A servitude was said to exist where X possessed rights in rem over the property of Y. In the following cases, for example, the property of Titinius is encumbered with servitudes in favour to Cassius: Where Cassius enjoys the right of drawing water from a fountain on Titinius's land; where Cassius enjoys the right of sailing on Titinius's lake; where Cassius enjoys a right to the labour of Titinius's slave.
Servitudes might be praedial or personal and praedial servitudes could be rustic (iura praediorum rusticorum) or urban (iura praediorum urbanorum).
Servitudes were either:
. Affirmative (ius faciendi), whereby the owner of the servient tenement was obliged to allow the performance of certain acts by the owner of the dominant tenement.
. Negative (ius prohibendi), whereby the owner of the servient tenement was obliged to refrain from performing certain acts, e.g. increasing the height of his house.
- Rules applicable to servitudes
+ Vicinitas
Dominant and servient tenements had to be close to each other.
+ Perpetua causa
The exercise of the servitude, in the case of land, had to be possible in perpetuity.
+ Utilitas
Use of the servient tenement had to be of advantage to the dominant tenement.
+ Indivisibility
A servitude had to be indivisible. Where the dominant tenement was partitioned the servitude remained applicable to all the parts. Where the servient tenement was partitioned it was possible to confine the incidence of the servitude to certain parts.
+ Non-transferability
Servitudes were not, in general, transferable.
+ Nulli res sua servit (no one may have a servitude over his own property)
If, for example, in above Cassius should acquire the ownership of Titinius's land, the existing servitude would merge in the ownership. Should Cassius, at a later date, sell this land the servitude would not revive automatically.
+ Servitus servitutis esse non potest (there cannot be a servitude of a servitude)
Assume that Ligarius has the right of leading water through a pipe which passes over the land of Marcus and Decius. Ligarius might agree to allow Marcus and Decius to draw water from the pipe, but such an agreement could not operate as a servitude.
+ Servitus in faciendo consistere non potest (a servitude cannot consist of doing)
The owner of the servient land is obliged to allow an act or to refrain from performing an act.
+ Servitus civiliter exercanda est
A servitude must be so used as to cause as little inconvenience as possible.
- The creation of servitudes
Servitudes could be created in the following ways:
+ Mancipatio
For the creation of a rustic servitude in Italic land.
+ In iure cessio
For the creation of urban servitudes.
Note: Mancipatio and in iure cessio were obsolete by the time of Justinian.
+ Adjudicatio
By judicial decision, e.g. in partition actions where a judge could award a servitude over property.
+ Deductio (by reservation)
Where, for example, a person alienates property with the reservation that it shall be servient to property retained by him.
+ Testamento (by will)
Where, for example, X instructs his heir to allow Y the exercise of a right over property.
+ Usucapio
Lex Scribonia (in the reign of Tiberius) forbade this method of creating servitudes.
+ Longi Temporis Praescriptio
The period was, under Justinian, 10 years inter preasentes, and 20 years inter absentes.
+ Lege (by statute)
See, for example, the creation of a usufruct in a an emancipated son's property.
+ Pacts and Stipulations
Pacts and stipulations.
+ Traditio et Patienta
A type of informal contract by which X acquiesced in the exercise of an apparent servitude over his property by the neighbour, Y.
- The extinction of servitudes
Servitudes could be extinguished in the following ways:
+ Destruction or complete change of the property
So that usefulness of the servient property ceased.
+ Non-utendo (non-user)
2 years for praedial servitudes; 10 or 20 years under Justinian.
+ Confusio (merger)
This occurred where the ownership of dominant and servient tenements vested in one person.
+ Remissio (surrender)
By in iure cessio or by simple agreement.
+ Expiration of time
Where, for example, the servitude had been granted for a stated number of years.
+ Death
A usufruct ends with the death of its possessor.
- Praedial Servitudes (praedium = a plot of land)
Praedial servitudes were rights over immovables. These rights were exerted by the owner of a praedium dominans (dominant tenement) over a praedium serviens (servient tenement). Such servitudes were of two types: rural, or rustic (servitudes praediorum rusticorum) and urban (servitudes praediorum urbanorum).
+ Rural (or rustic) servitudes
These were generally rights over land:
. Rights of way, e.g. iter (right to pass), actus (right to drive a carriage or animal), via (right to walk and drive), ius navigandi (right of sailing over a permanent lake).
. Rights of pasture, e.g. ius pascendi (right to put cattle to graze on another man's land).
. Rights to water, e.g. aquae ductus (leading water in pipes, or in stone channels; such a right could be granted for summer only, in which case it was known as aquae aestiva); aquae haustus (drawing water from a well or fountain); pecoris ad aquam apulsus (watering one's cattle on another's land).
. Miscellaneous rural servitudes, e.g. ius lapidis eximendae (right of quarrying stones); ius arenae fodiendae (right of digging sand).
+ Urban servitudes
These were generally rights over things erected on land, e.g. oneris ferendi (right to support for a building), tigni immittendi (right to drive a timber beam into a neighbour's wall), altius non tollendi (right to prevent a neighbour increasing the height of his house), stillicidi recipiendi (right to discharge rain water on to a neighbour's property), ne luminibus officiatur (right to light), ius projiciendi (right to space above a neighbour's land, e.g. a projecting balcony), cloacae mittendae (right to pass a sewer below a neighbour's ground), latrinae sive sterculini (right to have a dung heap against a neighbour's wall).
- Personal Servitudes
Praedial servitudes were held by virtue of the ownership of a house or land; personal servitudes did not depend on such ownership. The most important personal servitudes were: ususfructus, usus, operae servorum vel animalium, habitatio.
+ Ususfructus
. Definition. A right to use and enjoy the fruits of another's property, provided that its substance remained unimpaired.
. Property in which a usufruct might be held. In general the property had to be res quae non usu consumuntur, e.g. land, or a slave. A senatusconsultum in the time of Tiberius allowed a quasi-usufruct to be created in res quae usu consumuntur, such as corn.
. Its duration. In the absence of an agreement that it should last for a specified number of years it lasted for the life of the ususfructuarius.
. Security. The ususfructuarius had to give security (cautio ususfructuaria) to the owner, promising a restoration of the property when the usufruct ended.
. Protection of the usufruct. By vindicatio ususfructus.
. Rights of the usufructuary. Use and enjoyment of the fruits (but note that ownership in fruits passed to the usufructuary only when gathered); use of stock and implements of a farm; right to lop pollards; right to open mines; right to fish and hunt; right to the off-spring, milk, hair, wool of animals.
. Duties of the usufructuary. Not to alter the character of a building, e.g. not to change it from a house into a shop; not to use a slave other than for work in which he had been trained; to deal with the property as would a paterfamilias, i.e. with great care; to carry out repairs; to pay any taxes on the land.
. Creation of a usufruct.
. Termination of a usufruct.
Note: Where a usufruct existed in the case of a female slave, the ususfructarius was entitled to the fruits of her work, but not to her children.
+ Usus (use)
. Definition. A usufruct, but without the right to take the fruits, and limited to the personal wants of the usuarius and his family.
. Rights of the usuarius. He had only the use of property, e.g. he could use a house only for his occupation, but could not let it; he could take only those things necessary for his daily use; he could not alienate the property; he could use the labour of a slave in person only.
. Duties of the usuarius. He had to share with the owner the expense of repairs to the property; he could not modify the character of the property.
+ Operae servorum vel animalium (right to the services of slaves or animals belonging to another)
Unlike a usufruct, this right was not lost by non-utendo (non-use).
+ Habitatio (habitation)
The right to use the house of another.
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- Property rights
+ Property rights (I): Rights of ownership and the right to alienate
+ Property rights (II): Rights over the property of another
+ Property rights (IV): Other iura in re aliena
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Source:
Roman Law, L. B. Curzon, pages 90 - 94.
