Chapter 6 Part 1 Section 3

Servitudes Icon

September 24, 2015

The second kind of real rights is servitudes. These are burdens which one man has on another person’s property. These rights were at first personal.

They were entered into by a contract between the persons. I need to have a road to the market town. If a man’s estate lies between me and the town, I must bargain with him to have a road through it.

This contract produces only a personal right. I should bind him not to sell this estate without the burden.

If the land were sold and the new proprietor refused the road, I could not sue the new owner on a personal right on the previous owner. I must first pursue the previous owner, whom I had the right. He then must pursue the new buyer.

If the land has gone through several hands, this would be very tedious.

To remedy this, the law made servitudes real rights, demandable a quocumque possessore.

Servitudes were=

  1. rusticae

Examples are=

  • the right of a road to the town or river
  • feeding so many cows on another man’s pasture grounds
  1. urbanae

Examples are=

  • the right of leaning the beams of my house on your gable,
  • the right of obliging the owner of the lower floors to make his wall strong enough to support mine, etc.

These are all naturally personal rights and are only made real by lawyers. Life rents on estates and many other things are also servitudes, and are properly personal. Feudal burdens were only persons’ rights.

Therefore, every new vassal must renew his homage and the promise of fealty.

In the beginning of the feudal law, if the proprietor did not perform his duty in every article, he forfeited his feu.

Similarly, if the tenant encroached on his lord’s grounds, what he had feued returned to the superior.

The right of the vassal is founded on the charter of the superior.

  • Every article of it must be fulfilled.
  • Every new possessor must renew the obligation.

When tenants became independent and had a real property, they were said to have the dominium directum, not the dominium utile.


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