Predial servitudes or land easements

The ownership of land could be limited in favor of neighbors. Predial servitudes belonged to these so-called rights over another’s property (iura in re aliena). They were real rights vested in a person as owner of a land (dominant land) over a neighboring land (servient land) in order to make a certain use of it.

Property law 157 only against the owner of the servient land but against all possessors of it. Although Romans never conceived of one plot of land having rights over another, servitudes were inherently predial in the sense that the owner (or sometimes the possessor) of a land could take advantage of an existing servi­tude as long as he maintained his condition of owner (or possessor) of the dominant land. Unlike the contractual relations which usually bound and entitled only the contracting parties, servitudes, once established, bound and entitled the existing owner or possessor, even when he had had no role in the creation of the servitude.

No servitude could force the owner of the servient property to perform some activity; it could not impose an active duty (servitus in faciendo consitere nequit). For instance, an obligation of the owner of the servient land to cut down some trees and furnish some wood could never be the object of servitude. The burdens imposed by servitudes had to consist of not doing something (e.g., preventing the owner of the servient land from raising a structure beyond a certain height) or of putting up with certain behavior by others (e.g., allowing the transportation of water across the land). However, the use of the servient land always had to be advantageous to the dominant property, and its use had to cause as little inconvenience as possible.

The main distinction among servitudes was made between rustic and urban servitudes. The distinction referred to the purpose and nature rather than the location of the servitude. Rustic servitudes served a prevailing agricultural purpose. They were considered to be res mancipi, and in the earliest regime they constituted a form of limited ownership. Later they were recognized as intangible things and thus could not be possessed. Examples of rustic servi­tudes were the right to cross another’s land on foot or on horseback, and the right to draw water, to burn lime, and to dig sand. Urban servitudes included building rights in neighboring properties, such as rights to light, support, and a certain view, to drainage and encroachment, and so on.

Rustic and urban servitudes could be created by in iure cessio, by adiudi- catio, by legacy, and in early Roman law by usucaption. In provincial land, servitudes were created by agreement (pactiones et stipulationes). Rustic ser­vitudes could also be created by mancipatio. Servitudes could be extinguished by merger into a single ownership, by in iure cessio, by destruction of the landed property, or by the disappearance of their utility: e.g., the right to draw water across the servient land ceased if the stream of water permanently dried up (Paul, D. 8.3.35).

The owner of the dominant land was protected by the praetor with the vindicatio servitutis (later called actio confessoria) against the owner of the servient land who denied the existence of the servitude.

Under the term servitude, Justinian’s compilers included not only predial servitudes but also so-called personal servitudes, forming a unique legal con­cept. These personal servitudes include the right to use and take the fruits of another’s property (ususfructus); the right simply to use another’s property without taking its fruits (usus); and the right to use another’s house (habitatio) or slaves (operae servorum). Classical jurists regarded the last two institutions as two different forms of usus, and usus as a limited usufruct. The personal servitude was inherently tied not to a piece of land but to the person of its holder. Classical lawyers called personal servitudes by their specific names: usufruct and use.

Usufruct

The jurist Paul defined usufruct as “the right to use and enjoy the things of another impairing their substance” (D. 7.1.1). The usufructuary, therefore, had the thing at his disposal and had the right to take the fruits without diminishing, deteriorating, or destroying it (salva rerum substantia). The owner of the thing, on the other hand, retained bare ownership (nuda proprietas), and he could dispose of the thing without violating the rights of the usufructuary. The rights of the usufructuary could be limited by the instrument of the usu­fruct’s constitution, even by the application of a fixed term to the usufruct (Ulpian, D. 7.4.3pr.). The usufructuary was bound to promise to use the thing as an honest man and to restore it at the end of the usufruct (cautio usu­fructuaria). The owner of the thing was entitled to deny the delivery of the thing until this special promise (caution) was given to him as a guaranty.

In its origin, usufruct was basically alimentary. The main purpose of the usufruct was the desire of the owner to provide sustenance particularly to his wife and other members of the family after his death.

The usufruct, although a real right (ius in rem), was so rigorously personal that the beneficiary could not alienate it. A transfer of the usufruct was allowable only from the usufructuary to the bare owner, for the sake of con­solidating property. Another consequence of the personal character of the usufruct was its limitation to the life of the usufructuary. He could not

Property law 159 transfer the usufruct to his heirs. The usufructuary acquired ownership of both natural and civil fruits by gathering them (perceptio).

Since the item in question had to be returned at the end, a usufruct could not be constituted over a fungible object, such as money or perishables. However, a decree of the Senate (Ulpiani Regulae 24.27; Papinian, D. 33.2.24) at the beginning of the Principate allowed the creation of a usufruct over perishables, according to which the beneficiary became the owner of the per­ishable goods, provided that he made a secured promise that a return of similar value would be made at the end of the usufruct. This special usufruct was called quasi-usufruct. Gaius, however, was unwilling to accept the usu­fructuary character of this legal invention of the Senate, since “natural reason cannot be altered by the authority of the Senate” (D. 7.5.2.1). Unlike the predial servitudes, the usufruct was divisible. There could be common own­ership of the same usufruct. Although originally a usufruct could not be possessed, classical lawyers sometimes extended interdictal protection to the usufructuary. The usufructuary was protected with the vindicatio usus fructus (later called actio confessoria) against the owner or any possessor of the thing in question.

The usufruct was basically constituted through a legacy. In general, the ways of constituting servitudes were also applicable to the usufruct, with some restrictions. Owing to its strictly personal character, however, the usufruct could not be acquired by acquisition of the ownership of the land linked to the usufruct, since the usufruct, unlike servitudes, was not inherently predial. The usufruct ended by the death of the holder (not, however, by the death of the owner of the land), by in iure cessio to the owner, by acquisition of the land property by the usufructuary (consolidatio), by the expiration of its term, and by disuse for the period prescribed for purposes of usucaption.

A limited usufruct was the usus, which was a usufruct without entitlement to the fruits (Gaius, D. 7.8.1). This exclusion was not absolute, however; over time the user was allowed to take fruits to meet his basic daily needs. The rules of acquisition, extinction, and remedies protecting the use were very similar to those of the usufruct.

Emphyteusis and superficies

Two further limited real rights were known in late Roman law: the long-term lease of state land (later known as emphyteusis), and the right to lease a building (superficies). Emphyteusis (in Greek, to implant) developed in Egypt and North Africa in the third century CE, and in the fifth century emperor Zenon recognized it as a specific contract, different from the sale and the lease, although having certain elements of both (C.J 4.66.1). Emphyteusis was a long-term or even in-perpetuity lease of agricultural land to an emphyteuta who had to pay a ground rent (called canon) to the owner. The emphyteuta

was entitled to the use and enjoyment of the land, and could transfer his right to his heirs or alienate it, so long as the ground rent was paid.

Similar to the emphyteusis was the right to erect a building and lease it in public land against payment of a rent called solarium. Although the owner of the land acquired ownership of the building in accordance with the rule, “that which stands with the land goes with the land” (superficies solo cedit), the superficiarius was entitled to the use and enjoyment of the building for as long as he paid rent, and he could transfer his right to his heirs. The superficiarius was protected with a variant of the vindication as well as with a special interdict (interdictum de superficiebus).

Further reading

Baldus, Christian. “Possession in Roman Law.” In The Oxford Handbook of Roman Law and Society, edited by Paul J. du Plessis, Clifford Ando, and Kaius Tuori, 537-552. Oxford: Oxford University Press, 2016.

Berger, Adolf. Encyclopedic Dictionary of Roman Law. Philadelphia, PA: The American Philosophical Society, 1953; reprint 1980.

Birks, Peter. “The Roman Law Concept of dominium and the Idea of Absolute Ownership.” Acta Juridica 1 (1985): 1-38.

Birks, Peter, ed. New Perspectives in the Roman Law of Property: Essays for Barry Nicholas. Oxford: Clarendon Press, 1989.

Buckland, William Warwick. A Text-Book of Roman Law. 3rd rev. ed. Edited by Peter Stein, 180-281. Cambridge: Cambridge University Press, 1963.

Buckland, William Warwick, and Arnold D. McNair, eds. Roman Law and Common Law. 2nd ed. Revised by F. H. Lawson, 60-142. Cambridge: Cambridge University Press, 1952.

Capogrossi Colognesi, Luigi. Proprietà e diritti reali. Rome: Il Cigno Galileo Galilei, 1999.

du Plessis, Paul. “Property.” In The Cambridge Companion to Roman Law, edited by David Johnston, 175-198. Cambridge and New York: Cambridge University Press, 2015.

Diosdi, Gyorgy. Ownership in Ancient and Preclassical Roman Law. Budapest: Akademiai Kiado, 1970.

Hausmaninger, Herbert, and Richard Gamauf. A Casebook on Roman Property Law. Translated by George A. Sheets. Oxford and New York: Oxford University Press, 2003.

Johnston, David. Roman Law in Context, 53-73. Cambridge: Cambridge University Press, 1999.

Kaser, Max. Eigentum und Besitz in älteren romischen Recht. 2nd ed. Cologne: Bohlau, 1956.

Kaser, Max. Das romische Privatrecht. Volume I, Das altromische, das vorklassische und klassische Recht. 2nd ed., 373-473. Munich: Beck Verlag, 1971.

Mousourakis, George. Fundamentals of Roman Private Law, 119-182. Berlin and Heidelberg: Springer, 2012.

Nicholas, Barry. An Introduction to Roman Law, 98-157. Oxford: Clarendon Press, 1975. Rodger, Alan. Owners and Neighbours in Roman Law. Oxford: Clarendon Press, 1972. Savigny, Friedrich Carl von. Das Recht des Besitzes. Eine civilistische Abhandlung. 6th ed. Giessen: G. F. Heyer, 1837.

Schulz, Fritz. Classical Roman Law, 334-454. Oxford: Clarendon Press, 1951.

Thomas, J. A. C. Textbook of Roman Law, 125-210. Amsterdam, New York, and Oxford: North-Holland Publishing Company, 1976.

Vacca, Letizia. Possessio e tempo nell'acquisto della proprietà. Saggi romanistici. Padua: CEDAM, 2012.

Waelkens, Laurent. Amne Adverso. Roman Legal Heritage in European Culture, 277-322. Leuven: Leuven University Press, 2015.

Watson, Alan. The Law of Property in the Later Roman Republic. Oxford: Clarendon Press, 1968; reprinted Aalen: Scientia Verlag, 1984.

Zulueta, Francis de. The Institutes of Gaius. Part II. Commentary. Oxford: Clarendon Press, 1953.

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