793
[end of lecture 47]

LECTURE XLVIII.

DOMINIUM AND SERVITUS.

Recapitulation.

In my last Lecture, I proceeded to the first of the two capital departments under which I arrange or distribute the matter of the Law of Things (or the matter of the bulk or mass of the legal system): namely, primary rights, with their corresponding primary duties.

Adverting to primary rights (or to rights which are not consequences of delicts or injuries), I proceeded, in the first instance, to rights in rem (or rights availing against the world at large) as existing per se or simply: that is to say, as not combined with rights in personam, or rights availing exclusively against specifically determined persons.

Adverting to rights in rem, as existing per se or simply, I first considered them with reference to differences between their respective subjects: or (changing the expression) with reference to differences between the aspects of the forbearances which may be styled their objects. I touched upon the rights of the class of which the subjects are things, or of which the objects are such forbearances as determinately regard specifically determined things. I noticed the rights of the class of which the subjects are persons, or of which the objects are such forbearances as determinately regard specifically determined persons. And I adverted to the rights of the class which have no specific subjects, or of which the objects are such forbearances as have no specific regard to specific things or persons.

Dismissing the rights of the class of which the subjects are persons, and also the rights of the class which have no specific subjects, I proceeded to such distinctions between rights of the class over things as are founded on differences between the 794degrees wherein the entitled persons may use or deal with the subjects.

I adverted generally to that leading distinction of the class which may be marked with the opposed expressions, dominion, property, or ownership, and servitude or easement. And to obviate some of the difficulties which arise from the ambiguities of the expression, I stated some eight or ten of the many and disparate meanings, which, in popular language, and even in the writings of lawyers, are annexed to the term property and the term dominion.

Distinction between dominion or property and servitus or easement.

Pursuing my examination of the distinction, which, for want of better names, I marked with the opposed expressions to which I have now adverted, I would remark that I mean by property (as opposed to servitus or easement) any right which gives to the entitled party an indefinite power or liberty of using or disposing of the subject: or (in other words) which gives to the entitled party such a power or liberty of using or disposing of the subject as is not capable of exact circumscription; as is merely limited generally by the rights of all other persons, and by the duties (relative or absolute) incumbent on himself.

And by servitus or easement (as opposed to property or dominion) I mean any right which gives to the entitled party such a power or liberty of using or disposing of the subject as is defined or circumscribed exactly.

An estate in fee simple in land, absolute property in a personal chattel, or an estate or interest for life or years in land or a personal chattel, are all of them cases of property or dominion (taking the expression in the sense which I am now giving it).

A right of way through land belonging to another, a right of common (or of feeding one’s cattle on land belonging to another), or a right to tithe (or to a definite share in the produce of land belonging to another), are all of them cases of servitus or easement (as I now understand the expression).

Whoever has a right of property may apply the subject of his right to any purpose or use which does not amount to a violation of any right in another, or to a breach of any duty lying on himself. And it is only in that negative manner that the extent of the power of user imported by the right can possibly be determined.

But in the case of a right of servitude, the purposes or 795uses to which the person invested with the right may apply the subject, are not only limited generally by the duties incumbent upon him, but are determined or may be determined by a positive and comprehensive description.

In a word, servitus or easement gives to the entitled party, a power or liberty of applying the subject to exactly determined purposes. Property or dominion gives to the entitled party, the power or liberty of applying it to all purposes, save such purposes as are not consistent with his relative or absolute duties.

I would briefly remark (before I proceed) that in treating of the distinction now in question, I suppose that the right of the party is present or vested, and is also accompanied with a right to the present enjoyment of the right, or to the present exercise of it. To the nature of contingent rights, and of such vested rights as are not coupled with a right to present enjoyment or exercise, I shall advert hereafter.

Property is susceptible of various modes.

Property or dominion (used with the meaning which I am now annexing to the term) is applicable to any right which gives to the entitled party an indefinite power or liberty of using or dealing with the subject. But property (as thus understood) is susceptible of various modes: that is to say, the limitations or restrictions to that power or liberty, which spring from the rights of others and from the duties incumbent on himself, may vary to infinity.

For example: A right of unlimited duration (as an estate in fee-simple in land, or absolute property in a personal chattel) and a right of limited duration (as an estate for life or years in land or a personal chattel) are equally property (in the present sense of the expression): for, in either case, the power or liberty of user which resides in the entitled party, is not susceptible of positive and exact circumscription.

But the limitations or restrictions to that indefinite right of user, are, in the different cues, widely different.

In the case of the estate in fee, or the absolute property in the personal chattel, the owner may waste or destroy the subject, in so far as such waste or destruction may not be injurious to other persons considered generally.

In the case of the estate for life, or of the estate for years, this power or liberty is restrained, not only by the rights of others considered generally, but by the rights in the same sub796ject of those in remainder or reversion: that is to say, who have rights in the same subject, subsequent to the rights of the owner for life or the owner for years. For if the owner for life, or the owner for years (I know how uncouth this phrase sounds to an English lawyer, but I have given my reason for selecting it), had the same power of user which resides in the absolute owner, it is clear that the rights of those who are in remainder or reversion would be merely illusory. In respect of their rights, he, at least, must be subject to the duty of not destroying the subject, or of so dealing with it as would render it absolutely worthless.³³

But the restrictions to the right of the limited owner, which arise from the rights of the remainderman or reversioner, may also be fixed differently by the absolute dispositions of the law, or by private dispositions which the law allows and protects. We may suppose, for example, that the owner for life of land may be empowered to divest it completely of timber and buildings, and to leave nothing to his followers but the bare soil; Or that his power of taking timber, and demolishing buildings, may be more or less restricted.

In our own law, in the Roman and French law, and (no doubt) in every other system, the power over a thing residing in a person having in it an interest limited in point of time is not only restricted in duration, but in regard of the interests of the following takers, is restricted in a great variety of ways. For instance, the right of a tenant by the courtesy, and that of a tenant in dower in the English law, are different. An estate for life, again, may be given subject to waste generally, or free from the restrictions which the Courts of Equity have annexed even to grants without impeachment of waste: for instance, the restriction of not cutting down ornamental trees and the like, for I take this provision of equity to be only dispositive, that is, intended to take effect only if the parties should not otherwise provide.

Property pre-eminently so called: viz. which is accompanied with the largest power of user, and therefore with a power of alienating from contingent successors.

But though the possible modes of property are infinite, and though the indefinite power of user is always restricted more or less, there is in every system of law, some one mode of property in which the restrictions to the power of user are fewer than in others: Or (changing the expression) there is some one mode or property in which the power or liberty of indefinite user is more extensive than in others. And to this mode of property, 797the term dominion, property, or ownership is pre-eminently and emphatically applied.

Such, for example, in the Roman law, is dominion (in the strict sense): such, in the French law, is propriété (in the same sense): such, in our own law, is absolute property in a movable. Such, too, in our own law, is an estate in fee-simple in land: but which (although it is closely analogous to absolute property in a movable) is not commonly called property or ownership.

The right of property pre-eminently so called (or the mode of the right of property which is coupled with the largest power of user) is (for the reasons to which I have just adverted) a right of unlimited duration: that is to say, there is no person having any interest in the subject subsequent to his own, from whom the owner may not divert it by a total or partial alienation. Let the contingent successors be who they may (whether they succeed by private and particular dispositions, or by general dispositions of the law taking effect in default of particular dispositions), they have no such right in the subject as the owner may not defeat, and as sets a restriction or limitation to his power of using the subject.

This I apprehend (speaking generally) is the notion of property unlimited in duration, and therefore the most extensive of any in respect of the power of user. In strictness, it is not a right of unlimited duration: for no right can endure longer than the life of the party entitled. But it implies³⁴ a power of aliening the right itself, from the successors who would take it (by particular disposition, or by the general disposition of the law) in case the owner died without alienation. To this I shall advert particularly, when I come to consider rights in regard to their respective durations.

Property pre-eminently so called, is not unlimited in respect of the power of user.

Even the right of property pro-eminently so-called (or the right of property whose duration is unlimited) is not unlimited in respect of the power of user which resides in the proprietor. The right of user (with the implied or corresponding right of excluding others from user) is restricted to such a user, as shall be consistent with the rights of others generally, and with the duties incumbent on the owner.

For example: I may exclude others generally from my own land or house: but I cannot exclude officers of justice, who, authorised by a warrant or other due authority, come to my 798house to search for stolen goods. If I am the absolute owner of my house, I may destroy it if I will. But I must not destroy it in such a manner as would amount to an injury to any of my neighbours. If, for example, I live in a town, I may not destroy it by fire, or blow it up by gunpowder.

I have a right in my own person which is analogous to the right of property in a determinate thing. And, as a consequence of that right, I may (generally speaking) move from place to place But this my liberty and right of locomotion, does not empower me to enter the land or house of another, unless I am specially authorised by the owner’s license, by a right of way through his house or land, or by some other cause specially empowering me to enter it.

And the power of user which is implied by the right of property, may also be limited by duties which are incumbent on the owner specially and accidentally.

For example: The power of user may be restricted by duties or incapacities which attach upon the owner in consequence of his occupying some status or condition. We may conceive, for example, that an infant proprietor is restricted (by reason of his infancy) in respect of the power of using, as well as the power of aliening.

Or the power of user may be restricted by reason of a concurrent right of property residing in another over the same subject. I mean by one which is coupled with a present right of possession, and therefore properly concurrent, not expectant upon the termination of the other right of property. This is called condominium, in the Roman law; joint property and property in common in our own.

Or the power of user may be restricted by virtue of a right of servitude residing concurrently over the same subject in another person. For example: I have (speaking generally) a right of excluding others from my own field. But I have not a right of excluding you (exercising your servitude or easement), if you have a right of way (by grant or præscription) over the subject of my right of property. I have (speaking generally) a right to the produce of the field: but that right is limited by a right in the parson to a tithe, unless my land be tithe free.

Property pre-eminently called, or any of its modes, cannot be defined (in respect of the power of user) exactly.

It follows from what has preceded, that neither that right of property which imports the largest power of user, nor any of the rights of property which are modes or modifications of that, can be defined exactly. For property or dominion, ex vi termini, is jus im rem importing an indefinite power of user: i.e. such a 799power of using or of dealing with the subject as is limited by nothing but the duties incumbent on the owner: or a power of applying the subject to any purpose whatever which does not conflict with any duty to which the owner is subject. This indefiniteness is of the very essence of the right; and implies that the right (in so far as concerns the power of user) cannot be determined by exact and positive circumscription. Such an application of the subject as consists with every of his duties, the owner has a right to make: And any act, by another, preventing or hindering any application of the kind, is an offence against his right.

The definition, therefore, of the right of property lies throughout the corpus juris, and imports a definition of every right or duty which the corpus juris contains.

The modes of property are distinguishable from one another by precise lines of demarcation.

But though neither absolute property, nor any of its modes, is capable of exact circumscription, the various modes are distinguishable from one another by precise lines of demarcation.

For example: The right of owner for life, or of owner for years, may be distinguished from the right of the absolute owner, by an enumeration of the powers of user (belonging to the absolute owner) from which the owner for life or years is excluded.

And this (I apprehend) is the way in which these modes of absolute property are distinguished from absolute property itself and from one another. Such or such a use, for example, which the absolute owner may lawfully derive from the subject, would be in the owner for life or the owner for years, an injury to the remainderman or reversioner.

The definitions (or no definitions) of property, in various codes or systematic treatises.

What I have said with regard to the definition of absolute property quadrates with the practice of law writers or makers of codes.

In the Institutes of Gaius and Justinian, the right of property or dominion is not defined at all. Things are described; the modes of acquiring property in them are described; servitudes are described; but of the right of property or dominion no direct description is given. The nature of the right (in respect of the power of user) left to be inferred from the treatise generally. In the codes or treatises which attempt a definition of it, merely a few of its properties or qualities are given; and those properties or qualities are given with restrictions which lie throughout the body of the law. Thus, in the 544th article of the French Code, property is declared to be the absolute right 800of using or dealing with a thing as we will, provided we do not use it in any manner which is prohibited by laws or réglemens.

Bentham appears to have seen the same difficulty, and to have got over it in much the same manner. Speaking of droits intégraux as opposed to droits, he says: ‘De tous ces droits, dans un système fondé sur l’utilité, il n’en est aucun qui ne doive avoir des limites. Le premier (droit d’occupation) sera limité par l’obligation de ne faire de la chose aucun usage nuisible à autrui. Le second (droit de donner exclusion à autrui), par l’obligation de permettre l’usage de la chose, à propos de besoin urgent pour l’avantage d’autrui, etc.—Ces exceptions déduites, ce qui reste fait la quantité intégrale du droit.’

Blackstone attempts to define property in a personal chattel. The owner, he says, hath solely and exclusively the right and also the occupation of a movable chattel, so that it cannot be taken from him without his act and default. This is evidently so vague, that it amounts to nothing, and must be taken with all the restrictions resulting from the whole body of the law generally. There is no attempt, either by Blackstone or by Sir Matthew Hale, whom he followed, to define an estate in fee-simple, in respect of the power of user.

Such maxims of law as these, Sic utere tuo ut alienum non lædas; Qui jure suo utitur neminem lædit, and the like, arise from this impossibility of exactly defining and circumscribing the right of ownership or property, and are really almost identical propositions.

The distinction between legal and equitable property (or dominium ex jure quiritium and dominium bonitarium) is a mere accident, arising from the existence of the accidental distinction between law and equity, or jus civile and jus prætorium.³⁵

Inquirenda: 1° How to ascertain (if that be possible) the services or uses which may be exacted or derived from the subject: 2° How to ascertain the services or uses which may not be derived from the subject, out of regard for rights residing in others, or absolute obligations upon self.

The extent of the right in respect of services seems not to be definable; although an enumeration of them may be made co-extensively with (1°) the acts which have been held to be unlawful obstructions or withholdings of such services; (2°) with the acts 801which have been held to be a lawful dealing with the subject, or lawful perception of such services.—(See Blackstone, vol. iii. p. 120).

The exceptions out of the indefinite services over which (as above) the right extends, consist in such uses of the subject as would amount to violations of a similar or another right in others, or of absolute obligations on one’s self. In defining a right, care must therefore be taken not to make it inconsistent with a right intended to be given to another, etc. (Use of interpretation here.)

Property, as here considered, is property existing in its widest extent; unlimited in respect of services, by any right to or over the same subject in another; and limited only by rights of others over or to other subjects, or by absolute obligations on self.

A right limited by rights of others over the same subject (as dominium affected by servitus; condominium, whether in property or servitus), though involving fewer services and subject perhaps to fewer violations, is, nevertheless, more difficult to explain.

The attempts to solve these difficulties, which one meets with in ordinary law books, are merely identical propositions and amount to nothing: e.g. ‘Qui jure suo utitur neminem lædit.’ If by lædit be meant damage or evil, it is false (and inconsistent with what immediately precedes); since the exercise of a right is often accompanied with the infliction of positive evil in another; and where others are excluded from the subject, supposes a pain of privation inflicted on others. If by lædit be meant injury, the proposition amounts to this; that the exercise of a right cannot amount to a wrong: which is purely identical and tells us nothing; since the thing we want to know is, ‘what is right? (or what is that which I may do without wrong?); and what is wrong? (what is that which would not be an exercise of my own right, inasmuch as it would amount to a violation of a right in another?)’

The same observations are applicable to ‘sic utere tuo ut alienum non lædas.’

The definition of those rights which are definite in respect of services, and exist over the same subject, is one means of limiting or defining those rights which are indefinite: Since acts (of user, exclusion, etc.) inconsistent with the former set of rights, are all of them knowable; and are, therefore, so many knowable uses to which the indefinite rights do not extend. But accurately to assign that limit to these last which is presented by the rights of others over other subjects or by the absolute obligations of the owner (where such rights or obligations are themselves indefinite), seems to be impossible; And even if all the rights and obligations which limit were themselves defined, a complete statement of the definition would involve a repetition of the whole code.

Wahres Eigenthum ist nur möglich an körperlichen Sachen. Allein im Römischen Rechte ist der Begriff von Eigenthum auch ausgedehnt auf jura in re insofern sie uns als eigene Rechte an einer fremden Sache zustehen: daher, dominium, ususfructus et servitus. Im 802weitesten Sinne, begreift Eigenthum alles was zu unserm Vermögen gehört, also auch Forderungen.—Mackeldey, Lehrbuch des heut. Röm. Rechts, vol.. ii. p. 36.

Community of Goods.

Community of goods is nothing but property in common; i.e. a right in the whole over the subject, with a right in each to a certain share in the produce; A right which must depend upon certain conditions; as, e.g. contributing to the product by a due portion of exertion.

Or supposing the right absolute, then the labour must be enforced by punishment.

The necessity of this is derived from two considerations; 1st, that good things can only be procured by labour. 2ndly, that the product of them is limited in amount. At the best, there is not enough for all; i.e. enough to satisfy all the desires of all.

From either of these the necessity of one of the schemes I have mentioned arises.

But even supposing that by training and by the advantages of combination, the labour might be lessened, the amount increased, and the desires limited, this can never be carried so far as to render all law unnecessary.

But the whole is a speculation.

[beginning of lecture 49]