De servitutibus
(Concerning Servitudes.)
2Ulpianus, On the Edict, Book XVII. One of the owners of a house held in common cannot impose a servitude upon it.
3Paulus, On the Edict, Book XXI. Some servitudes are attached to the soil, others to the surface.
4Papinianus, Questions, Book VII. Servitudes cannot be created by direct law from a certain time, or until a certain time, or under a condition, or on a certain contingency; (for example, “as long as I wish”,) nevertheless, if such provisions as these are added, and a party brings suit for the recovery of the servitude, in violation of the terms of the contract, an exception may be interposed on the ground that the claim is contrary to what had been agreed upon, or for fraud, and this Cassius states was the opinion of Sabinus in which he himself concurred. 1It is established that limitations can be added to servitudes; as, for instance, with reference to what kind of transactions shall be permitted, or shall not be permitted upon a roadway, as, for instance, that it must only be traversed by a horse, or that only a certain weight shall be transported, or such-and-such a flock shall be driven over it, or that charcoal shall be carried. 2Where intervals of a certain number of days and hours are mentioned, this does not relate to the question of time, but only to the manner in which a servitude created in accordance with law shall be enjoyed.
5Gaius, On the Provincial Edict, Book VII. Servitudes granted for a driveway, a pathway, the passage of cattle, and the conduct of water, are created in almost the same manner as those in which we have stated that usufruct is created. 1The enjoyment of servitudes may be limited with reference to time; for example, where a party may make use of the servitude from the third until the tenth hour, or on alternate days.
6Paulus, On the Edict, Book XXI. A servitude can be either released or created with reference to a certain part of the land.
7Ulpianus, On the Lex Julia et Papia, Book XIII. The right of building a sewer is a servitude.
8Paulus, On Plautius, Book XV. Ad Dig. 8,1,8 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 209, Note 5.A servitude cannot be imposed permitting us to pick apples, or to walk about, or to eat our dinner, on the land of another. 1If I have a servitude in your land, or if I become the owner of part of said land, and you become the owner of part of mine, the servitude will be retained in both parts of the same; although in the beginning, it could not have been acquired with reference to only a part.
9Celsus, Digest, Book V. If a right of way through the property of another is merely granted or bequeathed to anyone he will have the right to walk or drive over it, but only in a proper manner, that is to say over any portion of the same; for certain things are tacitly understood to be excepted in ordinary conversation. He will not, however, be permitted to go through the house, or to walk or drive through the vineyards, when he might have done so just as conveniently elsewhere, and with less injury to the land subject to the servitude. For it is settled that in whatever direction he first directs his course, he must afterwards use the same in walking and driving; and that he has no power subsequently to change it. This view was also held by Sabinus, who stated in an argument that it was lawful for a party to direct a water-course wherever he pleased, but after this was done he could not change it; and it is true that this rule should also be observed in the case of a right of way.
10The Same, Digest, Book XVIII. Where the right to walk through property is bequeathed which cannot be enjoyed unless certain work is performed, Proculus says that the legatee has a right to make a path by excavation, or by substructure.
11Modestinus, Differences, Book VI. It is commonly held that a servitude cannot be acquired of a part of the ownership; and therefore, where anyone who has a tract of land stipulates for a right of way and afterwards alienates a portion of said land, he, in this instance, vitiates the stipulation by introducing matters for which, in the beginning, a stipulation could not have been made. A right of way with reference to a part cannot be either bequeathed or revoked, and if this is done, neither the bequest, nor the revocation will be valid.
13Pomponius, On Quintus Mucius, Book XIV. Where a right of way has been granted, and the place indicated for the same is so narrow that neither a vehicle nor a beast of burden can enter it, it will be held that a pathway rather than a driveway is acquired. But if a beast of burden can be conducted through it but a vehicle cannot, the right of way for cattle is held to be acquired.
14Paulus, On Sabinus, Book XV. Ad Dig. 8,1,14 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 11.Servitudes of rustic estates, even though they are attached to corporeal property are, nevertheless, incorporeal, and therefore can never be acquired by use; there may be servitudes of such a kind that they do not admit of certain and continuous possession, for no one can have permanent and continuous possession of a path in such a way that it can be held not to be interrupted for any time. The same rule must be observed with reference to the servitudes of urban estates. 1The servitudes of a path leading to a tomb remains private property, and therefore it can be released to the owner of the land subject to the servitude; and, it can also be acquired even after the tomb has been invested with a religious character. 2Where land belonging to the public or a highway is situated between two estates, a servitude for drawing water may be imposed, but a water-course cannot. It is, however, customary to petition the Emperor to permit the party, “to conduct water across a highway in such a manner as to cause no inconvenience to the public”. The existence of sacred and religious places between two tracts of land prevents the creation of the servitude of a pathway; since no one is entitled to a servitude through places of this kind.
15Pomponius, On Sabinus, Book XXXV. Whenever servitudes are neither personal nor real, then, because the neighbors have no interest in them, they are not valid; as for instance, one which states that you shall neither walk nor stand on your own property. Therefore, if you grant me as a servitude that you will not have the right to use and enjoy the crops from your own land, this is void. It would be otherwise, however, if you granted me a servitude providing that you should have no right to draw water on your own land, for the purpose of diminishing my supply of water. 1The nature of servitudes is not such that a person should be compelled to do anything whatever, (as for instance, to move shrubbery in order to give a more pleasant view, or, for the same purpose, to paint something on his own land), but he should only tolerate something, or agree not to perform some act.
16Julianus, Digest, Book XLIX. Where a man has received real property as security, it is not unjust that he should be granted a prætorian action to enforce a servitude to which it is subject; just as an action of this kind will be granted for the recovery of the land itself. It is established that the same rule must be observed with respect to a party who holds land under a perpetual lease.
17Pomponius, Rules. A share in a right of way, or a pathway, or a driveway for cattle, or a water-course, cannot be made the subject of an obligation, because the use of these things is undivided; and therefore where a stipulator dies leaving several heirs, anyone of them can bring an action for the entire right of way; and if the party promising dies leaving several heirs, an action can be brought for the entire right against any one of them individually.
19Labeo, Last Works, Abridged by Javolenus, Book IV. I think that where anyone sells land, a servitude can be imposed upon it, even if it is not useful to him; for example, where a party would have no interest in a water-course, such a servitude can nevertheless be created, as there are certain things which we can have, even though they are of no advantage to us.
20Javolenus, On the Last Works of Labeo, Book V. As often as a right of way or any other right attaching to land is purchased, Labeo is of the opinion that security should be given that nothing will be done by you to prevent the purchaser from availing himself of his right, because there can be no open delivery of a right of this description. I think that the use of such a right must be considered as equivalent to delivery of possession; and therefore interdicts corresponding to those relating to possession have been established.