Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
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defendant's entry up to the time of recovery of possession, irrespective of the defendant's good or bad faith.1 And as to moveables, both in detinue2 and in trover3 damages for detention may be claimed, but, as they are meant to compensate the plaintiff for the use he has not been able to make rather than to force the defendant to disgorge the profits he has made, there is no question of an account.
1Southport Tramways v. Gandy, [1897] 2 Q.B. 66.
2Crossfieldv. Such (1852), 8 Ex. 159.
3Bodley v. Reynolds (1846), 8 Q.B. 779.
CHAPTER IV. LIMITED INTERESTS
AND SERVITUDES
The heading of this chapter must look somewhat surprising to a common lawyer, who is not likely to see much affinity between a life estate and a right of way. But, for the Romans to whom the notion of a limited ownership was a contradiction in terms, the affinity is clear enough. Both these classes of rights, usufruct and its offshoots and what we call easements and profits, were rights in rem in the property vested in someone other than the owner. Both of them were iura> incorporeal rights. They were created in just the same ways. They were claimed and enforced by similar remedies. It is not therefore surprising that in the later Roman law they were classed together as servitudes, life interests (usufruct and the like) being personal servitudes, as attached to a particular person and dying with him, and our easements and profits being praedial servitudes, attached to the tenements they affected and of perpetual duration. But this is very different from the earlier conception.
Usufruct is not primitive. It dates only from late in the Republic and its primary purpose was essentially alimentary, e.g. provision for a widow. It is not till the Empire that it becomes a general legal institution, divorced from this alimentary purpose, and it is clear that the lawyers of the first century did not find it easy to analyse it and fitit into the scheme of legal things. What seems to have impressed them first was its entirely incorporeal nature. It was a legal entity sui generis, not to be thought of in physical terms—a ius, and as such a res> capable of being claimed as such, but not capable of being possessed, as it was not physical; and though for certain purposes a part of the mass of rights called dominium, it was not at first
128 LIMITED INTERESTS AND SERVITUDES
thought of as a ius in the physical thing, a ius in re> but simply as a ius. It would be beyond the purpose of these pages to go into the odd results which sprang from this conception, discussed in the Vatican Fragments.1 But early in the second century it came to be thought of as a ius in re, like a servitude, and at some later date, probably early in the third century, though the dominant opinion is that it was not till the Byzantine age,2 the assimilation with servitudes was complete and usufruct was a personal servitude as opposed to rights of way, light, etc., which were praedial servitudes.
As usufruct is not a form of ownership, it could not be created by the modes usual for the conveyance of property, not by traditio^ for, not being physical, it could not be delivered, nor by mancipation not being a res mancipi. The only way of creating it inter vivos at civil law was by cessio in iure, rather like a common recovery, though here as elsewhere the Praetor gave protection where it had been set up informally, in ways which we need not discuss. Unlike a life estate it was inalienable—it attached to the person of the donee and could not be detached from him. There was nothing indeed to prevent him from allowing someone else
to enjoy it, or even from selling the right of enjoyment, but such a transaction did not affect his position as usufructuary. So too there could be no usufruct pur autre vie, though the working of the law of legacy might give something like it. Thus, in classical law if a usufruct was left to a slave by direct legacy, it vested of course in his master, and could not survive the master. But it could not survive the slave either, so that it was in effect for the shorter of the two lives. This is gone under Justinian, but he provides that where one is acquired through a son it survives to the son if he outlives the father.3
1 |
Sects. 41-93; see Buckland, 43 L.Q.R. (1927), pp. 326 sqq. |
2 |
See Buckland, 'Marcian', Studi Riccobono, i. pp. 274 sqq, |
3 Buckland, Text-book, pp. 272 if.
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There is no evidence as to the civil law liability of the usufructuary in the matter of waste, but it is clear that under praetorian law he was liable for waste, even permissive.1 As the texts express it, he must conduct himself as a bonus paterfamilias^ and for this he had to give security,2 the security covering maintenance, good cultivation and return at expiration of the right. And it seems that in classical law he might enjoy only as his donor had been in the habit of enjoying. Thus he might sell produce only if the donor had been in the habit of doing this,3 though this severe rule is gone under Justinian. As to voluntary and ameliorating waste the rule was much more drastic than with us; amelioration was not allowed—the usufructuary might not even plaster a rough wall.4 And any fundamental alteration of the property was not merely a wrong: it ended the usufruct, which was in the thing as it was, and this whether the change was by him or someone else.*
There was no right of entry for emblements if the right expired while crops were growing. The growing crops belonged to the person entitled in default of the usufructuary, but if they were actually cut, though not yet garnered, they went to the usufructuary's estate.6 This may be compared with the rule that if the usufructuary had let the land and died between rent days, the question whether his heres or the owner of the land was entitled to the next rent depended on whether the tenant had gathered the crops or not.? Naturally as he could not alienate his own right he could not alienate that of the owner. There was nothing in the smallest degree corresponding to the powers of sale of a tenant for life under modern statutes.
1 D. 7. 1. 7. 2, etc. |
2 D. 7. 9. 1. |
3 Riccobono, Studi Brugi, pp. 173 sqq.
4D. 7. 1. 44. But see h.t. 13. 5 where his act could not burden the reversioner.
5P. Sent. 3. 6. 28; D. 7. 4. 5. 2, 31.
6D . 7 . 4 . 13-
7Buckland, Text-book, p. 222.
I3O LIMITED INTERESTS AND SERVITUDES
There was not of course the same need for such powers, since in general the land could not be 'tied up' for more than the life of the usufructuary—there were no estates tail.1 But the real difficulty is that a usufructuary had not ownership at all. The thing subject to the usufruct was a res aliena. And only within very narrow limits did the Romans ever allow anyone who was not owner to make a title in property without the owner's authority. The pledgee2 and certain kinds of guardians are the only cases: there was nothing like our powers operating in equity or under the Statute of Uses. Still less was it possible for a mere bailee, as generally in French law, and under narrow conditions as in English law,3 to transfer ownership to a bonafidepurchaser.
As to mines, the general rule of our law that a tenant for life may work existing mines, but may not in general open new ones,4 would serve for a description of the right of the usufructuary, but the principle is not quite the same. The usufructuary may not open new mines because to do so is to alter the character of the property, not merely because such a thing is more than is involved in the enjoyment of the thing as it is. On the other hand, where he is entitled to work a mine and therefore to let it there is no question of setting aside any part of the proceeds as capital money, as under our Settled Land Acts. It is absolutely his, as it is a tenant-for-life's if he works the mine himself under his common law powers. In fact minerals in such a case were on just the same level as fruits, the organic produce of the property, and were apparently regarded by the Romans as equally capable of renewing themselves.
1 As to the possibility of settlements at certain periods, Buckland,
Equity in Roman Law, pp. 83 sqq.\ also pp. 173-175, post.
2And he was, originally at least, given authority at the time of the pledge.
3Cf. Sale of Goods Act, Sect. 25; Factors Acts, passim; Disposal of Uncollected Goods Act, 1952; see also pp. 77—78, ante.
4Elias v. Snozvdon (1879), 4 App. Cas. 454.
USUFRUCT
Notwithstanding the assimilation to servitudes, usufruct retains two characteristics in which it resembles a limited estate. It gives indefinite rights of enjoyment, almost the same as those of an owner, and is attached to the personality of the holder so that on the cesser of that personality it ceases to exist. And, because of its character, it is thought of for many purposes as a part of ownership, so that if a man who has sold a piece of land can convey it only subject to outstanding usufruct he is liable to his buyer for 'eviction' in exactly the same way as if a specific part, or an undivided share in the land, was effectively claimed by a third party. A praedial servitude on the other hand is attached to the praedium concerned and can last as long as the praedium does, i.e., normally it is perpetual. And if a buyer found after the sale that the land was burdened with a servitude of which nothing had been said, he had no remedy unless there was an express guarantee that there were no servitudes,1 though knowingly to conceal such a servitude was a fraud for which the vendor would be liable; whereas in English law the rule is that, in the absence of express mention, a buyer may decline to perform a contract for the sale of land if he discovers before completion that the land is subject to an easement which is not patent or discoverable by inspection.2 In fact praedial servitudes seem to have been regarded rather as accidental characteristics or qualities of the land, like relative fertility. A buyer is not entitled to a remedy if the land proves less fertile than he expected.
The Roman law of praedial servitudes has many resemblances to our law of easements and profits. This is no doubt in part due to the fact that our authorities have very frequently appealed to the Roman law. Bracton appeals to the Roman law and our modern cases and text-books are
1 D. 18. 1. 59; 50. 16. 90.
2 Williams, Vendor and Purchaser, 4th ed. p. 638; Yandle v. Sutton,
[1922] 2 Ch. 199.
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full of references to it on this matter. But there are many similarities of which borrowing cannot be the explanation. Thus in both systems these rights can be acquired by long enjoyment, lapse of time without interruption of the enjoyment. If this system had been simply borrowed it would have been borrowed as it was in the time of Justinian or later, but in fact it appears, with us, to have gone through an evolution very like that it underwent in Roman law. In that law it does not appear till the second century and apparently then applied only to the primitive rights of way and water, and took the form of a presumption of lawful creation drawn from a long enjoyment,1 without any definite limit. Only in late law are there fixed limits of time and only then is it clear that it applied to all praedial servitudes and is free from the conception of a lost grant.2 So in our law the system seems to have passed from one in which enjoyment must have been from before the time of memory to one in which a certain length of enjoyment was taken as evidence of a lost grant and finally to the rules in the Prescription Act, 1832,3 under which different times are established for different types of right and different efficacies for different lapses of time, with no reference to lost grant.4
Under Section 4 of the Prescription Act the period prescribed for the enjoyment of an easement or profit must be 'the period next before some suit or action wherein the
1 D. 43. 20. 3. 4, etc.
2 Buckland, Main Institutions of Roman Law, p. 158.
3 2 and 3 Wm. IV, c. 71. The periods are twenty and forty years in the case of easements, though twenty years in the case of light, or thirty and sixty years in the case of profits. After twenty (or thirty) years the claim to the easement (or profit) cannot be defeated by proof that it could not have existed at some date later than 1189; after forty (or sixty) years the right is absolute and indefeasible unless it appears that the enjoyment depends on some consent given by deed or writing. See Holdsworth, vii. pp. 351, 352, as to the mental confusion surrounding the drafting of this Act.
4 Tap/ing v. Jones (1865), 11 H.L.C. 290. See, on the history of the matter, Gale on Easements, Part n, ch. iii.
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claim or matter. . . shall have been or shall be brought into question', and a right thus acquired may be set up when challenged in a subsequent action;1 it results from this section that no right is acquired under the Act until it has been * brought into question' in an action and established, though it may still be acquired under the common law, which has not been superseded by the statute. There is no such rule in Roman law, but apparently a cesser of enjoyment for such time as would bar a duly acquired right would prevent an acquisition (i.e., would render necessary a new beginning of enjoyment), namely, before Justinian two years non-user for rights of way and the like and two years usucapio libertatis for rights to light, etc.
The rule of the statute that the right must have been enjoyed otherwise than by consent in writing, and, except in the case of light, by one 'claiming right thereto', or, as it is ordinarily put, 'as of right', is paralleled in the Roman law by the rule that it must not have been enjoyed vi clam aut
-pre carlo?
But there are many differences in the two systems. With us the right to support is a natural right only so far as the land is in its natural condition. If a heavier burden is imposed, by such things as buildings, there is no right to support of this except as an easement to be acquired in one or other of the ways in which easements can be acquired, e.g. by lapse of time.3 But in Roman law no such distinction seems to have been drawn. The right to lateral support nowhere appears in the law of servitudes, for the ius oneris
1 |
Cooper v. Hubbuck (1862), 12 C.B.N.S. 456. |
2 |
D. 8. 5.10. pr., and see Thesiger L.J. in Sturges v. Bridgman (1879% |
11 Ch. D. 852, at p. 863: 'Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or [?of] user, which go to the proof of either one or the other, must be, in the language of the civil law, "nee vi nee clam nee precario'V
3 Wyattv.Harrison (1832), 3 B.and Ad. 871; Daltonv. Angus(1881), L.R. 6 App. Cas. 740, 792.
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ferendi is the right to the maintenance of a supporting structure. There is indeed very little in the Roman books about a right to lateral support. In D. 10. i. 13 Gaius cites, as being accepted as part of the Roman law, an extract from a law attributed to Solon, providing that if one digs a ditch or the like on one's land there must be left an interval equal to its depth: this does not sound very practical, and it is very doubtful if it is really Roman law of any epoch. In any case it cannot mean that this was the only restriction in this matter. The Roman attitude seems rather to have been that an owner is entitled to make any use of his land which he likes provided he does not infringe some right of his neighbour, and if his neighbour does something which prevents this enjoyment this is an actionable wrong, so far as it does damage. Thus we are told that if you begin to dig a well in such a way that my wall cannot stand I have a remedy, without, as it seems, any reference to the length of time my wall has stood,1 at least if I have given you notice before the work was done and also, presumably, if it was done secretly.
The distinction between easements and profits dprendre has no place in the Roman law. The distinction drawn is between rustic and urban servitudes, of which the former are the older, and are those essentially associated with the enjoyment of unbuilt land, such as rights of way and water, the latter being those connected with buildings, such as rights to light. But it is to be noted that while all the urban servitudes and the rights of way and water are easements in our sense, nearly all the other rustic servitudes, such as rights of pasture, of lime-burning, etc., are what we should call profits. They are of more recent origin than rights of way and water and there is reason to think that in classical law they were more urban than rustic in their legal characteristics, i.e., they were not, like the rights of way and water, capable of creation by mancipatio
1 D. 39. 2. 24. 12.
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or of being mortgaged. That is the whole difference, and it does not separate them from easements but rather associates them with urban servitudes, which are all easements. Thus the rules as to their creation and acquisition by lapse of time were the same.
This last point, however, is affected by another consideration. All the rustic servitudes seem to be positive, i.e., the enjoyment of them involves some form of entry on the servient land—they are iura faciendi. The urban are usually negative—rights to prevent the owner of the servient land from doing something—iura prohibendi. This distinction has legal effects. When we think of acquisition by prescription, ancient lights is the first case which comes to our mind, but there is reason to think that till very late in the Roman law the rules of acquisition by long enjoyment applied only to rustic, or positive, servitudes. There seems to be only one text which applies it in a wider field1 and the reference to it there is not above suspicion of interpolation. There is a corresponding difference in relation to loss by non-enjoyment. Rustic servitudes, being positive, were lost by failure to enjoy for the statutory time and this was all that was necessary. But as negative servitudes do not involve doing anything, they were not lost by mere nonuser : you do not lose a right to light by not looking out of the window or even by not having any window, but only by submitting for the necessary time to something inconsistent with the servitude. In our law there is no statutory rule as to loss by non-user. The question always turns upon a presumed intention to abandon the right and a period of twenty years is commonly mentioned in the cases, based upon the analogy of the presumption of acquisition which arises from twenty years unexplained enjoyment. But twenty years is not always necessary or enough. It depends on the circumstances in which, e.g., the window was destroyed. Length of time is only a factor in the solution of
1 C. 3. 34. 1.