Protection of Praedial Servitudes
We have seen in Chapter 10 that a distinction may be made between remedies based on ownership and remedies based on possession.[1509] The former assert the existence of a right of ownership held by some specific person, and success in obtaining the remedy sought is dependent on establishing ownership.
By conĀtrast, a possessory remedy is not concerned with the question of who is ultimately entitled to the property. Instead, possessory proceedings are brought to preserve an existing state of possession or restore a previous state of possession, as an interim measure until the question of right is determined. An equivalent distincĀtion existed in the law of servitudes.(1) Remedies for Establishing or Denying a Servitude
The two standard remedies relating to servitudes were known as the actio confesĀsoria and the actio negatoria.[1510] [1511] The actio confessoria, which was a modified form of the vindicatiol0i used to assert ownership, asserted the existence of a servitude, and was brought by a person claiming to be dominant owner in a servitude. The actio negatoria denied the existence of a servitude. For example, if I claimed that I had a servitude right of access over your land, which you were refusing to allow me to exercise, I would bring the actio confessoria against you. I could bring the same action to assert a right to repair, for example, the road over which I had the right of access.[1512] If, instead, you were using my land in a manner which I wanted to allege that you did not have a right to, I would bring the actio negatoria against you. It does not appear that you actually had to be asserting that a servitude did exist. It was enough that you were doing something that would only be lawful if you did have a servitude. In both the actio confessoria and the actio negatoria, comĀpensation could be claimed.[1513] In the actio confessoria, this was measured by the dominant owner's interest in not being prevented from exercising the servitude. In the actio negatoria, compensation was measured by the pursuer's interest in not having the supposed servitude exercised. In addition to these remedies, a person asserting or denying the existence of a servitude could protect his or her position indirectly, if the other party was acting in bad faith in an attempt to cause offence or affront. This was done using a delicĀtual remedy under the actio iniuriarum, the action for insult.[1514] This might occur if a person knowingly trespassed on land in a manner affronting the owner of that land, or maliciously prevented the lawful exercise of a servitude. (2) Possessory Remedies We have seen already that a person claiming to own property was not supposed to take the law into his or her own hands by seizing the property from the current possessor.[1515] The current possessor was normally entitled to be left in undisturbed possession until the question of ownership was determined by ajudge. The praeĀtor would normally protect the current possessor in the meantime by means of special remedies called interdicts. To talk of possession, though, suggests a relationship with a corporeal thing. A servitude is a right, with no physical existence. Can it then be possessed, and its exercise receive protection in the same way as possession of corporeal property? The general view is that servitudes, as rights, could not be possessed.[1516] As Paul says, only āthose things can be possessed that are corporeal'.[1517] At the same time, though, a person in peaceful exercise of an apparent serviĀtude seems just as deserving of interim protection as someone in peaceful possesĀsion of corporeal property. This is especially so where, as in Roman law after the lex Scribonia, defects in the creation of the servitude could not be cured after the passage of time. In other words, as we have seen, a servitude could not be created by usucapio. Thus, between the lex Scribonia and the development of the creation of servitudes by longi temporis praescriptio, it would always be necessary to prove that the servitude had been validly created. Faced with the theoretical difficulty of possession of incorporeal things, and also with the practical need for possessory protection of servitudes, the comĀpromise position was reached of saying that the person in apparent exercise of the servitude had āquasi-possessionā.[1519] The apparent exercise of a servitude was protected by special interdicts, modelled on the interdict uti possidetis that was used to regulate possession of land.[1520] For example, the apparent exercise of a servitude right of access was protected by the interdict de itinere actuque privato.[1521] For protection by this interdict, it was necessary to have exercised the access for at least thirty days in the previous year, not by force, stealth or licence. It was not concerned with whether the servitude actually existed. However, it would have the result of placing the burden of proof on the party denying the existence of the servitude, if that question was subsequently raised. In effect, the possessory interdict could be used in place of the actio confessoria. Success with the interdict would mean that the party exercising the access could continue to do so unless and until the other party successfully brought the actio negatoria. E.