Constitution of Servitudes

Servitudes, whether real or personal, had to be established by the owner of the relevant property in favour of the holder of the ensuing right.

Originally the rural praedial servitudes, which were res mancipi as previously noted, had to be constituted by way of mancipatio or in iure cessio in favour of the owner of the dominant tenement. All other servitudes had to be established by in iure cessio. When the distinction between res mancipi and res nec mancipi was abandoned during Justinian’s era, these methods of establishing servitudes fell out of use.^[516]

A further method of establishing a servitude was the so-called ‘reservation of a servitude’ (deductio servitutis): a landowner who alienated land by means of mancipatio or in iure cessio could reserve a servitude on the land being transferred in favour of other (usually adjoining) land over which he retained ownership.^[517] In the time of Justinian when these methods for ownership transfer had fallen into disuse, the reservation of a servitude could be entered where a landowner trans­ferred part of his property by traditio.^[518]

A servitude could also be created by means of a will in which the testator bequeathed the ownership of a property to one person and a servitude over such property to another as a legacy.^[519] This mainly applied to personal servitudes, especially usufruct.

When an action for the division of property held in common or an inheritance had been instituted, the judge’s award (adiudicatio) could establish a servitude in favour of a party if necessary to achieve an equitable division.^[520]

Servitudes, being incorporeal things (res incorporates), were obviously incapa­ble of transfer by delivery (traditio).^[521] However, post-classical law recognized that if two parties informally agreed that one would grant a servitude over his property to the other and the latter in fact exercised such servitude by using it (usus) while the other party allowed him to do so (patientia), a quasi possessio of the servitude had been transferred. On this basis, the whole juristic act was then construed as quasi traditio.

In the time of Justinian, the most commonly used method of establishing a servitude was by way of ‘agreements and promises’ (pactiones et stipulation's). Originally, this method was applicable to land in the provinces but was later extended to the creation of any form of servitude. Since provincial land could not be privately owned, servitudes over such land could not be constituted by mancipatio or in iure cessio. Thus, to enable a person to exercise the rights a servitude entailed, a possessor of provincial land (which, as previously noted, was the property of the state or the emperor) could forge an informal agreement (pactio, pactum) with that person to grant him a servitude. Such an agreement was accompanied by a formal promise (stipulatio) by the person granting the servitude that neither he nor his heirs would interfere with the exercise of the servitude by the other party. Although this mode of establishing a servitude originally resulted only in the creation of a personal right against the promisor and his heirs, in the course of time the right so created was regarded as a real right and its holder was accorded the relevant actio in rem.^[523]

Finally, a servitude could be established by prescription. Although the lex Scribonia (first century bc) abolished the acquisition of servitudes through usucapio, in late classical law the longi temporis praescriptio of servitudes was permitted in respect of provincial land. Under the law of Justinian, this form of prescription was extended to all types of landed property; the requisite period of prescription was 10 years inter praesentes or 20 years inter absentes^[524]

3.5.4