Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

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the question whether the owner of the dominant tenement meant to abandon the right,1 in the case of both continuous and discontinuous easements.2

It must be noted that, in the case of negative easements, the right was lost only by acquiescence, for the necessary time, in something inconsistent with the servitude;3 and this was not said to be loss by non-user, but loss by usucapio libertatis^ though the rules oiiusta causa and bonafides did not apply. This contemplated not loss of the right by the dominant owner, but release of the servient owner from a burden. And this had an important legal result. For since it was usucapio^ it rested on adverse enjoyment of the liberty, not on mere cesser of enjoyment of the servitude nor even on adversely created inability to enjoy. Thus if the servient owner blocked the right and then lost possession of the land, time ceased to run in his favour, and if he regained possession the time had to begin again.5 Time would begin to run in favour of an intruder when he took possession, and if the right was destroyed as against him it was destroyed altogether. There is apparently nothing of this sort in our law on the matter, and we address ourselves to the question whether the dominant owner of the right has lost it by non-user and not to the question whether the servient owner has acquired an immunity from it. The law as to commons and other profits on this matter provides little authority on the present point. It seems that the extinguishment of a right of common, once established, cannot be presumed from mere non-exercise; it is evidence but not conclusive evidence of abandonment. Adverse unjustified enclosure seems to be a case for the Real Property Limitation Acts.6

1 Moore v. Rawson (1824), 3 B. and C. 332.

2 Cross/ey v. Lightowler (1867), L.R. 2 Ch. App. 478; James v. Steven-

6 These Acts were consolidated and amended by the Limitation Act, 1939.

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The Roman easement of necessity rests on the principle that a right is not properly created if this is so done that it cannot be utilised, not on any rule that a man cannot derogate from his own grant. There was in fact no such principle. Our rule to that effect, for which Wheeldon v. Burrows1 affords authority, had no application. There are a number of texts dealing with an owner of two tenements who sells one or both, and in all of them it is clear that there is no servitude by implication and that if it is desired to create a servitude either way this must be done expressly.2 In one of these3 the two praedia are sold simul but the question is raised whether it is possible to create a servitude at all in such circumstances. In another text4 it is clearly laid down that one who alienates property adjoining other property of his may lawfully block lights of the property sold. All this turns on the principle that a man cannot have a servitude over his own land, and that, if one is to be created on severance, it must be a new servitude and therefore must be created in one of the ways in which servitudes are established. For the same reason if one whose property has been or is subject to a servitude acquires the other property, the servitude is at once extinct and does not revive on resale,* while with us it revives on resale.6 Though there are in Roman law some exceptional circumstances, such as restitutio in integrumj in which there is a claim to have the servitude created again, these do not affect the principle: indeed they confirm it, since in all the cases the servitude must be re-established, and they are all cases in which the transfer which destroyed the servitude was practically abortive.

5D. 8. 2. 30. pr.; 8. 3. 27; 8. 6. 1.

6Charlesworth v. Gartshed (1863), 3 New Rep. 54.

7See Elvers, Servitutenlehre, pp. 125 sqq.

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the owner of the servient tenement. As Professor Wille says:1

in the case of a positive or affirmative servitude the act of user must necessarily be adverse to the servient owner. In the case of a negative servitude, on the other hand, the mere fact that a landowner has abstained for thirty years from using his land in a particular manner does not constitute an act adverse to himself, for he is not obliged to exercise his rights, and consequently no servitude against his land is created.

The arguments are obviously applicable to English law also, and the only reason why the resemblance between the Roman and English law on this topic has not been observed is that in English law restrictive covenants are contractual in origin. It is not very easy to know why we should not have allowed restrictive covenants to operate as easements at common law, subject to the limitation that they must have been created by act of parties—they would have been perfectly good servitudes in Roman law—but perhaps the answer is that with us prescription came before any clear notion of servitude, whereas in Rome, as has already been said, prescription came late. When it was desired to enforce restrictive covenants—the desire did not make itself felt until Tulk v. Moxhay2—the natural course to pursue was to apply to the Chancellor for an injunction and the Chancellor naturally and properly treated the covenant as creating an equitable interest, not binding on a bonafidepurchaser for value without notice of the covenant.

Easements, etc., are rights in rem, but, as has already been noted, all forms of real action have long since disappeared from our common law. Consequently the remedy for interference with such a right is a personal one, either an action based on nuisance, claiming damages or an injunction, or, in appropriate cases, actual abatement.3 Roman law had also various personal remedies. Damage

1 Principles of South African Law, 5th ed. p. 221.

2(1858), 11 Beav. 571.

3As to these remedies, see Gale on Easements, 13th ed. ch. 16.

to a structure of any kind erected under a servitude would give the Aquilian action.1 Wilful, wanton interference with the enjoyment of a servitude would base an action for iniuria? But the texts give far more prominence to the real remedies. If there was interference with enjoyment of any of these iura there was a real action to enforce it, a vindicatio ususfructus, servitutisy called, in later law, an actio confessoria. There was also an actio negatoria denying a servitude,3 essentially a vindication of freedom, a claim that the ownership was free of the servitude, and an actio prohibitoria, the purpose of which is still obscure.4 Recent writers have raised doubts whether in classical law these actions were available against third persons disturbing the enjoyment or only against the servient (or supposed servient) owner, but these doubts seem unfounded: in any case the rule is clear under Justinian.5 In these actions the question of right was in issue, but there was also a system, though less complete, of possessory' remedies. For physical interference with any such ius in actual enjoyment there was the interdict quod vi aut clamf* There was a modified form of uti possidetis for the protection of usufruct? and there were special interdicts for the enjoyment of the older rustic servitudes of way and water,8 but it is by no means clear that they applied to the servitudes of later formation. Such an evolution would have been natural, but another recorded extension is more questionable. If a usufruct included a right ofway, and there was interference with this, a vindicatio ususfructus lay for the interference with the usufruct.9 But later law seems to have allowed the usufructuary to vindicate the servitude against the

1Actio utilis, D. 9. 2. 27. 32.

2Arg. D. 47. 10. 13. 7, pp. 379 sqq., post.

3 For its application to nuisances, see p. 393, post

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interrupter, though it certainly did not belong to the usufructuary.1

It should be repeated here that where the matter in hand is a comparison of the ways of thinking about legal notions of the common and the Roman lawyer, respectively, the subject of servitudes is one of the least instructive. Probably in no other subject, except perhaps that of the interpretation of wills, has there been so much borrowing from the Romans.

1 D. 43. 25. 1. 4, commonly held interpolated, but possibly a special opinion of Julian.

CHAPTER V. UNIVERSAL

SUCCESSION

1. INTRODUCTORY

The word * succession', at least in the sense in which it was used by the Romans, is not traditional in our private law. Bracton, under Roman influence, employs successio and succedere in describing the transfer of an estate in lands by inheritance,1 but later it becomes usual to speak of descent in real property and of administration, distribution and title by will in personal property. Littleton uses the word 'successors' in relation to what we should now call corporations sole, that is, in relation to succession virtute officii? The Termes de la Ley and Cowell's Interpreter know nothing of it. Blackstone speaks of succession ab intestato and applies it to both real and personal property,* but with the protest that the expression is in strict propriety applicable only to the continuous succession of members of corporate bodies which never die. Nowadays it is usual and may be said'to be technical, especially in connexion with the duties payable on devolution of property at death, e.g. the recently abolished 'succession duty'. In Rome, while it was also used for succession to office and the like, it was the term commonly used from the latter days of the Republic onwards to express the devolution of property on death and in certain analogous cases. The later Roman law gives us a distinction between singular and universal succession, the former referring to acquisition of individual things by, e.g., gift, purchase or legacy, the latter referring to cases in which the rights and duties of a

1E.g. Bracton (Twiss), i. pp. 531, 541; iii. p. 415, and even of transfer by substitution, i. p. 547.

2Co. Litt. 190a, 250a.

3ii. 430, 516.