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Introduction

Chapter 5: Servitudes

The Roman law of servitudes has a logical coherence that is lacking from corresponding doctrines at common law, even though the latter have borrowed substantially from the former.  An overview of the Roman system is provided in the Introduction to Chapter V of the Casebook. The major Roman categories with some typical examples (the lists are not exhaustive) are as follows:

“Praedial” (or “real”) Servitudes

  1. “Rustic” Servitudes (benefitting land)
    • Walking or Riding across adjacent land (iter)
    • Driving animals across adjacent land (actus)
    • Conducting water across land (aquae ductus)
    • Pasturing animals on adjacent land (servitus pecoris pascendi)
    • Taking water from a source on adjacent land (servitus aquae haustus)

  2. “Urban” Servitudes (benefitting buildings)
    • Supporting a neighbor’s wall
    • Allowing overhanging projection
    • Allowing the affixing of beams
    • Allowing water to drip
    • Allowing the flow of smoke
    • Allowing drainage and sewer lines
    • Forbidding the blocking of light
    • Forbidding the blocking of a view

“Personal” Servitudes

  1. Usufruct (ususfructus)
    • Cutting wood
    • Harvesting fruit
    • Using the services of a slave
    • Quarrying stone

  2. Use (usus)
    • Use of a farm or dwelling

Turning to the common law, it will be immediately apparent that there are several different systems of private land use controls.  A lucid summary is provided by Dukeminier, Jesse, et al. Property. 7th ed. Austin, TX: Wolters Kluwer Law & Business, 2010, Chapter 10 “Private Land Use Controls: The Law of Servitudes”:

Servitude law’s complexity stems largely from the fact that the same functional interest may be classified under different doctrinal labels, each with its own set of requirements.  Traditional servitude law draws a dichotomy between two major types: easements and covenants.  [fn 1: There are also two minor types: profits à prendre, called “profits” for short, and licenses, both very much like easements in form, but not . . . always treated in the same fashion.]  Covenants are further divided into another dichotomy: covenants enforceable at law (called “real covenants”) and covenants enforceable in equity (“equitable servitudes”).  These labels can be misleading, however, because there is considerable functional overlap among interests bearing different labels.  From a strictly functional perspective, all servitudes fall into five types:
  1. A is given the right to enter upon B’s land;
  2. A is given the right to enter upon B’s land and remove something attached to the land;
  3. A is given the right to enforce a restriction on the use of B’s land;
  4. A is given the right to require B to perform some act on B’s land;
  5. A is given the right to require B to pay money for the upkeep of specified facilities.

Doctrinally, A’s interest in example 1 is an easement. A’s interest in example 2 is a profit. A’s interest in example 3 may be treated as [a negative] easement . . . , a real covenant, or an equitable servitude, depending on several factors, including the remedy that A seeks in the event the restriction is breached.  Finally, A’s interest in the last two examples may be treated as a real covenant or an equitable servitude, depending again on the remedy that is sought. [emphasis added]

As Dukeminier goes on to note, easements are also classified as appurtenant or in gross. Easements appurtenant and equitable servitudes are attached to and benefit a parcel of land, called the dominant tenement, and burden a (normally) contiguous parcel of land, called the servient tenement.  To that extent both are similar to the Roman praedial servitude, and indeed the terms and concepts of “dominant” and “servient” parcels is borrowed from Roman law.  Easements appurtenant, equitable servitudes, and the Roman praedial servitudes, “run with the land,” passing automatically to any successors in interest who occupy the dominant and servient tenements.  The Roman subcategories of “rustic” and “urban” servitudes are not recognized as such in the common law.

Roman urban servitudes are generally of a kind that in common law would be called “negative” easements: i.e., prohibitions against certain uses of the servient tenement.  A typical example in both traditions would be an easement against blocking light.  Here again, however, the common law might reach the same result by a different route, such as the doctrine of “ancient lights” or an equitable servitude.

An easement in gross is similar to the Roman personal servitude of “use,” in that it grants a right of use to some person without regard to ownership of land.  Both the easement in gross and the Roman servitude of use can be alienated.  They differ, however, in that the Roman servitude is extinguished upon the death of the original grantee, whereas an easement in gross can descend by succession, if the original grant so provides. Since both the Roman servitude of use and the easement in gross convey merely personal rights, neither involves a dominant tenement, only a servient one.  

The Roman personal servitude of “usufruct” is somewhat similar to the common law right to take “profits” from another’s property.  Here again, as a personal right the Roman servitude expires with the death of the original grantee and is therefore never appurtenant, whereas in common law the right to take profits may be either appurtenant or in gross, and in either case may be assignable or inheritable, depending upon the terms of the original grant. In modern law the mineral lease or other contractual arrangement is a more common device than an easement for acquiring rights to sever property from another’s land.

Depending upon the scope and duration of the use or usufruct that is granted, the Roman personal servitudes can be similar in usage and effect to the common law “life estate,” which of course at common law is not conceived of as a servitude at all.  At common law, life estates can also come into existence under the ancient doctrines of “dower” and “curtesy,” although for the most part the property rights of surviving spouses are now regulated by statute.

It follows from this brief summary that the common law of servitudes corresponds very imperfectly with the Roman law of servitudes.  The following table displays some of these approximate correspondences, but should not be understood to suggest anything like precise equivalencies.

Table
Approximate Correspondences in Servitudes
Between Roman Law and Common Law

Praedial servitudes
Rustic
Urban
Easements Appurtenant (including real covenants and equitable servitudes; also including negative easements)
Personal servitudes
   Usufruct

   Use
 
 
 
 

  • If of immovable property for life, then
Easements in gross
Profits, mineral or timber leases, hunting and fishing rights, etc.

Boating/bathing rights, etc.

Life estate (not classed as a servitude)


Chapter 5: Introduction | A. Cases 142–148 | B. Cases 149–151


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