In rusti- 2

tollat quis aedes suas, ne luminibus vicini officiatur. 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

stipulationibus id efficere debet. potest etiam in testamento pactio et stipulatio was the sole mode of contractually creating servitudes of every kind.

There is much difference of opinion as to whether, in addition to the pactio et stipulatio, a quasi-traditio of the right was required to endow it with the full proportions of a servitude. Gaius expressly says (ii. 28) that servitudes, like res incorporales in general, do not admit of traditio; but if the latter be conceived as the granting of the physical control over a res, or as the permitting it to be enjoyed, servitudes will also admit of this figurative operation, and accordingly many hold that as bonitarian ownership at least could always be conveyed by traditio proper, so pactio et stipulatio required the supplement of this quasi- or figurative traditio to gain full praetorian protection for the right created, as a 'real' right. For instance, it is affirmed that this traditio gave a quasipossession, entitling the recipient to use the Publician action, as well as the actio confessoria, whereby he was exempted from the onus of proving his transferor's title, and which availed also against non-owners of the praedium serviens. It is quite certain that in many passages (e. g. Dig. 6. 2. II. I; 7. 1. 25. 7; 7. 4. 1. pr.; 7. 6. 3; 8. 1. 20) traditio is specified as a mode of creating servitudes; but obviously it must have been preceded by agreement, and the question is whether a real right could be created by the latter unsupplemented by the former. There is no passage in the authorities which affirms the necessity of traditio, and the prevailing view now seems to be that it was not essential; though the contrary is still maintained by some who argue from the jural impossibility of creating real rights by a contract 'in the proper sense of the term,' and explain the absence of passages affirming the necessity of traditio by the consideration that in the time of the classical jurists servitudes were, iure civili, not thus created at all.

The other modes in which servitudes in general could originate are :— (1) Testamentary disposition or legacy; this was commonest in personal servitudes, especially usufruct, which could either be bequeathed directly (Tit. 4. I inf.), or the heir could be directed to create it in favour of the legatee: 'ususfructus uniuscuiusque rei legari potest, et aut ipso iure constituetur aut per heredem praestabitur: ex causa damnationis per heredem praestabitur, ipso iure per vindicationem' Paul. sent. rec. 3. 6. 17. Bequest of praedial servitudes, to be duly constituted by the heir, is spoken of in this section; cf. Dig. 8. 4. 16; 33. 3.

(2) Deductio; reservation of the servitude in conveying the dominium either inter vivos or by will; Tit. 4. 1 inf., Dig. 8. 2. 34 and 35; 8. 3. 30 and 33.

(3) Judicial decision, either (a) by adiudicatio in a iudicium divisorium, Bk. iv. 6. 20; ib. 17. 4 and 5 inf.; (b) declaring a servitude duly constituted as against a recalcitrant defendant who refuses to create it himself; or (c) reviving by 'in integrum restitutio' a servitude which has been lost, Dig. 8. 5. 8. 4.

(4) In certain cases usufruct arose ipso iure in virtue of statutory enactment (lex); e. g. the pater's usufruct in the peculium adventitium

quis heredem suum damnare, ne altius tollat, ne luminibus aedium vicini officiat : vel ut patiatur eum tignum in parietem

of his son (note on Tit. 9. pr. inf.); cf. Dig. 8. 6. 5; 8. 5. 1 ; ib. 2. 1; ib. 6. 3.

(5) Actual enjoyment of the right for a prescribed period of time. Where a praedium was acquired by usucapio (Tit. 6 inf.), the servitudes appurtenant to it were acquired along with it; but apart and by themselves, such rights could not thus arise, for usucapio presupposes possession of the thing to be acquired, and a bare right cannot be possessed: 'hoc iure utimur, ut servitutes per se nusquam longo tempore capi possint, cum aedificiis possint' Dig. 41. 3. 10; cf. Dig. 8. 1. 14. It would seem, however, that at one time this principle was not fully admitted, for a lex Scribonia of uncertain date (Dig. 41. 3. 4. 29) forbade usucapion of servitudes, except the anomalous class spoken of on § 1 supr.; but it is now very commonly held that though rustic servitudes could never be acquired by usucapio, urban could, as in them there is a greater semblance of uninterrupted possession than in the former, and that the lex Scribonia related to the urban class only.

Servitudes over provincial soil, however, could be acquired by an analogous institution of praetorian origin, more fully explained in Excursus III at the end of this Book, viz. longa quasi-possessio, actual exercise of the right for ten years if the owner of the praedium serviens lived in the same province, twenty if in another; Dig. 7. 5. 10. This mode of acquisition came gradually to be recognised in Italy also, so that in effect the lex Scribonia lost much of its force: under Justinian it is in full operation for all kinds of servitudes, its conditions being (a) uninterrupted enjoyment of the right for the periods specified, which (6) must not be violent, or without the knowledge of the other party, or in virtue of express permission from him; but bona fides does not seem necessary; Dig. 8. 6. 24; 43. 20. I. 10.

Servitudes generally might be extinguished in the following ways:— (1) Destruction of the res serviens (Tit. 4. 3 inf.), or its withdrawal from commercium. Personal servitudes perished also if the res serviens underwent a complete and essential transformation, Dig. 7. 4. 5. 2 and 3.

(2) Confusio (which when the usufruct merged in the proprietas was called specially consolidatio, Tit. 4. 3 inf.), i.e. the dominium and the servitude becoming vested in one and the same person. This occurred frequently in succession upon death.

(3) Release of the right to the dominus of the res serviens, Tit 4. 3 inf. The proper form of release had originally been in iure cessio and for rustic servitudes in Italy probably also mancipatio: in Justinian's time a mere agreement (cessio or concessio) was sufficient without any formal surrender. There is some ground for supposing that abandonment (derelictio) extinguished usufruct, though not other servitudes; but its effect seems really to have been to terminate, not the usufructuary's rights, but only his liabilities.

(4) Extinction of the subject entitled. In praedial servitudes this is

P

immittere vel stillicidium habere: vel ut patiatur eum per fundum ire agere aquamve ex eo ducere.

the praedium dominans: personal servitudes expire with the death of the person in whom they are vested, unless granted to him and his heirs, or an earlier time has been fixed for their termination. If a personal servitude belonged to a juristic person, it could not endure beyond one hundred years except by express provision, Dig. 7. 1. 56.

(5) Non-exercise of the right for a prescribed time. Rustic servitudes were lost by non-exercise for two years, personal servitudes by non-user for one year or two according as the res serviens was mobilis or immobilis, Paul. sent. rec. 3. 6. 30. For the loss of an urban servitude mere nonuser was insufficient; there was required also some positive act on the part of the owner of the praedium serviens, e. g. raising of the house, building up of the hole in which the beam had rested, etc.; two years after this had occurred the right was extinguished, this being called usucapio libertatis : 'haec autem iura [praediorum urbanorum] similiter, ut rusticorum quoque praediorum, certo tempore non utendo pereunt : nisi quod haec dissimilitudo est, quod non omnino pereunt non utendo, sed ita, si vicinus simul libertatem usucapiat' Dig. 8. 2. 6. For servitudes over provincial soil the periods were the longer ones already mentioned, and these continued to be required universally under Justinian, no distinction being drawn between moveables and immoveables. Two personal servitudes, habitatio and operae, were never liable to destruction by non-user.

(6) In Tit. 4. 3 inf. Justinian says usufruct was also extinguished 'non utendo per modum:' which may be explained (1) as an allusion to Cod. 3. 33. 16. I 'nec usumfructum non utendo cadere, nisi talis exceptio opponatur quae, etiamsi dominium vindicaret, posset eum excludere ;' or (2) as referring to restrictions upon the right, limiting, e. g. the kinds of fruits which might be taken, cf. Dig. 8. 6. 10. 1; ib. 18. pr.

(7) Lapse of time fixed for the duration of the right, or fulfilment of a resolutive condition. Praedial servitudes could not in strict law be qualified in this manner (see (5) on p. 205 supr.); but if the grantee asserted his right against the terms of the limitation, he could be defeated by exceptio pacti or doli, Dig. 8. 1. 4. pr.

(8) By the old law usus and ususfructus were extinguished by capitis deminutio of the person entitled, Gaius iii. 83. By an enactment of Justinian, capitis deminutio minima ceased to have this effect, Tit. 4. 3. inf. and Bk. iii. 10. 1; cf. Cod. 3. 33. 16. 2.

The remark of Gaius in ii. 30, and of the text in Tit. 4. 3 inf., that a right of usufruct is inalienable except by way of release to the owner of the res serviens is true of all servitudes whatever any attempt to transfer was altogether inoperative. But a usufructuary, though he could not divest himself of his right in favour of a third person, could transfer its exercise or enjoyment to him by sale, gift, etc., Dig. 7. 12. 2. For the actions relating to servitudes see Bk. iv. 6. 2 and notes inf.

IV.

DE USU FRUCTU.

Usus fructus est ius alienis rebus utendi fruendi salva rerum substantia. est enim ius in corpore: quo sublato et ipsum tolli necesse est. Usus fructus a proprietate separationem recipit idque plurimis modis accidit. ut ecce si quis alicui usum fructum legaverit: nam heres nudam habet proprietatem, legatarius usum fructum : et contra si fundum legaverit deducto usu fructu, legatarius nudam habet proprietatem, heres vero usum fructum : item alii usum fructum, alii deducto eo fundum legare potest. sine testamento vero si quis velit alii usum fructum constituere, pactionibus et stipulationibus id efficere debet. ne tamen in universum inutiles essent proprietates semper abscedente usu fructu, placuit certis modis extingui usum fructum et ad proprietatem reverti. Constituitur 2 autem usus fructus non tantum in fundo et aedibus, verum etiam in servis et iumentis ceterisque rebus exceptis his quae

Tit. IV. Usufruct is distinguished from usus by its greater orbit, the usufructuarius being entitled 'frui' as well as 'uti.' The differentia of the right thus lies in the word fructus, for which see Tit. I. 37 supr. Subject to the obligation not to abuse or misuse (' recte enim colere debet, et quasi bonus paterfamilias' ib. 38), and in the absence of express provision to the contrary, the holder of the right may take all fruits of the object, civil as well as natural; and where it is land, he may ordinarily dig for minerals, but not to such an extent as to violate the rule 'boni viri arbitratu uti frui debet, causam proprietatis deteriorem facere non debet.' His general obligations in this respect are contained in the expression 'salva rerum substantia,' for which see Ulpian, reg. 24. 26 'earum rerum, quarum salva substantia utendi fruendi potest esse facultas :' he may not use the object over which his right exists for purposes clearly other than those for which it was designed, Dig. 7. 1. 13. 8; ib. 15. 1, nor may he change its character, and he must restore it in as good condition as that in which he received it. Where the right was given testamento, the discharge of these obligations was secured by a cautio usufructuaria, or personal undertaking guaranteed by sureties: subsequently the dominus was held entitled to demand it in nearly all

cases.

§ 1. For the modes in which usufruct could be created and extinguished see notes on the preceding Title.

§ 2. The date of the senatus-consult by which this 'quasi-usufruct' was