THE DIGEST OR PANDECTS. BOOK VIII.
TITLE I. CONCERNING SERVITUDES.
1. Marcianus, Rules, Book HI.
Servitudes are either personal, as use and usufruct; or real, as the servitudes of rustic and urban estates.
2. Ulpianus, On the Edict, Book XVII.
One of the owners of a house held in common cannot impose a servitude upon it.
3. Paulus, On the Edict, Book XXI.
Some servitudes are attached to the soil, others to the surface.
4. Papinianus, Questions, Book VII.
Servitudes cannot be created by direct law from a certain time, or until a certain time, or under a condition, or on a certain contingency; (for example, "as long as I wish",) nevertheless, if such provisions as these are added, and a party brings suit for the recovery of the servitude, in violation of the terms of the contract, an exception may be interposed on the ground that the claim is contrary to what had been agreed upon, or for fraud, and this Cassius states was the opinion of Sabinus in which he himself concurred.
(1) It is established that limitations can be added to servitudes; as, for instance, with reference to what kind of transactions shall be permitted, or shall not be permitted upon a roadway, as, for instance, that it must only be traversed by a horse, or that only a certain weight shall be transported, or such-and-such a flock shall be driven over it, or that charcoal shall be carried.
(2) Where intervals of a certain number of days and hours are mentioned, this does not relate to the question of time, but only to the manner in which a servitude created in accordance with law shall be enjoyed.
5. Gaius, On the Provincial Edict, Book VII.
Servitudes granted for a driveway, a pathway, the passage of cattle, and the conduct of water, are created in almost the same manner as those in which we have stated that usufruct is created.
(1) The enjoyment of servitudes may be limited with reference to time; for example, where a party may make use of the servitude from the third until the tenth hour, or on alternate days.
6. Paulus, On the Edict, Book XXI.
A servitude can be either released or created with reference to a certain part of the land.
7. Ulpianus, On the Lex Julia et Papia, Book XIII. The right of building a sewer is a servitude.
8. Paulus, On Plautius, Book XV.
A servitude cannot be imposed permitting us to pick apples, or to walk about, or to eat our dinner, on the land of another.
(1) If I have a servitude in your land, or if I become the owner of part of said land, and you become the owner of part of mine, the servitude will be retained in both parts of the same; although in the beginning, it could not have been acquired with reference to only a part.
9. Celsus, Digest, Book V.
If a right of way through the property of another is merely granted or bequeathed to anyone he will have the right to walk or drive over it, but only in a proper manner, that is to say over any portion of the same; for certain things are tacitly understood to be excepted in ordinary conversation. He will not, however, be permitted to go through the house, or to walk or drive through the vineyards, when he might have done so just as conveniently elsewhere, and with less injury to the land subject to the servitude. For it is settled that in whatever direction he first directs his course, he must afterwards use the same in walking and driving; and that he has no power subsequently to change it. This view was also held by Sabinus, who stated in an argument that it was lawful for a party to direct a water-course wherever he pleased, but after this was done he could not change it; and it is true that this rule should also be observed in the case of a right of way.
10. The Same, Digest, Book XVIII.
Where the right to walk through property is bequeathed which cannot be enjoyed unless certain work is performed, Proculus says that the legatee has a right to make a path by excavation, or by substructure.
11. Modestinus, Differences, Book VI.
It is commonly held that a servitude cannot be acquired of a part of the ownership; and therefore, where anyone who has a tract of land stipulates for a right of way and afterwards alienates a portion of said land, he, in this instance, vitiates the stipulation by introducing matters for which, in the beginning, a stipulation could not have been made. A right of way with reference to a part cannot be either bequeathed or revoked, and if this is done, neither the bequest, nor the revocation will be valid.
12. Javolenus, Epistles, Book IV.
I do not doubt that a servitude of land can be duly acquired through a slave belonging to a municipality.
13. Pomponius, On Quintus Mucius, Book XIV.
Where a right of way has been granted, and the place indicated for the same is so narrow that neither a vehicle nor a beast of burden can enter it, it will be held that a pathway rather than a driveway is
acquired. But if a beast of burden can be conducted through it but a vehicle cannot, the right of way for cattle is held to be acquired.
14. Paulus, On Sabinus, Book XV.
Servitudes of rustic estates, even though they are attached to corporeal property are, nevertheless, incorporeal, and therefore can never be acquired by use; there may be servitudes of such a kind that they do not admit of certain and continuous possession, for no one can have permanent and continuous possession of a path in such a way that it can be held not to be interrupted for any time. The same rule must be observed with reference to the servitudes of urban estates.
(1) The servitudes of a path leading to a tomb remains private property, and therefore it can be released to the owner of the land subject to the servitude; and, it can also be acquired even after the tomb has been invested with a religious character.
(2) Where land belonging to the public or a highway is situated between two estates, a servitude for drawing water may be imposed, but a water-course cannot. It is, however, customary to petition the Emperor to permit the party, "to conduct water across a highway in such a manner as to cause no inconvenience to the public".
The existence of sacred and religious places between two tracts of land prevents the creation of the servitude of a pathway; since no one is entitled to a servitude through places of this kind.
15. Pomponius, On Sabinus, Book XXXV.
Whenever servitudes are neither personal nor real, then, because the neighbors have no interest in them, they are not valid; as for instance, one which states that you shall neither walk nor stand on your own property. Therefore, if you grant me as a servitude that you will not have the right to use and enjoy the crops from your own land, this is void. It would be otherwise, however, if you granted me a servitude providing that you should have no right to draw water on your own land, for the purpose of diminishing my supply of water.
(1) The nature of servitudes is not such that a person should be compelled to do anything whatever, (as for instance, to move shrubbery in order to give a more pleasant view, or, for the same purpose, to paint something on his own land), but he should only tolerate something, or agree not to perform some act.
16. Julianus, Digest, Book XLIX.
Where a man has received real property as security, it is not unjust that he should be granted a prætorian action to enforce a servitude to which it is subject; just as an action of this kind will be granted for the recovery of the land itself. It is established that the same rule must be observed with respect to a party who holds land under a perpetual lease.
17. Pomponius, Rules.
A share in a right of way, or a pathway, or a driveway for cattle, or a water-course, cannot be made the subject of an obligation, be-
cause the use of these things is undivided; and therefore where a stipulator dies leaving several heirs, anyone of them can bring an action for the entire right of way; and if the party promising dies leaving several heirs, an action can be brought for the entire right against any one of them individually.
18. Paulus, Questions, Book XXXI.
Papinianus states in a note that it has been established that in all instances where servitudes have been extinguished by the entry of the heir, a legatee will be barred by an exception on the ground of fraud, if he does not permit the servitudes to be again imposed.
19. Labeo, Last Works, Abridged by Javolenus, Book IV.
I think that where anyone sells land, a servitude can be imposed upon it, even if it is not useful to him; for example, where a party would have no interest in a water-course, such a servitude can nevertheless be created, as there are certain things which we can have, even though they are of no advantage to us.
20. Javolenus, On the Last Works of Labeo, Book V.
As often as a right of way or any other right attaching to land is purchased, Labeo is of the opinion that security should be given that nothing will be done by you to prevent the purchaser from availing himself of his right, because there can be no open delivery of a right of this description. I think that the use of such a right must be considered as equivalent to delivery of possession; and therefore interdicts corresponding to those relating to possession have been established.
TITLE II. CONCERNING SERVITUDES OF URBAN ESTATES.
1. Paulus, On the Edict, Book XXI.
Where land belonging to the public or a highway intervenes, this does not prevent the servitudes of a right of way, or for driving cattle, or for raising the height of a house, from being enjoyed; but it does interfere with the right of supporting a beam by a wall, or of a projecting roof, and it also interferes with the servitudes for the flowing and dripping of water, for the reason that the sky over the aforesaid ground should be free.1
(1) Where the usufruct of a house is yours, and I have the mere ownership of the same, and it is subject to the support of the building of a neighbor; suit can be brought against me for all of it, but no legal proceedings can be instituted against you.
2. Gaius, On the Provincial Edict, Book VII.
The following are the rights to which urban estates are subject, namely: that of raising a house and obscuring the lights of a neighbor,
1 "Cujus est solum ejus est usque ad clum, et ad inferos." ED.
or of preventing a raising of this kind; that of allowing the dripping of rain-water on the roof or the ground of a neighbor; and also that of not allowing the right of inserting beams into the wall of a neighbor, and that of the projection of a building; and others similar to these.
3. Ulpianus, On Sabinus, Book XXIX.
A servitude providing against obstructing a view also exists.
4. Paulus, Institutes, Book II.
Where a servitude of lights is created, it is held that what is acquired is that a neighbor must not interfere with our lights, but if the servitude imposed is to prevent the obscuring of lights, we seem to have especially acquired the right that a neighbor shall not raise his building any higher against our will, so as to lessen the amount of light in our house.
5. Ulpianus, On the Edict, Book XVII.
We must understand the unwillingness of anyone in matters relating to servitudes to mean, not that he objects in so many words, but that he does not consent. Therefore, Pomponius states in the Fortieth Book, that even an infant and an insane person may be properly said to be unwilling; for these terms do not relate to the act, but to the right to impose servitudes.
6. Gaius, On the Provincial Edict, Book VII.
Moreover, these servitudes just as those of rustic estates, are lost by want of use after a certain time has elapsed; except that this distinction exists between them, namely: that they are not absolutely lost by want of use, but only where the neighbor obtains freedom by usucaption at the same time. For instance, if your house is servient to mine so that it cannot be raised any higher lest it may obstruct the lights of my building, and I have my windows closed or obstructed during the time established by law; I lose my right only where you have had your house raised and remaining higher during the time aforesaid; otherwise, if you construct nothing new, I will retain the servitude. Moreover, if your house is subject to the servitude of the insertion of a beam, and I remove the beam, I only lose my right if you fill up the hole from which the beam was taken, and retain things in this state during the time prescribed by law; but if you make no change, my right remains unimpaired.
7. Pomponius, On Quintus Mucius, Book XXVI.
Mucius says, with reference to what is stated about my acquiring freedom for my building by usucaption, that I could not have acquired it by planting a tree in that same place; and this is correct, because the tree would not remain in the same condition and place as a wall would do, on account of the natural motion of the tree.
8. Gaius, On the Provincial Edict, Book VII.
Where a wall is, according to natural law, common property, neither of two neighbors has a right to tear it down, or repair it, because he is not the sole owner.
9. Ulpianus, On the Edict, Book LIII.
Where a man by raising his own house shuts off the lights of his neighbor, and is not subject to a servitude imposed upon his building, no action can be brought against him.
10. Marcellus, Digest, Book IV.
Gaurus to Marcellus: I have two houses, I bequeathed one of them to you, and my heir raised the other and obstructed your lights; can you bring an action against him, and do you think that it makes any difference whether the house which he raised was his own or the one which he inherited? I wish also to ask whether an heir is obliged to grant access to property, which has been bequeathed, through a house belonging to another; as this inquiry is frequently made where the usufruct of land is bequeathed, which cannot be reached except through the property of another.
Marcellus answered: Where a man has two houses and bequeathed one of them, there is no doubt that the heir can obstruct the light to the one bequeathed by raising the other; and the same must be said where a party bequeathed a house to one legatee, and the usufruct of another house to another. A similar rule, however, is not always applicable to a right of way, because, without access, the legacy of usufruct is worthless; but a man can live in a house where the light has been obstructed. Moreover, where an usufruct of land is bequeathed, access to it should also be given, because if what was left was the privilege of drawing water, a right of way for this purpose ought also to be granted. It should, however, be stated that the heir is permitted to obstruct the light and to darken the house, only to such an extent that the light should not be entirely cut off, but as much left as will be sufficient for the ordinary requirements of the inmates of the house during the day.
11. Ulpianus, On the Office of Consul, Book I.
Where anyone wishes to cut off his neighbors' lights, or to do anything else which may interfere with their convenience, he must remember that he is obliged to preserve the original form and position of the building.
(1) Where no agreement exists between you and your neighbor as to the height of a building which you have undertaken to erect, you can have an arbiter appointed.
12. Javolenus, On Cassius, Book X.
Where buildings are subject to a servitude that no portion of them shall be raised any higher, shrubs can be placed upon them above that height; but where the servitude relates to the view and the shrubs would obstruct it, this cannot be done.
13. Proculus, Epistles, Book II.
A certain Hiberus, who owns a building in the rear of my warehouse, built bathrooms against the party-wall; although it is not law-
ful for anyone to conduct pipes along a party-wall, just as he has no right to build another wall over it; and the law applies with much more force to pipes, because, by means of them, the wall may be burned. I wish that you would speak to Hiberus about this, in order to prevent him from doing what is illegal. Proculus answered, "I do not think that Hiberus has any doubt in this instance that he is doing something which is not allowed in placing pipes along a party-wall".
(1) According to the opinions of Capito, it is permitted to encrust a party wall with ornamental stucco, as I can have very valuable paintings on a wall of this kind; but if my neighbor demolishes the wall, and proceedings are instituted for the prevention of threatened injury, on a stipulation, paintings of this description cannot be appraised any higher than ordinary plaster; and this rule must also be observed with reference to decorative encrustation.
14. Papirius Justus, On the Constitutions, Book I.
The Emperors Antoninus and Verus stated in a Rescript, that the owner, or anyone else with his consent, has a right to build on vacant land which is not subject to a servitude, if he leaves the lawful space between where he builds and the neighboring house.1
15. Ulpianus, On Sabinus, Book XXIX.
Different rules are observed with reference to servitudes which provide against obstructing lights, or impeding the view; because with reference to the view, as the dominant owner has a greater interest in having a pleasant and unobstructed prospect; but, so far as the lights are concerned, nothing must be done by which they may be obscured, and therefore whatever the servient owner does to this end can be prohibited, if a servitude exists; and notice of a new structure can be served upon him, provided he acts in such a way as to obstruct the light.
16. Paulus, Epitomes of the Digest of Alfenus, Book II.
Light is the power of seeing the sky, and a difference exists between light and view; for a view of lower places may be had, but light cannot be obtained from a place which is lower.
17. Ulpianus, On Sabinus, Book XXIX.
Where anyone plants a tree so as to interfere with the light, it may be stated with perfect propriety that he acts in opposition to a servitude which has been imposed; for even a tree renders the sky less plainly visible. Where, however, what is placed there does not at all interfere with the light, but only cuts off the rays of the sun; if this is done in a place where it was more pleasant to be without it, it can be said that no act has been committed in violation of the servitude; but if it is done so as to cut off the sunshine from a room, or from a sun-
1 That is, two feet and a half. Ambitos, parieteis sestertios pes estod. (Leges XII Tabularum, VIII, I.) This, of course, left a space of five feet between adjacent buildings, as each owner was compelled to leave the amount above stated. ED.
dial, it must be said that, by producing shade in a place where sunshine was necessary, he acts in violation of the servitude imposed.
(1) On the other hand, if a man removes the building or the branches of a tree, by which a place which was formerly shady becomes exposed to the sun, he does not violate the servitude; for he must act in such a way as not to obstruct the light, and in this instance he does not obstruct it, but he causes too much light.
(2) Sometimes, however, it may be said that even where a party removes or lowers a building, he still obstructs the light; if for instance, the light entered into a house by reflection or repercussion, or in some other way.
(3) The following clause with reference to delivery: "The dripping from the roof to remain as it is at present"; means that the neighbors are required to allow the dripping of water from the roof, but not to the extent that the purchaser is to tolerate it from neighboring buildings; and therefore the vendor alleges that he is entitled to a servitude of the dripping of water from a roof but is not subject to this so far as anyone else is concerned.
(4) What has been stated here with reference to the dripping of water from a roof, must be understood to apply to all other servitudes also, if nothing to the contrary has been expressly agreed upon.
18. Pomponius, On Sabinus, Book X.
Where pipes through which you conduct water being attached to my house cause me damage, I am entitled to an action in factum, and I can also demand from you a stipulation for the prevention of threatened injury.
19. Paulus, On Sabinus, Book VI.
Proculus says that a pipe attached to a party-wall, and which carries water from a cistern, or from the sky, is something which cannot legally exist; but that a neighbor cannot be prevented from having a bath-room against a wall of this kind, even though the wall might become damp; any more than he could be prevented from pouring out water in his own dining or bed-room. Neratius, however, says that the neighbor can be prevented from doing this, if the apartment was used for warm baths, so that it kept the wall constantly damp, and this was a source of injury to his neighbor.
(1) Where a room of earthenware is built against a party-wall, it can legally exist if it is so constructed that it will remain even if the party-wall is removed, provided it does not interfere with the repairs of the same.
(2) Sabinus says very properly that I can have a stairway against a party wall because it can be removed.
20. The Same, On Sabinus, Book XV.
Servitudes which are only attached to the surface of the ground are retained by possession; for if I should happen to have a beam extending from my house and inserted into yours, then, since I have the right of such insertion, I have possession of the privilege on account of
the said beam. The result will be the same if I have a balcony supported by something on your land, or if I permit the dripping of water on your premises since I am using something which belongs to you, and thus, as it were have possession by my own act.
(1) If my yard is higher than your house, and you have granted me the right to walk or drive through your yard to my house, and there is no level approaching to my house through your yard; I can legally build steps, or an inclined plane to my door, so long as I do not demolish anything more than is necessary for the purpose of establishing the right of way.
(2) Where a building from which water drips from the roof is removed in order that another of the same shape and nature may be erected there, the public welfare requires that the latter should be understood to be the same structure; for, otherwise, if a strict interpretation is made, the building afterwards erected on the ground will be a different one; and therefore when the original building is removed the usufruct will be lost, even though the site of a building is a portion of the same.
(3) Where the servitude of the dripping of water is imposed, the owner of the ground subject to the same cannot legally build upon the place where the water falls.
(4) Where the water was discharged in the first place from a tile-roof it can not subsequently be discharged from the one of boards, or one constructed of any other material.
(5) In whatever manner a servitude of the dripping of water was acquired, the fall can be made greater by raising the building to a higher level, since by this means the servitude will be more easily tolerated, as what falls from a height does so more gently, and sometimes is dispersed, and does not reach the place subject to the servitude; but it cannot be lowered, because that the servitude would become more onerous, that is to say, instead of a drip there will be a stream.
For the same reason the drip may be carried back, as in this instance, it will begin to fall more on our premises; but it cannot be brought forward, since it would then fall on another place than that subject to the servitude; for we can render anything less onerous, but not more so. And, by all means, it should be borne in mind that the condition of a neighbor may be improved, but not made worse, unless at the time that the servitude was imposed, some change was expressly provided for.
(6) Where anyone builds upon ground which is subject to the servitude of a drip from a roof, he has the right to raise his building to the place from which the drip proceeds; and indeed, if it falls upon the building itself he can erect it still higher, provided, however, the drip is still properly taken care of.
21. Pomponius, On Sabinus, Book XXXIII.
Where your house is subject to two servitudes in favor of buildings belonging to me, namely: that it must not be raised higher, and must
receive the water from off my building, and I grant you the right to raise your house without my consent; it must be held, so far as relates to the drip of my water, that if your house is raised higher, and it is impossible for the rain-water from mine to fall upon it, you will not for that reason be permitted to raise it any higher, but if the drip from mine is not interfered with, you can raise it higher.
22. Julianus, On Minicius, Book II.
A man who owns a house can impose such a servitude upon his neighbor as to compel him to give security not only with reference to the lights which exist at the present time, but also with reference to any that may subsequently be made.
23. Pomponius, On Sabinus, Book XXXIII.
Where a servitude is imposed as follows, "The lights which are now in existence are to remain in their present condition": this is not held to provide anything with respect to future lights; but if the words of the bond are: "Lights are not to be obstructed", this clause is ambiguous, and does not indicate whether the lights which now exist are not to be obstructed, or whether other lights which may be afterwards made are included. The more favorable construction is that the clause refers in general terms to all lights, whether they exist at the present time, or are made after the contract has been executed.
(1) Even where a building has been planned but has not yet been erected, a servitude may be acquired by or imposed upon it.
24. Paulus, On Sabinus, Book XV.
Where a person has a building which is higher than that of another, he can legally raise his own house as high as he wishes, so long as this does not impose a more onerous servitude on the buildings below than they should bear.
25. Pomponius, On Sabinus, Book XXXIII.
What has been stated concerning the insertion of timbers into a building is applicable where one house supports something belonging to another; otherwise, no one can have his building rest upon that of another, (1) Where three houses stand on sloping ground, and the middle house is subject to a servitude in favor of the upper one, but the lowest is not servient to any, and the party-wall dividing the lower and the middle houses is raised by the owner of the lowest one, Sabinus says that in this instance the said owner can legally retain the wall which has been raised.
26. Paulus, On Sabinus, Book XV.
Where property is held in common, none of the owners can, by virtue of a servitude, build anything without the consent of the others, or prevent the others from building anything; since no one can have a servitude attached to his own property. Therefore, on account of the interminable controversies that may result, the property is usually divided; but, by means of an action in partition, one of the parties in
interest can prevent any work from being done, or can cause the others to remove anything which has already been constructed, provided this is for the benefit of all.
27. Pomponius, On Sabinus, Book XXXIII.
However, if you and I are joint-owners of the Titian House, and something is illegally inserted from it into my own house, I undoubtedly will have a right of action against you for this reason; or what has been inserted must be removed. The same rule applies where, under similar circumstances, some portion of your house has been made to project over the one owned by you and me in common, since I, alone, am entitled to an action against you.
(1) If you intend to build upon ground held in common your joint-owner has the right to prevent it, even though the privilege of building has been granted you by a neighbor; because you have no right to build on common property against the consent of the other joint-owner.
28. Paulus, On Sabinus, Book XV.
Where an opening is made in the lower portion of the wall of a room or a hall belonging to another, which was done for the purpose of washing the floor; it is not considered to be a ground for the creation of a servitude for a flow of water, or an act by which a right can be acquired by lapse of time. This is true because no water falls on that place from the sky, since what is performed by the hands is not perpetual; but water that falls from the sky, although it is not continuous, is, nevertheless, due to a natural cause, and for that reason is considered as perpetual. Again, all servitudes attaching to real property must be based upon perpetual causes, and therefore the right to conduct water which has its source in a reservoir or a pond, cannot be granted as a servitude. The right to have water drip from a roof must also depend upon a natural and perpetual cause.
29. Pomponius, On Quintus Mucius, Book XXXII.
Hence, if the neighbor suffers damage as the result of such an opening as has been mentioned and with reference to which no servitude exists; it must be said that there is good ground for a stipulation providing against threatened injury.
30. Paulus, On Sabinus, Book XV.
Where anyone purchases and receives by delivery a house on which a servitude is imposed for the benefit of his own, the servitude is merged and extinguished; and if he wishes afterwards to sell the house, the servitude must be expressly renewed; otherwise the house will be sold free.
(1) If I obtained a portion of an estate over which I have a servitude, or to which I owe one, it is established that the servitude is not merged; as it is retained with reference to a portion of said estate. Therefore, if my land is servient to yours, and I transfer a share of mine to you, and you transfer a share of yours to me, the servitude will
remain unimpaired. Moreover, an usufruct acquired in either of the two tracts of land will not interrupt the servitude.
31. The Same, On the Edict, Book XLVIII.
Where the heir is charged by the will not to obstruct the lights of a neighbor but to grant him a servitude, and he demolishes the building; a prætorian action should be granted the legatee by which the heir can be prevented from proceeding, if he afterwards attempts to raise the building above its former height.
32. Julianus, Digest, Book VII.
If my house is servient to those of Lucius Titius and Publius Mævius, the provision being that I shall not be permitted to build my house any higher, and I ask permission of Titius to raise it, and I keep it raised for the time established by law; I will obtain freedom from the servitude by usucaption as against Publius Mævius; for Titius and Mævius were not entitled to one servitude together, but to two. The proof of this is that if either one of them should release me from the servitude, I would be free from that one alone, and should still be subject to the servitude for the benefit of the other.
(1) Freedom from a servitude is obtained by usucaption, where the house is held in possession; and therefore if a party who has raised his house relinquishes possession of the same before the time provided by law has expired, the usucaption is interrupted; and any other person who subsequently acquires possession of the same house, will obtain freedom by usucaption by the lapse of the entire term established by law. For the nature of servitudes is such that they cannot be possessed, but the party who possesses the house is understood to have possession of the servitude.
33. Paulus, Epitomes of the Digest of Alfenus, Book V.
The person who is required to replace a column which supported a neighboring house is the owner of the house subject to the servitude, and not he who wishes this to be done; for where it is stated in the written contract for the sale of a house that, "The wall must support the same burden as at present", the meaning is clear enough that the wall must exist in perpetuity; for it is not stated in these words that the wall must be there forever, as this indeed could not happen, but that there should always be a wall of this kind to support the weight; just as where anyone binds himself to another that he will grant him a servitude in order to support his building, and if the house which is subject to the servitude and sustains the burden should be destroyed, another will be erected in its place.
34. Julianus, On Minicius, Book II.
Where a man has two vacant lots, he can, by conveying one, subject it to a servitude in favor of the other.
35. Marcianus, Rules, Book HI.
Where the owner of two houses sells one, and states that it is to be subject to a servitude, but does not mention the servitude when he de-
livers it; he can bring an action on sale, or sue for recovery of an uncertain amount of damages in order to have the servitude imposed.
36. Papinianus, Questions, Book VII.
A man had two houses covered with a single wooden roof; and bequeathed them to different persons. I said that, because it is established that the timbers of a building could belong to two persons since they own certain parts of the same edifice, in this instance the timbers over their houses will belong to the two persons; for they will not have rights of action against one another to prevent the insertion of beams into their respective houses; and it makes no difference whether the houses are bequeathed to both absolutely, or to one of them conditionally.
37. Julianus, Digest, Book VII.
The same rule applies where the houses have been transferred to two parties.
38. Paulus, Questions, Book II.
If my house is so distant from yours that neither can be seen from the other, or a mountain stands between them and cuts off the view, a servitude cannot be imposed upon one for the benefit of the other.
39. The Same, Manuals, Book I.
For no one can impose a servitude upon his own building, unless the grantor and the grantee have the buildings in sight, so that one can interfere with the other.
40. The Same, Opinions, Book III.
I stated as my opinion, that persons who did not have the right to do so, had acted contrary to law by making openings in a party-wall and inserting windows therein.
41. Scævola, Opinions, Book I.
A testator bequeathed the right of habitation and the right to use a wareroom in the same house to Olympicus, during his lifetime; and adjoining said house there was a garden and an upper room which was not bequeathed to Olympicus, but access had always existed to the garden and the room through the house in which the right of habitation was bequeathed. The question arose whether Olympicus was obliged to permit this access? I answered that this was not a servitude, but that the heir could go through the house to those portions of the same which have been referred to, provided he did not inconvenience the legatee.
(1) Lucius Titius, having opened the wall of his house, made a doorway leading to ground owned by the public, without exceeding what was prescribed for the drip from the roof and the projection of the gutters; I ask, since he did not obstruct the lights of Publius Mævius, his neighbor, or what space he required for his passage, or did not interfere with the drip of rain-water from his neighbor's house, whether his said neighbor, Publius Mævius, would have any right to prevent him from doing these things? I answered that, according to what had been stated, he would have none.
TITLE III. CONCERNING THE SERVITUDES OF RUSTIC ESTATES.
1. Ulpianus, Institutes, Book II.
The following are the servitudes of rustic estates, namely: the right of walking, driving cattle, the right of way, and the right to conduct water. The first is the right a man has to pass or walk, but not to drive a beast of burden. The second is the right to drive a beast of burden, or a vehicle; and therefore a party who has the right to walk, has not the right to drive cattle; and he who has the latter privilege has also that of walking even without a beast of burden. The third is the right of passing, driving, or walking, for all are included in the right of way. The last is the right to conduct water over the land of another.
(1) Among rustic servitudes must be enumerated the right to draw water, as well as that to drive cattle to water, the right of pasturage, the rights of burning lime and of digging sand.
(2) It is clear that the delivery of servitudes and the toleration of the same admit of the intervention of the prætor.
2. Neratius, Rules, Book IV.
The servitudes of rustic estates include the right to raise a building and interfere with the residence of a neighbor, or to have a drain under the house or residence of a neighbor, or to have a projecting roof.
(1) The right to an aqueduct, or to draw water in order that it may be conducted over the same place, can also be granted to several persons; and this can be done on different days, or at different hours.
(2) Where the water-course or the supply of water to be drawn is sufficient, the right may be granted to several people to conduct the water over the same place, on the same days, or during the same hours.
3. Ulpianus, On Sabinus, Book XVII.
Moreover, servitudes may be created in such a way that oxen by means of which the land is cultivated may be pastured in neighboring fields; and Neratius, in the Second Book of Parchments, holds that such a servitude can be imposed.
(1) Neratius also says that a servitude can be created so that crops may be collected in the farm-house of a neighbor and kept there; and that the supports for vines may be taken from the land of a neighbor.
(2) In the same Book he says that where stone quarries belonging to a neighbor adjoin your land, you can grant him the right to throw dirt, rubbish, and rocks thereon, and to leave them there, or to let stones roll upon your land, to be left there until they are removed by you.
(3) Where anyone has the right to draw water, he is considered also to have the right of passage for the purpose of doing so; and, as Neratius says in the Third Book of Parchments, if the right to draw the water and the right of access for that purpose are both granted
him, he will be entitled to both; but where only the right of drawing water is granted, the right of access is also included; or where only access to the spring is granted, the right to draw water is included. This has reference to water drawn from a private spring. In the case of a public stream, Neratius states in the same Book, that the right of passage to it must be granted, but the right to draw the water is not necessary, and where anyone grants only the right to draw water, the grant will be void.
4. Papinianus, Opinions, Book II.
Servitudes for the pasturage of cattle, and also that of taking them to water, where the principal income of the land is derived from cattle, are held to be attached to the land, rather than to the person; but if a testator designated some certain individual in whose favor he desired the servitude to be established, it will not pass from the said person to the purchaser of the land, or to his own heir.
5. Ulpianus, On the Edict, Book XVII.
Therefore, according to him, the servitude can be recovered by an action.
(1) Neratius, in his work on Plautius, says that the right of drawing water for cattle or of driving cattle to water, or of digging chalk or of burning lime, on the ground of another, cannot exist unless the party has adjoining land; and he states that Proculus and Atilicinus hold the same opinion. But he also says that, although there is no question that a servitude for burning lime and digging chalk can be established, still this cannot be done for a greater amount than the requirements of the dominant estate demand.
6. Paulus, On Plautius, Book XV.
For example, when a man had a pottery, where vessels were made by means of which the produce of the land was taken away; just as in certain places it is usual for wine to be transported in jars, or vats to be constructed, or tiles to be made to be used in the construction of a house. If, however, the pottery was employed for the manufacture and sale of vessels, an usufruct would exist.
(1) Moreover, the right of burning lime, quarrying stone, and digging sand, for the purpose of building something on the land differs very greatly from an usufruct; and so does the right to cut stakes for vines so that supports may not be lacking. But what would be the case if these things improved the condition of the property? It cannot be doubted that they are of the nature of servitudes, and this Marcianus approves to such an extent that he thinks that a servitude can be created permitting me to build a hut on your land; provided, of course, that I possess a servitude of pasturage, or of driving cattle to water; so that I may have a place in which to take refuge when the weather is bad.
7. The Same, On the Edict, Book XXI.
Where anyone is borne on a chair or a litter, he is said to have the right to go on foot, and not to drive; but a party who has only the
right to pass on foot, cannot drive a beast of burden. If he has the right to drive cattle, he can drive a wagon or beast of burden, but in neither instance has he a right to haul stone or timber. Some authorities hold that he cannot carry a spear upright, because he would not do this if he were either walking or driving, and fruit might be injured by doing so. A party who has a right of way has also the right to pass on foot and to drive; and the greater number of authorities hold that he can drag objects also, and carry a spear upright, provided he does not injure the fruit.
(1) In the case of rustic estates, a field lying between them which is not subject to a servitude renders a servitude inoperative.
8. Gaius, On the Provincial Edict, Book VII.
By the Law of the Twelve Tables, the width of a road subject to a right of way, must be eight feet, where it is straight; but where there is a bend, that is to say where the road curves, it must be sixteen.
9. Paulus, Sentences, Book I.
A servitude for the conducting or drawing of water from any other point than the source or spring cannot be established; but at present it is customary for it to be established from any place whatsoever.
10. The Same, On the Edict, Book XLIX.
Labeo says that a servitude may be created in such a way that a party can be permitted to look for water and convey it, if it is found; for if it is lawful to create a servitude relating to a house which is not yet built, why should it not be equally lawful to create one with reference to water which has not yet been found? Moreover, if it is lawful for us to grant a servitude for a party to seek for water, it can also be granted premitting him to conduct it after it has been found.
11. Celsus, Digest, Book XXVII.
Where the right of passing or driving through land belongs to several persons, it can be granted to me separately by each of them. Therefore, strictly speaking, the right will not become mine unless all of them grant it; and when the last grant is made all those made previously will become operative. The more favorable construction, however, is, that before the last party makes the grant, those who have previously done so cannot prevent me from using the right already granted.
12. Modestinus, Differences, Book IX.
There is a difference between the right to drive cattle, and the right of passage; where anyone can travel either on foot, or on horseback, the latter right exists; but where he can drive a herd of cattle, or take a vehicle, the former right is implied.
13. Javolenus, On Cassius, Book X.
A servitude may be acquired in favor of certain kinds of land, as for instance, vineyards, because this would have reference rather to the soil itself than to the surface of the same; so that, if the vineyards were removed, the servitude will remain. But if another intention existed
when the servitude was created, an exception on the ground of malicious fraud will be necessary.
(1) Where an entire field is subject to a servitude of passage or the driving of cattle, the owner cannot do anything in the said field by which the servitude may be interfered with; because it is so extended that every clod is subject to it. But where the right of passage or to drive cattle is bequeathed without any limit, the limits shall be established at once, and where they are first established there will the servitudes be created, and the remaining parts of the field will be free. Hence, an arbiter must be appointed who, in both instances, should determine the direction of the right of way.
(2) The width of a driveway for cattle, and that of a pathway, is the one which was designated; and if nothing was said with reference to it, it must be fixed by the arbiter. In the case of a right of way the rule is different; for if the width is not stated, that which is established by law is the proper one.
(3) If the place is designated but the width is not given, the party can cross said place wherever he wishes. But if the place is not mentioned and the width is not stated, a right of way may be chosen over any portion of the land, but the width of the same must be that prescribed by law; and if there is any doubt as to the direction, the services of an arbiter must be enlisted to decide it.
14. Pomponius, On Quintus Mucius, Book XXXII.
If I grant a right of way to anyone through a certain place, I cannot grant a water-course to another through the same place; and if I grant a water-course, I cannot sell or grant a footpath to another through the same place.
15. The Same, On Quintus Mucius, Book XXXI.
Quintus Mucius says that where a party has the right to conduct water every day, or during the summer, or for longer intervals, through the land of another; he has also the right to place pipes of earthenware or of any other material in the channel, so as to distribute the water more widely, and that he can do whatever he pleases in the channel, provided he does not render the water-course less valuable to the owner of the land.
16. Callistratus, On Judicial Inquiries, Book III.
The Divine Pius stated in a Rescript to bird-catchers, "It is not proper for you to catch birds on the land of others without the consent of the owners".
17. Papirius Justus, On Constitutions, Book I.
The August Emperors Antoninus and Verus stated in a Rescript, that, "Where water is taken from a public river for the purpose of irrigating fields, it should be divided in proportion to the size of the same; unless someone can prove that, by virtue of a special privilege, he is entitled to more". They also stated in a Rescript that, "A party should only be permitted to conduct water where this can be done without injury to another".
18. Ulpianus, On Sabinus, Book XIV.
Where a right of way is created through several different tracts of land, it is still a single road, just as the servitude is also single, hence the question arises: If I pass through one tract of land but not through another for such a time as is necessary for the servitude to be extinguished, do I retain the servitude? The better opinion is that it is entirely lost, or entirely retained; therefore if I did not make use of either tract at all, the whole servitude is lost; but if I make use of one, the entire servitude is preserved.
19. Paulus, On Sabinus, Book VI.
Where one of several joint-owners stipulates for a right of passage through land held in common, the stipulation is void, as the right can not be given him; but where they all stipulate, or a slave owned in common by them does so, each of the joint-owners can bring an action asking that the right of way be granted him, because this can be granted by you to all of them in this manner; lest if the stipulator for the right of way should die and leave several heirs, the stipulation may become of no effect.
20. Pomponius, On Sabinus, Book XXXIII.
If you grant me at the same time the right to walk and drive over your premises, and also the right to use and enjoy the same, and then I surrender to you my right of use and enjoyment, you cannot use and enjoy the property, unless you leave me the unimpaired right to pass through or drive.
Moreover, if I have a right to conduct water through your land, and you do not have the right to build upon the same without my consent, and I grant you the right to build, you must, nevertheless, grant me the servitude that you will not erect any building except in such a way, that my water-course may remain unaltered; and the condition of everything must continue to be the same as it would have been if, in the beginning, only a single grant had been made.
(1) A servitude can damage the land subject to it naturally, and not through anything due to the agency of man; as, for instance, if the water in the channel should be increased by showers; or water should flow into it from an adjoining field; or a spring should afterwards be discovered along the channel or within it.
(2) If there is a spring adjoining the Seian Estate from which spring I have a right to conduct the water through the said estate, and the estate should become mine, the servitude will remain.
(3) The right to draw water does not attach to a person but to the land.
21. Paulus, On Sabinus, Book XV.
If you grant me a water-course through your land without designating the part through which I shall conduct it, all your land will be subject to the servitude.
22. Pomponius, On Sabinus, Book XXXIII.
But then the only parts of the land which would be affected by the servitude are those which were free from buildings, trees, or vines, when the grant was made.
23. Paulus, On Sabinus, Book XV.
A right of way can be granted wider or narrower than eight feet, so long as it is wide enough to be traversed by a vehicle; otherwise it would be a right of passage and not a right of way.
(1) Where there is a permanent lake on your premises, the servitude of navigating it may be imposed, in order to obtain access to adjoining land.
(2) If the servient estate, or that to which the servitude is attached, should be confiscated, the servitude remains unimpaired in both instances, because land which is confiscated retains its former condition.
(3) Wherever a servitude is attached to an estate, it is attached to every part of it; and therefore if the property is sold a portion at a time, the servitude follows every portion; hence the separate owners can properly bring actions setting forth that they have a right of way over said land. Where, however, land subject to a servitude is divided into certain tracts among several owners, although the servitude attaches to all portions of the same, it will, nevertheless, be necessary for those who own shares that do not join the land subject to the servitude to have a legal right of passage through other parts of the land which has been divided; or traverse it, if the adjacent owners allow this to be done,
24. Pomponius, On Sabinus, Book XXXIII.
Labeo states with reference to a water-course of mine, that I can lend it to any of my neighbors; but Proculus, on the other hand, says that it cannot be used for the benefit of any part of my land except that for which the servitude was acquired. The opinion of Proculus is the more correct one.
25. The Same, On Sabinus, Book XXXIV.
If I sell you a certain part of my land, the right to an aqueduct will also belong to you, even though it is principally used for the benefit of another part; and neither the excellence of the soil, nor the use of the water should be taken into consideration to imply that the right of conducting the water is only attached to that part of the property which is most valuable, or especially requires the use of it; but the division of the water must be made in proportion to the quantity of land reserved or alienated.
26. Paulus, On the Edict, Book XLVII.
Where a right of way, a right to pass on foot, a right to drive cattle, or a right to an aqueduct through land is bequeathed, it is in the power of the heir to establish the servitude over any part of the same that he
wishes, provided no advantage is taken of the legatee with reference to the servitude.
27. Julianus, Digest, Book VII.
If the Sempronian Estate is subject to a servitude in favor of land owned by you and me in common, and we purchase the same to be held in common, the servitude is extinguished; because the right of each owner has become the same in the two estates, respectively. But where the land purchased was subject to my own estate and to yours as well, the servitude will remain; because a servitude over an estate held in common can be attached to land owned in severalty.
28. The Same, Digest, Book XXXIV.
Where a right to pass through land is bequeathed to an estate held in common by two persons, unless both of them agree as to the direction of the pathway, the servitude is neither acquired nor lost.
29. Paulus, Epitomes of the Digest of Alfenus, Book II.
A party who had two adjoining tracts of land and sold the upper one. In the agreement it was stated that the purchaser should have the lawful right to discharge water upon the lower tract of land through an open ditch. The question then arose, if the purchaser should receive water from another tract, and wishes to discharge it upon the lower one, can he do so legally, or not? I answered that the lower neighbor was not obliged to receive more water than was necessary for the purpose of draining the land of the purchaser.
30. The Same, Epitomes of the Digest of Alfenus, Book IV.
A man who had two tracts of land, in the sale of one of them reserved the water which came from a spring on the land, and also a space of ten feet around it. The question arose whether the ownership of the ground reserved belonged to him, or merely whether he was entitled to access to it? The answer was that, "If what he retained was ten feet wide around said spring", it should be held that the vendor had only a right of way.
31. Julianus, On Minicius, Book II.
Three tracts of land which were contiguous belonged to three owners, and the owner of the lowest one had acquired for his tract from the highest one the servitude of a water-course, and this he conducted into his own land through the intervening tract with the permission of the owner of the same, and he afterwards bought the highest tract, and sold the lowest one on to which he had conducted the water. The question was asked whether the lowest tract had lost the right of conducting the water, because as both estates had become the property of the same owner no servitude could exist between them? It was denied that the lowest tract had lost the servitude because the land through which the water was conducted belonged to another, and as no servitude could be imposed in any other way upon the uppermost tract so
that the water might reach the lowest one, except by being conducted through the intermediate tract; so the same servitude in favor of the same tract of land could not be lost, unless, at the same time, the watercourse should cease to be conducted through the intermediate tract, or unless all three tracts should simultaneously become the property of a single owner.
32. Africanus, Questions, Book VI.
Where a tract of land is held in common by you and myself, and you have conveyed your portion of it to me, and also a right of way to said tract through your own adjoining property; it was held that the servitude was properly created in that way; and that, in this instance, the ordinary rule that servitudes cannot either be imposed or acquired with reference to shares is not applicable; for in this case the servitude is not acquired with reference to a share, but is acquired with reference to the time when the entire property shall belong to me.
33. The Same, Questions, Book IX.
Where you and I held two tracts of land, the Titian and Seian Estates, in common, and in dividing the same it was agreed that the Titian Estate should belong to me, and the Seian to you, and we conveyed our respective shares to one another, and in doing so it was stated that each one should be allowed to conduct water through the land of the other; it was held that the servitude was properly established, especially if a stipulation was added to the contract.
(1) You conduct water through the land of several persons. No matter in what way the servitude was created, unless an agreement was entered into, or a stipulation made with reference to it, you cannot grant to any of the owners, or to any neighbors the right to draw water from channels, but where an agreement or a stipulation was entered into, it is usual for this to be granted; although no land can be the subject of a servitude in favor of itself, nor can the usufruct of a servitude be created.
34. Papinianus, Questions, Book VII.
If one joint-owner of a tract of land permits anyone to have a right to walk or drive over it, the grant is void, and therefore if two tracts, which are servient to one another, become the common property of the owners, then, since it is established that servitudes can be retained with reference to a share, the servitude cannot be released by one of the parties to the other; although each joint-owner to whom a servitude is due enjoys the right in severalty; still, since it is not the persons but the estates which are subject to the servitudes, freedom cannot be acquired, nor can a servitude be released with reference to a part of an estate.
(1) Where a spring from which I have the right to conduct water dries up, and after the time fixed by law for the extinction of the servitude, it begins to flow again, the question arises whether the right to convey the water is lost?
35. Paulus, On Plautius, Book XV.
And Atilicinus says that the Emperor made the following statement in a Rescript to Statillus Taurus: "Those who were accustomed to obtain water from the Sutrine Estate appeared before me, and said that they were unable to conduct the water from the spring on the Sutrine Estate which they had used for several years, because the spring had dried up; and that afterwards the water began to flow from said spring, and they petitioned me that, as they had lost their right through no negligence of their own, but because they could not obtain the water, it might be restored to them. As their request did not seem to be unjust, I though that relief should be granted. It is therefore decreed that the right which they had on the first day when they could not succeed in obtaining water shall be restored to them."
36. The Same, Opinions, Book II.
When a vendor retains one of two estates, and a servitude for the conduct of water is imposed upon it by him, the servitude acquired for the estate which is purchased will follow the same if a sale is afterwards made; nor does it matter whether the stipulation by which it was agreed that a penalty should be promised had reference to the person of the purchaser, and made certain provisions in the event that he should not be permitted to enjoy the servitude.
37. The Same, Opinions, Book III.
"Lucius Titius to his brother Gaius Seius, Greeting: Of the water which flows into the reservoir which my father built on the isthmus, I give and grant to you gratuitously the depth of an inch, to be conducted either into the house which you have on said isthmus, or anywhere else you may wish". I ask whether by these terms the use of the water also belongs to the heirs of Gaius Seius? Paulus answered that as the use of the water was personal, it could not be transmitted to the heirs of Seius, as they occupied the position of parties entitled to the use of the same.
38. The Same, Manuals, Book I.
A right of way can be granted through a place where a river flows, if it can either be crossed by a ford or there is a bridge; but it is different where it must be crossed by ferry-boats. This is the case where the river runs through the land of one of the parties; but it is otherwise if your land joins mine, and then comes the river, and the land of Titius, and then a highway up to which I wish to acquire a right of way. Let us consider whether there is anything to prevent you from giving me a right of way as far as the river, and then my receiving one from Titius as far as the highway.
Again, let us consider whether the same legal principle will apply even if you are the owner of the land which is beyond the river on this side of the highway; because a right of way can be complete as far as a town, or as a highway, or as a river which must be crossed by ferry-boats, or as far as the land belonging to the same owner. If this
be the case the servitude is not held to be interrupted, even though a public river intervenes between two tracts of land belonging to the same person.
TITLE IV. RULES COMMON TO BOTH URBAN AND RUSTIC ESTATES.
1. Ulpianus, Institutes, Book II.
We designate buildings urban estates, and where buildings belong to a house in the country, servitudes of urban estates can also be created there.
(1) These servitudes are said to belong to estates because they cannot be created without them; for no one can acquire a servitude over an urban or rustic estate, unless he himself has an estate.
2. The Same, On the Edict, Book XVII.
With reference to the removal or drawing of water from the river by means of which, or where some one establishes a servitude over a reservoir, certain authorities have doubted whether these servitudes actually existed; but it was stated in a Rescript of the Emperor Antoninus to Tullianus that, although a servitude might not be valid in law, nevertheless, if the person in question acquired it under an agreement of this kind, or by any other legitimate means, he who was in possession of such a right should be protected.
3. Gaius, On the Provincial Edict, Book VII.
Where the owner of two tracts of land conveys one of them to you under the agreement that the tract which he conveyed shall be subject to a servitude in favor of the one which he retained, or vice versa; a servitude is understood to be lawfully imposed.
4. Javolenus, On Cassius, Book X.
It is not possible to provide that a monument shall only be built to a certain height, because what has ceased to be controlled by human law cannot be subject to a servitude; just as no servitude can be created providing that only a certain number of bodies shall be buried in one place.
5. The Same, Epistles, Book II.
I sell land which belongs to me alone; can I impose a servitude upon it to the effect that it shall be servient to myself and my neighbor? In like manner, if I sell property which I own in common with another, can I provide that it shall be subject to a servitude for the benefit of myself and my joint-owner? I answered that no one can stipulate for a servitude for the benefit of anyone but myself; and therefore the addition of the neighbor must be considered superfluous, as the entire servitude will belong to him who stipulated for it.
Again, when the land held in common is sold, I cannot subject it to the servitude for the benefit of myself and my joint-owner, for the
reason that a servitude cannot, through the act of one of the joint owners be acquired for the benefit of land held in common.
6. Ulpianus, On Sabinus, Book XXVIII.
Where anyone has two houses and sells one of them, he can state in the conveyance that the house which he does not sell is subject to a servitude in favor of the one which he does sell; or, on the other hand, that the one which is sold must serve the one which is retained; and it makes little difference whether the two houses are adjacent or not.
The same rule applies in the case of rustic estates, for where a man has two tracts of land, by conveying one of them he can impose a servitude upon it for the benefit of the other. But where he conveys two houses at the same time, he cannot impose a servitude on either for the benefit of the other; for he cannot acquire a servitude for the house of another, or impose one upon it.
(1) Where anyone disposes of a share in a house or in a tract of land, he cannot impose a servitude upon either, because a servitude cannot be imposed or acquired with reference to a share. It is evident that if he divides a tract of land into two parts, and alternates one part of what has been divided, he can impose a servitude upon either one of them; because neither is a part of an estate, but is an estate itself. This also may be stated with reference to a house, where the owner divides one building into two, by constructing a wall through the middle of the same, (as many persons do); for in this instance it must be considered as two houses.
(2) Moreover, suppose that we are two men who own two houses in common, by joining in the conveyance we can accomplish the same result that I alone could do, if I had two houses of my own. But even if we make separate conveyances the same thing will take place; for it is established that the last conveyance renders the former one effective.
(3) If, however, one of said houses belongs to one of two persons, and the other is the common property of both; then Pomponius, in the Eighth Book on Sabinus, states that I cannot acquire a servitude in favor of, or impose one on either. If anyone states in a contract of sale that the house which he sold shall be subject to a servitude, it is not necessary to convey the house free; wherefore he can either create a servitude for the benefit of his own house, or grant one to his neighbor; provided this is done before the delivery of the property. It is clear, if he stated that a servitude was to exist for the benefit of Titius, and he grants a servitude to Titius, the transaction is concluded; but if he grants a servitude to another party he is liable on the ground of sale. This is not in contravention of what Marcellus says in the Sixth Book of the Digest, namely: that where anyone, in the transfer of real property, says that it is subject to a servitude for the benefit of Titius, while in fact it is not, but the vendor is bound to convey the land to Titius; can the vendor bring an action on sale to compel the purchaser to permit the servitude to be imposed on the land which he contracted for?
He thinks the better opinion is that he should be permitted to bring the action. He also says that if the vendor is able to sell the servitude to Titius, he must still be permitted to bring suit. This is with the understanding that the statement was made at the time of delivery, for the purpose of retaining the servitude; but if, as he says, the vendor feared that Titius was entitled to the servitude, and therefore reserved it, an action on sale will not lie, if he made no provision for the servitude.
7. Paulus, On Sabinus, Book V.
Where one house is conveyed by a party who has two; the description of the servitude should be expressly set forth; for if it is only mentioned in general terms that the house is subject to a servitude, the statement will be inoperative, because it is uncertain what kind of a servitude it reserved, or any kind of servitude may be imposed.
(1) Where a house which belongs to another party is situated between the two, a servitude can be created; as for instance, that the height of one of them may, or may not be raised; or even where a right of way is owing, that it shall only become operative if a servitude should subsequently be imposed on the intervening house; just as a servitude can be imposed on tracts of land belonging to several owners, even at different times. Although it can be stated that if I have three tracts of land which are adjoining, and I convey that at one end to you, a servitude can be acquired either for the benefit of your tract, or for that of both of mine; but if it is acquired for the tract most distant from you, which I have retained, the servitude will stand, because the intermediate tract is mine. But if I subsequently alienate either the tract for whose benefit the servitude was acquired, or the intermediate one, the right will be interrupted until a servitude is imposed on the intermediate tract.
8. Pomponius, On Sabinus, Book VIII.
If I have two houses, and convey them at the same time to two parties, it should be considered whether a servitude imposed on either of them is valid, since a servitude cannot be imposed on, or acquired for, the house of another; but where this is done before delivery, he who conveys the property acquires the servitude for, or imposes it on, his own property, rather than that of another; and therefore the servitude will be valid.
9. The Same, On Sabinus, Book X.
If I have become the heir to someone whose land is subject to a servitude in my favor, and I sold the land to you, the servitude must be restored to its former condition, because it is understood that you are, so to speak, the heir.
10. Ulpianus, On Sabinus, Book X.
Whatever a vendor wishes to reserve for himself by way of servitude, must be reserved in express terms, for a general reservation such as the following: "Any persons entitled to servitudes may certainly
retain them", has reference to strangers, and not to the vendor for the purpose of preserving his rights, for he has none, because no one owes him a servitude.
Again, if I was entitled to a servitude, and the ownership of the land afterwards became vested in me, it is held that the servitude is extinguished in consequence.
11. Pomponius, On Sabinus, Book XXXIII.
Right of access is granted to parties entitled to a privilege of this kind, for the purpose of making repairs to places which are not subject to the servitude, where such access is necessary, and it is not expressly mentioned in the grant of the servitude in what way access should be permitted. Therefore, the owner of land cannot make the ground religious along a river, or above one; if, for instance, the water should be conducted under ground, lest the servitude might be extinguished; and this is correct. You have, however, the right to conduct the water through a lower or a higher channel, except where it has been provided that you should not do so.
(1) If I have the privilege of conducting water through a channel near your land, the following rights are implied: I can repair the channels; I and my workmen can, for the purpose of repairing the same, approach as near as possible to the place; and I can also require the owner of the land to leave me sufficient space to approach the channel on the right and left banks of the same, and to throw down dirt, loam, stone, sand, and lime.
12. Ulpianus, On Sabinus, Book XV.
Where one tract of land is subject to a servitude for the benefit of another, and either one is sold, the servitudes pass with the property; and where buildings are subject to servitudes for the benefit of tracts of land, or vice versa, the same rule applies.
13. Ulpianus, Opinions, Book VI.
The vendor of the Geronian Estate set out in the contract for the Botrian Estate which he retained, that no tunny-fishery should take place near it. Although a servitude cannot be imposed on the sea by private contract, since by nature it is open to all, still, as the good faith of the contract demands that the conditions of the sale should be observed, the persons in possession or those who succeed to their rights are bound by the provisions of the stipulation or the sale.
(1) If it is known that there are stone-quarries on your land, no one can cut stone there either as an individual, or in the public service, without your consent, where he has no right; unless a custom exists in said quarries that, if anyone should wish to take stone from them he can do so, provided he first pays the usual compensation to the owner; and even then he can only take the stone after giving security to the owner that the latter shall not be prevented from using such stone as he needs, nor the enjoyment of the property by the owner be destroyed by the exercise of his right.
14. Julianus, Digest, Book XLI.
The creation of a right of way is not prevented by stating that it can only be used during the day; because, in fact, this is almost necessary in the case of property situated in towns.
15. Paulus, Epitomes of the Digest of Alfenus, Book I.
Where one party has granted another a right of passage or of driving cattle through a specified place, it is certain that he can grant either of these rights to several persons through the same place, just as, where anyone has imposed a servitude on his own house in favor of his neighbor, he can, nevertheless, impose a similar servitude on the same house in favor of as many other persons as he wishes.
16. Gaius, Diurnal, or Golden Matters, Book II.
A testator in his will can direct his heir not to raise the height of his house, in order to avoid obstructing the light of an adjacent building, or charge him to permit a neighbor to insert a beam into his wall, or to allow the rain water to fall on his premises from his roof, or permit his neighbor to walk or drive through his land or conduct water from it.
17. Papinianus, Questions, Book VII.
Where a neighbor builds a wall across your land with your permission, he cannot be proceeded against by means of the interdict Quod precario habet; nor, after the wall has been built, is it understood that the grant of a servitude is complete; nor can the neighbor legally claim that he has a right to hold the wall without your consent; since the building follows the condition of the land, and this renders the claim invalid.
But where a party who was subject to a servitude for your benefit builds a wall across his own premises with your consent, he will not obtain freedom by usucaption; and proceedings can be brought against him on the interdict Quod precario habet. If, however, you should permit him to build a wall by way of gift, you cannot apply for the interdict, and the servitude will be extinguished by the donation.
18. Paulus, Manuals, Book I.
It has been settled that several joint-owners, even where they do not join in the conveyance, may impose or acquire servitudes, on the ground that former acts are confirmed by more recent ones; so that it is the same as if all of them had made the grant at the same time. Therefore, if he who first granted the servitude should die, or dispose of his share in any other way, and afterwards his joint-owner should make a grant, the entire transaction will be void; for when the last one makes the grant the servitude is not considered to be acquired retroactively, but it is held to be the same as if when the last one made the grant all of them had done so; consequently, the last act will remain in abeyance until the new joint-owner makes a grant.
The same rule applies where a grant is made to one of the joint-owners, and afterwards some such occurrence as those above mentioned
with reference to the person of another joint-owner takes place. Hence, on the other hand, if any of these things should happen to one of the joint-owners who has not made a grant, all of them will be compelled to make a new grant; for only so much time is conceded to them as to enable them to make a grant even at different times, and therefore the grant cannot be made to one person, or by one person.
The same rule applies where one party grants a servitude and another bequeaths it by will, for if all the joint-owners bequeath a servitude, and their estates are entered upon at the same time, it may be said that the servitude is properly bequeathed; but if the estates are entered upon at different times, the legacy does not legally vest; for it has been established that the acts of living persons may be suspended so far as their operation is concerned, but that those of deceased persons cannot.
WHERE AN ACTION IS BROUGHT TO RECOVER A SERVITUDE, OR THE RIGHT OF ANOTHER TO IT IS DENIED.
1. Ulpianus, On the Edict, Book IV.
Rights of action with reference to servitudes, whether they are rustic or urban, belong to those who own the land; but our burial-places are not the subject of our ownership, although we can claim a right of way to a tomb.
2. The Same, On the Edict, Book XVII.
We are entitled to actions in rem for servitudes, (just as we are in the case of those relating to an usufruct), whether such actions are confessory or negatory; a confessory one being that employed by a party who claims he is entitled to a servitude, and a negatory one being that which can be brought by an owner who denies that one exists.
(1) This confessory action in rem lies in favor of no one else but the owner of the land; for no one can bring an action to recover a servitude except a party who has the ownership of adjacent land, and alleges that the servitude is attached to it.
(2) Neratius very properly states that if the usufruct of land situated in the middle of a tract is bequeathed, a right of way must also accompany it; that is to say, through such portions of said tract over which he who granted the usufruct would establish the right of way so far as is necessary for the enjoyment of the usufruct; for it must be borne in mind that where a right of way is granted an usufructuary for the purpose of enjoyment it is not a servitude, nor can a servitude exist for the benefit of a party entitled to the usufruct of the soil; but if one is attached to the land, the usufructuary can use it.
(3) Pomponius says that an usufructuary can apply for an interdict for a right of way, if he has availed himself of it within the year; for there are two kinds of judicial inquiries, one, relating to a question of law, that is to say in a confessory action; another relating to a ques-
tion of fact, as in this interdict: as Julianus also stated in the Forty-eighth Book of the Digest.
Labeo says in support of the opinion of Julianus, that even if the testator who bequeathed the usufruct himself made use of the right of way, an interdict could justly be granted the usufructuary; just as an heir or purchaser is entitled to such an interdict.
3. The Same, On the Edict, Book LXX.
It may also be stated that the same rule is applicable where anyone purchases part of an estate.
4. The Same, On the Edict, Book XVII.
The actual locality is not a part of the ownership of the person to whom its servitude is due; but he is entitled to the right of way.
(1) A party who has a right to pass on foot without the right to drive, or has the right to drive without the right to pass on foot, can make use of an action for a servitude.
(2) In a confessory action which is brought with reference to a servitude, the profits can also be included. Let us consider, however, what the profits of a servitude are; and with reference to this, the better opinion is that the only thing which can come under the denomination of profits is the interest, (if any), which the plaintiff has in not being excluded from the enjoyment of the servitude. But in a negatory action, (as Labeo says), the profits are computed with reference to the interest of the plaintiff in not having his adversary use a right of way over his premises; and Pomponius concurs in this opinion.
(3) Where the land to which the right of way is attached belongs to several persons, each one is entitled to an action for the whole; and this Pomponius lays down in the Forty-first Book. In the appraisement of the damages, however, the amount of the interest will be taken into consideration, that is, the interest of the party who institutes the proceedings. Therefore, where only the right is concerned, any one of the parties can proceed separately, and if he gains his case, the others will profit by it; but the estimate will be limited to the amount of his interest; although the servitude cannot be acquired through one joint-owner alone.
(4) Where the land subject to the servitude belongs to two parties, suit can be brought for this purpose against either of them (as Pomponius says in the same Book), and whichever one defends the case must restore the whole, because this is something which is not capable of division.
(5) Where anyone does not question my right to walk, or drive, or use a right of way, but does not permit me to make repairs, or to cover the road with stone, Pomponius in the same Book says that I am entitled to a confessory action; for if a neighbor has a tree which hangs over in such a way as to make the road or path impassable or useless; Marcellus, in a note on Julianus, states, that an action can be brought for the right of passage or to recover the right of way.
With reference to the repairs of roads, we can also make use of an interdict, that is the one which is available for the repair of a pathway, or a driveway, but this proceeding cannot be instituted where the party wishes to cover the road with stone, unless this was expressly agreed upon.
(6) We are also entitled to actions in rem with reference to a right to draw water, for the reason that this is a servitude.
(7) The owner of a building is also entitled to an action relating to a servitude where he denies that he is subject to a servitude in favor of his neighbor, when his house is not entirely free, but is not subject to a servitude for the benefit of the party against whom the suit is brought. For example, I have a house adjacent to the Seian and Sempronian houses, and I owe a servitude to the Sempronian house, but I wish to institute proceedings against the owner of the Seian house, because he prevents me from raising the height of mine. I must bring an action in rem against him, for although my house is subject to a servitude, still, it is not subject to one in favor of the parties sued; and therefore I claim that I have the right to raise my house still higher, even against his consent, for my house is free, so far as he is concerned.
(8) Where a man is not permitted to raise his house any higher, an action can very properly be brought against him, alleging that he has no right to raise it. This servitude may even exist in favor of a party who owns a house some distance away:
5. Paulus, On the Edict, Book XXI.
And, therefore, if you have a house between mine and that of Titius, I can impose a servitude on the house of Titius to prevent him from raising his any higher, although a servitude of this kind can not be imposed on yours; because so long as you do not raise yours, the benefit of the servitude remains.
6. Ulpianus, On the Edict, Book XVII.
And if it should happen that the person who owns the intervening building, as he is not subject to a servitude, raises his house still higher, so that now I cannot be held to obstruct your lights if I should build; you will allege in vain that I have no right to build in this way without your consent; but if, within the time prescribed by law, the neighbor should demolish his building, your right of action will be revived.
(1) It should be borne in mind, however, that with reference to these servitudes, the possessor of the right may be also the plaintiff; and if perchance, I have not raised the height of my building; then my adversary is the possessor of the right, for, since nothing new has been done, he is in possession and can prevent me from building, by means of a civil action, or by an interdict Quod vi aut clam. The result will be the same if he hinders me by casting a pebble.1 But if I build without his objecting, I myself will then become the possessor.
1 It was customary, where the rights of either the owner of the property or of one who was entitled to a servitude imposed upon the same were invaded, to
(2) Moreover, we are entitled to an action with reference to a servitude which was imposed for the support of a burden, for the purpose of compelling the servient owner to maintain the support, and repair his building in the way which was provided when the servitude was imposed.
Gallus thinks that a servitude cannot be imposed in such a way that a man shall be compelled to do something, but that he shall not prevent me from performing some act; for in every servitude the duty of making repairs belongs to the party who claims the right, not to him whose property is subject to the same. The opinion of Servius, however, has prevailed so that, in the case stated, anyone can claim the right to compel his adversary to repair his wall, in order to support the burden. Labeo says, however, that this servitude is not attached to the person but to the property, hence the owner is at liberty to abandon the property.
(3) This action indeed is rather a real than a personal one, and will lie in favor of no one else but the owner of dominant tenement; and it can be brought against the owner of the servient tenement, just as in the case of other servitudes.
protest against the act of the aggressor by casting a pebble against the structure which was in course of erection. If no attention was paid to this, the injured party had recourse to one of the interdicts Quod vi aut clam, or Uti possidetis. The first of these, which was the one usually employed under the circumstances, was not restricted in its application to buildings or structures which had been, or were being erected, but to any acts by which the rights of the plaintiff were infringed after he had given notice that the defendant must not proceed. The notice was operative for a year, or until the transfer of the property, or the death of the party who served it.
This proceeding was merely for the purpose of restitution, whether the plaintiff had sustained some serious damage either through the open violence or stealth of the possessor or aggressor. Every person who had an interest of any kind in the land, the owner, a lessee, an usufructuary, an heir, a patron, was entitled to the interdict Quod vi aut clam, if he could establish good ground for it in his application to the prætor. The terms of the writ, from which it derived its name and which were set forth in the Edict were: "Quod vi aut clam factum est, qua de re agitur, id quam expererindi potestas est restituas."
It was absolutely essential that the injury should be done to land or something attached to the same; even throwing filth into a well for the purpose of rendering the water unfit for use came within the rule.
The intention was always to be taken into consideration and especially the animus celandi, where clandestine acts were performed or false representations made for the purpose of deceiving the plaintiff. After the prohibitory notice had been served, if the possessor, his agent or attorney, or even his slave, persisted in doing anything to further what was complained of, it was held to have been accomplished by violence, and the interdict would lie. The party either directly or indirectly responsible for the wrong was the one required to make amends for it; Semper adversus possessorem opens noc interdictum competit."
The interdict Uti possidetis had reference to possession, and was available by an owner or possessor who had either been ejected or prevented from enjoying rights to which he was legally entitled. Both the interdicts Quod vi aut clam and Uti possidetis applied only to real property, and hence differed from the one called Utrubi, which was issued when chattels alone were involved, and was dependent not upon present possession but upon who had held the article in question for the longest period during the past year. ED.
(4) Papinianus, in the Third Book of Questions, discusses the point whether, where a house belongs to several joint-owners, suit can be brought with reference to the entire servitude? He says that the owners can bring suit separately for the whole, just as can be done in the case of other servitudes with the exception of usufruct. This answer should not be given, he adds, where the house which sustains the burden of a neighbor is owned in common.
(5) The nature of the repairs which can be the subject of this action is dependent upon what was stated when the servitude was imposed; it might have been agreed that the party should repair with dressed stone, or ordinary building stone, or any other kind of material which was mentioned when the servitude was created.
(6) Profits are taken into consideration in this action, that is to say, the benefit which the party would have obtained if his neighbor had supported the weight of his house.
(7) The servient owner has a right to make the wall better than was agreed upon, when the servitude was imposed; but if he attempts to make it worse, he can be prevented from doing so either by this action, or by notice of a new structure.
7. Paulus, On the Edict, Book XXI.
The result of these actions is that the plaintiff, if he gains the case, by application to the judge will either have relief granted or security furnished. The relief which should be granted is that the judge must order the defendant to repair the defect of the wall and place it in a proper condition. The security is, that the judge shall order him to give a bond for the repair of the wall, and to provide therein that neither he nor his successors will prevent the plaintiff from raising it higher, and will maintain the edifice after it is built; and if he gives this security he shall be discharged from liability. But if he does not either allow the relief to be granted, or furnish security, he shall be ordered to pay damages to the amount to which the plaintiff will make oath in court.
8. Ulpianus, On the Edict, Book XVII.
It being thus the duty of one neighbor to repair the wall, the support of the building of the other neighbor who is entitled to the servitude, while the repairs are going on, is not a part of the duty of the owner of the lower building; for if the owner of the upper one does not wish to prop up the building himself, he can demolish and rebuild it when the wall is rebuilt. In this instance also, as in that of other servitudes, a counter action will be granted; that is to say, one in which it is set forth that you have no right to use compulsion against me.
(1) An action will lie in my favor against him who grants me a servitude such as the following, namely: that I shall have the right to insert timbers into his wall, and upon said timbers (for example), to build a gallery in which to promenade, and to place columns on the top of the wall, for the purpose of supporting the roof of said gallery.
(2) These actions differ from one another in that the first may be employed to compel the adjoining neighbor to repair my wall; but the second is only available to compel him to receive my timbers; for this is not contrary to the ordinary nature of servitudes.
(3) If, however, it should be asked which party should sustain the position of possessor and which one that of plaintiff; it must be remembered that if the timbers are already inserted, the party who alleges that he is entitled to the servitude is in the position of possessor; but if they are not inserted, he who denies this right is the possessor.
(4) And if he who claims the servitude for himself should be successful, the servitude should not be granted to him, because he has it already, if the decision was rendered in accordance with law; nor should it be if it was wrongfully rendered, for the reason that, by the decree, the servitude was not to be established, but to be declared to exist. It is clear that if, after issue had been joined, the plaintiff lost the servitude by not making use of it through the malicious fraud of the owner of the building, it must be restored to him; just as has been decided in the case of the owner of the building.
(5) Aristo, in an opinion given to Cerellius Vitalis states, that he does not think that smoke can lawfully be discharged from a cheese-factory upon buildings situated above it, unless a servitude of this kind is imposed upon said buildings; and this is admitted. He also says that it is not legal to discharge water or anything else from an upper on to a lower building, as the party has only the right to perform such acts on his own premises as will not discharge anything upon those of another, and there can be a discharge of smoke as well as of water; hence the owner of the higher building can bring suit against the owner of the lower and allege that the latter had no right to do this. He says, in conclusion, that Alfenus holds that an action can be brought in which it is alleged that a party has no right to cut stone on his own ground in such a way as to allow the pieces to fall on my premises. Hence Aristo says that a man who rented a cheese-factory from the people of Minternæ could be prevented by the owner of a house above it from discharging smoke, but the people of Minternæ would be liable on the lease; and he also says that the allegation which he can make in his suit against the party who discharges the smoke is that he has no right to do so.
Therefore, on the other hand, an action will lie in which it may be alleged that he has the right to discharge smoke, and this also Aristo approves. Moreover, the interdict Uti possidetis is applicable where a party is prevented from making use of his own property in any way that he pleases.
(6) A doubt is raised by Pomponius in the Forty-first Book of Passages, as to whether anyone can allege in an action that he has a right, or that another has no right to make a light smoke; as for example, one from a hearth on his own premises. He holds that such an action cannot be brought, just as one cannot be brought alleging that a party has no right to make a fire, or to sit down, or to wash on his own premises.
(7) He also approves of an opposite decision, for he says that, in the case of a bath, where a certain Quintilla had built an underground passage for vapors which were discharged upon the property of Ursus Julius, it was established that such a servitude could be imposed.
9. Paulus, On the Edict, Book XXI.
If you build on a place through which I have a right of passage, I can allege in a suit that I have a right to walk and drive there; and if I prove this, I can prevent you from working. Julianus also says that if a neighbor of mine, by building upon his land, avoids receiving the drip from my roof, I can bring an action based on my right; that is to say, the right to discharge the water of my roof on his premises; just as we have stated with respect to the right of way. But where he has not yet built, the other party, whether he has the usufruct or the right of way, can set forth that he has a right to walk or drive, and the right of enjoyment; but if the owner has already built, he who is entitled to the right of way can still allege that the right belongs to him, but the usufructuary cannot do so, because he has lost the usufruct; and therefore Julianus says that an action on the ground of fraud should in this case be granted. On the other hand, if you build across a right of way to which my estate is subject for your benefit, I can properly allege that you have no right to build, or to have a building there; just as I could do if you built anything on unoccupied land which belongs to me.
(1) Where a man has been accustomed to use a broader or a narrower road than he was entitled to, he will retain the servitude; just as a party who has a right to use water and uses it mixed with other water retains his right.
10. Ulpianus, On the Edict, Book LIII.
Where anyone has obtained the right of conducting water by long use, and, as it were, by long possession, it is not necessary for him to establish by law the right which he has to the use of the water; for instance, to show that it was derived from a legacy or in any other way; but he is entitled to an equitable action to prove that he has had the use of said water for a certain number of years, and that this was not obtained by force, or by stealth, or by sufferance.
(1) This action can be brought not only against the party on whose land the source of the water is situated, or through whose premises it is conducted, but also against all persons who try to prevent me from conducting the water; just as in the case of other servitudes. Generally speaking, I can institute proceedings by means of this action against anyone whomsoever that attempts to prevent me from conducting the water.
11. Marcellus, Digest, Book VI.
The inquiry was made can one of a number of joint-owners legally build on land held in common by them without the consent of the others; that is to say, if he is forbidden to do so by the said joint-owners, can he institute proceedings against them and allege that he has a right to build; or can the other joint-owners bring an action against him,
and assert they have a right to prevent him, or that he has no right to build; and if the building is already constructed, can they not bring suit against him on the ground that he has no right to have a building there under the circumstances?
This can be best answered by saying that a joint-owner has a better right to prevent building, than to build; because he who is attempting to perform an act of this kind (as I have already stated), if he wishes to use the common property, according to his own pleasure, as if he were the sole owner of the same, is appropriating to his own individual use a right which belongs to others.
12. Javolenus, Epistles, Book HI.
I alleged in an action that the defendant had no right to have his timbers inserted into my wall; must he also give security that he will not insert any into it hereafter? I answered that I think it is part of the fluty of the judge to compel him to give security with reference to future work as well.
13. Proculus, Epistles, Book V.
I have pipes by which I conduct water on the public highway, and these, having burst, flooded your wall; I think that you are entitled to an action against me, in which you can allege that I have no right to allow water to flow from my premises against your wall.
14. Pomponius, On Sabinus, Book XXXIII.
If a wall belongs to me, and I permit you to insert into it timbers which you had there formerly, and you then wish to insert others, you can be prevented from doing so by me; and, indeed, I have a right of action to compel you to remove any timbers which you have recently inserted therein.
(1) If a party-wall which you and I own, should, on account of any work which you have done, incline towards my house, I can bring an action against you and allege that you have no right to have a wall in that condition.
15. Ulpianus, Opinions, Book VI.
By raising his house a person caused it to obstruct the lights of a building belonging to a minor under twenty-five years of age, or under the age of puberty, of whom he was the curator or guardian; and although, in this instance, he himself and his heirs would be liable to be sued, for the reason that he had no right to commit an act which, on account of his office, he was required to prevent anyone else from doing; still, an action should be granted to the boy, or to the minor, against anyone who is in possession of the said house, to compel him to remove what was not lawfully constructed.
16. Julianus, Digest, Book XVII.
If I purchase from you permission to let rain-water drip from my house on to yours, and afterwards, with your knowledge, on account of the purchase, I allow it to do so; I ask, whether I can on this ground
be protected by any action or exception? I answered that I can avail myself of either resource.
17. Alfenus, Digest, Book II.
If there should be a wall between two houses, which projects a half a foot or more towards the adjacent building, proceedings must be instituted alleging that the defendant ought not to permit the wall to project in this manner over the premises of the plaintiff without his permission.
(1) A certain part of the premises of Gaius Seius was subject to a servitude for the benefit of the house of Annius, which provided that Seius should have no right to put anything in that place; but Seius planted trees there, and under them kept basins and other vessels. All persons learned in the law advised Annius to bring suit against Seius on the ground that he had no right to have those things in that place without his consent.
(2) A neighbor placed a dunghill against the wall of another party from which the wall became damp; and advice was asked in what way he could compel his neighbor to remove the dunghill. I answered, that if he had done this in a public place he could be compelled to remove it by means of an interdict; but if it was done in a private place, it would be necessary to bring an action with reference to a servitude; and if there had been any stipulation for the prevention of threatened injury, the party could avail himself of the stipulation if he had sustained any damage on account of what had been done.
18. Julianus, On Minicius, Book VI.
The slaves of a certain man had prevented a neighbor from conducting water, and the responsible party having concealed himself to avoid suit being brought against him, the complainant asked what he can do? I answered that the prætor, after having heard the case, must order the property of the defendant to be taken into possession and not surrendered until he had established a right of conducting water for the benefit of the plaintiff, if he had suffered any damage from drought, because he had been prevented from conducting water; as for instance, if his meadows or his trees had been dried up.
19. Marcianus, Rules, Book V.
Where anyone makes proper allegations in a suit with reference to a servitude which he enjoys in common with others, and loses the case in some way through his own negligence, it is not just that this should cause any damage to the other joint-owners; but if, through collusion, he abandons the suit to his adversary, an action on the ground of fraud should be granted to the others; as Celsus says, and he adds that this was also held by Sabinus.
20. Scævola, Digest, Book IV.
A testatrix owned some houses adjoining a tract of land which she bequeathed; the question arose, whether, if these were not included with the land and the legatee should bring suit to recover it, the said
land would be subject to any servitude for the benefit of the houses; or if the legatee claimed that the land should be conveyed to him in compliance with the terms of a trust, whether the heirs ought to reserve a servitude in favor of the houses? The answer was that they should do so.
(1) Several citizens of a town, who owned different estates, purchased a tract of woodland, to be held in common for the enjoyment of the right of pasturage, and this arrangement was carried out by their successors; but some of those who had this right subsequently sold the separate estate above mentioned. I ask whether, after the sale, the right follows the said estates, since it was the intention of the vendors to also dispose of this right? The answer was that what had been understood between the contracting parties must be observed; but if their intention was not evident, that this right would also pass to the purchasers. I also ask, if when a portion of the said individual estates has been conveyed by the legatees to anyone else, whether it would carry with it any part of the right of pasturage? The answer was, that as this, right must be considered to be attached to the estate which was bequeathed, it would also go to the legatee.
21. Labeo, Epitomes of Probabilities by Paulus.
Where no water has yet appeared, no right of way to it, nor any canal for the conduct of the same can be established. Paulus says, I think, that this is not true, by any means; because a grant can be made permitting you to look for water, and, if it should be found to convey it.
TITLE VI. HOW SERVITUDES ARE LOST.
1. Gaius, On the Provincial Edict, Book VII.
The servitudes of estates are merged when the same person becomes the owner of both estates.
2. Paulus, On the Edict, Book XXI.
Where a man has the right to both walk and drive, and only uses that of walking during the period established by law, the right to drive is not lost, but still remains in force; as Sabinus, Cassius, and Octavenus hold; and a party who has the right to drive can also make use of that to walk.
3. Gaius, On the Provincial Edict, Book VII.
It is commonly held that servitudes attached to real property are not lost by death or by the forfeiture of civil rights.
4. Paulus, On the Edict, Book XXVII.
The right of access to a burial-place is never lost by want of use.
5. The Same, On the Edict, Book LXVI.
A servitude can be retained for our benefit through a joint-owner, an usufructuary, or a bona-fide possessor:
6. Celsus, Digest, Book V.
For it is sufficient that there should be a right of access on account of the land.
(1) Where you and I have a right of way through the land of a neighbor, and I use it, but you cease to do so for the period prescribed by law, will you lose your right? And, on the other hand, if a neighbor who has a right of way through our land, walks or drives through my portion of the same, but does not enter yours, will this free yours? Celsus answered that if the estate is divided by metes and bounds between the joint-owners, then, so far as the servitude to which the land is entitled is concerned, it is the same as if it had been attached to both estates from the beginning, and either one of the owners can make use of his own servitude, and each can lose his own by want of use, and the interests of the two estates are no further involved; no injury is done to the party whose land is subject to the servitude, but in fact, his condition is improved, since one of the owners by making use of the right benefits himself and not the entire estate.
But where the estate subject to the servitude is divided in this way, the matter is involved in a little more doubt; for if the location of the right of way is certain and well defined, then, if the estate is divided in the line of the right of way, everything must be observed just as if there had been two distinct estates in the beginning, when the servitude was established; but if the land is divided across the line of the right of way, (and it does not make much difference if this is done equally or unequally) then the right of servitude remains just as it was when the land was undivided, and nothing less than the entire right of way can be retained by using it, or lost by failure to do so; and if it should happen that the owner uses only as much of the way as crosses one of the tracts of land, the other will not become free for that reason, since a right of way is one, and hence is indivisible.
The parties can, however, liberate either of the estates from the servitude, provided they expressly agree to do so; and, at all events, if the party who is entitled to the servitude should purchase one estate, after the division, will the servitude to which the other tract of land is subject remain operative? I do not see how anything absurd can result from this opinion, while one of the estates remains subject to the servitude; provided that, from the beginning, a narrower right of way was created than was mentioned in the contract, and that space enough still remains in the estate, with reference to which the servitude was not released, for the right of way to be made use of; but if insufficient space remains for this purpose, then, both estates should be freed; one on account of the purchase, the other because a right of way cannot be created over the space which remains.
If, however, the right of way was so established that the party was at liberty to walk or drive over any portion of the estate that he chose; and there was nothing to prevent his changing his direction from time to time, and afterwards the estate was divided; if he could walk and drive equally over any portion that he chose, then we must consider
the case just as if, in the beginning, two servitudes had been imposed on both estates in such a way that one could be retained and the other lost by want of use. I know perfectly well that, under these circumstances, the right of one of the parties would be impaired by the act of the other, since, formerly it would have been sufficient if the party had walked or driven over part of the land to enable him to retain the same right over the rest of it; but the party entitled to the right of way secured the advantage of being able to walk or drive over two roads equally; that is, over two roads each eight feet wide where straight and sixteen feet where curved.
7. Paulus, On Plautius, Book XIII.
If the right to conduct water is granted in such a way that this can only be done during the summer, or for one month, the question arises how it may be lost by want of use; because there is no continuous term during which the party could use it but did not do so? Therefore, if anyone has the use of water for alternate years or alternate months, the right is lost by lapse of double the time prescribed by law; and the same rule applies with reference to a right of way. If, however, the party has a right which he can make use of on alternate days, or only by day, or only by night, this will be lost by the lapse of time established by law, because it is but a single servitude; for Servius says that if he has a servitude which he can make use of every other hour, or only for one hour each day, he will lose the servitude by not using it, because what he has can be made use of every day.
8. The Same, On Plautius, Book XV.
If I have the right to allow the water from my roof to fall on your land, and I permit you to build there, I lose my right to allow the water to fall. In like manner, if I have a right of way over your land, and I permit you to build anything on the place over which I have the right of way, I lose it.
(1) A person who transfers a portion of a roadway to which he has a right, is considered to be using the whole of it.
9. Javolenus, On Plautius, Book III.
Where water flows into a part of a canal, even though if it does not reach the extreme end of the same, all parts of said canal are held to be used.
10. Paulus, On Plautius, Book XV.
Where I and my ward hold land in common, even though we both do not make use of a right of way attached to the same, I retain the right of way on account of the benefit to the ward.
(1) Where a party has a right to make use of water at night, but only uses it during the day for the period established by law for the loss of a servitude, he loses the right to make use of it at night, because he failed to exercise his privilege. The same rule applies to a party who
has a right to use an aqueduct during certain hours, and makes use of it at others, and not during any part of the hours which are mentioned.
11. Marcellus, Digest, Book IV.
Where a party who was entitled to a right of way or a right to drive, provided he made use of vehicles of a certain kind, used one of another kind; let us consider whether he has not lost his servitude, and whether the case is not different where a party has been transporting a heavier load than he had a right to do; for the latter may be held to have made an excessive use of his right of way rather than to have done so wrongfully; just as if he had used a wider road, or had driven more beasts of burden than he should have done, or had obtained water from some ether source. Therefore, in all these instances, the servitude is not lost, but the party is not permitted to have as a servitude more than is included in the contract.
(1) Where land was left as a legacy under a condition, and the heir imposed certain servitudes upon it; if the condition of the legacy is complied with, the servitude will be extinguished. Let us consider whether if they had been acquired by the land, they would follow the legacy for the benefit of the legatee, and the better opinion is that they would.
12. Celsus, Digest, Book XXIII.
Where a party in good faith purchases land which did not belong to the vendor, and uses a right of way which is attached to the land, the right will be retained; and this also will be the case even if he is a possessor by sufferance, or, after the owner has been ejected by force; for where land is invested with a certain character so that it is held in possession in that condition, the right is not lost; and it does not make any difference whether or not the party in possession, who holds it as it is, does so legally or not. Wherefore, it may be stated even more positively, that if water flows through a channel of itself, the right of conducting it there is retained; which opinion was very properly held by Sabinus, and is mentioned in Neratius in the Fourth Book of Parchments.
13. Marcellus, Digest, Book XVII.
Where a party who owns an estate entitled to a right of way over neighboring land sells a portion of the same adjoining the servient estate, but does not impose the servitude, and before the prescribed time by which a servitude is lost has elapsed, again acquires the portion which he sold, he will be entitled to the servitude which his neighbor owed.
14. Javolenus, On Cassius, Book X.
Where a place subject to a right of way or a right to walk or drive is overflowed by a river, and before the time established for the loss of the servitude has elapsed, the land is restored by a deposit of alluvium, the servitude is also restored to its former condition. If, however, so much time should elapse that the servitude is lost, the owner of the land can be compelled to renew it.
(1) Where a highway is destroyed by the overflow of a river, or by the destruction of a building, the nearest neighbor must furnish a roadway.1
15. The Same, Epistles, Book II.
Where I am entitled to a servitude over several tracts of land, and I acquire one of the tracts situated between two others, I think that the servitude remains, for a servitude is merged only when the party to whom it belongs cannot make use of it; but where he has acquired land between two other tracts, it may be held that he is entitled to a right of way through the first and last of these.
16. Proculus, Epistles, Book I.
Several persons by reason of a right were accustomed to conduct through the same canal water which had its source on the land of a neighbor, in such a way that each one, on a certain day allotted to him, conducted the water from its source through a ditch which was held in common, and then through one of his own, each succeeding the other who was immediately above him; and one of them failed to conduct any water during the time established by law for the loss of a servitude. I think that he lost the right to conduct the water, for it was not exercised by the others who did conduct it, and this right belonged to each one of the parties as his own, and could not be exercised by another.
But where a water-course was attached to land belonging to several parties, it could have been used by one of them for the benefit of all those by whom the land was held in common.
Again, where one of the parties entitled to a right of conducting water, and who did conduct it through the same channel loses the right to do so by failure to use his privilege, no right for this reason will accrue to the others who used the channel; and the benefit of the right which was lost as to the share of one party by non-user will belong to him through whose land was traversed by the water-course, and he would enjoy freedom from this much of the servitude.
17. Pomponius, Various Passages, Book XI.
Labeo says that if anyone who has a right to draw water should, during the time by the lapse of which a servitude is lost, go to a spring but not draw any water, he will lose the right of way also.
18. Paulus, On Sabinus, Book XV.
Where anyone uses other water than that which is agreed upon at the time when the servitude was imposed, the servitude is lost.
(1) The time during which the last owner of the land to which a servitude is attached did not use the water is counted against the party
1 This rule is as old as the Laws of the Twelve Tables, and is still applicable to both highways and private roads. The right is based upon the maxim, "Quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest". When part of a highway is impassable, persons prevented from using it can, without ceremony, tear down fences and pass over the adjoining land, even through growing crops, provided they take the shortest route available and cause no more damage than is absolutely necessary. ED.
who succeeds to his place. If you have the right to insert a beam into an adjacent house, and your neighbor has not built it within the time prescribed by law, and therefore you are unable to insert it, you do not, for that reason, lose your right; because your neighbor cannot be considered to have acquired by usucaption freedom from the servitude to which his house was subject, since he never interrupted the use of your right.
19. Pomponius, On Sabinus, Book XXXII.
If, when selling a portion of my land, I provide in the contract that I shall have a right to conduct water over that portion to the remainder of my premises, and the time prescribed by law elapses before I excavate a ditch, I do not lose any right, as there is no place for the water to flow, and my right remains unimpaired; but if I dug the ditch and did not use it, I would lose my right.
(1) If I bequeath to you a right of way over my land, and, my estate having been entered upon, you should, for the time fixed by law for the loss of a servitude, remain ignorant that this right had been left to you; you will lose the right of way by failure to make use of it. But if, before the time had expired, you sell your land without having ascertained that the servitude had been bequeathed to you, the right of way will belong to the purchaser, if he should make use of it for the remaining time, because, in fact it had already commenced to be yours, and it might happen that you would never have the right even to reject the legacy, as the land would not belong to you.
20. Scævola, Rules, Book I.
A servitude is retained by use when it is made use of by the party entitled to it or who is in possession of the same, or by his hired servant, his guest, his physician, or anyone who comes to pay him a visit, or his tenant, or an usufructuary:
21. Paulus, Sentences, Book V.
Even though the usufructuary should enjoy it in his own name;
22. Scævola, Rules, Book I.
In fine, whoever makes use of the right of way just as if he is entitled to do so,
23. Paulus, Sentences, Book V.
Whether he uses it in order to approach our land or to leave it,
24. Scævola, Rules, Book I.
Even though he may be a possessor in bad faith, the servitude will be retained.
25. Paulus, Sentences, Book V.
A party is not held to use a servitude except when he believes that he is exercising a right which belongs to him; and therefore where anyone makes use of it as a highway or as a servitude belonging to another, he will not be entitled to an interdict or to any other legal proceeding.