Emphyteusis
（
ἐμφύτευσις, lit. “an implanting”). A
perpetual and “real” right in agricultural land which belongs to another
person, entitling the
emphyteuta to cultivate it practically as though it
were his own, on condition of paying a fixed rent (
pensio, canon) to the
dominus, or owner, somewhat after the nature of the English
“feefarm” rent (“feodifirma,”
Magna
Carta, c. 37).
The origin of emphyteusis is traceable to the
agri vectigales, first
distinctly mentioned about the time of Hadrian—large tracts of grazing land in Italy, belonging to the State, religious corporations (e. g. the Vestal
Virgins), or the smaller
civitates and
municipia,
but held and enjoyed by private persons subject to the payment of a perpetual rent (
vectigal), or let out upon very long leases. The rights of such occupiers, at
first purely contractual, acquired a “real” character, analogous to that
of genuine ownership, from the praetor, who protected their possession (
Dig. 2,
8, 15, 1) by interdicts and by a
utilis actio in rem （
actio vectigalis), availing even against the lessor when nonpayment of rent was not
alleged (
Dig. vi. 3, 1, 2). An addition had thus been made to the
iura in re aliena of Roman law: the right was alienable both
inter vivos and by will, and descended to the tenant's heirs on his intestacy, though
at that time it had not acquired a specific name.
