Nature and Scope of Praedial Servitudes

(1) What Is a Servitude?

(a) Nature

It is sometimes necessary for the owner of one area of land to have a right to make some particular use of neighbouring land. For example, suppose that I buy an area of land that is landlocked, with no direct access to a road.

An alternative would be to create a particular type of real right called a servi­tude. Servitudes came in different varieties, of which the one used in this example, a right of access, would have been the most common. We shall see some other types below. In Roman law, a distinction developed though between two broad categories of rights which were called servitudes, praedial servitudes and personal servitudes.^[1409] The usage is confusing, because the two really have very little in com­mon.^[1410] When a modern lawyer talks about a servitude, he or she will certainly be talking about a praedial servitude, and that is what this chapter is concerned with. Personal servitudes, the main example of which is usufruct, will be considered in the next chapter. Nothing more will be said about them in this chapter.

The law of servitudes is arguably among the most Roman parts of Scots law. Indeed, it has been said that ‘Scots law has largely adopted the Roman law of servitudes'.^[1411] This Scots definition of praedial servitudes will do equally well for Roman law:

Servitude is a burden on land or houses...

An important point to take from this definition is that a praedial servitude is not a relationship between two people as individuals. Rather, it is a right held by the owner of one area of land, in the capacity of owner of that land, in another area of land belonging to a different person. This is why it is called praedial, from the Latinpraedium, which means an estate of land. In a praedial servitude, there must be two properties, one known as the dominant property and one the servient property.^[1414] The owner for the time being of the dominant property has the right to enforce the servitude against the owner for the time being of the servient prop­erty. The servitude is attached to the land, and this is the case at both ends. If the dominant owner sold the dominant property, the right to enforce the servitude would transfer to the buyer along with the land. In the same way, if the servi­ent owner sold the servient property, the buyer of the servient property would become subject to the obligation to comply with the servitude.^[1415]

(b) Restrictions on Creation

We have seen then that a praedial servitude was a right, held by the owner for the time being of one area of land, either to use some other land for some speci­fied purpose or to restrict the use of that land in some specified way. There were, though, restrictions on the circumstances in which a praedial servitude could be created. For example, it was established that the two properties had to be in sepa­rate ownership, so it was not possible to impose a servitude on one’s own land.^[1416] Two particularly important restrictions on the content of a praedial servitude were, first, that it could not impose positive obligations on the servient owner; and, second, that the benefit taken from the servitude had to relate to the land.

On the first of these, a servitude could either give the dominant owner some right to use the servient land, or else restrict the servient owner's rights to use that land in some way. The former of these was known as a positive servitude, the latter as a negative servitude.^[1417] In the case of a positive servitude, the servi­ent owner was required simply to do nothing to interfere with the exercise of the servitude. Where a negative servitude was concerned, all that was required of the servient owner was to refrain from doing whatever thing it was that the servitude prohibited. In either case, it was not possible for the servient owner to be required actually to do anything.^[1418] For example, suppose that I had a servitude right of way along a road running across your land. While you would not be permitted actually to block the road, or positively to interfere with my use of the road, equally you would be quite at liberty to allow the road to fall into disrepair to the point that I could not use it.^[1419] To this principle there was one exception. It was possible to have a servitude requiring the owner of one building to provide structural support to a neighbouring building. In that case, the servient owner could be required to make such repairs to his or her own property as were neces­sary to maintain that support.^[1420]

The second important restriction on the content of a servitude was that the benefit had to be praedial rather than personal, which meant that it had to relate to the land. For example, there could be no servitude right to gather fruit, stroll or picnic on another's land:^[1421] the fact that the holder of the right held neighbouring land would be entirely incidental here, as the same benefit could be obtained by someone who did not own any land. For the same reason, the two properties had to be close neighbours.^[1422] While a right to use a road that is ten miles from my house may well be useful to me, the benefit I take can hardly be said to relate to my house in any meaningful way Equally, a servitude right of access could only be used to take access to the dominant land, not to other land that the dominant owner hap­pened to have in the neighbourhood.^[1423] Similarly, where a negative servitude was imposed, the restriction had to protect or enhance the enjoyment of the dominant land in some way.

(2) Types of Servitude

A number of specific types of servitude are identified in the texts that have come down to us. The Romans classified these into two broad categories, rustic and urban. This distinction was not concerned with whether the dominant and ser­vient properties were themselves urban or rural. Instead, it was concerned with whether the servitude related to the use of buildings. Urban servitudes were those ‘connected with buildings'.^[1428] This was the case even if the building was in a rural area. For example, a servitude concerned with the use of a farmhouse would nonetheless be urban.^{[1429] [1430] Other praedial servitudes were rustic, although it is not always certain into which category a particular servitude fell.}

The primary significance of the distinction between urban and rustic servi­tudes arose from the fact that rustic servitudes fell into the category of res mancipi.²⁵ As a result, they were created by different means.^[1431] As we have already seen, though, the categorisation of property as res mancipi and res nec mancipi was abol­ished by Justinian.^[1432] Without that distinction, it is of little value to make a system­atic distinction between urban and rustic servitudes.

Most of the servitudes mentioned in the texts were positive in nature, which is to say that they allowed the owner of the dominant land to do something that could otherwise be objected to by the owner of the servient land. They can be divided into a number of groups of related servitudes:

• Probably the most important form of positive servitude was the right of access. Rights of access were of three kinds, all of them rustic servitudes: iter, actus and via?^[1433] Iter was a right of passage across the servient land by foot.^[1434] We are told by Paul that passage by foot included being carried in a sedan chair or litter.^[1435] Actus was a right of passage along with livestock or driving a vehicle. It included the right to go on foot. Via was a general right of access. It included the rights comprised in iter and actus, and also other acts not included in them, such as the right to drag rocks and timber.^[1436] These servitudes are very old: we are told, for example, of provision concerning them in the Twelve Tables.^[1437]

• There were several servitudes concerned with issues of water management. Aqueduct was a rustic servitude allowing the running of a water supply through neighbouring land.^[1438] A similar servitude, also rustic, was aquaehaustus, which allowed the drawing of water from neighbouring land.^[1439] There was an urban servitude requiring the servient owner to submit to the run-off of water from the dominant land or buildings on it.^[1440] There was also the ius cloacae, a right to run a drain through neighbouring land.^[1441]

• There were two rustic servitudes allowing the dominant owner to drive his or her livestock to take water from the servient land or to pasture on the servient land.^[1442]

• A servitude could allow the temporary deposit of material on the servient land, such as the use of buildings on the servient land for the storage of farm produce or the deposition of stones and other material from a quarry.^[1443]

• There could be a rustic servitude allowing the dominant owner to burn lime on the servient land.^[1444]

• Two important urban servitudes involved the use of a building on the servient land to provide structural support to a building on the dominant land.^[1445] One involved the servient building bearing the weight of the dominant building.

• The servitude right of projection allowed a construction on the dominant land to overhang the servient land.^[1446] This was used as part of the justification for the acceptance of such a servitude in modern law, in Compugraphics Interna­tional Ltd v Nikolic.^[1447] This case involved pipework on the side of a building and overhanging neighbouring land.

• It appears that an owner of land had a right to a certain amount of light.^[1448] There was a servitude allowing the dominant owner to raise a building even to the effect of shutting out this light.^[1449]

• Various other servitudes are mentioned in the texts. Examples are the right to discharge smoke onto neighbouring land^[1450] and the right to pile up dung against a neighbour’s wall.^[1451]

The texts mention fewer negative servitudes. Two were recognised, both urban.^[1452] These were the right to light and the right of prospect.^[1453] They both restricted build­ing on the servient land. The difference between them was that a right to light was a right to see the sky and obtain the light from it, while the right of prospect was the right to preserve a view. It is generally thought that the right to light arose earlier:

Light is a necessary commodity especially in an ancient society, and it would be astonishing if the law did not step into this sphere at a fairly early date. Prospect is different, having more to do with gracious living than with the necessities of life.^[1454]

What kind of view might be protected is a difficult question. Rodger suggests that ‘the view must be pleasing, beautiful in some degree’.^[1455] This suggests a high degree of subjectivity. On the other hand, there is nothing surprising in the idea that an owner might seek to preserve the open outlook from his or her property.^[1456] The view from the dominant property might be a significant factor in the prop­erty’s value, and so its preservation is consistent with the requirement for praedial benefit.

Could other servitudes be recognised beyond the ones listed here? As a prelimi­nary point it must be remembered that, just because a servitude is not mentioned in the Roman texts as being recognised in particular circumstances, it does not neces­sarily follow that such a servitude was not in fact recognised. The Digest is, after all, an edited collection. As Lord Rodger has said, the omission of a particular type of servitude ‘may just be due to an accident of the compilers’ work in reducing the jurists’ writings for inclusion in the Digests’⁰ According to Watson:

For a right to be accepted as a servitude it had to fall within a recognized type or kind of servitudes... But this is not to suggest that there was a closed list of servi­tudes. Rather, when a new situation came under discussion the jurists considered whether they were willing to recognize that a right of servitude could exist in such circumstances.^{[1457] [1458]}

On this view, while there was no bar to the recognition of new types of servitude, a new servitude was more likely to be recognised if it was analogous to an existing type. There exists an argument that, given that acquirers of the servient property are bound by servitudes affecting the property, they should not be at risk of being taken by surprise by the recognition of a previously unknown type of servitude affecting it.^[1459] In Scots law, after a long period of reluctance to recognise new types of servitude,^[1460] the courts now seem more open to this.^[1461] We have seen that the servitude of projection has now been accepted as part of Scots law. Another example is the recognition of a servitude right of car parking.^[1462]

B.