Servitūtes
Where one person has a right over property of another, which he can assert by legal remedy
against any one who interferes with its exercise, and not merely against the owner of the
property, he is said to have a
ius in re aliena, and his right belongs to
those which are “real” or
in rem. By the existence of
such a right the legal position of the owner is diminished in value: his ownership, which
otherwise would be unrestricted, is curtailed, not in duration, but in extension. The
presumption of law was in favour of the freedom of property, and the burden of proving his
right over it lay on the other party: hence, when a thing was sold as
optima
maxima, this was legally understood to mean that it was warranted free from any real
rights in persons other than the owner (Dig. 50, 16, 90, and 169). Two classes of such rights are known to Roman law: one recognized by the old Ius Civile, and
termed
servitutes; the other of praetorian origin, and known by specific
names—viz.
Emphyteusis, Pignus, and
Superficies. See
the articles under these heads. Servitutes are either personal or praedial. Of the first class
are
habitatio or the right of living in another person's house; and
operae servorum or
animalium, the right of using his
slaves or animals. Among praedial servitutes are that
oneris ferendi, the
right to use a wall or edifice of his neighbour as a support for his own;
proiciendi, the right to allow one's balcony to project over his neighbour's land;
cloacae immitendae, the right of running a drain through a neighbour's
premises, etc. The modern term for
servitutes is
“easements.” See
Schonemann, Die Servituten
(1866);
Molitor, La Possession et les Servitutes en Droit Romain
(1851).
