815
[end of lecture 49]

LECTURE L.

REAL AND PERSONAL SERVITUDES.

IN pursuance of the order wherein, in my last Lecture, I proposed considering the nature and the chief kinds of servitudes, I now proceed from the distinction between positive and negative servitudes, to the distinction between personal and real servitudes.

Distinction between real and personal servitudes.⁴⁸

A real servitude (or a real right of servitude) resides in the party having the servitude, as being the owner or other occupant of a determinate parcel of land: or as being the owner or other occupant of a determinate building with the land whereon it is erected. And it is a right, against every owner or occupant of another parcel of land or building, to a power of using the latter in some definite mode, or to a forbearance (on the part of the owner or occupant of the latter) from using the latter in some definite mode. As I shall remark immediately, it hardly 816could be a right against the owner or occupant of a movable thing.

A real servitude, therefore, supposes the existence of two distinct parcels of land to each of which it relates. For it is a right in a given person, as being the owner or occupant of a determinate parcel of land, against another given person, as being the owner or occupant of another determinate parcel of land. I use the term land as including land merely, or as including land with a building erected upon it. And hence it follows, that a real right of servitude is said to be annexed to the parcel of land the owner or occupant whereof hath the right of servitude. Or, in the language of the English law, it is said to be appurtenant to the land or messuage the owner or occupier whereof hath the right of easement. The meaning of which expressions is merely this: that the right resides in the owner or occupant, as being such owner or occupant, and passes successively to every such owner or occupant for the time being, from every owner or occupant immediately foregoing.

And hence it also follows, that a real servitude (as meaning the onus or duty, and not the jus servitutis) is said to be imposed upon one of the two parcels of land for the use or advantage of the other: or that the servitude (as meaning the onus or duty, and not the jus servitutis) is said to be due to one of the two parcels of land from the other. That is to say, the duty is imposed upon every owner or occupant of the one (as being such owner or occupant) for the use or advantage of every owner or occupant of the other (as being such owner or occupant). Or the duty is due from every owner or occupant of the one (as being such owner or occupant) to every owner or occupant of the other (as being such owner or occupant).

And hence we may derive the origin of the metaphorical expressions by which, in the language of the Roman law, the two parcels of land (or the two prædia) are contradistinguished.

I have remarked above, that, in every case of a right of servitude, the thing which is the subject of the right, and not the owner or other possessor of the thing, is said to be burthened with the servitude (considered as an onus or duty): ‘res servit;’ or ‘res, non persona, servit.’ Meaning, that the right of servitude avails against every person whomsoever, who may happen, for the time being, to have property in the thing, or, as adverse possessor, to exercise a right of dominion over it.

And, in the case of a real servitude, the parcel of land, the owner or occupier whereof hath the right of servitude, is said 817to dominate over the land, from the owner or occupier whereof the corresponding duty is owed. The former parcel of land is styled prædium dominans; the latter parcel of land is styled prædium serviens: being merely a case of the more general metaphor, by which any thing, happening to be the subject of any servitude, is said to be in a state of servitude.

The only difference, in this respect, between real and personal servitudes, consists herein: that in the case of a personal servitude (or a servitude due to a person not as being the owner or occupant of a given parcel of land), the thing, which is the subject of the servitude, is said to serve the person in whom the jus servitutis resides. But in the case of a real servitude, it is said to serve, not the owner or occupant of the related and opposed subject, but the subject itself.

The import of the related terms ‘prædium dominans’ and ‘prædium serviens,’ I have explained in another place, with more clearness and conciseness than in the hurry of preparing a lecture I can often attain to. As the passage is very short, I will now read it.

The servitudes of the Roman Law are of two kinds: 1°. Prædial or real servitudes (‘servitutes prædiorum sive rerum’): 2°. Personal servitudes (‘servitutes personarum sive hominum’).

Now ‘real’ and ‘personal,’ as distinguishing the kinds of servitudes, must not be confounded with ‘real’ and ‘personal,’ as synonymous or equivalent expressions for ‘in rem’ and ‘in personam.’ In a certain sense, all servitudes are real. For all servitudes are rights in rem, and belong to that genus of rights in rem which subsist in re alienâ.

And, in a certain sense, all servitudes are personal. For servitudes, like other rights, reside in persons, or are enjoyed or exercised by persons.

The distinction between ‘real’ and ‘personal,’ as applied and restricted to servitudes, is this: A real servitude resides in a given person, as the owner or occupier, for the time being, of a given prædium: i.e. a given field, or other parcel of land; or a given building, with the land whereon it is erected. A personal servitude resides in a given person; without respect to the ownership or occupation of a prædium. To borrow the technical language of the English Law, real servitudes are appurtenant to lands or messuages: personal servitudes are servitudes in gross, or are annexed to the persons of the parties in whom they reside. Every real servitude (like every imaginable right) resides in a 818person or persons. But since it resides in the person as occupier of the given prædium, and devolves upon every person who successively occupies the same, the right is ascribed (by a natural and convenient ellipsis) to the prædium itself. Vesting in every person who happens to occupy the prædium, and vesting in every occupier as the occupier thereof, the right is spoken of as if it resided in the prædium, and as if it existed for the advantage of that senseless, or inanimate subject. The prædium is erected into a legal or fictitious person, and is styled ‘prædium dominans.’ On the other hand, the prædium against whose occupiers the right is enjoyed or exercised, is spoken of (by a like ellipsis) as if it were subject to a duty. The duty attaching upon the successive occupiers of the prædium, is ascribed to the prædium itself; which, like the related prædium, is erected into a person, and contradistinguished from the other by the name of ‘prædium serviens.’ Hence the use of the expressions ‘real’ and ‘personal,’ for the purpose of distinguishing servitudes.

The rights of servitude which are inseparable from the occupation of prædia, are said to reside in those given or determinate things, and not in the physical persons who successively occupy or enjoy them. And, by virtue of this ellipsis and of the fiction which grows out of it, servitudes of the kind are styled ‘servitutes rerum’ or ‘servitutes reales;’ i.e. rights of servitude annexed or belonging to things.

The rights of servitude which are not conjoined with such occupation, cannot be spoken of as if they resided in things. And since it is necessary to distinguish them from real or prædial servitudes, they are styled ‘ servitutes personarum’ or’ servitutes personales:’ i.e. rights of servitude annexed or belonging to persons. See Table II. Note 5, Section 4, post.

A personal servitude (or a personal right of servitude) resides in a given or determinate person, not as being the owner or occupier of a given parcel of land.

The expression ‘personal’ (as here used) is, like a multitude of other expressions wearing a positive form, a merely negative term. It means that the servitude to which it is applied, is not a real servitude (in the sense which I have just explained): that it does not reside in the party entitled to it, as being the owner or occupier of a given or determinate thing other than the determinate thing over which the right exists. For (it is manifest) every servitude (personal or real) is, in some senses of the term ‘personal,’ a personal servitude: i.e. it resides, as a right, in a 819person, and is due, as a duty, from a person: although it may reside in the party entitled as standing in a given relation to a given thing, or as considered without relation to a given thing.

And (as is equally manifest) every servitude, personal or real, is, in some senses of the term ‘real,’ a real servitude. For, whether it reside in the party entitled, as being related to a given thing, or it reside in the party entitled independently of such relation, it is a right over a thing of which the burthened party is the owner or possessor, or (what is the same in effect) over a person (occupying a position analogous to that of a thing) of whom the burthened party is owner or possessor. (E.g.: We may conceive that the subject of the servitude is a slave of which the burthened party is either dominus or adverse possessor.) And whatever may be the character wherein the party having the servitude bath the same, his right of servitude is also real, as being jus in rem: for, as I have shewn in former Lectures and also elsewhere, the real and personal rights of the modern Civilians (as well as their jura in re and jura ad rem) are, in their largest meanings, equivalent to the jura in rem and jura in personam of the same Civilians, and to the dominia and obligationes of the Roman lawyers themselves.—Unless a servitude be real as meaning jus in rem, it is not a servitude properly so called: but it is merely a right availing exclusively against a determinate person or persons, and arising ex contractu or quasi ex contractu.

This negative import of personal, as applied to a servitude, ought to be marked particularly. For, in consequence of writers not having noted or remembered it, they have frequently missed the essence of the distinction between real and personal servitudes, and have regarded mere accidents as being essential to it.

For example: We are told by M. Rogron⁴⁹ (the annotator on the French Code whom I have already mentioned) that a real servitude is real, because it is due not to a person, but to a thing: M. Rogron meaning thereby (if, indeed, we can impute a meaning to him) that it is due to a person as being related to a thing by his ownership or adverse possession thereof. And he tells us, conversely, that a personal servitude is a personal servitude, because it is due, not to a thing, but to a person: He meaning thereby (in so far as meaning he hath), that it is due to a person, independently of his ownership or adverse possession of any determinate thing.

And, in like manner; a right of common in gross (which is 820of a species of personal servitudes) is said, in the language of the English law, ‘to be annexed to the person of the party in whom it resides:’ an expression which obscures and perplexes the true nature of the right; inasmuch as any right whatever, not less than any other right whatever, is annexed to, or inheres in, the person of the party entitled. The English lawyers, however, unlike M. Rogron, do not mistake the import of the distinction, although they use expressions which tend to obscure it. For, in the same breath, wherein they tell us that a right of common in gross is annexed to the party’s person, they tell us that it is such a right of common as is not appurtenant to a land or messuage,⁵⁰ thus hitting off accurately the negative character which distinguishes a personal from a real servitude.

Again: we are told by modem expositors of the Roman Law, that a personal servitude is created for the advantage of the given person in whom it resides, is inseparable from his person, and necessarily ceases at his death:⁵¹ In other words, that a personal servitude is necessarily an interest for the life only of the party entitled, and is by the party unalienable.

But, first: A personal servitude, though no more than a life interest, if the extent of the interest be not declared at the creation, may be given, by express words, to the party and his heirs. And, admitting that the Roman Law determined otherwise, the limitation of the interest to the life of the party, were merely an accidental consequence of an accidental provision of the Roman Law. For what is there in the essence of a personal servitude, that necessarily limits its duration to the life of the party?

With regard to its alleged unalienability, it was not alienable completely: that is to say, the party might cut out of it, and pass to another, any interest of limited duration short of his whole estate. But he could not so alien it, as not to leave a reversion in himself, and as to cast on the alienee the whole right of servitude.

But admitting that it was unalienable, its unalienabiity was a mere accident, and not a property inseparable from its very nature. There is no reason why a right of common in gross should not be just as alienable as any right of property in the same subject.

The modern expositors of the Roman Law have, therefore, characterised a personal servitude, not by its true essence, but by certain of its mere accidents: misstating, by the bye be it mentioned, those very accidents.

821And they probably were led into this error, by their not remarking that merely negative meaning of the epithet personal to which I have adverted. Seeing that the servitude is styled personal, they supposed that it must have some special connection with the person of the party: that it was, in its very nature, inseparable from his person, or inseparably connected with his person: that it therefore expired necessarily with his person, or could not endure beyond his life, and was also unalienable to any other party.⁵²

It is remarkable that unalienability (which they suppose to be of the essence of a personal servitude) is truly, in a certain sense, of the essence of a real. For since it is annexed to a given prædium (or resides exclusively in the owners or occupiers thereof), it cannot be aliened or detached from the prædium itself or cannot be aliened without the prædium), without changing it from a real to a personal servitude. Insomuch that a necessary property of real servitudes has been mistaken for a characteristic mark of servitudes of the opposed class.

[v. v. Semble, that a real servitude can hardly exist over a movable. (Suggest reason.)

In fact and practice, all the real servitudes of the Roman Law are servitudes over immovables. It is essential to the being of a real servitude that there should be a ‘prædium serviens,’ and a ‘prædium dominans.’

v. v. Semble, that a personal servitude, if a genuine servitude, and not one of the modes of property improperly called servitudes, can hardly exist over a movable. (State reason.)]

The division of servitudes into affirmative and negative and into real and personal, are manifestly cross divisions. A right of way and a right of common are both of them affirmative servitudes, being rights to use or deal positively with the subject: and they may be either appurtenant or in gross; that is, either real or personal.

Negative servitudes, perhaps, are nearly universally real. They generally avail only to the advantage of the owner or occupant of the one prædium, as being such owner or occupant, against the owner or occupant of an adjoining prædium.

There is a distinction of real servitudes into servitutes prædiorum urbanorum, and servitutes prædiorum rusticorum. But as the distinction is peculiar to the Roman Law, and has no scientific precision, I pass it over as not belonging to my Course. I merely mention it for the sake of the terms.

822An urban servitude has no necessary connection with a city or town. A rustic servitude has no necessary connection with the country.

An urban servitude is a real servitude appurtenant to a building (including the land whereon it is erected). A rustic servitude is a real servitude appurtenant to land (without reference to any building that may happen to be erected upon it).

The principal scope of an urban servitude, is, speaking generally, the commodious enjoyment of a dwelling-house to which it is annexed. The principal scope of a rustic servitude, is, speaking generally, the commodious cultivation of a parcel of land to which the servitude is appurtenant. Consequently, urban servitudes occur most frequently in a city or town: rustic servitudes occur most frequently in the country. And hence the respective names of the two classes of servitudes: Though an urban servitude may be annexed to a building situate in the country, as a rustic servitude may be appurtenant to land within the boundary of a city or town.

Examples: A right to a forbearance from an obstruction to one’s ancient lights, is an urban servitude: i.e. annexed to a building: A right to pasture one’s oxen on land belonging to another, is, speaking generally, a rustic servitude: i.e. annexed to a farm, and not to any of the farm buildings.

By modern Civilians, and in the language of the modern systems of law which are mainly formed on the Roman, real and personal servitudes are marked and distinguished by those epithets.⁵³ In the language of the Roman lawyers, they are also marked and distinguished by those epithets, but are more commonly called servitutes prædiorum sive rerum, and servitutes personarum sive hominum. It is worthy of remark, that real servitudes, in the language of the Roman lawyers, are frequently styled servitutes simply: or that the name servitutes is frequently restricted to real servitudes, whilst personal servitudes pass under the generic name of jura in re alienâ: which, as I shall shew hereafter, comprises many rights not esteemed servitudes, and others which though sometimes included among servitudes, are improperly so included.

In the language also of the French Code, the term ‘servitude’ is limited exclusively to real or prædial servitudes, or services fonciers: personal servitudes not being marked by any common epithet, but being designated exclusively by the names 823 of their several species: As ‘usufruit, usage, habitation,’ and so on.⁵⁴

In the English Law, we have no adequate names to mark the distinction between real and personal servitudes, any more than we have an adequate name for servitudes. The names approaching to the Roman, would be, easements appendant and appurtenant, and easements in gross.

Examples of real and personal servitudes.

Having explained these two classes of servitudes in general terms, I shall advert to some examples of each kind.

A right of way appurtenant is an obvious example of a real servitude; and a right of way in gross, of a personal servitude.

Common appendant and appurtenant, as opposed to common in gross, are an equally familiar example of a real servitude. I advert to it in order to observe that what is called appendance (if I may be permitted to coin an abstract name corresponding to the concrete appendant) is merely a species or modification of appurtenance. The distinction, as drawn by Coke and Blackstone, is merely, that into common appendant there enters the notion of the feudal relation constituted by tenure: the right is a right enjoyed by each person having a house or land within the manor, against the lord who is the owner or against other parties within the manor: while in the case of common appurtenant, the same right exists without any relation arising from tenure.

Another instance of a servitude is a right to a pew in church. In some cases, there is a right to a pew by præscription as appurtenant to a messuage; in other cases, a pew is granted to a person by the ordinary; in that case, it is an easement in gross. It is clearly an easement; being a right to go into and use a particular part of the church as against the parson in whom the freehold of the church resides.

The modes of property, which, in the language of the Roman Law, and of the modern systems borrowing its terms and classifications, are improperly styled ‘servitudes.’

From the distinction between real and personal servitudes, I proceed to certain rights, which, in the language of the Roman Law, and of the modern systems which borrow its terms and classifications, are improperly (as I conceive) styled servitudes. For, in all these cases, the party entitled to the so-called servitude has an indefinite power or liberty of using or dealing with the object. The right, therefore, is not a definite subtraction from the indefinite power of user or exclusion residing in the owner of 824the subject. It is not a servitude properly so called, but a mode of property or dominion.

The party has condominium (or joint property, or property in common) with, or concurrently with, another owner; or some right of property of limited duration (as an estate for life or years) upon which the right of property in the other owner is expectant in remainder or reversion.

Unless, at least, these so-called servitudes be modes of property, I cannot perceive that there is any intelligible distinction between dominia and servitutes, or account for the terms wherein the latter are commonly distinguished from the former. All the rights in question are, it seems to me, rights of property for life.

1. The first is ususfructus; a right of completely enjoying the whole subject for life merely under certain restrictions. The entitled party cannot cede his usufruct so as to put the alienee in his own place, though he may let it out, reserving a reversion to himself. We should call this right, I think very justly, an estate for life.

2. The next is usus: which in practice is a mere mode of usufruct, that is, the same right with some additional limitations in point of user.

3. The next is habitatio: also a mode of usufruct. This is a right of residing in the house which is the subject of the right; and a power of dealing with it, not positively defined or circumscribed, but still more restricted than in the case of usus. The party must use it for his own habitation; he cannot alienate it; but still his power of user is indefinite: it is an estate for life restricted in point of user.

4. The next is operæ servorum: a so-called servitude over a person; not however a servitude, but a letting of a slave, for the life either of the slave or of the party to whom he is let, with a reversion to the party, who lets. This, therefore, is a life interest in the slave amounting to a mode of property. A servitude in the proper sense can hardly exist over a person. The master of a slave would not be likely to let him out for some one specific use, as (for example) for cleaning shoes.

All these various rights of ususfructus, usus, and habitatio, would be deemed (I think) by English lawyers, rights of property (for the life of the owner) variously restricted in respect of the power of user.⁵⁵ In our own law, we have various modes of property, variously distinguished from one another by similarly 825varying limitations to the power of user: some of such restrictions being set by the dispositions of the authors of the interests; and others, by dispositions of the law in default of such private provisions. For example: tenancy for life, with or without impeachment of waste, tenancy by the curtesy, tenancy in dowry, etc.: In each of which cases, the indefinite power of user is restricted somewhat differently.

A remarkable thing is, that these miscalled servitudes are the only servitudes which are styled formally and usually, personal servitudes: Although it is manifest that a servitude properly so called, or importing a power of using which is defined or circumscribed exactly, may not only be a personal servitude, but is the only personal servitude that is entitled to the name.

It is, indeed, admitted, by the Roman Lawyers and their followers, that if a servitude (which commonly is prædial or real) be not annexed to a prædium (but to the person of the party entitled) it becomes, for that reason, a personal servitude, and consequently is a species of ususfructus or usus.⁵⁶ For example: A right of way in gross, or not appurtenant to a land or messuage, is a personal servitude, according to this admission.

Here, however, is a mistake. For though it would be a personal servitude, it would not be ususfructus: ususfructus imparting to the party entitled an indefinite power of user,⁵⁷ and being in effect a mode of property.

And admitting that these improper servitudes are servitudes, why should all of them be placed in the category of personal servitudes? For it is conceivable (though not likely) that the usufruct or use of one thing may be appurtenant or annexed to the property or occupation of another. And admitting that these improper servitudes are servitudes, it is inconsistent to exclude the superficies and emphyteusis from the same category. For the improper servitudes, like these, import a power of indefinite user, and, like these, may be rights of indefinite duration: i.e. reside in the party and his heirs.

826It seems indeed to have been perceived (though not very distinctly), that these improper servitudes were not truly such. For (first) although they are styled servitudes in various passages of the Pandects, they are not styled servitudes in the Institutes, but are marked seriatim by the names of their respective species. Describing things incorporeal (or rights) Justinian, in his Institutes, says, ‘Eodem numero sunt jura prædiorum, urbanorum et rusticorum, quæ etiam servitutes vocantur.’ And having treated of servitutes (limiting the term to prædial or real servitudes), and having treated seriatim of usufruct, use, and habitation, he adds, ‘Hæc de servitutibus, et usufructu, et usus, et habitatione dixisse sufficiat.’⁵⁸

So that in the Institutes, the term servitus is limited to real servitudes; ususfructus, usus, et habitatio, are not deemed servitudes; and personal servitudes, properly so called, are passed over without notice.

Precisely the same method is followed in the French Code. In the second title of the second book, property or dominion is treated of. In the third title usufruit, usage, and habitation (which are not called servitudes), are handled seriatim. And the fourth title is devoted to Servitudes or Services fonciers: i.e. real or prædial servitudes. So that in the French Code, as well as in the Institutes, personal servitudes properly so called are not formally mentioned.

Secondly, by Savigny, in his Treatise on Possession, it is remarked, that the possession of a right of usufruct, or of a right of use, resembles the possession of a thing, by the proprietor, or by an adverse possessor exercising rights of property over the thing. And that a disturbance of the one possession resembles a disturbance of the other.⁵⁹

Now this must happen for the reason I have already stated: namely, that the right of usufruct or user, like that of property, is indefinite in point of user. For what is possession (meaning legal possession, not mere physical handling of the subject) but the exercise of a right?

This leads to the distinction between possession and quasi-827possession. Each is a mode of possession, and each (considered as legal, not physical possession) consists in the exercise of the corresponding right. Now possession properly so called is the exercise of the right of property, either by the proprietor or by somebody holding adversely to the proprietor, who on that adverse possession may by præscription found a right as against the proprietor himself. Quasi-possession again is the exercise not of a right of property, but of a right of servitude: distinguished from possession of a right of property in this, that as in the one right the uses are indefinite in number, and in the other exactly defined, possession is indefinite user, and quasi-possession is definite user of the subject. Since, therefore, Savigny assimilates possession of a right of usufruct or use to the former and not to the latter, the true nature of these improper servitudes must have been perceived by him, though not distinctly stated. For he says, quasi-possession of usus and ususfructus is not like quasi possessio of a real servitude, but like possessio of a right of property.

Note.—On the difference between ususfructus, etc. and the life estates known to the English law.

I think that in the above Lecture the author has assumed a closer analogy than really exists between the ususfructus, etc. of the Roman and the life estates known to the English law. I believe that the difference is an important one.

For the sake of simplicity I will consider the largest of the estates in question known to the Roman law, namely, ususfructus, and shew how it differs from the life estate of freehold known to the English law.

Ususfructus, according to its original conception, was a right which inhered in the person of the fructuarius, and by the old jus civile it was deemed intransmissible and indivisible. By the same jus civile it could not be the subject of a tenancy in common, although it might belong to two or more persons as joint tenants, with jus accrescendi to the survivor. The most formal mode of constituting such joint tenancy in usufruct was ‘Usumfructum do, lego, Sempronio et separatim Titio.’ Ususfructus fundi, though constituted (‘deductus’) by mancipatio, was (in the law before Justinian) itself a res nec mancipi. It was lost, like any other servitude, non utendo, except in the so-called ususfructus pecuniæ, which was not properly ususfructus at all, for the dominium was there deemed to be with the fructuarius (Vat Frag. 45, 47; 75-77).

By the jus civile the fructuarius did not possess the fundus—a convenient doctrine, which had the advantage of rendering the right of usufruct consistent with a positive prescription of very short period. He had, however, quasi-possession of the usufruct and naturalis possessio of the subject, which enabled him to use the various interdicts to protect his interest.—See Dig. xliii. 26 (De precario), 1. 6, § 2; and cf. Dig. xliii. 17 (Uti possidetis), l. 4; and Dig. xliii. 24 (Quod vi aut clam), l. 16; and Savigny, Recht des Besitzes, § 7 Civilis et naturalis possessio.

But the difference between the Roman ususfructus and the English life 828estate of freehold is not one depending merely on the rules of the jus civile or on the modes by which usufruct was constituted and lost.

The substantive rights of the dominus and the fructuarius respectively are shortly expressed by saying that the right to the solum is in the dominus, that to the fructus is in the fructuarius. In subjects capable of use and enjoyment, such as a house and pleasure-grounds, the usufruct gave a right to the amœnitas, which both the dominus and all others can be restrained from infringing. Subject, however, to the right of the fructuarius to the fruits and to the amœnitas, the dominus had a present right in the solum, including all things of a permanent nature adhering thereto or growing thereon. Consequently, such trees as were neither fruitful, nor conduced to the amœnitas, were absolutely at his disposal, and the fructuarius was neither interested in them nor responsible for the care of them. There was an exception in silva cædua, which, when cut at maturity, generally went to the profit of the fructuarius. Dig. xliii. 24 (Quod vi aut clam, etc.), 1. 16, 18.

It necessarily follows, and I think it is assumed throughout the passages in the Digest bearing on these rights, that the dominus had, notwithstanding the usufruct in the other, a right of entry upon the premises, provided only he abstained from interfering with the complete and ample enjoyment by the other of the rights which the usufruct conferred. The extent to which the dominus might avail himself of his right of entry must, no doubt, have depended on the nature of the subject. In the case of a house and pleasure-grounds, of course the entry by the dominus was practically suspended, except so far as might be necessary for the sole purpose of protecting his reversionary interest; but in the case of a fundus consisting of rural subjects, the dominus might have many rights in the solum which could be exercised without interference with the fructus or the amœnitas. The substantive right in the dominus being clear, his right of entry is generally, by the Roman jurists, tacitly assumed. But there is one passage that places this right beyond doubt. It is explicitly stated by Ulpian that the dominus had the right to use, without obstruction from the fructuarius of his own farm, a servitude road belonging to this farm over that of a neighbour. Dig. xliii. 19 (De itinere, etc.), l. 3, § 6. It follows, by necessary implication, that he had a right of entry upon the ground of his own farm itself.

In Scotch law, the right of liferent is in most of its incidents, as well as in its conception, modelled upon the usufruct of the Roman law, and is by Stair and Erskine classed with personal servitudes.

Like the usufruct of the old jus civile, liferent is personal to the liferenter, and although the liferenter be infeft he cannot so transmit his right as to infeft his assignee. The assignee of a liferent cannot consequently acquire a complete real right, although he may get what is practically equivalent to it, either by insisting on actual possession, or by giving notice of his right to the tenants of the lands.

Speaking generally, and in the absence of special provision to the contrary, a right of liferent excepts coal, lime, quarries, minerals, etc., although these are by the law of Scotland considered to be part or parcel of the land; and the fiar (i.e. dominus or reversioner) may enter and work them, paying surface damage, provided he do no novel injury to the amenity of the liferenter’s possession. The fiar may also cut and sell the timber, so as not to injure the amenity.

From what is said above, it is evident that there is room for a clear distinction between such rights as ususfructus and liferent in the Roman and Scotch law on the one hand, and the various life estates known to the 829English law on the other. It follows that those who class the former rights with servitudes are not more unphilosophical than those who class them with rights of property. The distinction between property and servitude is, indeed, arbitrary, as the author seems to admit; and it may be questioned whether any intelligible ground of distinction exists, unless we say that property is the residuary right under burden of the servitude. And this is, I believe, the ratio of the distinction as understood by the Roman lawyers. Perhaps it may be added that to constitute dominium as opposed to servitus, the residuary right must be of a description to which some present enjoyment is generally incident.—R. C.

[beginning of lecture 51]