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SERVITUTES.

tiling, but against any person who impeded the exercise of the right. The plaintiff had of course to prove his title to the Servitus. The Actio N.e-gatoria or Vindicatio libertatis, might be brought by the owner of the property against any person who claimed a Servitus in it. The abject was to .establish the freedom of .the property from the servitus, for damages, .and for security to the owner .against future disturbance in the exercise of his ownership. T,he plaintiff had of .course to prove his ownership .and the defendant to prove his title to the Servitus. (Gains, iv. 3 ; Dig. 8. tit. 5.)

In the case of Personal Servitudes, the Inter­dicts were just the same as in the case of proper Possession ; the Interdict which was applied in the case of proper Possession, was here applied as a Utiie Interdictum. {Frag. Vat. 90, as emended by Savigny.)

In the case of Praedial Servitudes, we must first consider the Positive. In the first class, the acquisition of -the Juris Quasi Possessio is effected by an act which is done simply as an exercise of the Right, independent of any other right. The interference with the -exercise of the right was pre­vented by Interdicts applicable to the several cases. A person who was disturbed in exercising a Jus Itineris, Actus, Viae by any person whatever, whether the owner of the servient land .or any other person, had .a right to the Interdict: the object of this Interdict was protection against the disturbance, and compensation.: its effect was ex­actly like that of the Interdict Uti possidetis. Another Interdict applied to the same objects as the preceding Interdict, but its object was to protect the person intitled to the servitude from being disturbed by the owner while he was putting the way or road in a condition fit for use.

There were various other Interdicts as in the case of the Jus aquae quotidianae vel aestivae ducendae (Dig. 43. tit. 20) ; in the case of the re­pair of water passages (43. tit. 21, -de rims) ; in the case of the Jus aquae hauriendae (43. tit. 22).

The second class of Positive Servitudes consists in the exercise of the servitude in connection with the possession .of another piece of property. The Interdicts applicable to this case are explained under the. third class, that of Negative Servitudes.

In the case of Negative Servitudes there are only two modes in which the Juris quasi Possessio can be acquired: 1, when the owner of the servient property attempts to do some act, which the owner of the dominant property considers inconsistent with his Servitus, and is prevented ; 2, by any legal act which is capable of transferring the Jus Servitutis. The possession is lost when the owner of the servient property does an act which is con­trary to the Bight, The Possession of the Servi­tudes of the second and third class was protected by the Interdict Uti possidetis. There was a special interdict about sewers (De Cloacis, Dig. 43. tit. 23).

It has been stated that Quasi-servitudes were sometimes founded on positive enactments. These were not Servitutes properly so called, for they were limitations of the exercise of ownership made for the public benefit. The only cases of the limi­tation of the exercise of ownership by positive enactment, which are mentioned in the Pandect, are reducible to three principal classes. The first class comprehends the limitation of ownership on religious grounds. To this class belongs Finis, 01

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SERVITUTES.

a space .of five feet in width between adjoining es­tates, which it was not permitted to -cultivate. This intermediate space was sacred and it was used by the owners of the adjoining lands for sa­crifice. To this class also belongs the rule, that if a man had buried a .dead body on the land of an­other without his -consent, he could not as a general rule be compelled to remove the bod3% but he was bound to make recompenee. (Dig. 11. tit. 7. s. 2. 7, 8.) The second .class .comprehends rules relat­ing to .police. According to the Twelve Tables very owner of land in the city was required to leave a space of two feet and a half vacant all round any edifice that he erected: this was called legitimum spatium, legitimus modus. Conse­quently between two adjoining houses there must be a vacant space of five feet. This law was no doubt often neglected, for after the fire in Nero's reign (Tacit. Ann. xv. 43), it was forbidden to build houses with a common wall (communio parie-turn} ; and the old legitimum spatium was again required to be observed ; and it is referred to in a rescript of Antoninus and Verus. (Dig. 8. tit. 2. s. 14.) This class also comprehends rules as to the height and form of buildings. Augustus (Sueton. Octav. 89) fixed the height at seventy feet ; Nero also after the great fire made some regulations with the view of limiting the height of houses. Trajan fixed the greatest height at sixty feet. These regulations were general, and had no refer­ence to the convenience of persons who possessed adjoining houses : they had therefore no relation at all to the Servitutes altius tollendi and non tollendi as some writers suppose. The rule of the Twelve Tables which forbade the removing a " tignum furtivum aedibus vel vineis junctum," had for its object the preventing of accidents. (Dig. 47. tit. 3.) Another rule declared that the owners of lands which were adjoining to public aquae-ducts should permit materials to be taken from their lands for these public purposes, but should receive a proper compensation. The Twelve Tables forbade the burning or interring of a dead body in the city ; and this rule was enforced by a Lex Duilia. In the time of Antoninus Pius this rule prevailed both in Pvome and other cities.

The third class of limitations had for its object the promotion of Agriculture. It comprised the rules relating to aqua pluvia, and to the Tignum June turn in the case of a vineyard ; and it gave a man permission to go on his neighbour's premises to gather the fruits which had fallen thereon from his trees ; with this limitation that he could only go every third day. (Dig. 43. tit. 28, De Glande legenda.} The Twelve Tables enacted that if a neighbour's tree hung over into another person's land, that person might trim it to the height of fifteen feet from the ground (quindecim pedes altius earn sublucator}. The rule was a limitation of ownership, but not a limitation of the ownership of the tree-owner : it was a limitation of the owner­ship of the land-owner ; for it allowed his neigh­bour's tree to overhang his ground, provided there were no branches less than fifteen feet from the ground.

With these exceptions, some of which were of great antiquity, ownership in Roman Law must be considered as unlimited. These limitations also had no reference to the convenience of individuals who had adjoining houses or lands. With respect to neighbours the law allowed them to regulate their

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