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urbanorum servitutes sunt hæ : ut Among these servitudes are the followvicinus onera vicini sustineat : ut in ing : that a person has to support the parietem ejus liceat vicino tignum weight of the adjoining house ; that a immittere : ut stillicidium vel flumen neighbour should have the right of inrecipiat quis in ædes suas vel in serting a beam into his neighbour's aream, vel non recipiat ; et ne altius wall; that he has to receive or not to tollat quis ædes suas, ne luminibus receive the water that drops or runs vicini officiatur.
from another man's house on to his building, or into his court ; or that he is not to raise his house higher, so as not to obstruct his neighbour's
lights. D. viii. 2. 2.
The words quæ ædificiis inhærent in the text, are equivalent to the in superficie consistunt of Paul. (D. viii. 2. 20.) The servitudes attach to some building raised on the soil.
Onera vicini sustineat. By this servitude a wall or pillar of the res serviens was obliged to support the weight of the res dominans. The owner of this wall or pillar, so long as he remained owner, was bound to keep it in good repair, so as to continue to support the weight safely. (D. viii. 5. 6. 2.) But the owner of the wall, into which a beam was let by the servitude tigni immittendi, was not compelled to repair the wall, in order that the beam might rest there safely. (D. viii. 5. 8. 2.)
It is easy to understand what is meant by the servitudes stillicidii vel fluminis recipiendi and altius non tollendi. By the one the res serviens was made to receive the rain-water of the res dominans, by the other the res serviens was prohibited from being raised above the res dominans. But in the text we have the servitude stillicidii vel fluminis non recipiendi, and in the passage of the Digest (viii. 2. 2), from which much of the text is borrowed, we read of a servitude altius tollendi ; and it is not very easy to understand what these servitudes were. Theophilus, in his paraphrase of this section, thus explains the former. Aut tu jus hujusmodi (i.e. stillicidia tua in meas ædes projiciendi) habebas in ædes meas ; et rogavi te ne stillicidia tua aut canales in domum vel aream meam projiceres. Thus it would appear that the servitude non recipiendi was an extinction of a preexistent servitude recipiendi, made in favour of the owner of the res serviens. So, too, the servitude altius tollendi is explained to mean the allowing the house of a neighbour to be built above ours; so that the neighbour who was previously under a servitude, or at any rate of an obligation non altius tollendi, by the creation of what may be called a counter-servitude, does away with the impediment to his building above our house. If it was really a servitude, as we should certainly suppose from the language of Theophilus, that was extinguished or nullified by this new counter-servitude, it seems scarcely natural that this should not be given among the modes of ending a servitude, and still more, that the usual language of the jurists with respect to the extinction of a servitude should be departed from. The ordinary phrase was, that the thing affected, the res serviens, was freed, res liberatur, and it seems a very cumbrous mode of effecting the liberatio rei to create a new servitude, when the object would have been at once accomplished by merely surrendering the existing servitude to the owner of the res serviens. The commentators are therefore driven to understand that the right previously existing, that, namely, of having our water flow into our neighbour's house, or of having our neighbour's house kept at the level of our own, was not a servitude, but was given by law. Positive enactments, such as we read of in Tac. Annal. xv. 43; Suet. Aug. 89; D. xxxix. 1. 1. 17, may have decided that adjoining houses should, in particular places, for the mutual advantage of the owners, be of the same level, or pour off their water on to the adjoining house, while those persons who were intended to be benefited might still forego this advantage, if they pleased to allow of a servitude being created to do away with the effect of the enactment. It must, however, be confessed, that no one who reads the passages in which enactments for the regulation of buildings are mentioned, would suppose that individuals were ever allowed to infringe them by the mere permission of their neighbours. All that we can be quite sure of is that these servitudes, which were the contraries of other servitudes, were constituted for the benefit of the owner of a thing that previously had been under some disadvantage.
It is to be observed that words are sometimes used to express servitudes which seem proper to the owner of the res dominans, not to the owner of the res serviens. Thus, if the above explanation is correct, the servitus tollendi means the servitus patiendi vicinum tollere (see Bk. iv. Tit. 6. 2), and what is termed in the text, as it would seem more properly, the servitus stillicidii recipiendi, is termed in the Digest (viii. 2. 2) the servitus stillicidii avertendi.
Neluminibus officiatur. There was also a servitude termed the jus luminum, between which and that ne luminibus officiat the difference was probably one of degree. The jus luminum prevented a neighbour blocking up our lights. The servitude ne luminibus officiat prevented his doing anything, whether by building, planting trees, or by any other means, whereby the light was in any way, however slightly, intercepted from our house. (D. viii. 2. 15. 17. 40.)
2. In rusticorum prædiorum 2. Some think that among serviservitutibus quidam computari recte tudes of rural immoveables are rightly putant aquæ haustum, pecoris ad included the right of drawing water, aquam adpulsum, jus pascendi, calcis of watering cattle, of feeding cattle, of coquendæ, harenæ fodiendæ. burning lime, of digging sand.
D. viii. 3. 1. 1. There are many servitudes, both of rural and of urban immoveables, mentioned in the Digest, besides those given as examples in the Institutes.
3. Ideo autem hæ servitutes 3. These servitudes are called the prædiorum appellantur, quoniam servitudes of immoveables, because sine prædiis constitui non possunt. they cannot be constituted without imNemo enim potest servitutem ad- moveables. For no one can acquire a quirere urbani vel rustici prædii, nisi servitude of a rural or urban immovequi habet prædium, nec quisquam able, unless he has an immoveable bedebere, nisi qui habet prædium. longing to him ; nor can any one owe
such a servitude unless he has an im
moveable belonging to him.
D. viii. 4. 1. 1. The nature of most servitudes of urban immoveables demanded that the immoveable over which, and the immoveable in right of which, the servitude was exercised, should be contiguous; but when the servitude was one of rural immoveables, the prædia need not necessarily be near together. Still, however, a servitude was not permitted to exist which was useless to its owner; and a person could not have a right of way, for instance, over the land of another if he was prevented from using the way by land, over which he had no servitude, lying between his land and that over which the servitude was to be exercised. (D. viii. 1. 14. 2.)
There was another difference between the servitudes of rural and urban immoveables. The latter were, for the most part, used continuously, the former only at times. The beam, for instance, always rested in the wall; there was no moment in which the owner of the res serviens was not prohibited from blocking up his neighbour's lights. But the way was not always being used; nor were cattle always being watered (D. viii. 1. 14): and this difference was productive of very important results. For instance, servitudes might be lost by not being used; but as the servitudes of most urban immoveables were by their nature perpetually used, they were preserved without their owner taking any trouble to preserve them, and possessory rights could be acquired in them, which, with a few exceptions, could not be acquired in servitudes whose usage was not continuous. (D. viii. 2. 20.)
4. Si quis velit vicino aliquod jus 4. If any one wishes to create a constituere, pactionibus atque stipu- right of this sort in favour of his lationibus id efficere debet. Potest neighbour, he must do so by agreeetiam in testamento quis heredem ments and stipulations. A person can suum damnare, ne altius ædes tollat, also, by testament, bind his heir not ne luminibus ædium vicini officiat: to raise his house higher, not to obvel ut patiatur eum tignum in parie- struct a neighbour's lights, to permit tem immittere vel stillicidium ha- a neighbour to insert a beam into his bere : vel ut patiatur eum per fun- wall, or to receive the water from a dum ire, agere aquamve ex eo neighbour's roof; or, again, he may ducere.
oblige his heir to allow a neighbour to go across his land, or to drive beasts or vehicles, or to conduct water
Gai. ii. 31 ; D. viii. 4. 16. Gaius tells us (ii. 29), that servitutes prædiorum rusticorum were among res mancipi (see Introd. sec. 59), while servitutes prædiorum urbanorum were not, and that the former were con
stituted by mancipatio; the latter, as well as personal servitudes, were constituted by the process termed in jure cessio. (See in-/ troductory note to this Book.) But these modes of constituting servitudes were only applicable to the solum Italicum: in the provincial lands, where there was no legal ownership at all, no ownership of servitudes could be given. But Gaius says, that if any one wished to create a servitude over provincial prædia, he could effect it pactionibus et stipulationibus, using the words of the text. The parties agreed to constitute the servitude, and this agreement (pactio) was generally, perhaps almost always, followed by a stipulation or solemn contract (see Introd. sec. 83), by which the person who permitted the servitude to be constituted over his prædium, bound himself to allow of the exercise of the right, by subjecting himself to a penalty in case of refusal. (See THEOPHIL. Paraphrase of Text.) When the right had been once exercised, and the owner of the servitude had thus the quasi-possessio of the servitude, the prætor secured him in the enjoyment of his right by granting him possessory interdicts (see Introd. sec. 107, and note on introductory section of Title 6 of this Book), and also permitted him, if the servitude afterwards passed out of his quasipossessio, to bring an action to claim it, called the actio Publiciana, by which a bona fide possessor was allowed to represent himself fictitiously as a dominus, and to claim (vindicare) a thing as if he were the owner. In all probability the same mode of constituting servitudes obtained also with regard to the solum Italicum : although there were proper and peculiar modes of constituting servitudes over prædia Italica, yet if an agreement and stipulation were followed by quasi-possessio, the prætor would protect the quasi-possessor. And hence it was said that servitudes were constituted jure prætorio and were maintained tuitione prætoris.
Modern writers on Roman law are much divided in opinion whether servitudes were really constituted pactionibus atque stipulationibus, by agreements and stipulations alone, or whether we are always to understand that, to perfect the title, what is termed quasi-traditio was necessary. That is, whether, as traditio was necessary to transfer the property in a corporeal thing, so it was necessary, in order to transfer the property in an incorporeal thing, that the person to whom it was transferred should be placed in the legal quasi-possession of his right. If the servitude was a positive one, it is very easy to see how this quasi-possession could be established; for directly the right was exercised with the animus possidendi, and permitted to be so exercised by the owner of the res serviens, the person in favour of whom the servitude was constituted would have the quasi-possession. But when the servitude was a negative one, when the owner of the res serviens was merely bound not to do something, the only evident mode by which possession could be said to be gained was, when the owner of the res dominans successfully resisted an attempt of the owner of the
res serviens to do the thing which he was bound by the servitude not to do. But as the exercise of the right given by a positive servitude was an act evident and cognisable by all whom it concerned, it is with regard to positive servitudes that the question is principally debated, whether the exercise of the right was an indispensable part of the right being constituted. On the whole, it seems the better opinion that quasi-tradition was a necessary part of the constitution of a servitude.
Mancipation and in jure cessio were quite obsolete in the time of Justinian. We have two modes given in the text by which servitudes might be constituted under his legislation; (1) pactionibus atque stipulationibus, i.e. agreements, whether followed or not by a stipulation, and (2) testamento. When given testamento, a servitude might be given directly to the legatee equally well as by condemning the heir to transfer it to him, both modes, in the time of Justinian, having exactly the same effect. To these modes must be added : 3. That adjudicatione, when a judge awarded the property in a servitude under the actions familice erciscundæ and communi dividundo. (See Introd. sec. 103; D. x. 2. 22. 3.) 4. That of reserving the servitude in making a traditio of the rest of the property, when it was in fact constituted by having all the other jura in rem separated from it, instead of, as usual, being itself separated from the rest. 5. Lastly, the possessor who had had a long quasi-possession of a servitude was protected in it. The usucapion of servitudes, which perhaps existed previously, was forbidden by the lex Scribonia. (A.U.c. 720; D. xli. 3. 4. 29.) But a long bona fide possession was protected by prætorian actions and interdicts. Traditio plane et patientia servitutum inducet offcium prætoris. (D. viii. 1. 20; D. viii. 3. 12.) This, perhaps, principally applied to servitudes urbanorum prædiorum, for these only were capable of a continuous exercise (servitutes quæ in superficie consistunt, possessione retinentur). (D. viii. 2. 20.) But there were particular servitudes rusticorum prædiorum, long usage of which gave rights which were protected. Among these were the jus aquæ ducendo (D. viii. 5. 10), the jus itineris, and the jus actus. (D. viii. 6. 25.) The possessor had to show that his possession had been neither vi, clam, nor precario; but had not to show any good title for possession. (D. viii. 5. 10.) What was the length of time requisite for the possessor to have exercised the right is not certain, although it may be conjectured to have been the same as for the longi temporis possessio of provincial lands, i.e. ten years for those present and twenty for the absent. If land was acquired by usucapion, the servitudes that went with it were also acquired in the same way (D. xli. 3. 10. 1), and if a servitude had been lost by non-usage, it could, or at any rate some servitudes could, be regained by two years' usucapion. (Paul. Sent. i. 27. 2.)