Servitudes
(Reference: John Cook, Law and Life of Rome, Cornell University Press. C1967.)
Servitudes on real estate included two main categories:
Praedial servitudes; and
"Personal servitudes"
PRAEDIAL servitudes included two kinds of rights:
Rights that
made someone allow an act done by you - such as rights of way for travel across
land; right to draw water; water to dig lime or sand; right to make a neighbor's building
bear the weight of a wall.
Rights that
restrained another from doing an act that affected you - such as building a
structure that obscured your light; or draining rain water from their building onto yours,
(similar to the concept of "nuisance.")
No servitude, however, could be in faciendo, or make another do something himself.
Servitudes could be created by customary use "time out of mind," formal conveyance under res mancipi, or could be retained by the conveyance or when the property was alienated. Servitudes, once established, "ran with the land." Whoever became the owner of the "servient" property must forever allow the holder of the "dominant" property the relevant right. The right, however, must be necessary to the dominant property - it could not be used, for instance, for a commercial advantage. A servitude on Roman Land was considered a real property right in rem that could be vindicated in court. A servitude on Provincial Land, however, was considered only a part of a contractual arrangement (pacts and stipulations.) A servitude could be lost by non-use, or non-resistance to breaches of them for a period of two years.
PERSONAL servitudes were rights of use (usufruct), but not of improvement. These were also considered rights in rem that could be vindicated. However, they ran with the beneficiary for a time certain and not with the ownership of the property. These included the right to enjoy property and take its produce; usus without fructus; and right of habitatio (inhabitation of a dwelling.) Usufructs died with the beneficiary, except in the case of those granted to municipalities, which lapsed at 100 years.
Tenancy was unlike a personal servitude of usufruct because the tenant had no real interest or possession in the property. The tenant's use was purely contractual. If there was any controversy over nuisance or if he was ejected from his tenancy, he had to 'locus standing' to bring proceedings. Such right was one of ownership (dominium.) The tenant could, however, sue the domini on his contract.
