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 p1030  Servitutes

Article by George Long, M.A., Fellow of Trinity College
on pp1030‑1034 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

SERVITU′TES. The owner of a thing can use it in all ways consistent with his owner­ship, and he can prevent others from using it in any way that is inconsistent with his full enjoyment of it as owner. If the owner's power over the thing is limited either way, that is, if his enjoyment of it is subject to the condition of not doing certain acts in order that some other person may have the benefit of such forbearance, or to the condition of allowing others to do certain acts, which limit his complete enjoyment of a thing, the thing is said "servire" to be subject to a "servitus." Hence when a thing was sold as "optima maxima," this was legally understood to mean that it was warranted free from Servitutes. (Dig. 50 tit. 16 s90, 169; compare Cic. de Leg. Agr. III.2). The existence of a Servitus must be proved: the presumption is that the ground is free (liber) till it is shown to be servient. Servitutes are also included in the terms "Jura," and "Jura in Re," and these terms are opposed to Dominium or complete owner­ship. He who exercises a Servitus therefore has not the animus domini, not even in the case of ususfructus, for the Ususfructuarius is never recognized as owner in the Roman Law. The technical word for owner­ship, when the ususfructus is deducted from it, is Proprietas.

A man can only have a right to a servitus in another person's property; and a servitus can only be in a corporeal thing. Viewed with respect to the owner of the thing, a Servitus either consists in his being restrained from doing certain acts to his property, which otherwise he might do (servitus quae in non faciendo consistit; Servitus negativa); or it consists in his being bound to allow some other person to do something to the property, which such person might otherwise be prevented from doing (servitus quae in patiendo consistit; Servitus affirmativa). A Servitus never consists in the owner of the servient property being obliged to do any act to his property, though he may be under an obligatio to do acts which are necessary towards the enjoyment of the Servitus (Dig. 8 tit. 1 s15; Puchta, Inst. I § 252, note e).

There were two classes of Servitutes. Either they had for their subject a definite person, who could exercise the right, in which case they were  p1031 called Personal, Personarum; and they ceased with the death of the person: the expression "personalis servitus" was used (Dig. 34 tit. 3 s8 § 3). Or they had for their subject another piece of property, as a house or land, and the person who exercised the Servitus exercised it in respect of his right to the house or land, which was its subject. Servitutes of the latter kind were called Praedial, Servitutes Praediorum or Rerum, or Jura Praediorum (Gaius, II.17, 29; Dig. 8 tit. 1 s1); and with reference to their special kinds, Jura aquarum, &c. (Cic. pro Caecin. 26).

The exercise of Personal Servitutes, of which Usus and Ususfructus were the principal, was always connected with the natural possession of the thing; and consequently the Quasi Possessio of such Servitutes had a close resemblance to Possessio. [Possessio] Servitutes of this class consisted solely "in patiendo."

Praedial servitutes consisted both "in patiendo," and "in non faciendo." Those which consisted "in patiendo" comprised either such acts as a person might do, by virtue of the Servitus, which acts had only mediately a reference to another piece of land, as in the case of a Jus Itineris; or such acts as a man might do, with immediate reference to another piece of land, as Jus tigni immittendi, and the like. Those which consisted "in non faciendo" on the part of the owner were acts which another possessor of a piece of land could require the owner of the servient property not to do, but which except for the servitus, the owner might do.

Personal servitutes were Usus, Ususfructus, Habitatio, and Operae servorum et Animalium.

Habitatio or the right of living in another person's house resembled the ususfructus or usus aedium. But it was not lost as ususfructus and usus were, by capitis diminutio or neglect to exercise the right. Also, it consisted in the right to inhabit some definite part of a house only, and not the whole; the habitatio could be sold or let. If it was a donatio inter vivos, it could be set aside by the heredes of the giver (Dig. 7 tit. 8 De Usu et Habitatione; Dig. 39 tit. 5 s27, 32; Inst. 2 5).

Operae servorum et animalium consisted in a man having a right to the use and services of another person's slave or beast, so long as the slave or beast lived. The servitus continued after the death of the person entitled to it, and was not lost by a capitis diminutio nor by neglect to exercise it. This is called by Gaius (II.32) "the Ususfructus hominum et ceterorum animalium."

Praedial Servitutes imply the existence of two contiguous pieces of land (praedia), one of which owes a servitus to the other (servitutem debet, praedium, fundus serviens); and the servitus is said to be due (deberi) from the one to the other. The name of praedium dominans which is now often used to designate the praedium to which the servitus is due, is a modern invention. It is of the nature of a Servitus to be an advantage to the land to which it belongs: it must be something that in some way increases its value. It must also be a thing that is permanently to the advantage of the dominant praedium; for it is said "omnes servitutes praediorum perpetuas causas habere debent" (Paulus, Dig. 8 tit. 2 s8), which means there is a continuous adaptation of the servient to the use of the dominant tenement. The Servitus is considered as belonging to the dominant praedium in such a sense that it cannot be alienated without the praedium nor pledged nor let.

Praedial Servitutes were either Praediorum Urbanorum or Rusticorum. But the word Servitus has a double meaning, according as we view it as a right or a duty. The Servitus of a Praedium Rusticum or Urbanum is, in the former sense, the servitus which belongs to a particular Praedium, as a right: in the latter sense it is the servitus which some particular Praedium owes, as a duty. When the two Praedia are contemplated together in their mutual relations of right and duty, the word Servitus expresses the whole relation. Servitutes Urbanae are those which are for the advantage of an edifice as such, whether the advantage is derived from another building or simply a piece of land; Rusticae are those which are for the advantage of a piece of ground, as such, and mainly for the benefit of agriculture. "Urbanum praedium non locus facit, sed materia." (Ulp. Dig. 50 tit. 16 s198).

The following are the principal Servitutes Urbanae:—

  1. Oneris ferendi, or the right which a man has to use the edifice or wall of his neighbour to support his own edifice. The owner of the servient property was consequently bound to keep it in repair so that it should be adequate to discharge its duty (Dig. 8 tit. 5 s6).

  2. Tigni immittendi, or the right of planting a beam in or upon a neighbour's wall.

  3. Projiciendi, or the right of adding something to a man's edifice, though it shall project into the open space which is above his neighbour's grounds.

  4. Stillicidii, or fluminis recipiendi or immittendi. This servitus was either a right which a man had for the rain water to run from his house upon and through his neighbour's premises, or a right to draw such water from his neighbour's premises to his own. The technical meaning of Stillicidium is rain in drops; when collected in a flowing body it is Flumen (Varro, de Ling. Lat. V.27, ed. Müller; Cic. de Or. I.38).

  5. Altius non tollendi, or the duty which a man owed not to build his house higher than its present elevation, or the duty of the owner of a piece of land not to raise his edifice above a certain height, in order that the owner of some other house might have the advantage of such a forbearance. If a man was released from this duty by his neighbour, he obtained a new right, which was the Jus altius tollendi. In like manner, a man whose ground was released from the Servitus Stillicidii, was said to have the servitus stillicidii non recipiendi. This was not strictly accurate language, for it a servitus is defined to be some limitation of the usual rights of owner­ship, a recovery of these rights or a release from the duties which is implied by the possession of these rights by another, merely gives the complete exercise of owner­ship and so destroys all notion of a Servitus. Still such was the language of the Roman Jurists, and accordingly we find enumerated among the Urbanae Servitutes (Dig. 8 tit. 2 s2), "Stillicidium avertendi in tectum vel aream vicini aut non avertendi."

  6. Servitus ne Luminibus, and ne Prospectui officiatur, or the duty which a man owes to his neighbour's land not to obstruct his light or his prospect (see Gaius, II.31; Cic. de Or. I.39); and Servitus Luminum or Prospectus, or the duty of a man to allow his neighbour to make openings into his premises, as in a common wall for instance  p1032 to get light or a prospect. It was a Servitus the object of which was to procure light, whereas the ne officiatur was to prevent the destroying of light (Dig. 8 tit. 2 s4, 40). But there are different opinions as to the meaning of Servitus Luminum.

  7. Servitus Stercolinii, or the right of pla­cing dung against a neighbour's wall, &c.

  8. Servitus fumi immittendi, or the right of sending one's smoke through a neighbour's chimney.

  9. Servitus cloacae, or the right to a drain or a sewer from a man's land or house through a neighbour's land or house.

The following are the principal Servitutes Rusticae:—

  1. Servitus Itineris, or the right to a footpath through another man's ground or to ride through on horseback or in a sella or lectica, for a man in such cases was said ire and not agere. Viewed with reference to the person who exercised this right, this Servitus was properly called Jus eundi (Gaius, IV.3).

  2. Actus or Agendi, or the right of driving a beast or carriage through another man's land.

  3. Viae or the right eundi et agendi et ambulandi. Via of course included the other two Servitutes; and it was distinguished from them by its width, which was defined by the Twelve Tables (Dig. 8 tit. 3 s8). The width of an Iter or Actus might be a matter of evidence, and if it was not determined, it was settled by an arbiter. If the width of a Via was not determined, its width was taken to be the legal width (latitudo legitima). In the work De Coloniis, attributed to Frontinus, the phrase "iter populo debetur or non debetur" frequently occurs. With "iter debetur" occurs, the width of the iter is given in feet. It seems that in the assignment of the lands in these instances, the lands were made "servire populo," for the purposes of a road.

  4. Servitus pascendi or the right of a man in respect of the ground to which his cattle are attached, to pasture them on another's ground.

  5. Servitus aquaeductus or ducendi aquam per fundum alienum.

There were also other Servitutes as Aquae haustus, Pecoris ad aquam appulsus, Calcis coquendae, and Arenae fodiendae. If a Publicus locus or a Via publica intervened, no servitus aquaeductus could be imposed, but it was necessary to apply to the Princeps for permission to form an aquaeductus across a public road. The intervention of a Sacer et religiosus locus was an obstacle to imposing an Itineris servitus, for no Servitus could be due to any person on ground which was sacer or religiosus.

Servitus Negativa could be acquired by mere contract; and it seems the better opinion that a Servitus Affirmativa could be so acquired, and that quasi possessio, at least in the later periods, was not necessary in order to establish the Jus Servitutis, but only to give a right to the Publiciana in rem actio (Gaius, II.30, 31; Savigny, Das Recht des Besitzes). The phrases "aquae jus constituere," "servitutem fundo imponere," occur (Cic. ad Quint. III.1 c2). According to Gaius, Servitutes Urbanae could only be transferred by the In jure cessio: Servitutes Rusticae could be transferred by Mancipatio also (Gaius, II.29).

Servitus might be established by Testament (Servitus Legata, Dig. 33 tit. 3), and the right to it was acquired when the "dies legati cessit" [Legati]; but tradition was necessary in order to give a right to the Publiciana in rem actio. A Servitus could be established by the decision of a judex in the Judicium Familiae erciscundae, Communi dividundo, and in a case where the Judex adjudicated the Proprietas to one and the Ususfructus to another (Dig. 7 tit. 1 s6). Servitutes could also be acquired by the Praescriptio longi temporis (Cod. 7 tit. 33 s12). An obscure and corrupt passage of Cicero (ad Att. XV.26) seems to allude to the possibility of acquiring a right to a Servitus by use; as to which a Lex Scribonia made a change. [Lex Scribonia] Quasi servitudes were sometimes simply founded on positive enactments, which limited the owner of a property in its enjoyment (Nov. 22 c46 s2); and others were considered as "velut jure impositae," (Dig. 39 tit. 3 s1 § 23; and Dig.43 27, De Arboribus Caedendis).

Servitus might be released (remitti) to the owner of the Fundus serviens (Dig. 8 tit. 1 s14); or it might be surrendered by allowing the owner of the Fundus serviens to do certain acts upon it, which were inconsistent with the continuance of the Servitus (Dig. 8 tit. 6 s8). If both the dominant and the servient land came to belong to one owner, the Servitutes were extinguished; there was a Confusio (Dig. 8 tit. 6 s1). If the separate owners of two separate estates, jointly acquired an estate which was servient to the two separate estates, the Servitutes were not extinguished; but they were extinguished if the joint owners of a dominant estate, jointly acquired the servient estate (Dig. 8 tit. 3 s27). A ususfructus was extinguished when the Ususfructuarius acquired the Proprietas of the thing. A Servitus was extinguished by the extinction of the object, but if the servient object was restored, the servitus was also restored (Dig. 8 tit. 2 s20; tit. 6 s.14). A servitus was extinguished by the extinction of the subject, as in the case of a Personal Servitude with the death of the person who was intitled to it; and in the case of Praedial Servitutes with the destruction of the dominant subject, but they were revived with its revival: for instance, if a building to which a servitude belonged, was pulled down in order to be rebuilt, and if it was rebuilt in the same form, the servitude revived (Paulus, Dig. 8 tit. 2 s20 § 2; Moore v. Rawson, 3 B. & Cr. 332). A Servitus might be extinguished by not using it. There is a case in the Digest (8 tit. 3 s35) of the servitus of a spring, the use of which had been interrupted by the temporary failure of the spring, and a rescript of Augustus on the matter. According to the old law, Ususfructus and Usus were lost, through not exercising the right, in two years in the case of things immoveable, and in one year in the case of things moveable. In Justinian's legislation Ususfructus and Usus were only lost by not exercising the right, when there had been a Usucapio libertatis on the part of the owner of the thing or the owner­ship had been acquired by Usucapion (Cod. 3 tit. 33 s.16 §1, and tit. 34 s13).

Servitutes might be the subjects of Actiones in rem (Dig. 7 6; 8 5). An Actio Confessoria or Vindicatio Servitutis had for its object the establishing the right to a Servitus, and it could only be brought by the owner of the dominant land, when it was due to land. The object of the action was the establishment of the right, damages, and security against future disturbance in the exercise of the right; and the action might be not only against the owner of the servient  p1033 thing, but against any person who impeded the exercise of the right. The plaintiff had of course to prove his title to the Servitus. The Actio Negatoria or Vindicatio libertatis, might be brought by the owner of the property against any person who claimed a Servitus on it. The object was to establish the freedom of the property from the servitus, for damages, and for security to the owner against future disturbance in the exercise of his owner­ship. The plaintiff had of course to prove his owner­ship and the defendant to prove his title to the Servitus (Gaius, IV.3; Dig. 8 tit. 5).

In the case of Personal Servitudes, the Interdicts were just the same as in the case of proper Possession; the Interdict which was applied in the case of proper Possession, was here applied as a Utile Interdictum (Frag. Vat. 90, as emended by Savigny).

In the case of Praedial Servitudes, we must first consider the Positive. In the first class, the acquisition of the Juris Quasi Possessio is effected by an act which is done simply as an exercise of the Right, independent of any other right. The interference with the exercise of the right was prevented by Interdicts applicable to the several cases. A person who was disturbed in exercising a Jus Itineris, Actus, Viae by any person whatever, whether the owner of the servient land or any other person, had a right to the Interdict: the object of this Interdict was protection against the disturbance, and compensation: its effect was exactly like that of the Interdict Uti possidetis. Another Interdict applied to the same objects as the preceding Interdict, but its object was to protect the person intitled to the servitude from being disturbed by the owner while he was putting the way or road in a condition fit for use.

There were various other Interdicts as in the case of the Jus aquae quotidianae vel aestivae ducendae (Dig.43 20); in the case of repair of water passages (Dig.43 21, de rivis); in the case of the Jus aquae hauriendae (Dig.43 22).

The second class of Positive Servitudes consists in the exercise of the servitude in connection with the possession of another piece of property. The Interdicts applicable to this case are explained under the third class, that of Negative Servitudes.

In the case of Negative Servitudes there are only two modes in which the Juris quasi Possessio can be acquired: 1, when the owner of the servient property attempts to do some act, which the owner of the dominant property considers inconsistent with his Servitus, and is prevented; 2, by any legal act which is capable of transferring the Jus Servitutis. The possession is lost when the owner of the servient property does an act which is contrary to the Right. The Possession of the Servitudes of the second and third class was protected by the Interdict Uti possidetis. There was a special interdict about sewers (De Cloacis, Dig.43 23).

It has been stated that Quasi-servitudes were sometimes founded on positive enactments. These were not Servitutes properly so called, for they were limitations of the exercise of owner­ship made for the public benefit. The only cases of the limitation of the exercise of owner­ship by positive enactment, which are mentioned in the Pandect, are reducible to three principal classes. The first class comprehends the limitation of owner­ship on religious grounds. To this class belongs Finis, or a space of five feet in width between adjoining estates, which it was not permitted to cultivate. This intermediate space was sacred and it was used by the owners of the adjoining lands for sacrifice. To this class also belongs the rule, 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 he was bound to make recompence (Dig. 11 tit. 7 s2, 7, 8). The second class comprehends rules relating to police. According to the Twelve Tables every owner of land in the city was required to leave a space of two feet and a half vacant all round any edifice that he erected: this was called legitimum spatium, legitimus modus. Consequently between two adjoining houses there must be a vacant space of five feet. This law was no doubt often neglected, for after the fire in Nero's reign (Tacit. Ann. XV.43), it was forbidden to build houses with a common wall (communio parietum); and the old legitimum spatium was again required to be observed; and it is referred to in a rescript of Antoninus and Verus (Dig. 8 tit. 2 s14). This class also comprehends rules as to the height and form of buildings. Augustus (Suet. Octav. 89) fixed the height at seventy feet; Nero also after the great fire made some regulations with the view of limiting the height of houses. Trajan fixed the greatest height at sixty feet. These regulations were general, and had no reference to the convenience of persons who possessed adjoining houses: they had therefore no relation at all to the Servitutes altius tollendi and non tollendi as some writers suppose. The rule of the Twelve Tables which forbade the removing a "tignum furtivum aedibus vel vincis junctum," had for its object the preventing of accidents (Dig.47 3). Another rule declared that the owners of lands which were adjoining to public aquaeducts should permit materials to be taken from their lands for these public purposes, but should receive a proper compensation. The Twelve Tables forbade the burning or interring of a dead body in the city; and this rule was enforced by a Lex Duilia. In the time of Antoninus Pius this rule prevailed both in Rome and other cities.

The third class of limitations had for its object the promotion of Agriculture. It comprised the rules relating to Aqua Pluvia, and to the Tignum Junctum in the case of a vineyard; and it gave a man permission to go on his neighbour's premises to gather the fruits which had fallen thereon from his trees; with this limitation that he could only go every third day (Dig. 43 28, De Glande legenda). The Twelve Tables enacted that if a neighbour's tree hung over into another person's land, that person might trim it to the height of fifteen feet from the ground (quindecim pedes altius eam sublucator). The rule was a limitation of owner­ship, but not a limitation of the owner­ship of the tree-owner; for it allowed his neighbour's tree to overhang his ground, provided there were no branches less than fifteen feet from the ground.

With these exceptions, some of which were of great antiquity, owner­ship in Roman Law must be considered as unlimited. These limitations also had no reference to the convenience of individuals who had adjoining houses or lands. With respect to neighbours the law allowed them to regulate their  p1034 mutual interests as they pleased, and accordingly a man could agree to allow a neighbour to derive a certain benefit from his land which their proximity rendered desirable to him, or he could agree to abstain from certain acts on his land for the benefit of his neighbour's land. The law gave force to these agreements under the name of Servitutes, and assimilated the benefits of them to the right of owner­ship by attaching to them a right of action like that which an owner enjoyed.

This view of the limitation of owner­ship among the Romans by positive enactment is from a valuable essay by Dirksen, Ueber die gesetzlichen beschränkungen des Eigenthums, &c. Zeitschrift, vol. II. (Gaius, II.28‑33; Inst. 2. tit. 3‑5; Dig. 7 and 8; Cod. 3 tit. 33, 34).

This sketch may be completed by reference to the following works and the authorities quoted in them: Mackeldey, Lehrbuch, &c. 12th ed.; Mühlenbruch, Doctrina Pandectarum, p268, &c.; Savigny, Das Recht des Besitzes, Juris Quasi Possessio, p525, 5th ed.; Von der Bestellung der Servituten durch simple Vertrag und Stipulation, von Hasse, Rhein. Mus. für Jurisprudenz, Erster Jahrgang; Von dem Verhältniss des Eigenthums zu den Servituten, Zeitschrift, &c., XII. p237; Puchta, Inst. II. § 252.

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