Praedial Servitudes

The praedial servitudes were the oldest and most commonly used servitudes known to the Romans and occurred in a great variety of forms. Such servitudes related only to immovable property and were real rights over another's land for the benefit of the owner of neighbouring land.

Their purpose was to facilitate the owner of a piece of land to have greater use of his property by giving him the right to use another's land in a prescribed way. It is important to emphasize that servitudes adhered to land: one plot of land (referred to as praedium serviens: servient plot) yielded a service or bore a burden in favour of another plot of land (called praedium dominans: dominant plot). Such servitudes therefore belonged to the holder in his capacity as owner of the dominant tenement and burdened the owner of the servient tenement in his capacity as owner of that piece of land rather than in their personal or private capacity. In other words, the establishment of a servitude entailed a burden on one piece of land and a corresponding benefit for another piece of land, irrespective of the ownership. The ensuing implication meant that even if the ownership of the plots in question changed the servitude continued to exist in favour of the new owner of the dominant plot and against the new owner of the servient plot.

The praedial servitudes were in turn classified into rural praedial servitudes (iura praediorum rusticorum) and urban praedial servitudes (iura praediorum urbanorum).^{^[483]} It should be noted, however, that the distinction between rural and urban praedial servitudes did not correspond to the distinction between country and town but to that between dominant land without buildings and dominant land with buildings. The prevailing principle appears to have been that a servitude was rural if it served a predominantly agricultural purpose and urban if it did not, irrespective of whether it was applicable in an agricultural or an urban area.

3.5.1.1 Iura Praediorum Rusticorum

The rural praedial servitudes were the principal form of servitude in early times when Rome was a largely agricultural society.

The economic exploitation of a farming unit necessitated the ceding of certain rights to one's neighbour as long as the benefit for the dominant tenement outweighed the burden imposed on the servient land. The rural servitudes were classified as res mancipi^{^[484]} and were originally regarded not as real rights but as limited forms of ownership. At a later stage, they were recognized as incorporeal things (res incorporates). Examples of rural praedial servitudes encompass the following: iter, the right to pass through another's land on foot or on horseback; actus, the right to drive draft animals or vehicles across the servient tenement, with the inclusion of the above-mentioned right of passage; via, the right to use a road on the servient land for driving in a carriage or riding on horseback (such a road normally had to be eight feet wide and sixteen feet at turnings); aquaeductus, the right to draw water across the servient land by means of an aqueduct or furrow; aquaehaustus, the right to draw water from a well, lake or river on the servient tenement; ius pascendi, the right to pasture cattle on another's land; ius pecoris ad aquam adpulsum, the right to drive cattle to water for drinking purposes on or across the servient plot; ius harenae fodiendae, the right to dig sand from a sand-pit on another's land; ius calcis coquendae, the right to dig and burn lime on the servient land.^{^[485]}

3.5.1.2 Iura Praediorum Urbanorum

The urban praedial servitudes were concerned with urban utilization (regardless of whether the relevant immovable property was located in a city or the country) and displayed a more recent date than the rural praedial servitudes. These servitudes were classified as res nec mancipi^{^[486]} as well as res incorporales. The diversity of such servitudes are illustrated by the following: servitus onerisferendi, the right to use a building or wall on the servient land to support a building on the dominant land; servitus tigni immittendi, the right to drive a beam into a neighbour's building or wall; servitus altius non tollendi, the right to forbid a neighbour to raise the height of his building above a certain limit^{^[487]}; servitus stillicidii recipiendi, the right to construct a building in such a way that rainwater falling on it dripped down on the servient property; servitus fluminis recipiendi, the right to discharge rainwater through a gutter or something similar onto the servient land; servitus ne luminibus officiatur, the right to prevent a neighbour from erecting anything which would cut off the light falling onto the dominant tenement; servitus cloacae immittendae, the right to maintain a drain or sewer through neighbouring premises; servitus proiciendi protegendive, the right to construct a building in such a manner that part of the building extended or hung over the servient tenement; and servitus ne prospectui officiatur, the right to prevent a neighbour from erecting a structure or planting trees that might obstruct one's view.^{^[488]}

3.5.1.3 Requirements and Characteristics of Praedial Servitudes

The Roman jurists developed certain requirements that praedial servitudes had to comply with to ensure that the benefit to the dominant tenement would outweigh the burden imposed on the servient property.

As the above-mentioned examples indicate, praedial servitudes could be either negative or positive: the holder of a servitude could either demand that the owner of the servient property should abstain from certain activity (e.g., erecting a building or structure exceeding a specified height), or was empowered by the servitude to conduct a specific task (e.g., draw water). The holder's right was defined by the nature of the servitude and had to be exercised properly according to the standards set by the community.

On the other hand, an important feature of servitudes was that the owner of the servient property was not at all obliged to do something positive. The relevant rule was expressed as follows: ‘the nature of servitudes is not such that someone has to do something, but that he has to permit something or refrain from doing something.'^{^[489]} An active duty of performance was not required from the owner of the servient tenement since this would restrict his freedom as a person. The only exception to this principle derived from the servitus onerisferendi (the right to have a building on the dominant land supported by a wall or building on the servient land), with respect to which the owner of the servient property had the duty to maintain the supporting wall of the building in good condition at his own expense.^{^[490]}

A requirement for establishing a praedial servitude was that the dominant and servient tenements had to exist in the same location. This so-called vicinitas requirement implied that the two properties had to be adjacent or so close to each other that one could actually serve the other in an effective way.^{^[491]}

Furthermore, as servitudes existed for the benefit of the dominant land rather than merely for a particular owner, the rights they engendered could theoretically be exercised in perpetuity. Some legal discourses state that a perpetual cause or reason (perpetua causa) for the servitude had to be present. Consequently, a servitude could not be constituted subject to a resolutive or suspensive condition or term.^{^[492]}

A further condition for the existence of a servitude was expressed by the words nulli res sua servit (‘no one is served by his own property'): an owner of land could not have a servitude over his own property, since a servitude was by definition a ius in re aliena.

Hence, if the owner of one of the two plots acquired ownership of the other plot or if there was a merger whereby the same person acquired ownership of both tenements, the servitude was terminated and not automatically revived if the ownership of one of the two properties was transferred at a later stage.^{^{New Roman",serif; color:black'>[493]}}

As already noted, the holder of a servitude was required to exercise his right in a reasonable manner (civiliter modo) so as not to cause unnecessary damage or inconvenience to the owner of the servient tenement.^{^[494]}

Another general rule was expressed by the maxim servitus servitutis esse non potest: ‘there could not be a servitude in respect of a servitude.'^{^[495]} This means that the holder of a servitude could not grant a servitude to a third party in respect of the land to which his own servitude pertained.^{^[496]} The reason for this limitation was that a servitude, which itself was a right (and thus a res incorporalis), could exist only in respect of a res corporalis (particularly a res immobilis) rather than another right.

As previously noted, a servitude entailed a burden on one property and a corresponding benefit for another property irrespective of the ownership. A related rule elaborated that a servitude was indivisible: if either the dominant or the servient property was divided or came into the hands of more than one owner, the servitude was not similarly divided. Where the dominant tenement was divided, the servitude continued to exist in favour of all the owners. The division of the servient property, on the other hand, theoretically entailed the servitude burdening all the divided portions.^{^[497]} However, the judge in effecting the division could limit the exercise of the servitude to a particular portion or portions.^{^[498]}

3.5.2

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

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