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SERVITUTES.

nailed Personal, Personarum ; and they ceased with the death of the person: the expression " personalia servitus " was used. (Dig. 34. tit. 3. s. 8. § 3.) Or they had for their subject another piece of property, as a house or land, and the per­son who exercised the Servitus exercised it in re­spect of his right to the house or land, which was its subject. Servitutes of the latter kind were called Praedial, Servitutes Praediorum or Rerum, or Jura Praediorum (Gaius, ii. 17. 29; Dig, 8. tit. 1, s. I) ; and with reference to their special kinds, Jura aquarum, &c. (Oic. pro, Caecin. 26.)

The exercise of Personal Servitutes, of which Usus and Ususfructus were the principal, was al­ways connected with the natural possession of the thing ; and consequently the Quasi Possessio. of such Servitutes had a close resemblance to Posses.-sio. [PossEssio.] Servitutes of this class consisted solely " in patiendo."

Praedial servitutes consisted both " in patiendo," and " in non faciendo." Those which consisted " in patiendo " comprised either such acts as a per­son might do, by virtue of the Servitus, which acts had only mediately a reference to another piece of land, as in the case of a Jus Itineris ; or such acts as a man might do, with immediate reference to another piece of land, as Jus tigni immittendi, and the like. Those which consisted " in non faciendo" on the part of the owner were acts which another possessor of a piece of land could require the owner of the servient property not to do, but which except for the servitus, the owner might do.

Personal servitutes were Usus, ususfructus, Habitatio, and Operae servorum et Animaliuin.

Habitatio or the right of living in another per­son's house resembled the ususfructus or usus aedium. But it was not lost as ususfructus and usus were, by capitis diminutio or neglect to exer­cise the right. Also, it consisted in the right to inhabit some definite part of a house only, and not the whole ; the habitatio could b.e sold or let. If it was a donatio inter vivos, it could be set aside by the heredes of the giver. (Dig. 7.. tit. 8, De Usu et Habitatiane; Dig. 39. tit, .5. s.. 27, 32 ; Inst. 2. tit. 5.)

Operae servorum et animalium consisted in a man having a right to the use and services of another person's slave or beast, so long as the slave or beast lived. The servitus continued after the death of the person entitled ta it, and was not lost by a capitis diminutio nor by neglect to exercise it. This is called by Gains (ii. 32) " the Ususfructus hominum et ceterorum animalium."

Praedial Servitutes imply the existence of two contiguous pieces of land (praedia), one of which owes a servitus to the other (servitutem debet, praedium, fundus serviens) ; and the servitus is said to be due (deberi) from the one to the other. The name of praedium dominans which is now often used to designate the praedium to which the servitus is due, is a modern invention. It is of the nature of a Servitus to be an advantage to the land to which it belongs: it must be something that in some way increases its value. It must also be a thing that is permanently to the advantage of the dominant praedium ; for it is said " omnes ser­vitutes praediorum perpetuas causas habere debent" (Paulus, Dig. 8. tit. 2. s. 8), which means there is a continuous adaptation of the servient to the use of the dominant tenement. The Servitus is con-

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SERVITUTES.

sidered as belonging to the dominant praedium in such a sense that it cannot be alienated without the praedium rior pledged nor let.

Praedial Servitutes were either Praediorum Ur-banorum or Rusticorum. But the word Servitus has a double meaning, according as we view it as a right or a duty. The Servitus of a Praedium Rus-ticum or Urbanum is, in the former sense, the servitus which belongs to a particular Praedium, as a right: in the latter sense it is the servitus which some particular Praedium owes, as a duty. When the two Praedia are contemplated together in their mutual relations of right and duty, the word Ser­vitus expresses the whole relation. Servitutes Ur-banae are those which are for the advantage of an edifice as such, whether, the advantage is derived from another building or simply a piece of land ; Rusticae are those which are for the advantage of a piece of ground, as such, and mainly for the benefit of agriculture. " Urbanum praedium non. locus facit, sed materia-" (Ulp. Dig. 50. tit. 16. s. 198,)

The following are the principal Servitutes Ur-banae :-—1. Oneris ferendi, or the right which a man has to use the edifice or wall of his neighbour to support his own edifice. The owner of the servient property was consequently bound to keep it in repair so that it should be adequate to dis­charge its duty. (Dig. 8. tit. 5. s. 6.) 2. Tigni immittendi, or the right of planting a beam in or upon a neighbour's wall. 3. Projiciendi, or the right of adding something to a man's edifice, though it shall project into the open space which is above his neighbour's grounds. 4. Stillicidii, or fmminis recipiendi or immittendi. This servitus was either a right which a man had for the rain water to run from his house upon and through his neighbour's premises, or a right to draw such water from his neighbour's premises to has own. The technical meaning of Stillicidium is rain in drops ; when collected in a flowing body it is Flumen. (Varro, de Ling. Lett. v. 27, ed. Muller ; Cic. de Or. i. 38.) 5. Altius non tollendi, or the duty which a man owed not to build his house higher than its present elevation,, or the duty of the owner of a piece of land not to raise his edifice above a cer­tain height, in order that the owner of some other house might have the advantage of such forbearance. If a man was released from this duty by his neighbour, he obtained a new right, which was the Jus altius tollendi. In like man­ner, a man whpsQ ground was released from the Servitus Stillicidii^ was said to have the servitus stillicidii non recipiendi. This was not strictly accurate language, for if a servitus is defined to be some limitation of the usual rights of ownership, a recovery of these rights or a release from the duties which is implied by the possession of these rights by another, merely gives the complete exercise of ownership and so destroj^s all notion of a Servitus. Still such was the language of the Roman Jurists, and accordingly we find enumerated among the Urbanae Servitutes (Dig. 8. tit. 2. s. 2), " Stilli­cidium avertendi in tectum vel aream vicini aut non avertendi." 6. Servitus ne Luminibus, and ne Prospectui officiatur, or the duty which a man owes to his neighbour's land not to obstruct his light or his prospect (see Gaius, ii. 31; Cic. de Or. i. 39) ; and Servitus Luminum or Prospectus, or the duty of a man to allow Ms neighbour to make openings into his premises, as in a common wall for insiance

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