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1032

SERVITUTES.

to get light or a prospect. It was a Servitus the object of which was to procure light, whereas the ne officiatur was to prevent the destroying of light. (Dig. 8. tit. 2. s. 4. 40.) But there are different opinions as to the meaning of Servitus Luminum. 7. Servitus Stercolinii, or the right of placing dung against a neighbour's wall, &c. 8. Servitus fimii immittendi, or the right of sending one's smoke through a neighbour's chimney. 9. Servitus cloacae, or the right to a drain or sewer from a man's land or house through a neighbour's land or house.

The following are the principal Servitutes Rus-ticae :-—1. Servitus Itineris, or the right to-a foot-, path through another man's ground or to ride through on horseback or in a sella or lectica, for a man in such cases was said ire and not agere> Viewed with reference to the person who exercised the right, this Servitus was properly called Jus eundi. (Gaius. iv. 3.) 2. Actus or Agendi, or the right of driving a beast or carriage through another. man's land. 3. Viae or the right eundi et agendi et ambulandi. Via of course included the other two Servitutes ; and it was distinguished from them by its width, which was defined by the Twelve Tables. (Dig. 8. tit. 3. s. 8.) The width of an Iter or Actus might be a matter of evidence, and if it was not determined, it was settled by an arbiter. If the width of a Via was not determined, its width was taken to 'be the legal width (latitudo legitima). In the work De 'Coloring, attributed to Frontinus, the phrase " iter populo debetur or non debetur" frequently occurs. When •" iter debetur" occurs, the width of the 'iter is given in feet. It seems that in the assignment of the lands in these instances, the lands were made " servire populo," for the purposes of a road. 4. Servitus pascendi or the right of a man in respect of the ground to; which his cattle are attached, to pasture them on another's ground. 5. Servitus aquaeductus or ducendi aquam per fundmn alienum. There were also other Servitutes as Aquae haustus, Pecoris ad aquam appiilsus, Calcis coquendae, and Arenae fodiendae. If a Publicus locus or a Via publica intervened, no servitus aquaeductus could be im­posed, but it was necessary to apply to the Prin-ceps for permission to form an aquaeductus across a public road. The intervention of a Saccr et religiosus locus was an obstacle to imposing an Itineris servitus, for no Servitus could 'be due to any person on ground which was sacer or reli-giosus.

A Servitus Negaiiva could be acquired by mere contract ; and it se.ejns the better opinion that a Servitus Affirraativ.a could'be so acquired, and that quasi possessio, at least in the later periods, was not necessary in order to establish the Jus Servi-tutis, but only to give a right to the Publiciana in rem actio. (Gaius, ii. 30, 31 ; Savigny, Das Reclit des Besitzes.) The phrases " aquae jus consti-tuere," " servitutem fun do imponere," occur (Cic. ad Quint, iii. 1. c. 2). According to Gains, Servi­tutes UYbanae could only be transferred 'by'the In jure cessio : Servitutes Rusticae could be trans­ferred by Mancipatio also. (Gaius, ii. 29.)

A Servitus might be established by Testament (Servitus Legata, Dig. 33. tit. 3), and the right to it was acquired when the " dies legati eessit" [legatum] ; but tradition was necessary in order to give a right to the Publiciana in rem actio. A Servitus could be established by the decision of a judex in the Judicium Familiae erciscuncLa-e.*

- SERVITUTES.

muni dividimdo, and in a case where the Judex adjudicated the Proprielas to one and the Usus-fructus to another (Dig. 7. tit. 1. s. 6). Servitutes could also be acquired by the Praescriptio longi temporis. (Cod. 7. tit. 33. s. 12.) An obscure and corrupt passage of Cicero (ad Att. xv. 26) seems to allude to the possibility of acquiring a right to a Servitus'by use ; as to which a Lex Scribonia made a change. [Lsx scribonia.] Quasi servitudes were sometimes simply founded on positive enactments, which limited the owner of a property in its enjoy­ment (Nov. 22. c. 46. s. 2) ; .and others were con­sidered as " velut jure impositae" (Dig. 39. tit. 3. s. 1. § 23 j and Dig. 43. tit. 27, De Arbor ibas Caedendis.}

A Servitus might 'be -released (remitti} to the owner of the Fundus serviens (Dig. 8. tit. 1. s. 14) ; or it might be surrendered by allowing the owner of the Fundus Serviens to do certain acts upon it, which were inconsistent with the continuance of the Servitus. (Dig. 8. tit. 6. s. 8.) If both the dominant and the servient land came to belono; to

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one owner, the Servitutes were extinguished ; there was a Confusio. (Dig. 8. tit. 6. s. 1.) If the separate owners of two separate estates, jointly acquired an estate which was servient to the two separate estates, the Servitutes were not extin­guished ; but they were extinguished if the joint owners of a dominant estate, jointly acquired the servient estate. (Dig. '8. tit. 3. s. 27.) A usu-frtictus was extinguished when the Usufructua-rins acquired the Proprietas of the thing. A Servitus was extinguished by the extinction of the object, but if the servient object was restored, the servitus was also restored. (Dig. 8. tit. 2. s. 20 ; tit. 6. s. 14.) A servitus was extinguished by the extinction of the subject, as in the case of a Per­sonal Servitude with the death of the person who was intitled to it ; and in the case of Praed'ial Ser­vitutes with the destruction of the dominant sub­ject, but they were revived with its revival: for instance, if a'building to which a servitude be­longed, was pulled down in order to be rebuilt, and if it was rebuilt in the same form, the servi­tude revived (Paulus, Dig. 8. tit. 2. s. 20. § 2 ; Moore v. Rawson, 3 B. & Cr. 332). A Servitus might be extinguished by not using it. There is a case in the Digest (8. tit. 3. s. 35) of the servitus of a spring, the use of which had been interrupted by the temporary failure of the spring, and a re­script of Augustus on the matter. According to the old law, Ususfructus and Usus were lost, through not exercising the right, in two years in the case of things immoveable, and in one year in the case of things moveable. In Justinian's legis­lation Ususfructus and Usus were only lost by not exercising the right, when there had been a Usu-capio Irbertatis on the part of the owner of the thing or the ownership had been acquired by Usu-capion. (Cod. 3. tit. 33. s. 16. § 1, and tit. 34. s. 13.)

Servitutes might be the subjects of Actiones in rem. (Dig. 7. tit, 6 ; 8. tit. 5.) An Actio Con-fessoria or Vindicatio Servitutis had for its object the establishing the right to a Servitus, and it could only be brought by the owner of the domi­nant land, when it was due to land. The object of the action was the establishment of the right, damages, and security against future disturbance in the exercise of the right; and the action might jlQt only against the owner of the servient

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