lesser rights of ownership in other persons. Arranged in order of general importance, if not of magnitude, such rights were :

(1) Servitudes.

(2) Usufruct.

(3) Use and habitation.

(4) Labour of slaves.

(5) Emphyteusis and superficies.

(6) Pledge.

(7) Dower (Dos).

(8) Peculium.

(9) Possession (as a right).

All these lesser rights of ownership were sometimes called jura in re, that is, rights in something L. 19, pr. D. the dominium of which was vested in some one (xxxix. 2). else.

(1) SERVITUDes.

A servitude is a right which exists in the case of lands or buildings adjoining each other but belonging to different owners.

The right is vested in the then owner of the lands or buildings which are thereby said to be "dominant," and is exercised against the then owner of the adjoining lands or buildings, thereby said to be "servient," and relates, in some way or other, to the use of those lands or buildings. Before Justinian's time this precise conception of a servitude does not seem to have been attained, inasmuch as servitudes are classed in the Digest, as attaching either to L. 1, D. (viii. persons or to things, those attaching to persons 1). including such rights of ownership as "use" and "usufruct," which could not fall under the definition of a servitude above given, and they are treated apart from servitudes in the Institutes.

It is a rule that a true servitude cannot consist in laying a positive duty on the owner of the servient tenement. It can only prevent such owner doing something which, but for the existence of the servitude, he would be entitled to do, or can enable the owner of the dominant tenement to

extract some advantage from the servient tenement which, but for the existence of the servitude, he could not extract. There is a broad line of division between the different kinds of servitudes, which is natural rather than artificial. For instance, in the case of contiguous houses in towns, the only sort of advantages which the owner of one house can enjoy, at the expense of the owner of the adjoining house, is of an unbroken and continuous sort, and not of a desultory or occasional one, as in the case of the owners of adjoining lands in the country.

To servitudes in towns, called urban servitudes, belong such rights as those which forbid the adjoining owner to raise his walls beyond a certain point, or in other ways to obstruct the light, the air, or the prospect, and which oblige him to admit his neighbour to rest the beams of his house on the adjoining house, and to let fall the rain from his roofs on to the adjoining court-yard. This class of servitudes is continuous in its enjoyment, and is sometimes said to be negative and continuous, inasmuch as it does not enable the owner of the servitude to do fresh and positive acts, but merely restricts the freedom of his neighbour. Urban servitudes, though they owe their name to their origin in cities, may exist wherever two buildings are close together.

Servitudes in the country (called rustic servitudes) are such as rights of way, of carrying water, of drawing water, of pasturage, of burning lime, of digging sand, and the like. These rights are discontinuous and affirmative in their nature, in the same way in which urban servitudes are continuous and negative. The quality of continuity or discontinuity is important as affecting the sort of presumption which is raised from an abstinence from using the right when a case for prescription arises. In the case of a discontinuous servitude, it is not sufficient that the servitude should have been in abeyance for a long time together in order to annul the right. There must have been an actual interference with the exercise of the right on the part of the servient owner, and this must have been successfully persisted in for the time required by the rules of prescrip

tion. In the case of a continuous servitude mere non-use may render the right obsolete.

A right of servitude could be constituted in favour of any tenements, either by formal engagements during life or by duties laid on the heir on death.

(2, 3, 4) USUFRUCT, USE, HABITATIONS AND LABOURS OF SLAVES.

Usufruct is the right of enjoying all the advantages derivable from the use of something which belongs to another, so far as is compatible with the substance of the thing not being destroyed or injured. Strictly speaking, this right could only exist in the case of things the use of which was possible without diminution in their value. But by a late senatus consultum what was called a Hein. El. quasi-usufruct was admitted in the case of (ccccxix.). certain perishable things, such as oil, wine, corn, raiment, and even money. In these cases an equivalent in kind and quantity was admitted to represent the things destroyed or injured by use. The usufructuarius could give, let, or sell to another his right, though it appears that where he transferred his right by gift, a non-user by the L. 46, D. (vii. grantee might render void the right altogether. 1).

A right of usufruct was constituted either by will or by contract; and it was lost either by the death, natural or civil, of the usufructuarius, or by a prescription, or by merger resulting from the dominium and the usufruct coming into the hands of the same person.

The rights called use and habitation are distinguishable by rather a fine line from the right of usufruct. The nature of the right of use can better be understood from the instances given of it by the Roman lawyers than by any attempt at definition. The person who enjoyed the use of a thing had a limited right of temporary enjoyment, which in all cases excluded the right of storing up fruits, produce, the young of animals, and the like, for the purpose of general self-enrichment. He who had the use of a house could live

in it with his family and invite his friends to live in it too, but must not interfere with workmen engaged in repairing the building or cultivating the garden. The limits of the right of use seem to have been fixed by what was needed for the necessities of daily life; and when the grantor of the right had defined the extent of the use, no presumption of a larger use could be raised as in the case of a usufruct. The right did not carry with it the right of transferring it to another, either gratuitously or for hire.

The right of habitation was the right of occupying such parts of a building as were suitable for residence, and the limits of the right were marked by what was requisite for residence, and not (as in the case of a vault, a garden, or L. 13, C. (iii. a shop) for other purposes. In Justinian's time 33). it was settled that he who had the right of habitation could let it out to another and defend it by the same action at law as the propricter of the soil could defend his right.

The right to the labour of others' slaves was distinguishable from the usufruct in a slave, insomuch as that right only carried with it the right to the actual product of the slave's labour, and not to any contingent advantages derivable from dealings with the slave's peculium or from the increase of the slave's family. The right was greater than that of the right of use, inasmuch as it was not restricted to what was barely necessary for a given purpose and it could be leased out to another. This right Gaius (ii. 32). seems to have been the same as what Gaius calls the usufruct in men and all other animals.

(5) EMPHYTEUSIS AND SUPERFICIES.

The peculiar right called emphyteusis seems to have arisen out of the practice of making long leases of provincial lands belonging to the State. The practice was adopted by the emperors with respect to their own private property, and shortly became legally recognized in the case of other

private proprietors. The only restrictions on the right of the emphyteuta, which distinguished his right from that of the proprietor of the soil, was the liability of the former to pay a yearly rent (pensio or canon), not permanently to injure the property, and to surrender to the proprietor such accessions (like hidden treasure found by a stranger) which could not be counted among the ordinary produce. The right could be sold, mortgaged, bound with servitudes, or given away by the emphyteuta, and it passed to his heirs, either testamentary or intestate.

The right of superficies, which is analogous to that of a modern building lease, was closely parallel with that of emphyteusis. The property, over which the right was exercised, was the soil or structural basis on which the person who had the right (superficiarius) had erected a building or an extra building attached to another person's building. The only liability of the builder or his heirs was to pay a rent, to satisfy the requirements of the State, and to keep the premises in repair. With respect to the buildings erected, the superficiarius has all the rights of a proprietor.

(6) PLEDGE.

7, D. (vii. 1).

He who has his debt secured by a contract of pledge has certain rights in the thing pledged-whether accompanied or not by possession (pignus or hypotheca)—which constitute, in fact, a right of ownership of a limited kind, and is so much deducted from the otherwise complete right of the proprietor of the thing pledged. The extent of the creditor's right depends on the terms of the contract; but the law always presumed, in the absence of any conditions to the contrary, the right of the creditor to sell the thing pledged or hypothecated, if the debt were not paid at the time agreed upon. If a special engagement had been entered into that the thing should L. 45, D. (xiii. not be sold, the creditor could not sell, without 7). first making three separate demands of payment from the debtor, under pain, if he neglected this formality, of being convicted of theft. The creditor had to wait two years