1Paulus, On the Edict, Book XXI. Where land belonging to the public or a highway intervenes, this does not prevent the servitudes of a right of way, or for driving cattle, or for raising the height of a house, from being enjoyed; but it does interfere with the right of supporting a beam by a wall, or of a projecting roof, and it also interferes with the servitudes for the flowing and dripping of water, for the reason that the sky over the aforesaid ground should be free. 1Where the usufruct of a house is yours, and I have the mere ownership of the same, and it is subject to the support of the building of a neighbor; suit can be brought against me for all of it, but no legal proceedings can be instituted against you.

2Gaius, On the Provincial Edict, Book VII. The following are the rights to which urban estates are subject, namely: that of raising a house and obscuring the lights of a neighbor, or of preventing a raising of this kind; that of allowing the dripping of rain-water on the roof or the ground of a neighbor; and also that of not allowing the right of inserting beams into the wall of a neighbor, and that of the projection of a building; and others similar to these.

3Ulpianus, On Sabinus, Book XXIX. A servitude providing against obstructing a view also exists.

4Ad Dig. 8,2,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 211a, Note 8.Paulus, Institutes, Book II. Where a servitude of lights is created, it is held that what is acquired is that a neighbor must not interfere with our lights, but if the servitude imposed is to prevent the obscuring of lights, we seem to have especially acquired the right that a neighbor shall not raise his building any higher against our will, so as to lessen the amount of light in our house.

5Ulpianus, On the Edict, Book XVII. We must understand the unwillingness of anyone in matters relating to servitudes to mean, not that he objects in so many words, but that he does not consent. Therefore, Pomponius states in the Fortieth Book, that even an infant and an insane person may be properly said to be unwilling; for these terms do not relate to the act, but to the right to impose servitudes.

6Gaius, On the Provincial Edict, Book VII. Moreover, these servitudes just as those of rustic estates, are lost by want of use after a certain time has elapsed; except that this distinction exists between them, namely: that they are not absolutely lost by want of use, but only where the neighbor obtains freedom by usucaption at the same time. For instance, if your house is servient to mine so that it cannot be raised any higher lest it may obstruct the lights of my building, and I have my windows closed or obstructed during the time established by law; I lose my right only where you have had your house raised and remaining higher during the time aforesaid; otherwise, if you construct nothing new, I will retain the servitude. Moreover, if your house is subject to the servitude of the insertion of a beam, and I remove the beam, I only lose my right if you fill up the hole from which the beam was taken, and retain things in this state during the time prescribed by law; but if you make no change, my right remains unimpaired.

7Pomponius, On Quintus Mucius, Book XXVI. Mucius says, with reference to what is stated about my acquiring freedom for my building by usucaption, that I could not have acquired it by planting a tree in that same place; and this is correct, because the tree would not remain in the same condition and place as a wall would do, on account of the natural motion of the tree.

8Ad Dig. 8,2,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169a, Note 3c.Gaius, On the Provincial Edict, Book VII. Where a wall is, according to natural law, common property, neither of two neighbors has a right to tear it down, or repair it, because he is not the sole owner.

9Ad Dig. 8,2,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 6a.Ulpianus, On the Edict, Book LIII. Where a man by raising his own house shuts off the lights of his neighbor, and is not subject to a servitude imposed upon his building, no action can be brought against him.

10Ad Dig. 8,2,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 6.Marcellus, Digest, Book IV. Gaurus to Marcellus: I have two houses, I bequeathed one of them to you, and my heir raised the other and obstructed your lights; can you bring an action against him, and do you think that it makes any difference whether the house which he raised was his own or the one which he inherited? I wish also to ask whether an heir is obliged to grant access to property, which has been bequeathed, through a house belonging to another; as this inquiry is frequently made where the usufruct of land is bequeathed, which cannot be reached except through the property of another. Marcellus answered: Where a man has two houses and bequeathed one of them, there is no doubt that the heir can obstruct the light to the one bequeathed by raising the other; and the same must be said where a party bequeathed a house to one legatee, and the usufruct of another house to another. A similar rule, however, is not always applicable to a right of way, because, without access, the legacy of usufruct is worthless; but a man can live in a house where the light has been obstructed. Moreover, where an usufruct of land is bequeathed, access to it should also be given, because if what was left was the privilege of drawing water, a right of way for this purpose ought also to be granted. It should, however, be stated that the heir is permitted to obstruct the light and to darken the house, only to such an extent that the light should not be entirely cut off, but as much left as will be sufficient for the ordinary requirements of the inmates of the house during the day.

11Ulpianus, On the Office of Consul, Book I. Ad Dig. 8,2,11 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 6.Where anyone wishes to cut off his neighbors’ lights, or to do anything else which may interfere with their convenience, he must remember that he is obliged to preserve the original form and position of the building. 1Where no agreement exists between you and your neighbor as to the height of a building which you have undertaken to erect, you can have an arbiter appointed.

12Javolenus, On Cassius, Book X. Where buildings are subject to a servitude that no portion of them shall be raised any higher, shrubs can be placed upon them above that height; but where the servitude relates to the view and the shrubs would obstruct it, this cannot be done.

13Proculus, Epistles, Book II. A certain Hiberus, who owns a building in the rear of my warehouse, built bathrooms against the party-wall; although it is not lawful for anyone to conduct pipes along a party-wall, just as he has no right to build another wall over it; and the law applies with much more force to pipes, because, by means of them, the wall may be burned. I wish that you would speak to Hiberus about this, in order to prevent him from doing what is illegal. Proculus answered, “I do not think that Hiberus has any doubt in this instance that he is doing something which is not allowed in placing pipes along a party-wall”. 1According to the opinions of Capito, it is permitted to encrust a party wall with ornamental stucco, as I can have very valuable paintings on a wall of this kind; but if my neighbor demolishes the wall, and proceedings are instituted for the prevention of threatened injury, on a stipulation, paintings of this description cannot be appraised any higher than ordinary plaster; and this rule must also be observed with reference to decorative encrustation.

14Papirius Justus, On the Constitutions, Book I. The Emperors Antoninus and Verus stated in a Rescript, that the owner, or anyone else with his consent, has a right to build on vacant land which is not subject to a servitude, if he leaves the lawful space between where he builds and the neighboring house.

15Ad Dig. 8,2,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 6a.Ulpianus, On Sabinus, Book XXIX. Different rules are observed with reference to servitudes which provide against obstructing lights, or impeding the view; because with reference to the view, as the dominant owner has a greater interest in having a pleasant and unobstructed prospect; but, so far as the lights are concerned, nothing must be done by which they may be obscured, and therefore whatever the servient owner does to this end can be prohibited, if a servitude exists; and notice of a new structure can be served upon him, provided he acts in such a way as to obstruct the light.

16Paulus, Epitomes of the Digest of Alfenus, Book II. Light is the power of seeing the sky, and a difference exists between light and view; for a view of lower places may be had, but light cannot be obtained from a place which is lower.

17Ulpianus, On Sabinus, Book XXIX. Where anyone plants a tree so as to interfere with the light, it may be stated with perfect propriety that he acts in opposition to a servitude which has been imposed; for even a tree renders the sky less plainly visible. Where, however, what is placed there does not at all interfere with the light, but only cuts off the rays of the sun; if this is done in a place where it was more pleasant to be without it, it can be said that no act has been committed in violation of the servitude; but if it is done so as to cut off the sunshine from a room, or from a sundial, it must be said that, by producing shade in a place where sunshine was necessary, he acts in violation of the servitude imposed. 1On the other hand, if a man removes the building or the branches of a tree, by which a place which was formerly shady becomes exposed to the sun, he does not violate the servitude; for he must act in such a way as not to obstruct the light, and in this instance he does not obstruct it, but he causes too much light. 2Sometimes, however, it may be said that even where a party removes or lowers a building, he still obstructs the light; if for instance, the light entered into a house by reflection or repercussion, or in some other way. 3The following clause with reference to delivery: “The dripping from the roof to remain as it is at present”; means that the neighbors are required to allow the dripping of water from the roof, but not to the extent that the purchaser is to tolerate it from neighboring buildings; and therefore the vendor alleges that he is entitled to a servitude of the dripping of water from a roof but is not subject to this so far as anyone else is concerned. 4What has been stated here with reference to the dripping of water from a roof, must be understood to apply to all other servitudes also, if nothing to the contrary has been expressly agreed upon.

18Ad Dig. 8,2,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 480, Note 9.Pomponius, On Sabinus, Book X. Where pipes through which you conduct water being attached to my house cause me damage, I am entitled to an action in factum, and I can also demand from you a stipulation for the prevention of threatened injury.

19Paulus, On Sabinus, Book VI. Proculus says that a pipe attached to a party-wall, and which carries water from a cistern, or from the sky, is something which cannot legally exist; but that a neighbor cannot be prevented from having a bath-room against a wall of this kind, even though the wall might become damp; any more than he could be prevented from pouring out water in his own dining or bed-room. Neratius, however, says that the neighbor can be prevented from doing this, if the apartment was used for warm baths, so that it kept the wall constantly damp, and this was a source of injury to his neighbor. 1Where a room of earthenware is built against a party-wall, it can legally exist if it is so constructed that it will remain even if the party-wall is removed, provided it does not interfere with the repairs of the same. 2Sabinus says very properly that I can have a stairway against a party wall because it can be removed.

20The Same, On Sabinus, Book XV. Servitudes which are only attached to the surface of the ground are retained by possession; for if I should happen to have a beam extending from my house and inserted into yours, then, since I have the right of such insertion, I have possession of the privilege on account of the said beam. The result will be the same if I have a balcony supported by something on your land, or if I permit the dripping of water on your premises since I am using something which belongs to you, and thus, as it were have possession by my own act. 1If my yard is higher than your house, and you have granted me the right to walk or drive through your yard to my house, and there is no level approaching to my house through your yard; I can legally build steps, or an inclined plane to my door, so long as I do not demolish anything more than is necessary for the purpose of establishing the right of way. 2Where a building from which water drips from the roof is removed in order that another of the same shape and nature may be erected there, the public welfare requires that the latter should be understood to be the same structure; for, otherwise, if a strict interpretation is made, the building afterwards erected on the ground will be a different one; and therefore when the original building is removed the usufruct will be lost, even though the site of a building is a portion of the same. 3Where the servitude of the dripping of water is imposed, the owner of the ground subject to the same cannot legally build upon the place where the water falls. 4Where the water was discharged in the first place from a tile-roof it can not subsequently be discharged from the one of boards, or one constructed of any other material. 5In whatever manner a servitude of the dripping of water was acquired, the fall can be made greater by raising the building to a higher level, since by this means the servitude will be more easily tolerated, as what falls from a height does so more gently, and sometimes is dispersed, and does not reach the place subject to the servitude; but it cannot be lowered, because that the servitude would become more onerous, that is to say, instead of a drip there will be a stream. For the same reason the drip may be carried back, as in this instance, it will begin to fall more on our premises; but it cannot be brought forward, since it would then fall on another place than that subject to the servitude; for we can render anything less onerous, but not more so. And, by all means, it should be borne in mind that the condition of a neighbor may be improved, but not made worse, unless at the time that the servitude was imposed, some change was expressly provided for. 6Where anyone builds upon ground which is subject to the servitude of a drip from a roof, he has the right to raise his building to the place from which the drip proceeds; and indeed, if it falls upon the building itself he can erect it still higher, provided, however, the drip is still properly taken care of.

21Pomponius, On Sabinus, Book XXXIII. Where your house is subject to two servitudes in favor of buildings belonging to me, namely: that it must not be raised higher, and must receive the water from off my building, and I grant you the right to raise your house without my consent; it must be held, so far as relates to the drip of my water, that if your house is raised higher, and it is impossible for the rain-water from mine to fall upon it, you will not for that reason be permitted to raise it any higher, but if the drip from mine is not interfered with, you can raise it higher.

22Julianus, On Minicius, Book II. A man who owns a house can impose such a servitude upon his neighbor as to compel him to give security not only with reference to the lights which exist at the present time, but also with reference to any that may subsequently be made.

23Pomponius, On Sabinus, Book XXXIII. Where a servitude is imposed as follows, “The lights which are now in existence are to remain in their present condition”: this is not held to provide anything with respect to future lights; but if the words of the bond are: “Lights are not to be obstructed”, this clause is ambiguous, and does not indicate whether the lights which now exist are not to be obstructed, or whether other lights which may be afterwards made are included. The more favorable construction is that the clause refers in general terms to all lights, whether they exist at the present time, or are made after the contract has been executed. 1Even where a building has been planned but has not yet been erected, a servitude may be acquired by or imposed upon it.

24Paulus, On Sabinus, Book XV. Where a person has a building which is higher than that of another, he can legally raise his own house as high as he wishes, so long as this does not impose a more onerous servitude on the buildings below than they should bear.

25Pomponius, On Sabinus, Book XXXIII. What has been stated concerning the insertion of timbers into a building is applicable where one house supports something belonging to another; otherwise, no one can have his building rest upon that of another, 1Where three houses stand on sloping ground, and the middle house is subject to a servitude in favor of the upper one, but the lowest is not servient to any, and the party-wall dividing the lower and the middle houses is raised by the owner of the lowest one, Sabinus says that in this instance the said owner can legally retain the wall which has been raised.

26Paulus, On Sabinus, Book XV. Where property is held in common, none of the owners can, by virtue of a servitude, build anything without the consent of the others, or prevent the others from building anything; since no one can have a servitude attached to his own property. Therefore, on account of the interminable controversies that may result, the property is usually divided; but, by means of an action in partition, one of the parties in interest can prevent any work from being done, or can cause the others to remove anything which has already been constructed, provided this is for the benefit of all.

27Pomponius, On Sabinus, Book XXXIII. However, if you and I are joint-owners of the Titian House, and something is illegally inserted from it into my own house, I undoubtedly will have a right of action against you for this reason; or what has been inserted must be removed. The same rule applies where, under similar circumstances, some portion of your house has been made to project over the one owned by you and me in common, since I, alone, am entitled to an action against you. 1If you intend to build upon ground held in common your joint-owner has the right to prevent it, even though the privilege of building has been granted you by a neighbor; because you have no right to build on common property against the consent of the other joint-owner.

28Ad Dig. 8,2,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 209, Note 7.Paulus, On Sabinus, Book XV. Where an opening is made in the lower portion of the wall of a room or a hall belonging to another, which was done for the purpose of washing the floor; it is not considered to be a ground for the creation of a servitude for a flow of water, or an act by which a right can be acquired by lapse of time. This is true because no water falls on that place from the sky, since what is performed by the hands is not perpetual; but water that falls from the sky, although it is not continuous, is, nevertheless, due to a natural cause, and for that reason is considered as perpetual. Again, all servitudes attaching to real property must be based upon perpetual causes, and therefore the right to conduct water which has its source in a reservoir or a pond, cannot be granted as a servitude. The right to have water drip from a roof must also depend upon a natural and perpetual cause.

29Pomponius, On Quintus Mucius, Book XXXII. Hence, if the neighbor suffers damage as the result of such an opening as has been mentioned and with reference to which no servitude exists; it must be said that there is good ground for a stipulation providing against threatened injury.

30Paulus, On Sabinus, Book XV. Where anyone purchases and receives by delivery a house on which a servitude is imposed for the benefit of his own, the servitude is merged and extinguished; and if he wishes afterwards to sell the house, the servitude must be expressly renewed; otherwise the house will be sold free. 1If I obtained a portion of an estate over which I have a servitude, or to which I owe one, it is established that the servitude is not merged; as it is retained with reference to a portion of said estate. Therefore, if my land is servient to yours, and I transfer a share of mine to you, and you transfer a share of yours to me, the servitude will remain unimpaired. Moreover, an usufruct acquired in either of the two tracts of land will not interrupt the servitude.

31The Same, On the Edict, Book XLVIII. Where the heir is charged by the will not to obstruct the lights of a neighbor but to grant him a servitude, and he demolishes the building; a prætorian action should be granted the legatee by which the heir can be prevented from proceeding, if he afterwards attempts to raise the building above its former height.

32Julianus, Digest, Book VII. If my house is servient to those of Lucius Titius and Publius Mævius, the provision being that I shall not be permitted to build my house any higher, and I ask permission of Titius to raise it, and I keep it raised for the time established by law; I will obtain freedom from the servitude by usucaption as against Publius Mævius; for Titius and Mævius were not entitled to one servitude together, but to two. The proof of this is that if either one of them should release me from the servitude, I would be free from that one alone, and should still be subject to the servitude for the benefit of the other. 1Ad Dig. 8,2,32,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 216, Note 11.Freedom from a servitude is obtained by usucaption, where the house is held in possession; and therefore if a party who has raised his house relinquishes possession of the same before the time provided by law has expired, the usucaption is interrupted; and any other person who subsequently acquires possession of the same house, will obtain freedom by usucaption by the lapse of the entire term established by law. For the nature of servitudes is such that they cannot be possessed, but the party who possesses the house is understood to have possession of the servitude.

33Paulus, Epitomes of the Digest of Alfenus, Book V. The person who is required to replace a column which supported a neighboring house is the owner of the house subject to the servitude, and not he who wishes this to be done; for where it is stated in the written contract for the sale of a house that, “The wall must support the same burden as at present”, the meaning is clear enough that the wall must exist in perpetuity; for it is not stated in these words that the wall must be there forever, as this indeed could not happen, but that there should always be a wall of this kind to support the weight; just as where anyone binds himself to another that he will grant him a servitude in order to support his building, and if the house which is subject to the servitude and sustains the burden should be destroyed, another will be erected in its place.

34Julianus, On Minicius, Book II. Where a man has two vacant lots, he can, by conveying one, subject it to a servitude in favor of the other.

35Marcianus, Rules, Book III. Where the owner of two houses sells one, and states that it is to be subject to a servitude, but does not mention the servitude when he delivers it; he can bring an action on sale, or sue for recovery of an uncertain amount of damages in order to have the servitude imposed.

36Papinianus, Questions, Book VII. A man had two houses covered with a single wooden roof; and bequeathed them to different persons. I said that, because it is established that the timbers of a building could belong to two persons since they own certain parts of the same edifice, in this instance the timbers over their houses will belong to the two persons; for they will not have rights of action against one another to prevent the insertion of beams into their respective houses; and it makes no difference whether the houses are bequeathed to both absolutely, or to one of them conditionally.

37Julianus, Digest, Book VII. The same rule applies where the houses have been transferred to two parties.

38Paulus, Questions, Book II. If my house is so distant from yours that neither can be seen from the other, or a mountain stands between them and cuts off the view, a servitude cannot be imposed upon one for the benefit of the other.

39The Same, Manuals, Book I. For no one can impose a servitude upon his own building, unless the grantor and the grantee have the buildings in sight, so that one can interfere with the other.

40The Same, Opinions, Book III. I stated as my opinion, that persons who did not have the right to do so, had acted contrary to law by making openings in a party-wall and inserting windows therein.

41Scævola, Opinions, Book I. A testator bequeathed the right of habitation and the right to use a wareroom in the same house to Olympicus, during his lifetime; and adjoining said house there was a garden and an upper room which was not bequeathed to Olympicus, but access had always existed to the garden and the room through the house in which the right of habitation was bequeathed. The question arose whether Olympicus was obliged to permit this access? I answered that this was not a servitude, but that the heir could go through the house to those portions of the same which have been referred to, provided he did not inconvenience the legatee. 1Lucius Titius, having opened the wall of his house, made a doorway leading to ground owned by the public, without exceeding what was prescribed for the drip from the roof and the projection of the gutters; I ask, since he did not obstruct the lights of Publius Mævius, his neighbor, or what space he required for his passage, or did not interfere with the drip of rain-water from his neighbor’s house, whether his said neighbor, Publius Mævius, would have any right to prevent him from doing these things? I answered that, according to what had been stated, he would have none.