SERVITU´TES
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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