1Julianus, On Minicius, Book I. A testator who had two adjoining shops left them to different persons. If either one of the buildings projected over the other, the question might arise whether the one underneath would be obliged to pay the expense of keeping up the other. I was of the opinion that the servitude appeared to be imposed, and Julianus says with reference to this: “Let us see whether this is only true where the servitude has been expressly imposed, or where the legacy was granted as follows: “I give and bequeath my shop in the condition in which it is at present.”

2Marcellus, Digest, Book XIII. A right of way can be bequeathed to persons holding a tract of land in common, just as a slave held in joint ownership can legally stipulate for a right of way, and the stipulation will not be annulled where two heirs are left by him who stipulated for the right of way.

3The Same, Digest, Book XXIX. If anyone should devise a tract of land to Mævius, and a right of way to give access to the same through other land, and then should leave the same tract of land to Titius without the right of way, and both of them should claim the land; the latter should be delivered without the right of way, because a servitude cannot be partially acquired. If, however, Mævius should be the first to claim the land, while the other is deliberating as to whether or not he will accept it, if Titius should afterwards reject the estate, it may be doubted whether the right of way which was bequeathed will continue to exist. This has been held to be the better opinion. But if anyone should devise a tract of land under some condition, and the right of way absolutely; or a part of the land absolutely, and a part of the same under a condition, and the right of way absolutely; and the devise should become due before the condition was fulfilled, the bequest of the right of way will be annulled. The rule is the same where two neighbors of the testator owned a tract of land in common, and he left a right of way to one of them conditionally, and to the other absolutely, and before the condition was fulfilled he died; and this is the case because one of the legatees prevents the other from claiming the entire premises together with a right of way.

4Javolenus, Epistles, Book IX. Where a man who had two houses left one of them to me and the other to you, and there was a party-wall which separated the buildings, I think that the said wall will belong to us in common, just as if it had been left to us both jointly, and therefore neither you nor I will have any right to prevent the other from inserting a beam into said wall; for it has been established that whenever a joint-owner holds any property he is entitled to all the rights appurtenant to the same. Therefore, in a case of this kind an arbiter must be appointed for the purpose of dividing the common property, if this should become necessary.

5Papinianus, Questions, Book XVI. Although the execution of a will for the benefit of the slaves of others especially depends for its validity upon the testamentary capacity of their masters, still, any bequests made to slaves are just as valid as when left to persons who are free. Hence a right of way to obtain access to the land of his master, cannot legally be bequeathed to a slave.

6The Same, Opinions, Book VII. A father left a house to his daughter, and gave her access to it through other buildings belonging to the estate. If the daughter resides in the house, the right of access will also be granted to her husband; otherwise, it will not be considered as granted to her. If, however, anyone should assert that this right is not merely a personal privilege, but a complete bequest of a servitude, then the right can only be transmitted to the heir. But, in this instance, such a conclusion can, under no circumstances, be admitted, lest what was granted through affection for his daughter might seem to be transmitted to foreign heirs.

7Paulus, Questions, Book XXI. Where several appointed heirs are charged with a right of way, each of them can be sued for the entire right, because the servitude cannot be divided, for each can claim his legacy, even where only one of the heirs enters upon the estate.