A. Praedial Servitudes
CASE 142
D 8.5.6.2 (Ulpianus libro septimo decimo ad edictum)
Etiam de servitute, quae oneris ferendi causa imposita erit, actio nobis competit, ut et onera ferat et aedificia reficiat ad eum modum, qui servitute imposita comprehensus est.
et Gallus putat non posse ita servitutem imponi, ut quis facere aliquid cogeretur, sed ne me facere prohiberet: nam in omnibus servitutibus refectio ad eum pertinet, qui sibi servitutem adserit, non ad eum cuius res servit. sed evaluit Servi sententia, in proposita specie, ut possit quis defendere ius sibi esse cogere adversarium refi cere parietem ad onera sua sustinenda. Labeo autem hanc servitutem non hominem debere, sed rem, denique licere domino rem derelinquere scribit.Translation: (Ulpian in the 17th book of his Commentary on the Praetor’s Edict)[CCCXXI]
Concerning the servitude which is imposed for the purpose of bearing a load [oneris ferendi causa], we also have a suit that he (i.e., the neighbor) both support the load and restore the building to the condition it was in when the servitude was imposed. And Gallus thinks that a servitude compelling someone to do something cannot be imposed, but only one that prohibits me from doing something. For with all servitudes maintenance [of the property] is an obligation of the party who claims the servitude for himself, not of the owner of the servient property. But in the case here proposed, the opinion of Servius is valid, namely, that someone can sue on a claim that he has a right to compel his opponent to maintain a wall for bearing his load. Labeo, however, writes that this obligation is on the property, not the person, and the owner may abandon the property [if he wishes to avoid the obligation].
Discussion Questions:
1) Aquilius Gallus relies on the general principle servitus in faciendo consistere nequit (“there can be no servitude requiring someone to do something”).
What considerations of legal policy underlie this principle?2) What arguments could Servius advance for an exception in the case of the servitus oneris ferendi [“servitude of bearing the load”]?
3) Which of the two opinions will sooner lead to the result that repairs are completed and buildings maintained?
4) lang=EN-US>Explain Labeo's point of view.
Compare with this Case:
§ 482 Austrian Civil Code:
All servitudes are alike in that the possessor of the servient property is not normally obligated to do something; but only to permit another to use his right, or to refrain from doing what he as owner would otherwise be entitled to do.[322] [323]
§ 483 Austrian Civil Code:
Therefore the expense for maintenance or restoration of the property that is designated for the servitude must normally be borne by the person entitled to its use. If, however, this property is also used by the person obligated, he must share proportionately in the expense....3
§ 487 Austrian Civil Code:
... The person who, therefore, has to tolerate the support of a neighboring building, the insertion of another's beam into his wall, or the drawing of another's smoke through his chimney must contribute proportionately to the maintenance of the relevant wall, column, partition, or chimney.
It cannot be expected of him, however, that he improve the dominant property or repair his neighbor's chimney.[324]§ 12 Austrian Land Registry Law (1955):
With servitudes and charges on land the content and scope of the invasive right must be defined with the greatest possible specificity; a specification of monetary value is not required.
If servitudes are limited to certain physical boundaries, these must be precisely specified.[325]
§ 1018 German Civil Code:
A piece of land can be burdened to the benefit of the current owner of another piece of land in such a way that the latter may make use of the land in various ways, or that certain uses of the land may not be undertaken, or that the exercise of a right that exists in the ownership of the burdened land relative to the other land is barred (land servitude).[326]
§ 1105 German Civil Code:
A piece of land can be burdened in such a way that to the person in whose favor the burden runs, future benefits from the land are to be paid (charge on land).... [327]
Literature:
Watson (Case 134) 198 ff.
D 8.3.5.1 (Ulpianus libro septimo decimo ad edictum)
Neratius libris ex Plautio ait nec haustum nec appulsum pecoris nec cretae eximendae calcisque coquendae ius posse in alieno esse, nisi fundum vicinum habeat: et hoc Proculum et Atilicinum existimasse ait, sed ipse dicit, ut maxime calcis coquendae et cretae eximendae servitus constitui possit, non ultra posse, quam quatenus ad eum ipsum fundum opus sit.
Translation: (Ulpian in the 17th book of his Commentary on the Praetor’s Edict)[328]
Neratius in his Commentary on Plautius says that one may not draw water, nor bring animals to drink, nor mine clay, nor burn limestone on another's land, unless one is the owner of a neighboring piece of land.
And he says that Proculus and Atilicinus held this opinion. But he himself adds that especially the servitude for burning limestone and mining clay can be established only to the degree it is required for that (i.e., the dominant) property.Discussion Questions:
1) Formulate the qualifications of Neratius as an abstract legal principle.
2) The owner of a servitude mines clay on his neighbor's land and makes amphorae out of it on his own land. In the amphorae he keeps his oil and sells his wine. Has he, according to Neratius, overstepped the permissible use of his servitude?
3) Can Titius grant a valid property right to his neighbor Seius, by the terms of which the latter may mine Titius' land for sand to whatever extent he wishes, and may sell what he mines?
Compare with this Text:
§ 484 Austrian Civil Code:
While the possessor of a dominant property can exercise his right in a manner to his own liking, servitudes may not be expanded; they must instead be limited to the scope that their nature and purpose of creation establishes.[329]
§ 1019 German Civil Code:
A servitude in land can only involve a burden that benefits the use of the land of the person with the right. Beyond the limit established by this [principle] the content of a servitude cannot be extended.[330] [331]
§ 1020 BGB
In exercising a servitude the person with the right to do so must take care for the interests of the owner of the burdened property as far as possible....11
Literature:
Rainer, “Typenzwang” (Case 135) 419.
D 43.20.1.18 (Ulpianus libro septuagensimo ad edictum)
Trebatius, cum amplior numerus pecoris ad aquam appelletur, quam debet appelli, posse universum pecus impune prohiberi, quia iunctum pecus ei pecori, cui adpulsus debeatur, totum corrumpat pecoris adpulsum.
Marcellus autem ait, si quis ius habens pecoris ad aquam appellendi plura pecora adpulserit, non in omnibus pecoribus eum prohibendum: quod est verum, quia pecora separari possunt.Translation: (Ulpian in the 70th book of his Commentary on the Praetor’s Edict)[332]
class=a6 style='text-indent:0cm'>Trebatius thinks, if a larger number of cattle are driven to water than is permitted, one can with impunity prohibit the entire herd from the water, because the addition of the cattle to the herd that has the right to the water, has abused the whole right of driving cattle to water. Marcellus, however, says if someone who has the right to drive a herd to water should drive more cattle [than permitted], he cannot be prohibited with respect to all his cattle. And that is right, because the herds can be separated.Discussion Questions:
1) The servitude for driving cattle to water (servitus pecoris ad aquam appellendi) can be enforced by an interdictum de fonte [“interdict concerning the water-source”], by which the Praetor forbids the land owner from using force against the person with the drinking right. How should the owner act if the herd of the right-holder exceeds the permitted size?
2) Servitudes in land are extinguished by non-use (non usus) for a period of two years. Can one claim non-use if the contractually established modes of using the servitude are violated: e.g., different vehicles are used, or heavier loads transported, or a greater number of cattle are driven over the land, than is permitted under the servitude?
3) Produce arguments for the opposing viewpoints of Trebatius and Marcellus.
D 8.1.8 pr. (Paulus libro quinto decimo ad Plautium)
Ut pomum decerpere liceat et ut spatiari et ut cenare in alieno possimus, servitus imponi non potest.
Translation: (Paulus in the 15th book of his Commentary on Plautius)[333]
A servitude cannot be established to the effect that we may pluck fruit or walk around or dine upon another's land.
Discussion Question:
Justify the opinion of Paul.
1) Does Paulus rule out the possibility that the named activities can be granted as property rights?
Literature:
Rainer, “Typenzwang” (Case 135) 421.
D 8.3.11 (Celsus libro vicensimo septimo digestorum)
Per fundum, qui plurium est, ius mihi esse eundi agendi potest separatim cedi. ergo suptili ratione non aliter meum fi et ius, quam si omnes cedant et novissima demum cessione superiores omnes confirmabuntur: benignius tamen dicetur et antequam novissimus cesserit, eos, qui antea cesserunt, vetare uti cesso iure non posse.
Translation: (Celsus in the 27th book of his Digesta)[334]
The right to travel over and drive cattle over a piece of land can be granted to me separately by multiple owners of the land. Therefore by strict reasoning the right will not become mine unless all the owners grant it and all the previous grants will be confirmed by the final grant. A fairer decision, however, will be that even before the last grant of permission, those who previously granted it cannot prevent me from using the right they granted.
Note on the Text:
Celsus decides according to the legal principle that no one should be permitted to take a legal position contrary to his own conduct: venire contra factum proprium [non licet]; cf. Ulp. D 1.7.25 pr. See also Cases 68 and 71.
Discussion Questions:
1) Co-owners Smith and Jones have granted a right of passage over land that also has other co-owners. Co-owner Brown has still not made any act of transfer (in iure cessio). Green goes over the land. Jones wants to sue Green to cause him to refrain on the grounds that there is no valid servitude until Brown consents. How will the Praetor decide? On the contrast between subtilitas and benignitas, see Case 68.
2) Will the Praetor decide differently if Brown brings the suit?
Literature:
Hausmaninger (Case 68) 64 ff.
D 8.2.6 (Gaius libro septimo ad edictum provinciale)
Haec autem iura similiter ut rusticorum quoque praediorum certo tempore non utendo pereunt: nisi quod haec dissimilitudo est, quod non omnimodo pereunt non utendo, sed ita, si vicinus simul libertatem usucapiat. veluti si aedes tuae aedibus serviant, ne altius tollantur, ne luminibus mearum aedium officiatur, et ego per statutum tempus fenestras meas praefixas habuero vel obstruxero, ita demum ius meum amitto, si tu per hoc tempus aedes tuas altius sublatas habueris: alioquin si nihil novi feceris, retineo servitutem. item si tigni immissi aedes tuae servitutem debent et ego exemero tignum, ita demum amitto ius meum, si tu foramen, unde exemptum est tignum, obtruraveris et per constitutum tempus ita habueris alioquin si nihil novi feceris, integrum ius suum permanet.
Translation: (Gaius in the seventh book of his Commentary on the Provincial Edict)[335]
These servitudes [i.e., urban servitudes] are extinguished in the same way as the rustic servitudes, through non-use for a certain period of time. Nevertheless there is a difference in that they are not extinguished by non-use alone, but only if the neighbor at the same time usucapts the free ownership. For example, if your building is burdened with a servitude in favor of my building, such that it cannot be built higher or it cannot interfere with the passage of light to my house, and I, for the legally requisite period, cover over my windows or wall them up, then I have lost my right, if you have raised your building higher during the same time. If, however, you have made no alterations to your building, then I retain the servitude. Likewise if your building is burdened with a servitude that allows me to place a supporting beam in it, and I have removed the supporting beam, I lose the right only if you wall up the hole left by the removal of the beam, and keep it walled up during the legally requisite period of time. If, however, you have undertaken no alterations to your building, then the servitude remains intact.
Discussion Question:
Why should the conditions required to extinguish urban servitudes be different from those required for the extinguishing of rustic servitudes?
Compare with this Text:
§ 1488 Austrian Civil Code:
The right of a servitude expires by limitation by non-use, if the obligated party blocks use of the servitude and the right-holder has not made his right effective over a period of three consecutive years.[336]
size=1 color=black face="Book Antiqua">D 8.2.7 (Pomponius libro vicesimo sexto ad Quintum Mucium)
Quod autem aedificio meo me posse consequi, ut libertatem usucaperem, dicitur, idem me non consecuturum, si arborem eodem loco sitam habuissem, Mucius ait, et recte, quia non ita in suo statu et loco maneret arbor quemadmodum paries, propter motum naturalem arboris.
Translation: (Pomponius in the 26th book of his Commentary on the Ius Civile of Quintus Mucius)[337]
However, concerning what it is said I can accomplish with my building so as to usucapt the freedom of ownership, Mucius says that I would not accomplish, if I had placed a tree in the same place—and correctly, because a tree would not remain in its condition and place in the same way as a wall, because of the natural movement of a tree.
Discussion Questions:
1) Of what servitude is Q. Mucius speaking?
2) Does Q. Mucius think that the planting of a tree does not constitute an act that is contrary to the servitude?
Literature:
Watson (Case 134) 181 ff.