CONFESSO´RIA ACTIO
CONFESSO´RIA ACTIO is the remedy of a person who has
a right of SERVITUS (e. g. a right of way or a usufruct), in the exercise or
enjoyment of which he is hindered: the action is Real (
Dig.
8,
5,
2, pr.),
and is a
vindicatio of the servitude, lying
against any one who infringes his right, whether it be the owner of the
property over which that right extends, or a third person (
Dig. 7,
6,
5,
1). Its object. is to establish the existence of
the servitude, removal of any obstacles placed in the way of its enjoyment,
damages for actual hindrance (
Dig. 8,
5,
4,
2, &c.), and a
cautio de non amplius
turbando, security against further disturbance by the
defendant (
Dig. 7,
6,
5,
6). By means of a fiction
(after the analogy of the
actio Publiciana) the
actio confessoria could be brought in
respect of all servitudes created in the plaintiff's favour by the
bonâ--fide possessor of property, and in respect of
praedial servitudes by the bonâ--fide
possessor of the
praedium dominans; in its
utilis form it could be employed for the
establishment of praedial servitudes by the
emphyteuta,
superficiarius, and pledgee, no less than by the
dominus (
Dig. 8,
1,
16).
If a person claimed a servitude over property of another, the latter could
take the first step, and bring a
negatoria in rem
actio, asserting the freedom of the property from the alleged
right, the objects of which (
mutatis mutandis）
were much the same as those of the
actio
confessoria. (
Dig. 7,
6;
8,
5; Gaius, 4.3;
Inst. 4.6, 2; Vangerow,
Pandekten,
§ § 353, 354.)
[
J.B.M]
