1Ulpianus, On Sabinus, Book XVIII. Where a servitude is attached to land subject to an usufruct, Marcellus, in the Eighth Book quoted by Julianus, approves the opinion of Labeo and Nerva, namely, that the usufructuary cannot bring an action for the recovery of the servitude, but can bring one for the recovery of the usufruct; and, according to this, if the neighbor does not suffer him to walk or drive across the land, the latter is liable because he did not permit him to enjoy the usufruct. 1An usufruct requires those adjuncts to be bequeathed without which a party cannot enjoy it; and therefore where one is bequeathed, it is also necessary for access to be joined with it; to such an extent is this true, that where a person leaves the usufruct of a certain place in such language that the heir shall not be compelled to permit a road, this addition is considered void; and also where an usufruct is bequeathed and a right of way is withheld, the reservation is void, because a right of access always accompanies the usufruct. 2Where, however, an usufruct is bequeathed, and there is no right of access to the land which is subject to it and is part of the estate; the usufructuary can bring suit under the will to obtain the usufruct together with access to the same. 3Pomponius, in the Fifth Book, is in doubt as to whether, where an usufruct is bequeathed, the usufructuary has only a right of access, or has the right to a path or roadway as well? He very properly thinks that he ought to be granted means by which he may enjoy his usufruct. 4Will the heir be required to provide him with other benefits and servitudes also; as, for instance, those of light and water, or not? I am of the opinion that he can only be compelled to provide him with those alone without which he cannot use the property at all; but if he can use it, even with some inconvenience, the said benefits need not be furnished.

2Pomponius, On Sabinus, Book V. Where suit is brought for an usufruct of land under a will, against an heir who has cut down trees, demolished the house, or, in any way, diminished the value of the usufruct, either by imposing servitudes upon the land, or by releasing servitudes from neighboring property, it is the duty of the judge to ascertain what the condition of the land was before issue was joined, in order that the usufructuary may be protected by him in the enjoyment of what he is entitled to.

3Julianus, Digest, Book VII. Where a party to whom an usufruct was delivered in compliance with the terms of a trust, has ceased to use it for such a time as would have caused him to lose it if it had become his lawfully, he should not be granted an action for restitution; for it is absurd that parties who have only obtained possession of an usufruct and not the ownership of the same, should have the better right.

4The Same, Digest, Book XXXV. A tract of land was bequeathed to Titius, the usufruct having been reserved, and the usufruct of the same land was bequeathed to Sempronius, under a certain condition. I said that, in the meantime, the usufruct was united with the property, although it is settled that when land is bequeathed with reservation of the usufruct the usufruct remains with the heir, because when a testator bequeaths land with reservation of the usufruct, and the usufruct of the same to another under some condition, he does not do so intending that the usufruct shall remain with the heir.

5Ulpianus, On the Edict, Book XVII. He alone can claim the right to use and enjoy property who has the usufruct of the same; the owner of the land cannot do so, because he who holds the property has not a separate right to use and enjoy it, as his own property cannot be subject to servitudes for his own benefit; and it is necessary for a party to bring suit in his own right and not in the right of another. For although a prohibitive right of action will lie in favor of an owner against an usufructuary, he is considered still more to sue in his own right, rather than in that of another, when he denies that the usufructuary has the privilege of use against his will, or alleges that he has a right to prohibit him. But if it should happen that the party who brings the action is not the owner of the property, even though the usufructuary has not the right to use it, he will still prevail, on the principle that the condition of possessors is preferable, even though they may have no legal right. 1The question arises, whether the usufructuary has a right of action in rem only against the mere owner, or also against some possessor? Julianus states in the Seventh Book of the Digest, that he is entitled to this action against any possessor whomsoever; for where a servitude is attached to land which is subject to usufruct, the usufructuary should bring suit against the owner of the adjoining land, not for the recovery of the servitude, but for the recovery of the usufruct. 2Where an usufruct is created in part of an estate an action in rem can be brought with reference to it, if someone claims an usufruct in the same, or denies that another is entitled to it. 3In all those actions which are brought with reference to usufruct, it is perfectly evident that the crops are involved. 4If, after issue has been joined in a case of usufruct, the usufruct is terminated, can any crops be claimed subsequently? I thing that they cannot, for Pomponius states in the Fortieth Book, that if the usufructuary should die, his heir would be entitled to an action only for crops which were due before his decease. 4aEverything must be restored to the usufructuary who gains his case, and therefore where the usufruct of a slave is bequeathed, the possessor must surrender everything which he obtained by means of the property of the usufructuary, or from the labor of the slave. 5But if the usufruct should, perchance, be lost by lapse of time, one party being in possession, and another volunteering to defend the suit; it is not sufficient for the latter to renew the usufruct, but he must give security against its recovery by eviction. What if the party in possession had pledged a slave or the land for a debt, and the claimant should be forbidden by the person who received the pledge from making use of his right? Hence, he also will be entitled to security. 6Just as where the crops must be delivered to the usufructuary who brings an action in rem for his usufruct, they must likewise be delivered to the mere owner of the property, if he brings a prohibitory action. But, in any event, this is the case only where the party who brings suit is not the possessor; for the possessor is entitled to certain actions; but where either party is in possession he will obtain nothing by way of crops. Therefore, is it the duty of the judge to allow the usufructuary to have the privilege of enjoying the crops in security, and prevent the owner of the property from being disturbed?

6Paulus, On the Edict, Book XXI. Where a party has joined issue with reference to an usufruct, he will be discharged if he relinquishes possession without fraud; but if he voluntarily undertook to defend the case, and joined issue as if he were the possessor, judgment shall be rendered against him.