7. SERVITUDES

Introductory—iura in re aliena. We must now turn to rights in rem other than ownership. In a simple case the owner himself has all the rights which can be exercised over the thing, but sometimes, and particularly with land, others may have rights over it which, to a greater or less extent, limit his enjoyment of it.

plot of land, primafacie I may do with it as I like, subject to the general law, but one of my neighbours may have a right of way over it and another a right to graze cattle on it; my banker may have a mortgage over it which gives him the right in certain circumstances to sell it; or I may have no present enjoyment of it at all, because someone has a usufruct over it. Such rights are commonly described in metaphorical terms as fractions of ownership vested in someone other than the owner, or as encum­brances or burdens on ownership or on the thing owned. The commentators gave them the name of iura in re aliena—rights in rem over another man’s property.¹

¹ The term ‘right in rem’ is English, though derived from the Roman actio in rem; the Continental equivalent is ius in re, and hence ius in re aliena.

the right should be enforceable against any subsequent owner of my neighbour’s land, but also that it should be enforceable by any subsequent owner of my land. In the language of English law, not only must the burden ‘run with’ my neighbour’s land, but also the benefit must ‘run with’ mine. This is the essence of a praedial (or ‘real’) servitude. It is a right in rem over a definite plot of land or a building and annexed to another plot of land or building (i.e. vested in the owner for the time being of the land or building). The land or building over which the right is exercised is said to be ‘servient’ and that to which it is annexed is said to be ‘dominant’. This terminology, like the word ‘servi­tude’ itself, expresses the idea of a subjection or burden imposed on ownership.

But there are dangers in the multiplication of such burdens on ownership. There is the danger that the purchaser of the servient land may be unaware of the burdens attached to it (or alter­natively that the difficulty of discovering their existence may add greatly to the complexity and expense of transfers of land).

There is also the danger that such encumbrances, unless they are restricted in number and extent, may so hamper the profit­able use of the servient land as gravely to diminish its value; and this will ultimately injure the public interest. Against this danger the Roman law did take effective steps. It is not the Roman habit to formulate, as we have done here, the problems which the law has to meet: the purpose of legal rules is left to emerge from their practical working. But the rules which governed praedial servitudes did have the necessary restrictive effect. The most important of these rules is expressed in the commentators’ maxim ‘servitus in faciendo consistere nequit’. The owner of the servient land could not be required to do

anything; he could merely be required either to abstain from doing something (e.g. from building so as to darken a window on the dominant land, or from the building or planting trees so as to obstruct the view from the dominant land) or to permit the owner of the dominant land to do something on the servient land (e.g. to walk or drive across it, to take water or sand or chalk from it).¹ This principle prevented the growth of anything akin to the feudal services by which, in France until the Revolu­tion and in other parts of Europe until even later, the servient owner might be required to render certain personal services or to supply certain kinds and quantities of produce from the land.

A further rule required that a servitude should be for the benefit of the dominant land and that it should be used exclu­sively for that purpose.

Praedial servitudes are of two kinds, rustic and urban. Examples of rustic servitudes are rights of way and of water, and of urban servitudes rights of light and of support for build­ings. But though the distinction was of some practical impor­tance, most noticeably because rustic servitudes were res mancipi, the principle on which it was based is quite uncertain. It is clear at least that the names are misleading, for the distinction is not between town and country (otherwise a right of light would be

¹ There was one exception: the servitude oneris ferendi gave to the dominant owner the right to have his building supported by (literally to have its burden borne by) a building on the servient land, and the servient owner was bound not only to refrain from pulling his building down but also to take positive steps to keep it in repair.

urban in the town and rustic in the country), but between dominant land without buildings and dominant land with buildings.

Personal servitudes. In Justinian’s law these were four in number. Usufruct was the right to use and take the fruits and profits of another’s property, movable or immovable, without funda­mentally altering its character (‘ius alienis rebus utendi fruendi salva rerum substantia’). Usus was, as its name indicates, a frac­tion of usufruct, entitling the beneficiary to use, but not to take the fruits of, the property. Habitatio and operae servorum were merely modifications of usus, applicable to houses and the ser­vices of slaves respectively. They were probably distinguished from usus only by Justinian, the main point of difference being that the beneficiary was entitled to hire out as well as to use the house or the services of the slave. The same principles apply to all four, and since usufruct was the earliest and by far the most important, we shall ignore the other three.

In classical law the term ‘servitude’ denoted only praedial servitudes. The enlargement of the category to include usufruct and its three derivatives, and the differentiation of the two types of right as personal and praedial, is Byzantine. They are alike in that they are both burdens on ownership which restrict the enjoyment of the owner. They are both fractions of ownership vested in someone other than the owner, rights in rem which ‘run with’ the servient property and can be asserted against the world at large. They are alike also in that they cannot require the servient owner to do anything, and in that they are to a large extent created and terminated in the same ways. But there are marked differences between them.

we have discussed, are not limited in number, and are in principle perpetual, whereas there are only four personal servi­tudes, and they are limited in duration—usually for life, but otherwise for some shorter term. Finally, the function of the two types of servitude is entirely different. Praedial servitudes effect a permanent enhancement of the content of one ownership at the expense of that of another, whereas usufruct effects, after a fashion, a division in time but hardly in content of a single ownership. With fideicommissum hereditatis¹ and, in the late law, emphyteusis,² it constitutes the nearest approach that Roman law ever made to the creation of successive and yet simultaneous ownerships. This aspect of usufruct needs further examination.

By far the commonest purpose of a usufruct was evidently to make a family ‘settlement’, and accordingly, though it could be created in a number of ways, the continually recurrent example in the Digest is of a usufruct created by legacy. If a testator wished to give property to his wife for life and then to his son, he could do so by leaving it to his son subject to a usufruct in favour of his wife. There was here an approximation to suc­cessive ownerships, but a comparison with English law shows that it was a very imperfect approximation. The English land law, with its doctrine that what is owned is not the land but estates in the land, makes fully possible successive and yet simul­taneous ownerships. If a man wishes to give Blackacre to his wife for life and then to his son, he can do so by giving his wife a life interest and his son the fee simple (i.e. the ultimate owner­ship). His wife has the present enjoyment and his son the right to future enjoyment, but both have immediately marketable assets. His wife can alienate her interest, and the person to whom she alienates it will acquire an estate in the land for so long as the wife lives; and the son can likewise alienate his interest. The two interests differ in their present content and in their prospective duration, but both are equally and simul­taneously marketable. Moreover, and more commonly, modern English law makes possible the alienation by the wife even of the fee simple, the son’s interest (and the wife’s also) being trans­ferred to the proceeds of the sale, which are held in trust. It is thus possible to ‘tie up’ capital without hampering dealings with the specific objects which originally composed the capital. This

¹ See below, pp. 268 f,                           ² See below, pp. 148 f. size=4 face="Times New Roman">is obviously important when those objects become inconvenient to manage or depreciate in value. Roman law, which conceives of ownership only of corporeal things, finds such flexibility much more difficult to achieve. The ownership of Blackacre may be divided (as it can also of course in English law) in the sense that X owns half and Y half, or in the sense that X and Y have joint ownership, each having a half share in the ownership of the whole, but ownership cannot be divided in time so as to give X and Y rights in rem which are both successive and yet simul­taneously marketable. For usufruct achieves only half of this objective. Both the usufructuary and the owner have rights in rem which can be asserted against third parties, but only the owner can alienate. His interest only is marketable. The usu­fructuary can hire out or sell the enjoyment of the usufruct, but this falls short of alienation of the usufruct itself in two ways: it confers on the buyer only a right in personam·, and the usu­fructuary is still liable to the owner for any abuse by the buyer of his rights. If the usufructuary could not alienate his interest, still less could he, as we have seen the modern English owner can, alienate the thing itself so as to transfer the owner’s rights to the proceeds of the sale. The nearest approach by Roman law to this idea of capital as a fund rather than as specific things was in the institution of quasi-usufruct.¹ This arose to meet the diffi­culty that since the usufructuary had to return the thing itself to the owner, a usufruct of consumable goods, and in particu­lar of money, was impossible. It was conceded therefore that if a usufruct created by will included such things, the usufructuary be­came owner of them and was obliged to return only an equivalent in quantity and quality. But the indivisibility and inviolability of ownership stood in the way of any extension of this idea.

The nature of a usufructuary’s right to fruits has already been discussed, but the most productive property would very often be slaves, and, quite apart from the exclusion of the offspring of slave women, the profits from their activities did not fall within the category of fruits. The ordinary rule was, as we have seen,² that all rights which a slave acquired vested in his master, but the simple application of this rule would have drastically diminished the value of a usufruct in the more skilled type of

¹ Cf. F. H. Lawson, A Common Lawyer Looks at the Civil Law, p. 109.

³ Above, p. 71.

slave. It would be of little interest to the usufructuary that the slave was a shrewd man of business if all the profits went to the owner. The rule which was evolved to balance the interests of owner and usufructuary was that any rights acquired in con­nexion with the property or affairs {ex re) of the usufructuary and any remuneration due under a contract made by the slave for the hire of his services {ex operis) belonged to the usufructuary, whereas rights acquired in any other circumstances belonged to the owner. Acquisition ex re was by far the more important. It would include any transactions made with apeculium granted by the usufructuary, any contracts made in connexion with his affairs, in fact any rights acquired when the slave was about the business of the usufructuary. On the other hand, a gift or a legacy to the slave would belong to the owner. Acquisition ex operis was much more restricted than the term suggests. It does not cover every acquisition made by the labours of the slave, but only the right to payment for the slave’s services where the slave himself has made the contract with the hirer. (The usu­fructuary would equally be entitled where it was he and not the slave who made the contract, but the right to the payment would in this case not be acquired ‘through’ the slave any more than the rent of a house is acquired ‘through’ the house: it is acquired through the contract to which the usufructuary is a party.) If therefore a usufructuary slave has been hired out (or has hired himself out) as an agricultural labourer, and while digging a field belonging to the hirer he finds treasure, the finder’s half goes to the slave’s owner. The usufructuary has no right, because, though the treasure was acquired through the labours of the slave, it was not acquired ex operis, and it was obviously not acquired ex re.

A similar conflict of interest might arise between owner and bona fide possessor of a slave, and between a free man held in good faith as a slave and his bona fide possessor (e.g. A has bought B’s slave in good faith from C, or A has bought B, who is, unknown to him, a free man). The conflict was resolved in the same way. A was entitled ex re and ex operis, B was entitled in all other circumstances.

The Roman law of servitudes and modern law. The influence of the law of praedial servitudes on modern Civil law has been very marked. The modern law is in essentials, and often, particularly in German law and systems derived from it, in details also, manifestly Roman. Even English law here reveals an obvious debt, the law of easements being perhaps the most Roman part of English law. Until the end of the eighteenth century it was very little developed, but what little there was owed much to Bracton’s borrowings in the thirteenth century from Roman law; and when the Industrial Revolution called for more elaboration in the law, the courts, and more especially the author of the fundamental book on the subject,¹ turned to Roman law.

Usufruct, with the conception of ownership which it implies, is a fundamental feature of a Civil law system. It could indeed serve as the identifying mark of such a system, just as the doctrine of estates is the mark of a Common law system. It is not, how­ever, always classified as a personal servitude. This is not for any reasons of principle (though these, as we have seen, are not lacking) but because the framers of the French Civil Code shrank from the term as being too likely to recall to the unin­structed the feudal services, abolished by the Revolution, which had involved for the person burdened with them personal servitude in a different sense. The term ‘servitude’ is therefore, as in classical Roman law but for different reasons, confined to praedial servitudes, but not all even of the codes which derive from the French follow it in this respect.