Exercise of Praedial Servitudes
A servitude could, as we have seen, give to the dominant owner fairly extensive rights over the servient land. However, it must not be forgotten that the servient owner was still owner of the servient land, and was entitled to full use of the land except insofar as that interfered with the exercise of the servitude.
Celsus says that the servitude must be exercised civiliter modo, which means ‘in a reasonable manner'.[1502] He gives this as the basis of the rule, which we have already seen, that the dominant owner had to stick with the first route chosen for a right of access. The civiliter modo rule as stated by Celsus, however, seems to be broader than this. It would exclude, for instance, the choice of a route that would be inconvenient to the servient owner where another was available that was just as good for the dominant owner.The dominant owner was entitled to make improvements and repairs, such as the repair of a road to which a right of access related[1503] or alterations to a waterÂcourse to improve the flow,[1504] as long as these alterations did not adversely affect the servient owner. This right could be excluded or limited when the servitude was created.[1505]
Suppose that the dominant land was divided, and ownership of part of it was transferred to someone else. Did that now mean that there were two dominant owners, both entitled to exercise the servitude? The answer varied. It could be that the servitude had only been created to benefit part of the dominant land, in which case that part alone would continue to be dominant.[1506] Normally, however, each part of the dominant land would continue to be dominant, and their ownÂers would all be entitled to continue to benefit from the servitude. The reasoning for this was that the servitude attached to the whole of the dominant land, and so to each part of the dominant land when it was divided.[1507] This is straightforÂward enough when each part of the dominant land is, say, drawing water from the same pipe, as the burden on the servient land is no greater. Difficult practical issues would often arise, however, when the servitude was a right of access or a right to take materials from the servient land. This is an issue that continues to cause difficulty to the present day.[1508]
D.