Paulus, On Plautius, Book XV. Will a person who has an usufruct retain it if he only makes use of it because he thinks that he is solely entitled to the use of the same? I am of the opinion that if he knows that he is entitled to the usufruct, and he only exercises the use, he must, nevertheless, be considered to enjoy the usufruct; but if he does not know this, he will lose the usufruct as his use is based not on what he has, but on what he thinks he has.

Paulus, 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.

Paulus, On Plautius, Book XV. For example, when a man had a pottery, where vessels were made by means of which the produce of the land was taken away; just as in certain places it is usual for wine to be transported in jars, or vats to be constructed, or tiles to be made to be used in the construction of a house. If, however, the pottery was employed for the manufacture and sale of vessels, an usufruct would exist. 1Moreover, the right of burning lime, quarrying stone, and digging sand, for the purpose of building something on the land differs very greatly from an usufruct; and so does the right to cut stakes for vines so that supports may not be lacking. But what would be the case if these things improved the condition of the property? It cannot be doubted that they are of the nature of servitudes, and this Marcianus approves to such an extent that he thinks that a servitude can be created permitting me to build a hut on your land; provided, of course, that I possess a servitude of pasturage, or of driving cattle to water; so that I may have a place in which to take refuge when the weather is bad.

Paulus, On Plautius, Book XV. And Atilicinus says that the Emperor made the following statement in a Rescript to Statillus Taurus: “Those who were accustomed to obtain water from the Sutrine Estate appeared before me, and said that they were unable to conduct the water from the spring on the Sutrine Estate which they had used for several years, because the spring had dried up; and that afterwards the water began to flow from said spring, and they petitioned me that, as they had lost their right through no negligence of their own, but because they could not obtain the water, it might be restored to them. As their request did not seem to be unjust, I though that relief should be granted. It is therefore decreed that the right which they had on the first day when they could not succeed in obtaining water shall be restored to them.”

The Same, On Plautius, Book XV. Ad Dig. 8,6,8 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.If I have the right to allow the water from my roof to fall on your land, and I permit you to build there, I lose my right to allow the water to fall. In like manner, if I have a right of way over your land, and I permit you to build anything on the place over which I have the right of way, I lose it. 1A person who transfers a portion of a roadway to which he has a right, is considered to be using the whole of it.

Paulus, On Plautius, Book XV. Where I and my ward hold land in common, even though we both do not make use of a right of way attached to the same, I retain the right of way on account of the benefit to the ward. 1Where a party has a right to make use of water at night, but only uses it during the day for the period established by law for the loss of a servitude, he loses the right to make use of it at night, because he failed to exercise his privilege. The same rule applies to a party who has a right to use an aqueduct during certain hours, and makes use of it at others, and not during any part of the hours which are mentioned.

Paulus, On Plautius, Book XV. If the servitude to draw water at night should be granted me, and afterwards, by another transfer, I should also obtain the privilege of drawing water by day, and, during the time prescribed by law, I should only make use of my privilege at night, I will lose the servitude to draw water during the day, for the reason that in this instance there are two servitudes derived from different causes. 1It has been very properly decided that water cannot be conducted by means of stone aqueducts, unless this was included in the grant of the servitude, for it is not customary for a person who has water to conduct it through a channel made of stone. However, what is customary in cases of this kind can be done, as, for instance, water can be conducted through pipes, even if nothing on this point was stated in the grant of the servitude, provided always that no damage is caused to the owner of the land by doing so. 2It has been decided that the servitude of drawing water can be granted where there is a public highway between two tracts of land; and this is true. This is not only the case where there is a public highway between the two tracts, but also where they are divided by a public stream, in case the servitude of driving or of passage can be established, notwithstanding that the public stream divides the two tracts of land, that is to say, where the width of the stream does not prevent it from being crossed. 3The rule is the same where my neighbor owes a servitude to my land, which does not join his but joins another belonging to me, as I can bring an action against him, and maintain my right to pass through his premises to my land beyond, although I may not have a servitude attaching to my intermediate tract; just as where a public road, or river which can be crossed by fording, lies between two separate tracts of land. None of these servitudes, however, can be imposed where the intervening tract is sacred, religious, or holy, and cannot be used. 4If there is an intermediate tract of land which belongs to a third party between your premises and mine, I can impose the servitude for drawing water upon your land if the owner of the intermediate tract grants me the right of way through his premises; just as when I wish to obtain the perpetual right to take water from a public stream which forms the boundary of your land you can grant me a right of way to the stream.

The Same, On Plautius, Book XV. If a person who possessed the property as a purchaser is taken prisoner by the enemy before usucaption has taken place, let us see whether his heir will obtain any benefit from the usucaption, for it is interrupted; and if it is of no advantage to him on his return, how can it profit his heir? It is, however, true that he has ceased to possess the property, and therefore the right of postliminium will not benefit him to the extent that he may be considered to have acquired it by usucaption. If the slave of a person who was in the power of the enemy should purchase property, Julianus says that the usucaption of the same will remain in abeyance; for if the owner returns, the usucaption is understood to have taken place. If, however, the owner should die while in the hands of the enemy, it may be doubted whether the property will belong to his successors under the Cornelian Law. Marcellus thinks that the legal fiction is capable of a broader application, for one who has returned under the law of postliminium, has a better right to things which have been acquired by his slaves than to those which he himself acquired, or which he possessed by means of his slaves before he was captured by the enemy; as it has been decided, in some instances, that the estate takes the place of the person, and therefore that the right of usucaption is transmitted to the heirs of prisoners of war. 1If a slave of whom I am in possession should take to flight, and represent himself to be free, he will be considered as still in the possession of his master. This, however, must be understood to apply where, if he is caught, he is not prepared to maintain in court that he is free; for, if he is ready to do so, he will not be considered to be possessed by his master, against whom he is about to appear as an adversary. 2If a possessor of property in good faith should ascertain that it belongs to another, after having lost possession of it before the time necessary for usucaption has elapsed, and he should obtain possession of it a second time, he cannot acquire it by usucaption, because the beginning of the second possession is defective. 3If property to which we are entitled is delivered to us in accordance with the terms of a will, or under a stipulation, we must take into account the time when it was delivered, because property can be made the subject of a stipulation, even if it does not belong to the promisor.

The Same, On Plautius, Book XV. If he against whom proceedings have been instituted under the Aquilian Law confesses that he has killed a slave, even though he may not have done so, and the slave is found to have been killed, he will be liable on account of his confession.

The Same, On Plautius, Book XV. When the principal thing is no longer in existence, its accessories, generally speaking, also cease to exist.