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SERVITU´TES Where one person has a right over property of another, which he can assert by legal remedy against any one who interferes with its exercise, and not merely against the owner of the property, he is said to have a jus in re aliena, and his right belongs to those which are “real” or in rem. By the existence of such a right the legal position of the owner is diminished in value: his ownership, which otherwise would be unrestricted, is curtailed, not in duration, but in extension. The presumption of law was in favour of the freedom of property, and the burden of proving his right over it lay on the other party: hence, when a thing was sold as optima maxima, this [p. 2.652]was legally understood to mean that it was warranted free from any real rights in persons other than the owner (Dig. 50, 16, 90 and 169: cf. Cic. de Leg. Agr. 3.2, 7). Two classes of such jura in re aliena are known to Roman law: one recognised by the old Jus Civile, and termed servitutes; the other of praetorian origin, and known by specific names, viz. EMPHYTEUSIS, PIGNUS, and SUPERFICIES

The term servitus properly denotes the quasi non-free condition of an object over which rights are enjoyed by a person other than its owner (Dig. 39, 1, 5, 9), but more commonly it is used to express the deducted right itself. As to such rights in general, there are a few fundamental rules admitting of very brief statement. No one can have a servitude over property of his own ( “nulli res sua servit,” Dig. 8, 2, 26), so that a servitude will be extinguished ipso facto as soon as the person in whom it is vested becomes owner of the property over which it is exercisable (res serviens) or vice versâ. No one servitude can be the object of another, for “servitus servitutis esse non potest” (Dig. 33, 2, 1); but there can be servitudes over other incorporeal things, e. g. over an emphyteusis or a superficies (Dig. 43, 18, 1, 6, 7, 9). Being created solely for the benefit of a determinate subject, servitudes are intransferable, or inseparable from the subject itself (Dig. 10, 2, 15; 8, 4, 12); and, lastly, a servitude must not merely limit the rights of the owner of the res serviens, but must confer a positive advantage on the other party (Dig. 8, 1, 15).

These rights may be classified in various ways. They are divided, with reference to the owner of the res serviens, into affirmative and negative. If he has to allow the other party to do something from which otherwise he could legally hinder him (e. g. to walk across his field), the servitude is affirmative, and is said to consist in patiendo; if he is obliged himself to refrain from doing some act which otherwise he would be at perfect liberty to do (e. g. to add a story to his house), the servitude is negative, and is said to consist in non faciendo. But no servitude can consist in faciendo, in the sense of the owner of the res serviens being compellable to perform some positive duty: for to this would correspond only a right in personam, whereas a servitude is a right in rene (Dig. 8, 1, 15, 1). He may owe a positive act in respect of the res serviens (e. g. to keep a road in repair over which his neighbour has a right of way), but a violation of this duty would generally be redressed by a personal action, not by the real action arising from the servitude. Where the owner of a wall on which his neighbour had the right of support for his house (servitus oneris ferendi) undertook to keep the wall in repair, this duty could be enforced (according to Servius Sulpicius, whose view prevailed over that of Aquilius Gallus) by action on the servitude; but the legal principle last stated was so far observed that the owner of the wall was able to release himself from the duty by abandonment (derelictio), and could not be compelled to support the house by other means while the wall was being repaired (Dig. 8, 5, 6, 25; ib. 8, pr. and 2; 8, 2, 33).

But the current Roman classification of servitudes is into praedial and personal (Dig. 8, 2, 1). A praedial servitude can belong to a man only as being owner or tenant of a parcel of land or a house (praedium), whereas he can have a personal servitude without any such restriction. Again, the latter can be enjoyed over any object of property; the former only over another praedium (Inst. 2.3, 3) adjoining (Dig. 8, 3, 5, 1) that in whose favour it exists, and to which it is appurtenant. Thus there can be no praedial servitude without both a praedium serviens and a praedium dominans. The right must be of such a nature that by it the use and enjoyment of the latter are enhanced or rendered more complete and effectual (Dig. 8, 2, 8, pr.; ib. 15, pr.); it is consequently inseparable therefrom, passing with it when conveyed, and its extension is determined only by the requirements of the praedium dominans itself (Dig. 8, 3, 5, 1). But the latter's owner must exercise his right with proper regard for those of the owner of the praedium serviens ( “civiliter modo,” Dig. 8, 1, 9), who must himself permit the former to do all acts necessary for its due enjoyment (e. g. repairs, Dig. ib. 10). The rule “omnes servitutes praediorum perpetuas causas habere debent” (Dig. 8, 2, 28) signifies that the servitude must permanently benefit the praedium dominans (whence “neque ex lacu neque ex stagno concedi aquaeductus potest,” Dig. ib., and “servitutes [praediorum] ipso quidem jure neque ex tempore, neque ad tempus, neque sub condicione, neque ad certam condicionem constitui possunt,” Dig. 8, 1, 4), and also that no right can be a praedial servitude whose enjoyment necessitates constant action on the part of the owner of the praedium serviens.

A personal servitude (servitus personarum, Dig. 8, 2, 1; personalis servitus, Dig. 34, 3, 8, 3) is one which belongs simply to a man as such, and not as owner or tenant of this or that land or house: it is limited in duration at least by that of his own lifetime, and, as has been already remarked, can exist over any object of property whatever. All servitudes of this class are affirmative; praedial servitudes can be either affirmative or negative, as will be seen by reference to those of which an account is given below.

Personal servitudes are four in number, viz. USUS, USUSFRUCTUS, habitatio, and operae servorum sive animalium. Whether the last two were distinct rights from use and usufruct was for a long time a question among the Roman jurists (Dig. 7, 7, 5; 7, 8, 10; Cod. 33, 3, 13: cf. Gaius, 2.32), but eventually the distinction was admitted. Habitatio is the right of living in another person's house, and differs from usu aedium in the person who possesses it being entitled to let it out to others (Inst. 2.5, 5), and from both use and usufruct in the fact that it was not extinguished by his capitis deminutio or by non-user (Dig. 7, 8, 10, pr.). If created by a donatio inter vivos, it could be set aside by the heirs of the grantor. Operae servorum or animalium consisted in a man's having a right to the use and services of another's slave or beast, so long as he or it lived. It differed from a mere usus or ususfructus in the same respects as habitatio.

Praedial servitudes are either rustic or urban (jura praediorum rusticorum, urbanorum); a distinction as to the precise rationale of which there are differences of opinion. It is clear that not all servitudes in towns are urban, nor [p. 2.653]all in the country rustic, for “urbana praedia omnia aedificia accipimus, non solum ea quae sunt in oppidis, sed et si forte stabula sunt vel alia meritoria in villis vel in vicis vel si praetoria voluptati tantum deservientia, quia urbanum praedium non locus facit sed materia” (Dig. 50, 16, 198). Many of the praedial servitudes are referred to by Cicero, pro Caec. 13, 19 and 26. Of the urban class the following are the most important:--1. Oneris ferendi: the right which a man has to use the wall or edifice of his neighbour as a support for his own (Inst. 2.3, 1;--Dig. 8, 2, 33; 8, 5, 6, 2). The owner of the servient property had to keep it in repair, but could escape this liability by derelictio. 2. Tigni immittendi: the right of planting a beam in or upon a neighbour's wall (Dig. 8, 2, 2 and 6; 8, 6, 18, 2; 8, 5, 8: cf. Tac. Ann. 15.43; Cic. de Orat. 1.38, 173). 3. Protegendi or projiciendi: the right of throwing a balcony or verandah out from one's own house so as to project over one's neighbour's land (Dig. 8, 2, 2; 43, 17, 3, 5, 6, &c.). 4. Stillicidii: the right to have the rainwater drip in its natural course from one's roof on to a neighbour's land. A sub-variety is the servitus fluminis recipiendi, immittendi, or avertendi, the right of throwing such water on adjoining land from a pipe (Dig. 8, 2, 17, 3; ib. 20, 3-6;--Varro, L. L. 4.5;--Cic. de Orat. 1.38, 173; Top. 4, 22;--Vitruv. de Architect. 2.1, 6.3, 7.5). 5. Cloacae immittendae: the right of emptying a drain into or conducting it through a neighbour's premises (Dig. 8, 1, 7; 43, 23, 1, 4). 6. Fumi immittendi: the right of sending one's smoke through the chimney of one who lives above or next door (Dig. 8, 5; 8, 5-7). 7. Latrinae sive sterculinii: the right of having a dung-heap against a neighbour's wall (Dig. 8, 5, 17, 2). 8. Altius non tollendi: the right of preventing a man from building (or raising buildings already standing) above a certain height (Dig. 8, 2, 2; ib. 4 and 11, &c.). 9. Ne luminibus and ne prospectui officiatur: the right of having one's supply of daylight and one's view uninterfered with by any act of one's neighbour, such as planting of trees or erections of any kind (Dig. 8, 2, 3, 12, 15-17, &c.; Cic. de Orat. 1.39, 179; Gaius, 2.31). 10. Servitus luminum or luminis immittendi: the nature of which is disputed, but which probably consisted in the right of making windows in a neighbour's wall in order to procure oneself more daylight (Dig. 8, 2, 4, 40; Cod. 3, 34, 8).

We read in the authorities also of a servitus stillicidii and fluminis non recipiendi (Inst. 2.3, 1; Dig. 8, 2, 2), a servitus altius tollendi (Dig. ib.), and a servitus officiendi luminibus vicini (Gaius, 2.31, 4.3; Inst. 4.6, 2, &c.), of the nature of which, however, no explanation is given. Such rights are not properly servitudes at all, but were ordinary incidents of ownership, and this treatment of them has caused no little difficulty. According to Theophilus and others, these expressions are simply intended to denote the condition of a praedium after the extinction of a servitus stillicidii, &c., to which it was previously subject. Others explain them by reference to local regulations prohibiting buildings above a certain height, &c. (e. g. Cod. 8, 10, 12 and 13), which they suppose could be overridden by the establishment of servitudes to the contrary; but this hypothesis seems untenable by reason of the aphorism, “jus publicum privatorum pactis mutari non potest.” A third school holds that the object of a grant of a servitus altius tollendi, &c., was partially to extinguish a servitus altius non tollendi, &c. (cf. Dig. 44, 2, 26, pr.).

Of rustic servitudes the following are the most important:--1. Iter (or jus eundi, Gaius, 4.3): the right of walking or riding along a footpath on another man's land, and of being carried over it in a litter (Inst. 2.3, pr.; Dig. 8, 3, 7 and 12), though either of the latter rights might be excluded by express provision (Dig. 8, 1, 4, 1). 2. Actus (which includes i. e.): a similar right of driving cattle or vehicles (Isidor. Orig. 15.16;--Dig. 8, 3, 1, pr.; ib. 7, pr. and 12, &c.), though the last could be excluded (Dig. 8, 1, 13). 3. Via (which includes both i. e. and actus): the right of using a regular road (via munita) over another's land for heavy traffic with highlyladen waggons ( “hastam rectam ferre,” Dig. 8, 3, 7, pr.), so that the owner of the praedium serviens must lop the trees. The road, in the absence of express agreement, must be at least eight feet where straight, and sixteen where it curved (Dig. 8, 3, 8: cf. Varro, L. L. 4.4; R. R. 1.2, 14; Isidor. Orig. l.c.). 4. Aquaeductus: the right of conducting water on another's land away to one's own in pipes, or over anotherl's land on to one's own by a leat, e. g. for the purposes of a mill (Inst. 2.3, pr.;--Dig. 8, 3, 1, pr.; ib. 9). The exercise of this servitude might be limited to the summer or the winter, in which case it was called aqua aestiva or hiberna in opposition to aqua quotidiana (Dig. 43, 20, 1, 2 and 3); or it might be restricted by measure or time (aqua diurna, nocturna, Dig. ib. 2 and 5, pr.). 5. Aquae haustus: the right of taking water in vessels from another's land (Inst. 2.3, 2;--Dig. 8, 3, 1; ib. 3, 3; ib. 9), and admitting of the same limitations as those just mentioned (Dig. 8, 3, 2, 1). 6. Pecoris ad aquam appulsus: the right of watering one's cattle on the land of a neighbour (Dig. 8, 3, 1, 1; ib. 4 and 6). 7. Jus pascendi: the right to pasture cattle there (Dig. ib. 3, pr., 4 and 6). Besides these, there are mentioned jura silvae caeduae, cretae eximendae, lapidis eximendi, arenae fodiendae, calcis coquendae, and other rights without specific names, in Dig. 8, 3, 3, 1 and 2; ib. 6; 8, 1, 15, pr.; 43, 20, 1, 28. If a locus publicus or via publica intervened, no servitus aquaeductus could be imposed; but it was necessary to apply to the emperor for permission to form an aquaeductus across a public road. The intervention of a locus sacer or religiosus was an obstacle to imposing a servitus itineris or other right of way, for land of such a character could not by law become “servient.”

The modes in which servitudes were created or acquired are six in number, viz.:--1. A disposition inter vivos by or in pursuance of a contract. The general form of this was originally in jure cessio, though rustic servitudes over solurn Italicum could be created also by mancipatio (Gaius, 2.29, 30). As provincial soil, not being in commercio, could not be conveyed by either of these methods, so neither could servitudes over it be so created (Gaius, ib. 31); and its occupiers took refuge (Gaius, ib.) in formless agreements, subsequently expressed in a solemn contract (stipulationes), by which the owner of the land over which the right was to be created bound [p. 2.654]himself to allow its enjoyment, or in default to pay a penal sum (e. g. Dig. 45, 1, 2, 5). Such agreements would not, however, in themselves bind an alienee of the praedium serviens, nor would they confer any right on one of the praedium dominans; but the praetors introduced a utilis actio by which the latter owner and all his successors in title were enabled to assert the right against the owner of the praedium serviens and similar successors of his, so that in this way it acquired a “real” character. In the time of Justinian both in jure cessio and mancipatio had disappeared, and pactio et stipulatio, having apparently been for some time used for this purpose even on solum Italicum, remained the universal mode of contractually creating servitudes (Inst. 2.3, 4). It is contended by many writers that, besides the contract (pactio et stipulatio), a quasi-traditio or figurative delivery of the right was necessary; but their argument is based on analogy rather than on any real textual authority. 2. In a conveyance of land, whether in Italy by in jure cessio or mancipatio, or in the provinces by traditio, a servitude over it might be reserved (deductio: Gaius, 2.33; Inst. 2.4, 1;--Dig. 8, 2, 34, 35; 8, 3, 30 and 33), and the same might be done when the land was bequeathed by will. 3. Testamentary disposition. An owner of property might either directly bequeath a servitude over it (which was a very common mode of creating those of the personal class), in which case the right to it was acquired when the “dies legati cessit” [LEGATUM], or he might direct his heir duly to constitute it in favour of a third person as legatee (Paul. Sent. Rec. 3.6, 17; Dig. 8, 4, 16; Inst. 2.4, 1). 4. Adjudicatio: the judge (a) awarding to one party in a judicium divisorium or partition action a servitude over the whole or a portion of the property which he adjudged to the other (Dig. 7, 1, 6, 1; 10, 2, 22, 3); or (b) declaring a servitude duly constituted as against a contumacious defendant who refuses to create it himself; or (c) reviving by “in integrum restitutio” [RESTITUTIO] a servitude which had been lost (Dig. 8, 5, 8, 4). 5. Prescription, or enjoyment of the right for a prescribed period of time. Servitudes could not properly be thus acquired apart from the praedia to which they were appurtenant (Dig. 41, 3, 10), though it would seem that this principle was at one time not fully admitted (see Cic. Att. 15.2. 6), for a Lex Scribonia of uncertain date forbade usucapion of servitudes, except the anomalous class (e.g. altius tollendi) spoken of above (Dig. 41, 3, 4, 29). Other writers hold that the principle never applied to urban servitudes, in which there is a greater semblance of uninterrupted possession than in those of the rustic class, and that it was to the usucapion of the former that the Lex Scribonia related. Servitudes over provincial soil could, however, be acquired by longa quasi-possessio--actual exercise of the right for ten years if the owner of the praedium serviens lived in the same province, for twenty if in another (Dig. 8, 5, 10, pr.; 8, 6, 25); and this title gradually came to be recognised in Italy also, and under Justinian was in full operation (Cod. 7, 33, 12). 6. Lex: e.g. the acquisition by a paterfamilias of a usufruct in the peculium adventicium of his son (Inst. 2.9, pr.).

The following are the chief modes in which servitudes were extinguished:--1. Destruction of the res serviens, or its withdrawal from commercium (Inst. 2.4, 1; Dig. 7, 1, 2); but if it was restored the right revived (Dig. 8, 2, 20; 8, 6, 14). Personal servitudes perished also if the res serviens underwent a complete and essential transformation (Dig. 7, 4, 5, 2 and 3). 2. Praedial servitudes were extinguished by the destruction of the praedium dominans or by its ceasing to be in commercium (Dig. 8, 2, 20, 2), but were revived by its restoration within the period of usucapio: e. g. if a building to which a servitude was appurtenant was pulled down in order to be rebuilt, and was rebuilt in the same form, the servitude revived (Dig. l.c.). Similarly, personal servitudes determined with the decease of the person entitled (Inst. 2.4, 3; Dig. 7, 4, 3, 3), and under the older law usus and ususfructus were destroyed also by his capitis deminutio (Gaius, 3.83); but by an enactment of Justinian (Inst. l.c. and 3.10, 1; Cod. 3, 33, 16, 2) capitis deminutio minima ceased to have this effect. If a personal servitude belonged to a juristic person, it perished with the dissolution of that person (Dig. 7,4, 21), and also with the lapse of 100 years from its creation in the absence of express provision to the contrary (Dig. 7, 1, 56). 3. Release of the right by the person entitled to the owner of the res serviens (Inst. 2.4, 3), in the form either of bequest (Dig. 30, 86, 4) or of contract: for the latter in jure cessio or mancipatio was the proper form under the older law (Gaius, 2.30; Paul. Sent. Rec. 3.6, 28, 32), but under Justinian a bare agreement (cessio or concessio) sufficed without any formal surrender, and in some cases a tacit release was presumed from conclusive acts (e. g. Dig. 44, 4, 4, 12; 8, 6, 8, pr.). There is some ground for supposing that abandonment (derelictio) extinguished usufruct, but not other servitudes: its real effect, however, seems to have been to destroy not the usufructuary's rights, but only his liabilities. 4. Confusio: in praedial servitudes the vesting of ownership over the res dominans and the res serviens in the same person; in personal servitudes a similar union of the dominium and the servitus (Dig. 7, 4, 17; 8. 6, 1). Where the right was a usufruct, this was termed specifically consolidatio (Inst. 2.4, 3). If the separate owners of two separate estates jointly acquired a praedium which was servient to both, the servitudes were not extinguished; but it was otherwise if the joint owners of a praedium dominans jointly acquired the praediunm serviens (Dig. 8, 3, 27). 5. Nonexercise of the right for a prescribed time: rustic servitudes being lost by non-exercise for two years, personal servitudes by non-user for one year or two according as the res serviens was mobilis or immobilis (Paul. Sent. Rec. 3.6, 30). For the loss of an urban servitude mere non-user was not enough, it being necessary that the owner of the praedium serviens should do some positive act, such as raising his house or building up the hole in which his neighbour's beam had rested (Dig. 8, 2, 6). For the loss of servitudes over provincial soil the periods were ten years inter praesentes, twenty years inter absentes, and these were retained for servitudes of all kinds by Justinian, whether over movables or immovables (Cod. 3, 33, 16, 1; 3, 34, 13). Habitatio and operae, as has been observed [p. 2.655]above, were never liable to extinction by nonexercise.

As possession is the actual exercise of the rights of ownership, so the enjoyment or exercise of a right of servitude may be conceived as a quasi-possession, though the Roman jurists sometimes explicitly deny the applicability to them of the conception (e. g. Dig. 43, 3, 8; 41, 3, 4, 27; 8, 2, 32, 1), and sometimes speak plainly of possessio or quasi-possessio juris (Dig. 43, 26, 2, 3; 43, 19, 7; 46, 23, 2) in contrast with possessio corporis--the possession of a tangible thing--while Javolenus goes so far as to describe specifically the exercise of servitudes as a taking of possession (Dig. 8, 1, 20). The extension to them of the conception of possession was important when we consider the legal remedies by which they were protected: for, as an owner can assert his dominium in its legal aspect by an action, and protect its actual exercise (possessio) by an interdict, so servitudes came by analogy to be the subject of both kinds of remedies. The action by which a person entitled to a servitude was protected against its infringement by any person whatsoever was called confessoria in rem (Dig. 8, 5, 2, pr.), its objects being judicial acknowledgment of the plaintiff's right, removal of any impediment to its exercise, compensation for interference, the entering into by the defendant of a “cautio de non amplius turbando” (Dig. 7, 6, 5, 6; 8, 5, 7). In Publician form [PUBLICIANA ACTIO] it could be brought by any person who bonâ fide possessed the praedium dominans, or in whose favour the bonâ fide possessor of property had in good faith constituted a servitude over it. If a servitude was unjustly claimed over property, its owner could take the offensive by bringing an actio negatoria in rein against the claimant; its object being to establish the freedom of the property from the alleged right, damages, and security against future disturbance. The plaintiff had, of course, to prove the freedom of his property (Gaius, 4.3; Dig. 8, 5). The quasipossessor of a personal servitude, who had “detention” of the object over which it existed, could use the interdicts utrubi and de precario (Dig. 43, 26, 2, 3) in their original, and uti possidetis and de vi in their utilis form (Dig. 43, 17, 4; ib. 16, 3, 15-17). So far as rustic servitudes are concerned, the various rights of way and water were protected by special inter-dicts--de itinere actuque privato (Dig. 43, 19), de aqua (Dig. 43, 20), de rivis (Dig. 43, 21), de fonte and de fonte reficiendo (Dig. 43, 22). As to the application of interdicts to urban servitudes, there is a difference of opinion; but the better view would seem to be that only affirmative rights of this class were thus protected (Dig. 43, 17, 3, 6; 43, 23).

Some limitations were imposed on the exercise of ownership at Rome, either upon religious grounds or in the interest of neighbours or of the public generally, and these are sometimes called “legal servitudes,” though the name is inappropriate because the property can hardly be termed “servient” in the sense of a genuine servitude. To considerations of religion were due the rules relating to finis, a space of five feet in width between adjoining estates, which it was not permitted to cultivate, but which was held sacred and was used by the owners of the adjoining lands for sacrifice. To this class also belong the rules that if a man had buried a dead body on the land of another without his consent, he could not as a general rule be compelled to remove the body, but was bound to make recompense (Dig. 11, 7, 2, 7, 8); and that the owner of a burial-ground to which there is no other access may demand a way to it over adjoining land upon paying reasonable compensation to the owner of the latter (Dig. 12, 7, 12, pr.). Among restrictions imposed upon the exercise of ownership in the interests of adjoining proprietors are the following:--1. A man's duty to fell, at his neighbour's request, trees which grow in his own land, but which hang over the other's house or other building (Dig. 47, 27, 1, pr.-6), and to cut branches, less than fifteen feet from the ground, which hang over any adjoining land which is not his own (Dig. ib. 1, 7-9). 2. The rule permitting a man to go on his neighbour's premises to gather the fruits which had fallen thereon from his own trees: with this limitation, that he could go only “tertio quoque die” (Dig. 43, 28). 3. The limitations described under the head of AQUA PLUVIA.

“Legal servitudes” established in the interest of the public at large comprise:--1. A man's obligation to allow any one to come on his land in search of or for the removal of his property (Dig. 10, 4, 15; 39, 2, 9, 1; 19, 1, 25). 2. The obligation of an owner of the bank of a navigable river to allow persons in charge of boats, &c. to land thereon, make fast their vessels, and do all other acts required by their business (Inst. 2.1, 4; Dig. 1, 8, 5, pr.). 3. According to the Twelve Tables, every owner of land in Rome was required to leave a vacant space two feet and a half in width round any building that he erected (legitimum spatium, legitimus modus): consequently between two adjoining houses there must be an interval of five feet. This law was doubtless often disregarded, for after the fire in Nero's reign (Tac. Ann. 15.43) it was forbidden to build houses with a common wall (communio parietum), and the old legitimum spatium was required to be observed: see Dig. 8, 2, 14, where it is referred to in a rescript of Antoninus and Verus. 4. Rules as to the height and form of buildings. Augustus (Suet. Aug. 89) fixed the height at 70 feet, and after the great fire Nero made some regulations on the same subject: by Trajan the maximum height was fixed at 60 feet. 5. The owner of land adjoining a public road must, if the latter is partly destroyed by floods or otherwise, surrender a portion of his estate in lieu thereof (Dig. 8, 6, 14, 1; 43, 8, 2, 21). 6. Under the later Roman law a landowner was compelled to allow explorations on his land for minerals in consideration of a royalty of one-tenth the wealth extracted (Cod. 11, 6, 3, 6); and the rule declared that the owners of lands adjoining public aqueducts must permit materials to be taken therefrom for these public purposes upon receiving proper compensation. 7. The owner of timber which another had built into his house or vineyard (tignum junctum aedibus vineaeve) could not claim it by action until permanently severed, though when severed he could recover it, and in the meanwhile was entitled to demand double its value (Inst. 2.1, 29;--Dig. 41, 1, 7, [p. 2.656]10; 47, 3, 1). 8. The Twelve Tables forbade the burning or burial of a dead body within the city; a rule which was enforced by a Lex Duilia, and which in the time of Antoninus Pius prevailed both in Rome and other cities.

(Gaius, 2.28-33; Inst. ii. tits. 3-5; Dig. 7 and 8; Cod. 3, 33 and 34. The best treatises on the subject, apart from the ordinary Manuals of Roman law, are Luden, Die Lehre von den Servituten, Gotha, 1837; Hoffmann, Die Lehre von den Servituten nach röm. Rechte, 2 vols., Darmstadt, 1838, 1843; Zielonacki, Kritische Erörterungen über die Servitutenlehre nach röm. Rechte, Breslau, 1849; Elvers, Die röm. Servitutenlehre, Marburg, 1854-1856; Schonemann, Die Servituten, 1866; Molitor, La Possession . . . et les Servitutes en Droit romain, Gand, 1851, pp. 291 sqq. For the so-called Legal Servitudes, cf. Dirksen's essay, Ueber die gesetzlichen Beschränkungen des Eigenthums, &c. in the Zeitschrift für gesch. Rechtswiss. p. 16 sq.


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