of the promise against all successors of the other in title had given the right a genuine 'real' character. In Justinian's time of course |