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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.
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, arena fodiendæ, &c. 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 of beasts and carts and waggons, propassage vided 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 tollendi the right of building your wall higher, or of
1 D. VIII. 3. I.
2 D. VIII. 3. 12.
3 D. VIII. 3. 7.
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 planting1.
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 sint3. 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.
BOOK might be in any way necessary for the due convenience and enjoyment of the house.
The following rules respecting services must be observed. 1. Every service which is claimed must spring from the property of another, for nulli res sua servit1. 2. No service can consist in faciendo, but in patiendo, or non faciendo2. 3. Every service must be entire in itself; and lastly, 4. It must be founded upon a perpetua causa1, the ground of the claim must be of a continuous nature.
The rural and urban services were created, 1. By stipulation or contract. 2. By wills. 3. By prescription, i. e. by uninterrupted enjoyment for the period required by law. They were conveyed by a quasi traditio, the delivery of the estate which claimed the servitus operated as the delivery of the servitus also".
These rights were extinguished:
1. By consolidation, i.e. where the res dominans and the res serviens became the property of the same person.
2. Remissione3, by surrender of the right, or by allowing the owner of the res serviens to do that which obstructs the exercise of the right.
3. By ceasing to exercise the right; and
4. Lastly, by the destruction of the res serviens. We must now consider the personal services, which were classed under three heads; Ususfructus, Usus, and Habitatio.
1. Ususfructus est jus alienis rebus utendi, fruendi salva rerum substantia. The right of using and enjoying the property of another without damage to the thing so enjoyed. Usufruct was in fact an estate for life, or for years, generally created by contract, or by will; more frequently perhaps by
last will and testament, where the testator wishing CHAP. to provide for his widow, or some other relative, left his estate to his son detracto usufructu, and then gave the usufruct to the widow; who would thus have the entire use and enjoyment of the estate for life, unless a shorter period were named; and at her death the son would come into full possession. It is thus that a person who had the usufruct was said to enjoy res aliena; because in - this case, as the English law would express it, the fee was in the son. It might also arise by pur- How conchase, as where one had the right for life, or for stituted. years. Occasionally it might arise by the decision of a judge in judiciis divisoriis where a family estate was divided among several claimants; perhaps it might be of such a nature that an equitable division could not be effected without giving to one of them an usufruct. It arose also by law, as where the father had a right to the son's peculium paganum. The rights of the Usufructuarius extended to The rights every thing that the estate produced'; but this futu was confined to the fructus ordinarii; therefore he rius. would not be entitled to thesaurus if found. He could let the estate, or even sell his life interest in it; but he could not change the res fructuariæ, even though it might be an improvement. Usufruct could not properly apply to res fungibiles, articles of consumption, quæ numero, pondere, et mensura consistunt, such as corn, wine, or even money; but it appears that a senatus consultum was passed in the reign of Tiberius3 allowing the quasi usufruct of consumable articles, but a security was exacted from the Usufructuarius that he would return the like in quantity and quality. Usufruct was terminated: 1. By the death of the possessor, natural or civil. 2. By the consolidation
of the two estates. 3. By the destruction of the res fructuariæ; and lastly, 4. By non usage.
Usus est jus alienis rebus tantum ad necessitatem utendi, salva earum substantia1.
Here it will be observed that the person to whom usus is given is limited to the jus utendi; but has not the jus fruendi, which latter word, in its legal signification, meant the taking without stint of all that the subject matter produced.
The Usuarius could take as much of the produce of the garden or farm, as the case might be, as was necessary to supply the daily wants of himself and family, such as apples, olives, hay, straw, corn, and whatever the farm might produce; but he must not take these things usque ad compendium, to make a profit of them, as this would be abusus. It appears from the Digest that the rights of the usuarius would often vary according to the wording of the will, and the peculiarities of the things in which the usus was constituted; and the law was construed in a much narrower sense before the time of Ulpian3. If a usus were granted to one it was to be interpreted pro dignitate ejus. If the usus of cattle were given it was interpreted to mean only for draught, or for manuring the land, but in Ulpian's time the usus of the milk was allowed1.
He who had the usus of a house could occupy such parts of it as were necessary for his convenience together with his family and servants5. If the grant were to a single woman, and she afterwards married, her husband had a right to reside with her. The Usuarius was strictly confined to the enjoyment of such things only as the usus specified; the extent of the user must be tantum ad necessitatem; and the usuarius could neither
1 Hein. El. CCCCXXVI.
2 D. VII. 8. 12. I.
5 D. VII. 8. 2. I.
4 D. VII. 8. 12. 2. 6 D. VII. 8. 4. I.