Creation of Praedial Servitudes

(1) Voluntary Creation

Speaking in general terms, there are three situations in which a person might want to create a servitude over land.^[1463] The first is the simplest, where there is a freestanding grant of a servitude over one person’s land, by the owner of that land, in favour of the owner of neighbouring land.

How is this done? In classical law, the answer depended on whether the ser­vitude to be created was urban or rustic.^[1465] An urban servitude could be created only by in iure cessio, this in effect involving the parties appearing before a magis­trate to declare the existence of the servitude.^[1466] A rustic servitude could be cre­ated in this way or, alternatively, by mancipatio.^[1467] These methods were available for all three of the situations referred to in the previous paragraph.^[1468] As we have seen, however, mancipatio and in iure cessio were only available for Italic land.^[1469] Accordingly, for provincial land, a different method was used, namely pacts and stipulations.^[1470] This involved an informal agreement between the parties,^{[1471] [1472] rein­forced with a penalty for failure to comply with the agreement, constituted by the formal type of contract called stipulatio.[1473] This arrangement was treated as creating a right that ran with the land, even though the stipulatio is in its terms a contract between two people only.66}

Just as the inconvenience of mancipatio and in iure cessio in the transfer of own­ership caused them to fall out of use in practice,^[1474] it would not be surprising if the same happened with their use for the creation of servitudes.

(2) Scope of Grant

When the servitude was created, it was of course necessary to identify the type of servitude that was intended. It was not, however, necessary to define in advance precisely the manner in which the servitude was to be exercised. Instead, this could be defined by use.^[1480] For example, where a servitude right of access over neighbouring land was created without defining the specific route, the dominant owner had to stick to the route first chosen.^[1481] In the absence of agreement, it might be necessary for an arbitrator to be appointed to set the line of the servitude.^[1482]

Further rights might exist along with the servitude. For example, if there was a right to draw water from the servient land, a right of access (specifically iter) would be implied on the basis that it was necessary to allow the servitude to be exercised.^[1483] Again, the holder of a servitude to pasture or water cattle on the servient land could acquire a right to build a shelter on the servient land for use in bad weather.^[1484]

A grant of a servitude could include limitations on its use. For example, a right of actus or via might restrict use of the way to particular types of vehicle.^[1485] Again, there could be a servitude right of access limited to certain times of day or to alter­nate days.^[1486] Justinian refers to a case where a servitude right of access was to be used only on one day every five years.^[1487] This is presumably hypothetical, but it is interesting to note that no issue was raised about the validity of such a limitation.^[1488]

(3) Creation by Use

Suppose that, without any actual grant of a servitude right, I make some use of your land without objection for an extended period of time.

In early Roman law, the position was similar, and it was possible to acquire a servitude by usucapio,^[1490] in other words by use without challenge for a period of time.^[1491] However, a lex Scribonia, of the late Republic but whose precise date is unknown, changed the law. While it was still possible to acquire ownership by usucapio, it was no longer possible to acquire a servitude. The reason for this is unclear. It has been suggested^[1492] that the change was motivated by the fact that, normally, someone acquiring a servitude in this way would do so simply by the factual exercise of what the servitude would allow. For example, one might acquire a servitude right of access by taking access without objection for the required period. Such a person would therefore not normally be in good faith and there would not normally be any purported grant of a servitude underlying the use to serve as a iusta causa (just cause), both requirements of the acquisi­tion of ownership by usucapio. Alternatively, the original position, that servitudes could be acquired by usucapio, may have arisen from the idea in early law that a servitude involved ownership of the land affected by it.^[1493] In time, though, servi­tudes came to be seen as incorporeal, as rights in another's land, and at that point it may have been thought that this was inconsistent with the idea that they could be acquired by possession. However, as has also been said, ‘the whole story of the lex Scribonia and its effects is hopelessly obscure'.^[1494]

Evidently, and unsurprisingly, this proved inconvenient in practice, as it denied the person claiming to have the servitude the benefit of having exer­cised an apparent right without challenge for an extended period.^[1495] This was the case even though, as time went on, it would become more and more difficult to prove positively that the servitude had originally been properly created.

C.