PRAEDIAL SERVITUDES
Nature of praedial servitudes
It will often be the case that it is desirable for neighbours to agree that one can make some use of the other’s land, or that one will not use his land in a particular way.
One way of achieving this is the creation of a praedial servitude. A praedial servitude is a right against the owner of one area of land, the servient property, held by the owner of neighbouring land, the dominant property, restricting in some way the servient owner’s enjoyment of his property. Of course, one could achieve this effect by contract. A contract, though, gives only a personal right. Thus, if the servient owner sold his land, the new owner would not be bound by the contract. A servitude, on the other hand, is a real right, and will bind successors of the servient owner.A praedial servitude is more than this, however. In addition to binding successors of the servient owner, the benefit of the servitude passes with ownership of the dominant land. Thus, if I have a servitude right of way over your land and I sell my land, the new owner will acquire the right of way along with ownership of the land. This is the reason why these rights are called “praedial” servitudes (from the Latin praedium, meaning an estate of land): because they can be held only by someone who owns the land.
A praedial servitude exists for the benefit of the dominant owner. However, the dominant owner is restricted in the benefit he can take. The benefit taken must relate to the dominant property in some way. Thus, for example, a right to fish on your land would not benefit me in my capacity as owner of neighbouring land: a non-owner would benefit just as much. Accordingly, this would not be a valid servitude. Equally, if I had a servitude right to take building materials from your land, I could use those materials only on the dominant land.
I could not sell them to others, for example, because then I would be taking a benefit that did not relate to the dominant land.An important restriction on the content of a praedial servitude was that it could not require any action on the part of the servient owner. This left two options: either allowing the dominant owner to make some use of the servient property (as with a right of access); or prohibiting some action by the servient owner (as where the servient owner was prohibited from building).
Classification and creation of praedial servitude
Various types of praedial servitude were recognised. A distinction was made between urban and rustic praedial servitudes. This distinction did not relate to the location of the land, but to the type of land affected by the servitude. If the servient property was a building, the servitude would be urban; otherwise, it would be rustic. Thus, a servitude burdening a farmhouse would be an urban servitude. The main practical distinction between urban and rustic servitudes was that, in classical law, Gaius tells us (G.2.29), urban servitudes could be created only by the formal method known as in iure cessio, which involved the parties appearing before a magistrate. A rustic servitude, meanwhile, could also be created through a symbolic sale before witnesses, called mancipatio. Both mancipatio and in iure cessio are considered in more detail in Chapter 5. In later law, both urban and rustic servitudes could be created without the need for these special procedures. In later law, a servitude (of either type) could also be created by use for ten years (twenty if the owner of the affected land lived in a different province), as long as that use was not by force or stealth or by the revocable permission of the owner of the land. Such a revocable permission was known as precarium.
Among the most common types of rustic praedial servitude was the right of access. This gave the dominant owner the right to take access over the servient property to get to his own property. This servitude came in three forms: iter, which was for pedestrian access only; actus, which extended to livestock; and via, which included vehicular access. A rustic servitude could also be created giving the right to lead water over the servient land (the servitude of aquaeductus) or to draw water from the servient land. Other rustic servitudes included rights to water or pasture livestock, to dig sand or to burn lime.
One of the more common types of urban servitude was the right of support. This could take the form either of requiring a building on the servient land to bear the weight of a building on the dominant land (the servitude oneris ferendi) or of allowing the dominant owner to put a supporting beam into the servient building (the servitude tigni immittendi). Other types included rights of drainage and rights to light, prohibiting the servient owner building above a certain level.