BOOK might be in any way necessary for the due convenience and enjoyment of the house.

II.

Rules re

garding services.

How created.

How extinguished.

Personal
Services.

Usus

fructus.

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 faciendo". 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 will3. 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. Remissione, 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

III.

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.

of usu

The rights of the Usufructuarius extended to The rights every thing that the estate produced1; but this fructuawas 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.

2.

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. 1.

3 Id.

4 D. VII. 8. 12. 2.
6 D. VII. 8.
4. I.

III.

sell, let, nor give away his right, which was ter- CHAP. minated by death natural or civil, and also by omitting to exercise the right for ten years.

3. Habitatio est jus alienas ædes inhabitandi Habitatio. salva earum substantia1. This servitus contained more than usus, but less than usus fructus. It may be said to be a life estate in a house; the habitarius could sell or let his right, but it must be confined to the jus inhabitandi, and the house could not be used for other purposes than inhabitation. This terminated like the foregoing; but it appears it was not lost by the capitis diminutio; for which Modestinus seems to give a very unsatisfactory reason, because it consisted in facto and not in jure. It is difficult to conceive how the two could be separated. But see D. 50. 17. 24.

BOOK

II.

Peculium.

Militare.

CHAPTER IV.

Of the Persons by whom Property might be

acquired.

PROPERTY might be acquired not only immediately by a man's self, but also mediately by others whom he had under his power, as a son and a slave.

It has already been explained' that children under the power of the father, and slaves, were res mancipi; and as such were incapable of the legal possession of property, consequently, whatever they might acquire belonged to their respective parents or masters. Yet both a son and a slave were allowed to have some little property of their own, which was called peculium. This was the consequence of the gradual relaxation of the patria and dominica potestas.

Peculium est pusilla pecunia quam filius familias vel servus a rationibus paternis vel dominicis separatam habet: a very small sum of money which the Filiusfamilias or the slave was allowed to have to his separate use from his father's or master's accounts. This did not depend on the son, or slave himself, but must be expressly granted by the father or master3. It was thus divided:

The militare peculium was apparently at first only castrense, and it consisted of whatever a filius

1 Book I. cc. 3 and 5.

2 Hein. El. ccCCLXXIII.; D. XV. I. 5. 3 and 4.

3 D. XV. I. 4.