Modern law of vient tenements coming to belong to the same person, which was called consolidation or confusion; 3d, By circumstances emerging which rendered the servitude no longer available— as, for instance, by the extinction either of the dominant or servient tenement; but if a building to which a servitude belonged was pulled down and rebuilt de recenti, the servitude revived;1 4th, Positive servitudes were lost, non utendo, by the dominant proprietor neglecting to use the right for the term of the negative prescription-that is, for ten years, if the parties were present in the same province, and twenty years, if they were absent.2 The servitudes of the French law are regulated by the servitudes. Code Civil, book 2, title 4, Des Servitudes ou Services Fonciers," art. 637 to 710. The Scottish law of servitudes is based substantially on the Roman system, with this difference, that the period of prescription is the full term of forty years. The easements of the English correspond in some respects. with the servitudes of the Roman law. By the Statute 2 & 3 William IV. cap. 71, forty years' enjoyment of any way or other easement, or of any watercourse, or of the use of any water, and twenty years' " uninterrupted access and use of any light to and for any dwelling-house" or other building, now constitute an absolute right in the occupier, unless in either case he enjoys "by some consent or agreement expressly given or made for that purpose by deed or writing."4 1 D. 8. 2. 20. 2. 2 D. 8. 2. 6. 3 Ersk. 2. 9. Hein. Inst. § 413. 4 Lord St Leonards's Treatise on New Statutes relating to Property, 2d ed., p. 162-165. CHAPTER VI. OF USUFRUCT, USE, AND HABITATION. UNDER personal servitudes the Romans classed three rights -usufruct, use, and habitation. Of these usufruct is the most important, the other two being of little practical value in modern systems of law. Usufruct is a right of using a thing belonging to another, Nature of and enjoying its fruits or profits, without impairing its sub- usufruct. stance. This right might be conferred by contract or testament, either for the life of the grantee or for a fixed period. The objects of usufruct may be land, houses, slaves, beasts of burden, and other things. A proper usufruct relates only to such things as can be restored entire when the right expires, and not to such things as wine or other fungibles which perish in the use. Nevertheless, by a senatus consultum, of uncertain date, ascribed by Hugo to the reign of Augustus, and by other writers to that of Tiberius, a quasi usufruct might be established in regard to things which are consumed in the use, upon security being given by the usufructuary to restore, on the expiry of his right, as much in quantity and value as he had received, or to pay an equivalent in money.2 Nuda proprietas is the term used to denote the reserved. right of property in opposition to usufruct. The usufructuary is entitled to all the fruits of the sub- Rights and ject, both natural and civil. His title to the fruits of land, of usufrucobligations however, does not accrue till they are reaped; and if he die tuary. before this, no right passes to his representatives.3 He is en 1 I. 2. 4. pr. § 2. 2 D. 7. 5. 7. 3 I. 2. 1. 36. Expiry of right. Usus defined. titled to the increase of animals, but not of slaves; and for this exception Ulpian assigns the reason, that slaves are given in usufruct with a view to their labour alone, and not to their offspring. Justinian accounts for this by considerations drawn from the dignity of human nature-a theory evidently derived from the Stoic school of philosophy, but not easily reconciled with a system of law that permitted slaves to be sold and bequeathed like the beasts of the field.1 The usufructuary may either possess the subject himself, or let it to another; and he may cede the exercise of his right either onerously or gratuitously. He is bound, however, to manage the property like a good husbandman, to execute all proper and necessary repairs, and to defray the ordinary annual burdens. It is his duty to replace vines or fruit-trees that have fallen into decay or been destroyed by accident; and in the case of cattle or sheep he should keep up the usual number of the herd or flock. To guard against threatened waste or encroachment, he may be compelled to give security to restore the subject. in the same condition in which it stood at the time of his entry.2 Usufruct is terminated in the Roman law by the natural or civil death of the usufructuary, or the expiry of the period for which the right is granted; by consolidation where the usufruct and the property come to be united in one person; by the total destruction of the subject; and by non-use for ten years when the parties are present in the same province, and twenty years when they are absent.3 Usus in the Roman law was a right to use a thing belonging to another without wasting its substance, and without being entitled to the produce or fruits beyond what was necessary to supply the daily wants and necessaries of the user and his family. There was thus much less benefit or emolument in the use of a thing than in the usufruct. Besides, the user could only exercise his right personally, and could not let, sell, or give it away to another. 1 I. 2. 1. 37. 2 D. 7. 9. 1. 3 Inst. 2. 4. 3. Ortolan, Institutes, vol. ii. p. 344. Usus was constituted and terminated in the same way as usufruct.1 Habitatio was a right to reside gratuitously in a house be- Habitatio. longing to another. In its origin it was probably a personal privilege; but Justinian permitted the grantee either to live in the house, or to let it as a place of residence to another.2 Under this head may be noticed the opera servorum, which Opera was a personal right to the services of slaves belonging to another. When such a legacy was left, the right did not terminate by the death of the legatee, but passed to his heirs, who enjoyed it during the life of the slave. Of the like nature is the right to the labour of animals, operæ animalium.* 1 I. 2. 5. pr. and 1 & 2. 2 I. 2. 5. 5. 3 D. 7. 7. 4 D. 7. 9. 5. 3. Maynz, § 217. servorum. CHAPTER VII. OF EMPHYTEUSIS AND SUPERFICIES. Nature of emphyteusis. How constituted. Rights and EMPHYTEUSIS in the Roman law is a contract, whereby a proprietor, without abandoning the property, gives over to another a real right to land, generally in perpetuity, in consideration of a certain annual return in money or produce. The word emphyteusis was used from the second century of the Christian era; but rights more or less analogous existed from a much earlier period. In its origin this contract was a sort of perpetual lease; in progress of time, when the rights it conferred grew more important, it became a question whether it should not be regarded as a sale; and at last it was declared, by a law of the Emperor Zeno, that it should be considered neither a sale nor a lease, but a particular contract to be regulated by its own provisions. According to Sir Thomas Craig and other writers, this right bore a strong resemblance to the feu-right well known in the law of Scotland; but Maynz contends that it did not confer what is commonly called the dominium utile or a right of property, and says the Romans were always careful to distinguish between the emphyteuta and the dominus.2 Emphyteusis might be established by convention or by testament. According to Maynz, there is no express authority for holding that this right could be acquired by prescription.3 Though the rights conferred by the emphyteutical grant obligations fell short in theory of absolute property, they were very of grantee. 1 I. 3. 25. 3. 2 Maynz, § 232. 3 Maynz, § 236. See, however, Mackeldey, § 333. |