II. Traditio is the third and last natural mode of CHAP. acquiring property. It is classed among the natural modes, because it was the original, simple, 3. Traditio. natural conveyance of property from one to another, with the intention of the owner to part with his property, by the mere act of delivery. The increase of population would cause an increase in the value of property, and derelicts would cease to be common. Before a man abandoned his possessions, and allowed them to fall again into the common stock, he would seek to obtain something in exchange, for which he was willing to transfer his rights to another; and such an agreement being come to, the mere delivery transferred the rights of the first possessor to the receiver. Traditio est modus adquirendi derivativus, quo dominus qui jus et animum alienandi habet rem corporalem ex justa causa in accipientem transfert'. The meaning of the word derivativus is that the right of traditio is derived from the two original modes of acquiring property, viz. occupatio and accessio. To make a tradition valid it was necessary, 1. The thing delivered must be something corpo- Necessary real, capable of delivery. 2. The delivery must be requisites. by the owner, having a right to alienate. 3. And an intention to alienate. 4. And no property vests in the receiver unless there be a good consideration for the transfer. Traditio was, 1. Vera, 2. Ficta, 3. Brevi manu, 4. Longa manu, 5. Symbolica. 1. Vera, where a moveable thing was delivered Vera. by the owner to the receiver, or if immoveable, where the receiver was put in possession2. 2. Ficta. Incorporeal property was incapable Ficta. of absolute delivery. A delivery therefore was supposed by the expressed intention of the owner. 3. Brevi manu. This is where the property in Brevi question is already in the possession of the person manu. 1 Hein. El. CCCLXXX. 2 D. XV. I. 8. Id. XLI. 2. 3. I. II. BOOK to whom it is to be transferred, e. g. as a pawn, or a thing lent for use. In either case if the owner agree to make over the property to him which he only holds as a security, or for his accommodation, no further delivery need be made'. Longa manu. Symbolica. 4. Longa manu is where lands at a distance are pointed out by the owner, and so delivered by his verbal declaration". 5. Symbolica. This is where the keys of a warehouse or a cellar are delivered to the purchaser whereby he can possess himself of the property which they contain3. The above-mentioned acts need not necessarily be done by the owner of the property himself; for if done by his procurator, attorney, or recognized agent, the transfer will be equally valid. 1 I. II. I. 44. 3 D. XLI. I. 8. 6. 2 D. XLI. 2. 18. 2. CHAPTER III. Of rights, or things incorporeal, and of real and personal Services. III. Definition. THIS chapter treats of the second division of CHAP. property, res incorporales, quæ tangi non possunt. These are rights which spring from real estates, and correspond with the chattel real of the English law. They are called "servitutes," services. A Servitus. servitus is thus defined, jus in re aliena constitutum, quo dominus in re sua aliquid pati, vel non facere tenetur, in alterius persona reive utilitatem. A right established in another's property, whereby the owner of that property is bound to permit something to be done in it, or to forbear to do something himself, for the convenience of some other person or thing. A servitus, therefore, consists either in patiendo or non faciendo, the former being a positive, the latter a negative service. Positive Services are divided into real and personal; and tive. real are again divided into rural and urban. Real and Before proceeding to explain these it is advisable Personal. to premise a few words as to their origin and importance. and nega real services. The Roman Servitus realis corresponds with the easement of the English law. The property Origin of of any one must, as a general rule, of necessity be contiguous to that of some other proprietor; and the right which every owner has to the free use of his property very early led to the various servitutes. If the land of one were so situated that he could not get to or from the public highway without passing over the land of another; or if he could not drain his land without cutting 1 Hein. El. CCCXCII. BOOK Rural services. Iter. Actus. Via. Urban Services. a channel through that of his neighbour, he would in the first case be entitled to the servitus of iter and via, i. e. of a foot-path and road; and in the latter to that of aquæductus, drainage; and these rights might be established by tacit consent, or by mutual agreement. The estate which furnished the servitus was called the prædium serviens; that which claimed and enjoyed it, the prædium dominans; and this applied to all real services whether rural or urban. Personal services had their origin in contracts, legacies, or the judgment of a court. 1 The services attached to rural estates were the following: Iter, a footpath, Actus, a driftway for driving cattle to and fro, Via, a road for going with carts and waggons, Aquæductus, the right of drainage through another's land. Among the rural services were also the following: aquæ haustus, pecoris ad aquam adpulsus, jus pascendi, calcis coquendæ, arence fodiendæ, &c.1 It will be seen therefore that via contained both Iter and Actus. Iter might be used for carrying a chair or litter, a horse also might pass. Actus included the passage of beasts and carts and waggons, provided they were empty; but you must not carry your spear up lest you knock the fruit off the trees. Via was the right of passing with loaded carts, and you might carry your spear upright3. The urban services could only arise where the buildings of two persons were contiguous, but these services were not necessarily confined to towns. They were principally as follows: Jus oneris ferendi, the right of leaning your house against that of your neighbour; Tigni immittendi, of inserting a beam into your neighbour's wall, projiciendi, of overhanging his property; Stillicidii vel fluminis recipiendi, the right of having your eaves and gutters to drip and flow on to your neighbour's premises; Altius tollendi, vel non tollend the right of building your wall higher, or of 1 D. VIII. 3. I. 2 D. VIII. 3. 12. 3 D. VIII. 3. 7. III. preventing your neighbour from doing so; Lumi- CHAP. num, et ne luminibus officiatur, the right of having windows, and of preventing your neighbour from intercepting the light; Prospectus, et ne prospectui officiatur, the right of prospect, and of preventing your neighbour from intercepting it by building or planting'. origin. These urban services require some further explanation, because an act such as leaning my house against that of my neighbour, or of thrusting my beams into his wall, would prima facie be an unlawful act. How then did these rights arise? Their The most natural solution of the question is this; both estates, the serviens and the dominans, were originally the same property; and on sale and divisions these services necessarily arose. If I build a row of contiguous houses, or an insula domorum, a block of houses, as it was called at Rome, on my own property, I am at liberty to do so as best suits my convenience. I think proper to lean No. 2 against No. 1, and to make the outer wall of No. 1 support the roof of No. 2, by inserting the beams into it. Suppose I afterwards sell No. 2, immediately the right oneris ferendi, which before had no existence, attaches to the purchaser; but he must be careful to include this in his agreement of purchase, which was done by a stipulation in this form, Paries oneri ferundo uti nunc est, ita sit; and thus the servitus was created, and was transmissible to whomsoever became the owner of the house. So, again, suppose the windows of No. 2 looked into the garden of No. 1; unless the purchaser stipulated for the Servitus luminum his windows might be blocked up the next day. He would therefore bind the vendor against any obstruction thus: Lumina uti nunc sunt, ita sint. And so of all other services which 1 I. II. 3. 1. D. VIII. 2. 2. 3. 4. 2 D. VIII. 2. 33. Hein. Ant. II. 3. 3. 3 Hein. Ant. II. 3. 8. |