LECTURE XLIX.
SERVITUS, OR EASEMENT.
In my last Lecture I considered particularly property or dominion (as opposed to servitus or easement). In my present Lecture, I shall consider particularly servitus or easement (as opposed to property or dominion).
Recapitulation.
As I stated in my last Lecture, I mean by property or dominion (taken with the sense wherein I use the term, for the present) any such right in rem (of limited or unlimited duration) as gives to the party in whom it resides an indefinite power or liberty of using or dealing with the subject: A power or liberty of using or dealing with the subject which is not capable of exact circumscription or definition; which is merely limited, generally and indefinitely, by the sum of the duties (relative and absolute) incumbent on the owner or proprietor.
As I also stated in my last Lecture, property or dominion (as thus understood) is susceptible of various modes: or (in other words) the indefinite power of user, which is of the essence of all property, is susceptible of various degrees of restriction. 803But whatever be the extent of the power of user (and of the power of exclusion which the power of user implies), it is not capable of exact circumscription, or of any more exact circum- scription than that which I now have indicated.
By servitus or easement (taken with the sense which I give to the expression) I mean any such right in rem (or any such right availing against the world at large) as gives to the party in whom it resides a power of using the subject which is definite as well as limited. The power of using the subject (like that which is imported by the right of property) is limited by the sum of the duties which are incumbent on the party. But, unlike the power of user which is imported by the right of property, it is not merely circumscribed by the sum of his duties. The uses which he may derive from the subject, or the purposes to which he may apply it, are defined positively, or are susceptible of positive description.
In short, the difference between property (in any of its modes) and of servitus (whatever be its class) would seem to be this:—The party invested with a right of servitus, may turn or apply the subject to a given purpose or purposes. The party invested with a right of property, may turn or apply the subject to all purposes whatsoever, save such purposes as are not consistent with any of his duties (relative or absolute).
As I remarked in my last Lecture, it is by reason of his indefinite power of user, that the subject of the owner’s right is styled his own, or res propria: that his right is styled property, ownership, or dominion: that he is said to be the owner or proprietor of the subject, or is styled its lord or master. For (as I then remarked) there is no mode of property (not even that which is pre-eminently so called), and which implies the largest power of user and exclusion) which gives a power of user completely unlimited, and a consequent power of exclusion which is completely without restrictions.
Before I consider particularly the nature and kinds of servitudes, I must interpose the following brief remarks.
Speaking generally, a right of servitude is a fraction of a right of property residing in another or others. But a right of servitude may exist over a subject which has not an owner properly so called.
1st. Speaking generally, the subject of a right of servitude is also at the same time the subject of property residing in another or others. For example, if I have a right of way over a field, the field is yours solely, or is yours jointly or in common with others, or is yours for life or years (solely or jointly with others) with rights of property in others expectant on the determination of that your limited interest.
804For this reason,36 rights of servitude are styled by the Roman lawyers jura in re alienâ: that is to say, rights over subjects of which the property or dominion resides in another or others. Though (as I shall shew at the close of my Lecture) rights of servitude are not the only rights to which the expression jus in re alienâ (or briefiy, jus in re) is aptly or actually applied.
36 Savigny, Recht des Besitzes, pp. 97, 166. See Table II. Note 4, post. Mackeldey, vol. ii. p. 6.
For the same reason, a right of servitude is styled by Mr. Bentham a fractional right:37 that is to say, a definite right of user, subtracted or broken off from the indefinite right of user which resides in him or them who bear the dominion of the subject. For the same reason, a right of servitude is styled by Savigny38 (in his matchless treatise on the Right of Possession) a single or particular exception (accruing to the benefit of the party in whom the right resides) from the power of user and exclusion which resides in the owner of the thing.
37 Traités de Législation, vol. i. p. 251.
38 Recht des Besitzes, pp. 525, 534.
Primary rights, etc. Rights, in rem, per se.
For the same reason, rights of servitude are styled by French writers,39 ‘démembremens du droit de propriété:’ that is to say, detached bits or fractions of the indefinite right of user which resides in him or them who own the subject of the servitude. But (as I shall shew at the close of my Lecture) we may conceive a right of servitude existing over a thing, which, speaking with precision, has no owner. We may conceive, for example, that the Sovereign or State reserves to itself a portion of the national territory; but that it grants to one of its subjects, over a portion of the territory so reserved, a right which quadrates exactly with the notion of a right of servitude: that is to say, a right to use or apply the subject in a definite manner.
39 Code civil expliqué, by Rogron, vol. i. p. 241.
Now, in the case imagined, there is not, properly speaking, any right of property in the thing which is subjected to the servitude. For, it is only by analogy that we can ascribe to the Sovereign a legal right. Strictly speaking, the party has a right of servitude, while the indefinite power of using the thing has been reserved by the Sovereign or State to itself.
But since most rights of servitude imply rights of ownership, and cannot be explained without reference to those rights of ownership, I shall assume for the present, that every right of servitude is jus in re alienâ: is a definite fraction, or démembrement, of property or dominion in the given subject, which resides in another or others.
Difficulties encumbering the terms ‘property,’ ‘servitus,’ and ‘easement.’
8052ndly. I shewed in my last Lecture, that the modes of property (as I understand the expression) are infinite: and that to some of those modes we cannot apply the expression, without a departure from established usage. For example: A right unlimited in respect of user, and also unlimited in respect of duration, is styled property or dominion: and, indeed, is the right to which the name is pre-eminently given. In our own law language, a right indefinite in point of user, though limited in point of duration, is also esteemed and called property, provided the limited duration be not exactly defined. Thus: we should call the right of tenant for life in an immovable thing, property, or a right of property. But a right indefinite in point of user, is not, in our own law language, styled property, in case the right be of limited duration, and the duration be exactly defined. Thus: The right of tenant for years, under a lease of a house or farm, is not called property, although his right is jus in rem, and gives him an indefinite power of using or dealing with the subject. We should say of a life interest in an immovable, or a personal chattel, that the party has an estate (or a right of property) with remainder or reversion over to another or others. We should also say of the interest of a lessee for years, that he has an estate for years, with reversion over to another.
But we should not style his interest property or ownership, although his power of user were not more limited than that of a tenant for life, and though the duration of his interest were incomparably longer than that of tenant for his own or for the life of another. [Perhaps the interest of tenant for years (like that of the Roman conductor,40 etc.) was not originally jus in rem, but merely gave him a right to the enjoyment against the lessor.]
40 The analogy is remarkable. By the jus civile the conductor could only protect his right by a personalis actio against his lessor. But the legislation of the Proctors extended to him, for his interest, the benefit of the various Interdicts, and thus gave him what was called a quasi in rem actio. The extension by the Prætor of these remedies in favour of the conductor was precisely equivalent to the introduction of the rule by which our Courts of Common Law gave the lessee, who had been ousted from possession, specific restitution to his term in the land. The first instance occurred in the reign of Edward IV., and the quasi in rem actio thus given to the lessee, as it availed against all who could not shew a better title than his lessor, became convenient for trying questions of right, and is the original of the modern ejectment. See Blackstone, vol. iii. p. 200. Cf. Vat. Frag. 44, and Dig. xliii. 18 (De Superficiebus), l. i. § 1, and the preceding title (Uti possidetis).—R. C.
Various other difficulties, which encumber the term ‘property,’ I stated in the Lecture before the last.—I will merely add, at present, that I mean by the term property (as contra806distinguished to servitus) any right in rem (of any duration whatever) which gives to the entitled party an indefinite power of user. For I am not considering rights with reference to their various durations, but with reference to the power of user which they variously import. Though (as I shewed in my last Lecture) the power of user (in cases of property) is so modified by the extent of duration, that it is impossible to consider rights of property from the former of the two aspects, without considering them, to some degree, from the latter also.
The term servitus is not less encumbered with difficulties than the term property. For there are many rights (as I shall shew presently) which, in the language of the Roman law and of the modern systems derived from it are styled servitudes: but which, in the language of the English, would be styled rights of property. And, justly: for they are rights importing an indefinite power of user, although they are not rights of unlimited duration; and although they do not empower the party to alien the subject from those who would succeed to him in default of such alienation.
To these improper servitudes I shall advert more fully hereafter. And I now merely add, that I mean, for the present, by a right of servitude (as opposed to a right of property) any such right in a subject owned by another or others as gives to the party a definite power of using it.
The term easement is not less objectionable than the term servitus. For though it is never extended to any such rights in rem as fall properly within the category of property, it is not applied to certain rights in rem which fall properly within the category of servitudes. For example: A right of way over another’s field is styled an easement. A right of common is also styled an easement. But a right to predial tithes (or to a definite portion in the produce of another’s land) is never (I think) styled an easement: although it is called a servitude (or by a name of similar import) in the language of the legal systems which have borrowed largely from the Roman.
But whatever may be the usual import of the term easement (and it has not, I think, any settled import), I venture to use it with the sense in which I employ the term servitude; as meaning any right (definite in point of user) over a subject which is res aliena.
Quære, Whether a negative servitude be a right of using the subject? And whether it be not merely jus in personam against the owner or occupant?
3rdly. For the sake of simplicity, I have assumed in my Outline, and also in my last and present Lectures, that every right of servitude is a right of using a subject owned by another 807or others. But, as I shall shew immediately, there are certain servitudes, which, in the language of modern Civilians, are called negative: and which in the language of the Roman lawyers, are said to consist non faciendo; that is to say, not to consist of a right to use positively the given subject, but in a right to a forbearance (on the part of the owner) from putting the given subject to a given use.
Now, whether a negative servitude be really a right of user, or whether it be a servitude at all (and be not rather a mere right in personam), are questions which, I frankly confess, I have not been able to solve to my own satisfaction—I shall, however, discuss the subject immediately: And I merely advert to it, in this preliminary manner, in order that I may prepare you for a discrepancy between the definition of a servitude which I have hitherto given, and that analysis of servitudes to which I now proceed.
Order wherein the nature and kinds of servitudes will be considered.
Attempting to analyse the nature of servitudes, and to mark the chief kinds into which they are divisible, I shall address myself to the following principal (and to various subordinate) topics.
1st. The distinction between the servitudes which are styled by modern Civilians affirmative or positive, and the servitudes which are styled by the same Civilians negative; that is to say, those which consist in a right to use in a given manner the given subject, and those which consist in a right to a forbearance (on the part of the owner) from putting the given subject to a given use.
2ndly. I shall then examine the celebrated position, that no right of servitude is a right to an act on the part of the owner: that every right of servitude is a right to use the subject or a right to a forbearance (on the part of the owner) from using the subject.
3rdly. I shall examine the distinction between real servitudes and personal servitudes: or (adopting to a certain extent the language of the English law) between servitudes appurtenant and servitudes in gross.
4thly. I shall examine the rights of property or dominion (meaning by property or dominion any right in rem importing an indefinite power of user) which, in the Roman Law, are ranked improperly (as I conceive) with rights of servitude.—It is of no small importance, that this confusion of disparate objects should be pointed out and cleared up. Without such a previous explanation, a great portion of the Roman Law, and of the modern systems which have borrowed its terms and classifications, are 808to an English lawyer inexpressibly perplexing. Ususfructus, usus, habitatio, superficies, emphyteusis, and, perhaps, other rights, which, in the language of the Roman Law are frequently styled servitudes, would be deemed (and I think justly) by English lawyers, rights of property for the life of the owner, or rights of property nearly approaching (in principle) to an estate in fee-simple or absolute property in a personal chattel.
In pursuance of the order which I have now indicated, I begin with the established division of rights of servitude into positive or affirmative servitudes, and negative servitudes.
Distinction between affirmative or positive, and negative servitudes.
As I remarked in my last Lecture, the right of property or dominion (in so far as the right of user is concerned) is resolvable into two elements: 1st, the power of using indefinitely the subject of the right, or of applying the subject of the right to uses or purposes which are not positively and exactly circumscribed: 2ndly, a power of excluding others (a power which is also indefinite) from using the same subject. For a power of indefinite user would be utterly nugatory, unless it were coupled with a corresponding power of excluding others generally from any participation in the use.
The power of user and the power of exclusion are equally rights to forbearances on the part of other persons generally. By virtue of the right or power of indefinitely using the subject, other persons generally are bound to forbear from disturbing the owner in acts of user. By virtue of the right or power of excluding other persons generally, other persons generally are bound to forbear from using or meddling with the subject. The rights of user and exclusion are so blended, that an offence against the one is commonly an offence against the other. I can hardly prevent you from ploughing your field, or from raising a building upon it, without committing, at the same time, a trespass. And an attempt on my part to use the subject (as an attempt, for example, to fish in your pond) is an interference with your right of user as well as with your right of exclusion. But an offence against one of these rights is not of necessity an offence against the other. If, for example, I walk across your field, in order to shorten my way to a given point, I may not in the least injure you in respect of your right of user, although I violate your right of exclusion. Violations of the right of exclusion (when perfectly harmless in themselves) are treated as injuries or offences by reason of their probable effect on the rights of user and exclusion. A harmless violation of the right of exclusion, if it passed with perfect impunity, might lead, by the force of example, to such 809numerous violations of the right as would render both rights nearly nugatory.
The rights of user and exclusion (let them be never so extensive) are never absolute or complete; that is to say, they are always restricted (more or less) by rights residing in others and by duties incumbent on the owner. They are always restricted generally by the rights of others generally, and by the duties to which the proprietor is generally subject. Frequently, they are restricted by rights over the same subject, residing specially in determinate parties: as by the rights of a joint or co-proprietor, or by the rights of a remainderman, or reversioner, having also a right of property in the subject.
Where a determinate party has a right (as against the owner and the rest of the world) to put the thing to uses of a definite class, the party has a right over the thing, which is commonly called a servitude. Where a determinate party has a right (as against the owner and the rest of the world) to a forbearance (on the part of the owner) from putting the thing to uses of a definite class, that party has also a right over the thing which also is styled a servitude.
Every servitude is jus in rem.
It is necessary (I apprehend) in order to the existence of a servitude, that the right of the party should be jus in rem, or a right against the world at large. If it merely availed against the owner (or against the other occupant for the time being) it would come under the predicament of jus in personam. And it is for this reason (as I shall shew immediately) that no right of servitude is a right to an act. For if it were a right to an act, to be done by the owner (or other occupant), it would merely avail against that determinate party, and would be a right arising from a contract, or from a quasi-contract.
A servitude is not a right to specifically determined uses, or to specifically determined forbearances on the part of owner or other occupant.
It is also necessary (I apprehend) in order to the existence of a servitude, that the party should have a right (of limited or unlimited duration) to put the subject generally to uses of a definite class: or to a forbearance generally (on the part of the owner) from putting the subject to uses of a definite class. For example, if I have a right (for life or years) of passing at all hours over your field, or of passing at certain hours over your field, I have a right of way: an easement or servitude. For I have a right of putting your field generally to uses of a definite description. But if you give me leave to shoot over your farm, once, twice, or any other definite number of times, my right derived from the license would hardly (I think) be deemed an easement. It would merely be a right against you, and perhaps against other 810persons generally (derived from your particular license), to derive from your farm certain uses determined individually as well as by class or description.
Positive or affirmative servitudes (quæ in patiendo consistunt), and negative servitudes (quæ in non faciendo consistunt).
As I said in my lest Lecture, where the party entitled to the servitude has a right to use the subject, his right is styled, by modem Civilians, ‘a positive or affirmative servitude.’ Where he has a right to a forbearance (on the part of the owner or occupant) from using the subject, the right is styled by the same Civilians, a negative servitude.
By the Roman Lawyers, a positive servitude (in respect of the owner) is said to consist in patiendo: i.e. in his duty to forbear from molesting the other in the given user of the subject. A negative servitude (in respect of the owner) is said to consist in non faciendo: i.e. in his duty to forbear from using the subject in the given manner or mode. In either case, the right (it is manifest) is a right to a forbearance on the part of the owner; a forbearance from molesting the other in the given use, or a forbearance from using in a given mode.
As against the owner (or other occupant), every right of servitude is therefore negative: i.e. does not impose upon him a duty to do or perform. In respect of the party entitled to the servitude, a so-called positive or affirmative servitude is, in a certain sense, positive as well as negative; i.e. it gives him a right to do acts over the given subject, as well as a right to a forbearance on the part of the owner or occupant from molesting him in the performance of those acts. But a negative service is merely negative: i.e. it merely gives him a right to a forbearance on the part of the owner.
A so-called negative servitude merely restricts the owner’s right of user; that is to say, by reason of the existence of the servitude the owner has not a right to turn the subject to some use implied generally in his right of property, and to which but for the servitude he would be at liberty to apply it.—A so-called positive servitude restricts his right of exclusion and his right of user. If I have a right to deal in a given manner with the subject, for example, to pass over it by a right of way, my right sets a limit to his power of exclusion, and hence to his power of user; for he cannot turn the subject to any purpose which would impede my right of user: as by ploughing it up, or erecting an obstruction across the way.
Cases of positive servitudes are rights of way or of common. These are rights of dealing positively with the subject; of putting 811the subject to certain positive uses. Cases of negative servitude are the servitus altius non tollendi, and the servitus ne luminibus and ne prospectui officiatur. Generally speaking, the owner has a right of building on any part of his own land; cujus est solum ejus est usque ad cælum. But, by a right of servitude residing in another person, I may be prevented from building so as to prevent his looking over my land from his house; I may be prevented from building so as to obstruct his ancient lights, or to prevent him from a look out which he had acquired by a special title. Another example is the servitus stillicidii recipiendi; a right to compel your neighbour to receive the water which drops from your roof. An analogous right which often leads to contest in cities, the right of compelling your neighbour to receive through his house the drainage running from your own, would also be deemed a negative servitude. It is not a right of putting his land or house to any positive use, but a right to prevent him from dealing with his land or house in certain ways, in which but for your right, he would be at liberty to deal with it.
Doubtful whether there is any scientific foundation for this distinction.
I have gone on stating this distinction, because it is found in the Roman law and other legal systems; but I doubt whether there is anything in it. It seems to turn on the extent you give to the word user. In a right of way or of common you are said to use the thing which is the subject of your right of servitude. But in case of a duty to receive the drainage from your house, you may also be said with propriety to put the subject to certain uses. Whether this would apply to the case of a right to a look out, it is more difficult to decide; and I am inclined to think that this single case suggested the distinction.
When I have a right not to have my ancient windows blocked up, it is not necessary that I should do anything for, the existence of my right; it is a right only to a forbearance.
In the servitudes which are deemed negative, it is generally necessary that I should do something. If the drain wants repairing, and the water will not flow, it is incumbent on me to repair the drain; or if it is incumbent on the owner to do so, it devolves on him by some special titulus, totally distinct from the servitus itself. I doubt, therefore, if the distinction of which so much is said in the books, has any meaning at all.
No right of servitude can consist in faciendo.
No right of servitude can consist in faciendo;41 i.e. can consist in a right to an act or acts on the part of the owner or other occupant. This follows from the very nature of a servitude, to which it is essential that it should be jus in rem, or a right avail812ing against persons generally; for if it consisted in a right to an act to be done by the owner or other occupant, it were merely jus in personam against that determinate party.
41 Mackeldey, vol. ii. pp. 78, 88. Thibaut, Versuche, vol. i. p. 27.
In the case of a servitude, the jus in rem may happen to be combined with jus in personam against the owner: and so, may happen to be combined with a right to an act, against the owner: e.g. a right to have a way repaired by the owner.
Quære, Whether every servitus be not jus in personam against the owner or other occupant, and jus in rem against the rest of the world?42
42 Blackstone, vol. ii. p. 36 (Note 15). See Table II. Note 3, B, a b, post.
Quære, Whether a negative servitude be jus in rem?
Whether a negative servitude be jus in rem?
An affirmative servitude may clearly avail against any, and may be violated by any. E.g. A stranger to the soil may violate a right of common, by putting his cattle on the commonable land?43 And in the case of a negative servitude, it is possible for a stranger (e.g. a trespasser) to do the act which would prevent the enjoyment of the servitude: e.g. to build up, or otherwise obstruct, ancient lights. In the case, however, of a negative servitude, it is less likely that a stranger should disturb; because the disturbance would not be an act of user.
43 Ibid, vol. iii. p. 237.
I apprehend that a negative servitude is usually brought within the category of jura in rem thus: it avails adversus quemcumque possemorem; i.e. with or without title from the actual or preceding owner. Now as against an occupant without title, it could not be the result of a contract; for he is not privy to any contract of the present or any preceding owner. Still, however, it might arise from a quasi-contract: i.e. from the mere fact of his occupancy. It would seem that a duty to do (which must correlate with jus in personam) may attach upon the occupant by præscription.44
44 Ibid. vol. ii. p. 36 (Note 15). See Notes 1 and 2, p. 46, ante.
Though the occupancy, without title from the owner, may be an injury against the owner, it may not be per se an injury against the party having the right of servitude. Consequently, though the adverse possession might be wrongful (and therefore could not be a quasi-contract) in regard to the owner, it might be a quasi-contract in regard to the party having the right of servitude.
An affirmative as well as a negative servitude avails directly 813against the owner or other occupant of the subject. For an affirmative, as well as a negative servitude is a definite exception (accruing to the party having the servitude) from the indefinite powers of user and exclusion which the property in the subject comprises. Consequently, an affirmative as well as a negative servitude (considered exclusively with relation to the owner or occupant) might be deemed jus in personam. But since a right of servitude, positive or negative, may be violated by third parties, it implies a duty to forbear from disturbing, which lies upon third parties generally as well as on the owner or other occupant of the thing, and therefore is jus in rem. And such disturbance by third parties would not affect the right consequently through a violation of right residing in another.
If, therefore, a negative servitude be jus in rem, it is so, because by possibility any may violate it, though none but the owner or occupant is likely to do so.
The distinction between an occupant without title, and a mere trespasser or other stranger is, that the former is exercising over the subject a right of property residing in another; while the latter does not affect to exercise any such right. To explain this, we must analyse the right of possession.
Res servit.
The subject of the servitude is said itself to serve: res servit; which merely means, that the right of servitude avails (with or without limit in respect of duration) against every person whatever who has a right of property in the subject, or who, as adverse possessor, may exercise any right of property over it.45
45 Mackeldey, vol. ii. pp. 75, 76.
If the servitude be properly so called, it also avails against the rest of the world, or is jus in rem.
If it be a servitude improperly so called, it is merely jus in personam, ex contractu, or quasi ex contractu, against every proprietor of the subject, or against any adverse possessor exercising rights of property over it.
If it consists in faciendo (or in a duty on the owner or occupant to do or perform) it is necessarily in this plight. And it may be in this plight, although it consist in patiendo or in non faciendo: i.e. in a duty on the owner or occupant, not to hinder the given use, or not to use in the given mode. At least, the right to the forbearance may be, as against the owner or occupant, jus in personam, although it avail (at the same time) against the owner or occupant together with the rest of 814the world. (E.g. In case of a covenant added to a grant or præscription.)
I must here notice an absurd remark of Rogron. He says:
‘Les principes généraux des servitudes s’appliquent à l’usufruit, et à l’usage, et à l’habitation; et surtout ce principe fondamental, que c’est la chose qui doit les services, et non la personne. Prædium non persona servit. D’où on conclut que le propriétaire est tenu de souffrir, et de laisser faire, et jamais de faire; car le fonds seul étant obligé, il ne peut l’être que passivement.’46
46 Rogron, Code civil expliqué, vol. i. livre ii. titre 3.
The true reason why a servitude cannot consist in faciendo is, that, if it did, it could not be jus in rem. A duty to do (when not an absolute duty, or when corresponding to a right) being of a necessity an obligatio, or a duty lying exclusively on a specifically determined party or parties.
Nulli res sua servit.
Inasmuch as every servitude is a definite subtraction or exception (accruing to the party having the right of servitude) from the indefinite rights of user or exclusion which reside in the proprietor of the thing, it follows that no man has a right of servitude in a thing of which he is the owner: Nulli res sua servit. For if he had, he would have a right in the thing against himself: which is absurd. Consequently, if the party having a right of servitude acquire the property of the thing, the right of servitude is lost in the more extensive right, or at least is suspended, so long as his right of property resides in himself.
‘Servitus’ means the onus, or the jus in re.47
The term ‘Servitus’ has two meanings. It means, originally, the metaphorical servitude or duty of the thing: i.e. the duty really incumbent on any proprietor of the thing, or on any occupant of the thing exercising rights of property over it. But it means also the jus servitutis, or the right which corresponds to that duty: the jus in re alienâ.
47 Mackeldey, vol. ii. p. 76.
A right of servitude may co-exist with any mode of property, etc.
It is clear that a right of servitude (of any extent in respect of duration) may co-exist with any mode of property in the same subject, or with the right of an adverse possessor exercising rights of property over it. Whether the thing be in lease or subject to property for life, or owned jointly or in common, or owned severally, or subject to any number of modes of property at one and the same time, the right of the party entitled to the servitude avails equally.
For his right is a subtraction from the property of the thing, let that property be divided as it may, or let it be exercised 815with a perfect title, or only by virtue of a possession acquired adversely.
In short, the right of servitude is a subtraction from the right of property (considered in respect of the powers of user and exclusion which the right of property naturally imports). And it therefore may be concurrent with any right of property in the same subject (be its duration and title what they may).
And as a servitude is a definite subtraction from the right of property, it would seem that the extent of the user has no dependence on the extent of the duration.
Aliter in cases of property.
Absolute duties (positive or negative) annexed to property are not servitudes.
A servitude must arise from a peculiar relation with the party in whom the correlating right resides, and must not be imposed with reference to the interests of persons generally. There are certain duties incumbent on proprietors which are confounded with servitudes, but which are not properly such. E.g. Duty not to let my house (being situate in a town) go to ruin so as to endanger persons passing in the street (an absolute negative duty). Duty to keep a certain public road in repair (an absolute positive duty).