neighbours' houses, his land was subject to the servitus stillicidii non recipiendi. Again, if certain local statutes ordained that persons should build all their houses of a certain height, land would be subject to a servitude altius non tollendi, whereon persons might not build up to the statutable height; and land would be subject to a servitus altius tollendi, if the proprietor thereof was under an obligation to permit another proprietor to build beyond the statutable height. The servitus stillicidii recipiendi and altius tollendi, however, are very uncommon.

It is to be observed that a servitude never binds a man to do anything. A servitude can only bind him to allow a thing to be done, or to abstain from doing it; for servitudes are simply fractions of the dominium, severed from it. And dominium never binds a man to do any positive act (1).

There was, however, one exception to this, in the servitude oneris ferendi. This servitude bound the proprietor of the servient tenement (2) so to keep his pillar or wall as to be capable of sustaining the neighbour's buildings which rest upon it, i.e., the proprietor had to do all the necessary repairs: whereas the general rule of law was, that the proprietor of the dominant tenement is bound to do everything necessary for the exercise of his right.

§ 3. Real servitudes are called jura prædiorum, because two prædia, the one dominant, the other servient, are essential to the existence of a servitude. A servitude (proper) can only be constituted over one prædium (3) (the servient), for the more convenient use of another prædium (the dominant). The right, granted by me to a neighbour, to walk in my garden, or to gather the fruit there, and others like it, may constitute a personal servitude, like those of usus or usufruct, but not a servitude proper, i.e., in re.

A real or prædial servitude did not require the dominant and servient prædium to be actually contiguous, but near enough to allow of the servitude being exercised. Contiguity is not always essential, though in some servitudes, as the jus stillicidii, the jus tigni immittendi, it is required. In short, the only essential condition is, that the servitude shall be capable of being exercised in fact.

It may be said generally that servitudes were created or acquired by the old law, like the quiritarian ownership, namely, by Mancipatio, in jure Cessio, Adjudicatio, Lege (including legacies), p. 92.

Mancipatio, however, was applicable to rural servitudes only; for

(1) But one man may contract with his neighbour to do something; e.g., to cultivate his garden; this, however, is a personal obligation, not a servitude attached to the land and transferable with it.

(2) A servient tenement is that upon

which, a dominant tenement is that in favour of which, a servitude is imposed.

(3) That is an immoveable. Moveables, not being fixtures, cannot play the part either of a dominant or servient tenement (prædium).

they only were res mancipi. Urban servitudes could not be created between living persons, except by in jure cessio (1)-Usucapio, at least after the Lex Scribonia (A. D. 37?) did not apply to any servitude. Lastly, we may observe, that it was competent for a party, in transferring a thing by in jure cessio or mancipatio, to reserve to himself the usufruct, or a prædial servitude, and thereby to create a usufruct or servitude (usumfructum, servitutem deducere detrahere, excipere).—No servitude-not even in things nec mancipi-could be created by Traditio, because servitudes were incorporeal, and therefore could not be the subject-matter either of actual delivery or of possession (G. 2, § 28).

Such was the law as to lands situate in Italy. To lands in the provinces mancipatio and in jure cessio were totally inapplicable; for a private person could not have the property (dominium) or any fraction of the property, such as a servitude, therein: he could only have a right. of enjoyment. It was therefore necessary to have recourse to pacta and stipulationes, i.e., the proprietor who intended to subject his land to the render of a certain service to his neighbour, first agreed (pactum) as to the nature of the servitude to which he was willing to subject himself, and then bound himself by stipulatio (2) to do nothing to hinder the other party in the exercise of the right. This pact and the stipulation, which served to secure its fulfilment, gave the neighbour no right in the thing, caused no actual disintegration of the dominium, but created a personal obligation, raised the action ex stipulatu (3) against the party bound, and thus secured to the party to whom he was bound benefits very similar to those attached to a servitude (proper).

Such was the strict law, the Jus Civile. But in this case, as in that of acquiring property, the Prætors introduced certain practical changes founded on principles of equity. They held, that although a servitude, being a thing incorporeal, was incapable of being literally delivered and possessed, still, that the exercise of the servitude by one who was desirous of acquiring it, with the acquiescence of another who was desirous of creating it, should be equivalent to delivery. To this quasidelivery, therefore, the Prætors allowed the same sort of effect as they allowed in case of a delivery of corporeal property, i.e., they protected

(1) Nor usufruct, nor other personal servitudes; for none of them were res mancipi.

(2) Observe the expression pactis ET stipulationibus. It will appear (B. 3, t. 15) that a bare agreement (pactum) did not raise any legal obligation in order to this a stipulatio was necessary, i.e., when a question solemnly put by the obligee and answered by the obligor created the contract. In obligations there was the same sort of distinction between a pactum

and a stipulatio, as in property between delivery and mancipatio.

(3) By means of this action a party, who did not fulfil his engagement, might be condemned to pay damages. The amount of them was often fixed by a supplementary stipulatio. Thus after, "Do you promise to be subject to such a servitude? -I do promise," the parties added: "And if you put any obstacle in my way, do you promise to pay one hundred solidi by way of a penalty?—I do promise."

the quasi-possession, and the actual enjoyment of the servitude, first, by possessory interdicts, and afterwards by a fictitious action in rem, called actio publiciana (p. 94). Again, when a transferor reserved to himself a right of usufruct or servitude out of a thing at the time of transfer by bare delivery, the Prætors allowed the same effect to such reservation as they allowed under the old law, when a reservation was made out of a thing on its being transferred by mancipatio or in jure cessio.

Lastly, as to urban servitudes, which are characterised by a continuous possession, and some rural servitudes, as the right of passage and of aqæductus, the Prætors set up a præscriptio longi temporis, by which means they secured the permanent enjoyment of the servitude to those who had already enjoyed it for a length of time (1) (t. 6, post).

Under Justinian the law as to creating servitudes was altered. Thus the changes introduced by the Prætors were incorporated into the law. The Prætorian and Civil Law had become one. Hence both mancipatio and in jure cessio had disappeared. Servitudes were created, 1. By agreements with quasi-delivery, or even without quasi-delivery, as when a proprietor, on alienating a thing by delivery reserved out of it some servitude (2). 2. By testament (lege) (3). 3. By prescriptio or usucapio (4), in case of some servitudes. 4. By adjudicatio (5).

Thus it appears that agreements and stipulations, without quasidelivery, cannot of themselves create servitudes; except, indeed, where the servitude arises by the proprietor reserving it out of a thing on its alienation. Agreements and stipulations create a personal obligation only. And it is inconsistent with the very nature of obligations, which create a mere personal tie, that they should create absolute rights (jura in re), such as property and its fractional parts. D. 44, t. 7, 1. 3. Therefore delivery-not a mere agreement-is the only way by which the property can be acquired. These are the fundamental principles of Roman law. Agreements (pacta) and stipulations may bind a party who enters into them, to grant or create a servitude, by permitting the exercise thereof: but the servitude does not exist as a right in re (a fraction of the dominion) until there has been quasi-delivery (6).

(1) Urban servitudes, excepting those, of course, which consist in abstaining, e.g., the jus altius non tollendi, have certainly a continuing character not generally discernible in the rural servitudes. Thus, the beam resting on a neighbour's wall, the water-pipe hanging over his land, the window overlooking his court, are always there; but the right of passage, of drawing water, of depasturing, are used only for the time.

(2) For delivery works a transfer of property, according to the will of the transferor, and within the limits fixed by such

will. Thus, if a proprietor intends to transfer a fraction only of the dominium, a fraction only is transferred.

(3) Prior to Justinian, it was only the legacy per vindicationem which directly created a servitus; that per damnationem and sinendi modo merely bound the hæres to create it.

(4) Under Justinian they became one.

(5) When in a suit for partition the judex encumbered the land of one with a servitude for the benefit of the laud of another.

(6) This point is much disputed by

How are servitudes extinguished? They are extinguished, 1. By the loss or destruction of the dominant or servient tenement; e.g., by the building being overturned, the land carried away or overwhelmed by the floods. 2. By confusio, when the same person becomes owner of both tenements (prædia). 3. By a release made by the owner of the dominant to the owner of the servient tenement (1). 4. By non-user (2) for a period, which Justinian fixed at ten years when the parties were present, and twenty when they were not (3).

TITLE IV.-OF THE USUSFRUCTUS.

Pr. Usufruct is the right of using (usus) and of enjoying the fruits (fructus) of a thing belonging to another, without altering the substance thereof (4).

§ 1. We say thing belonging to another (alienis) because the use or enjoyment can be vested, as rights, only in those who are not themselves proprietors; for in other cases, these rights would be merged in, or incidental to the property. Hence, nemini res sua servit, no one can have a servitude in his own property.

§ 2. The rights of using (usus) and of enjoying (fructus) a thing may be thus distinguished. The jus utendi denotes the right to make use of a thing, and to extract from it whatever services it can render, without taking any of its products, and especially without altering the thing itself (substantia); e.g., using beasts to plough, or such like, living in a house, &c. The jus fruendi denotes the right to gather all

French and German jurists; some holding that a mere agreement is sufficient to create servitudes, especially negative ones, i.e., those which consist in abstaining, as altius non tollendi-not building higher.

(1) By the old law it must be by in jure cessio; by the new law it might be done by a pactum.

(2) By not using at all, or not using it in the proper manner. Thus, if a person having the servitude to draw water, draws it at some place or time other than the place or time allowed, the servitude is lost after the lapse of the same time as would have sufficed to extinguish it in case no water had been drawn at all.

(3) In case of urban servitudes, the time began to run from the time when the owner of the servient tenement, in order to discharge his land (libertatem usucapere), did some act in violation of the servitude; e.g., raised his building higher, blocked up

the windows, removed the rain-water pipes.

(4) Salva rerum substantia, some translate so long as the substance remains. This interpretation rests on the words which follow for it is a right in a body (corpus), which being taken away, the right must also be taken away. This seems to show that the author is discussing, not the right attached to the usufruct, but its duration. But, 1. This interpretation makes the author lay down a truism. 2. It is not correct, for a usufruct was extinguished by the death of the usufructuary, whilst the substance remained. 3. Because the true meaning appears from Ulpian (Fr. t. 24, § 26, 27), who says that you cannot bequeath the usufruct, except of those things which may be enjoyed salva substantia, i.e., without being consumed. Hence we conclude that these words mean that a usufructuary has the usus and fructus, but not the abusus.

the fruits of a thing. Hence the usufructuarius (who has the right of use and the right of enjoyment) has more than the usuarius (who has the right of use), but less than the proprietor, who has the jus abutendi besides.

In order to determine what are fructus we consider the purpose for which a thing is intended. Thus, the milk, wool, hair, and young of animals are fruits, because animals are kept for the purpose of producing such things. A usufructuary is therefore entitled to all such products. But it is otherwise with the child of a slave (p. 90), and generally, with whatever is a mere accidental result of the thing out of which the usufruct issues (1).

A usufructuary in exercising his right of enjoyment, must conduct himself like a good pater-familias; i.e., he is, generally, bound to do whatsoever a proprietor, desirous of preserving his property, would do. Hence a usufructuary exceeds his right, if his mode of enjoyment be such as to destroy the thing, for he has not the jus abutendi.

To take an example. Being bound to preserve the thing out of which the usufruct issues, the usufructuary cannot derive any benefit from the young produced by a herd, except for the purpose of filling up (ex fœtu) the places of those beasts which have died or become aged (2). So an usufructuary's enjoyment of a garden is subject to the duty of replacing the dead trees by others.

Although a person has acquired the jus fruendi, he does not thereby acquire the fruits. On the contrary, the usufruct confers the right to gather the fruits, and to acquire them by gathering or causing them to be gathered. But it is the gathering alone, i. e., the taking possession of the fruits, which vests them in the proprietor: till then they belong to the landlord (3).

§ 1. The modes of creating a usufruct varied at different periods. Under the old law it was created by testament, by in jure cessio, and by adjudicatio in suits for partition; but it could not be created by mancipatio, for it was not a res mancipi; nor by bare delivery, for things incorporeal, like usufruct, could not be delivered. Nor was there any method of creating a usufruct in provincial lands not having the jus italicum: to supply the place, however, of a usufruct in re in the pro

(1) Thus alluvio, an island risen near land, a legacy to a slave, are not fruits.

(2) A single beast is not intended to live for ever. If, therefore, it dies without the fault of the usufructuary, he is not bound to replace it. But a herd is intended to live for ever, because herein we do not regard the individual, but the body (universitas); and the body remains the same, though the individuals change.

(3) Page 89. If fruits were stolen before the usufructuary had gathered them, he had neither actio in rem (used when the thing stolen still existed), nor the condictio furtiva (used when it had been consumed); for both were confined to the proprietor, which the usufructuary was not but he had actio furti, which was open to any one who had an interest in the thing stolen.