1Ulpianus, Institutes, Book II. The following are the servitudes of rustic estates, namely: the right of walking, driving cattle, the right of way, and the right to conduct water. The first is the right a man has to pass or walk, but not to drive a beast of burden. The second is the right to drive a beast of burden, or a vehicle; and therefore a party who has the right to walk, has not the right to drive cattle; and he who has the latter privilege has also that of walking even without a beast of burden. The third is the right of passing, driving, or walking, for all are included in the right of way. The last is the right to conduct water over the land of another. 1Among rustic servitudes must be enumerated the right to draw water, as well as that to drive cattle to water, the right of pasturage, the rights of burning lime and of digging sand. 2It is clear that the delivery of servitudes and the toleration of the same admit of the intervention of the Prætor.

2Neratius, Rules, Book IV. Ad Dig. 8,3,2 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 210, Note 2.The servitudes of rustic estates include the right to raise a building and interfere with the residence of a neighbor, or to have a drain under the house or residence of a neighbor, or to have a projecting roof. 1The right to an aqueduct, or to draw water in order that it may be conducted over the same place, can also be granted to several persons; and this can be done on different days, or at different hours. 2Where the water-course or the supply of water to be drawn is sufficient, the right may be granted to several people to conduct the water over the same place, on the same days, or during the same hours.

3Ulpianus, On Sabinus, Book XVII. Moreover, servitudes may be created in such a way that oxen by means of which the land is cultivated may be pastured in neighboring fields; and Neratius, in the Second Book of Parchments, holds that such a servitude can be imposed. 1Neratius also says that a servitude can be created so that crops may be collected in the farm-house of a neighbor and kept there; and that the supports for vines may be taken from the land of a neighbor. 2In the same Book he says that where stone quarries belonging to a neighbor adjoin your land, you can grant him the right to throw dirt, rubbish, and rocks thereon, and to leave them there, or to let stones roll upon your land, to be left there until they are removed by you. 3Where anyone has the right to draw water, he is considered also to have the right of passage for the purpose of doing so; and, as Neratius says in the Third Book of Parchments, if the right to draw the water and the right of access for that purpose are both granted him, he will be entitled to both; but where only the right of drawing water is granted, the right of access is also included; or where only access to the spring is granted, the right to draw water is included. This has reference to water drawn from a private spring. In the case of a public stream, Neratius states in the same Book, that the right of passage to it must be granted, but the right to draw the water is not necessary, and where anyone grants only the right to draw water, the grant will be void.

4Papinianus, Opinions, Book II. Servitudes for the pasturage of cattle, and also that of taking them to water, where the principal income of the land is derived from cattle, are held to be attached to the land, rather than to the person; but if a testator designated some certain individual in whose favor he desired the servitude to be established, it will not pass from the said person to the purchaser of the land, or to his own heir.

5Ulpianus, On the Edict, Book XVII. Therefore, according to him, the servitude can be recovered by an action. 1Neratius, in his work on Plautius, says that the right of drawing water for cattle or of driving cattle to water, or of digging chalk or of burning lime, on the ground of another, cannot exist unless the party has adjoining land; and he states that Proculus and Atilicinus hold the same opinion. But he also says that, although there is no question that a servitude for burning lime and digging chalk can be established, still this cannot be done for a greater amount than the requirements of the dominant estate demand.

6Paulus, On Plautius, Book XV. For example, when a man had a pottery, where vessels were made by means of which the produce of the land was taken away; just as in certain places it is usual for wine to be transported in jars, or vats to be constructed, or tiles to be made to be used in the construction of a house. If, however, the pottery was employed for the manufacture and sale of vessels, an usufruct would exist. 1Moreover, the right of burning lime, quarrying stone, and digging sand, for the purpose of building something on the land differs very greatly from an usufruct; and so does the right to cut stakes for vines so that supports may not be lacking. But what would be the case if these things improved the condition of the property? It cannot be doubted that they are of the nature of servitudes, and this Marcianus approves to such an extent that he thinks that a servitude can be created permitting me to build a hut on your land; provided, of course, that I possess a servitude of pasturage, or of driving cattle to water; so that I may have a place in which to take refuge when the weather is bad.

7The Same, On the Edict, Book XXI. Where anyone is borne on a chair or a litter, he is said to have the right to go on foot, and not to drive; but a party who has only the right to pass on foot, cannot drive a beast of burden. If he has the right to drive cattle, he can drive a wagon or beast of burden, but in neither instance has he a right to haul stone or timber. Some authorities hold that he cannot carry a spear upright, because he would not do this if he were either walking or driving, and fruit might be injured by doing so. A party who has a right of way has also the right to pass on foot and to drive; and the greater number of authorities hold that he can drag objects also, and carry a spear upright, provided he does not injure the fruit. 1In the case of rustic estates, a field lying between them which is not subject to a servitude renders a servitude inoperative.

8Gaius, On the Provincial Edict, Book VII. By the Law of the Twelve Tables, the width of a road subject to a right of way, must be eight feet, where it is straight; but where there is a bend, that is to say where the road curves, it must be sixteen.

9Paulus, Sentences, Book I. A servitude for the conducting or drawing of water from any other point than the source or spring cannot be established; but at present it is customary for it to be established from any place whatsoever.

10The Same, On the Edict, Book XLIX. Labeo says that a servitude may be created in such a way that a party can be permitted to look for water and convey it, if it is found; for if it is lawful to create a servitude relating to a house which is not yet built, why should it not be equally lawful to create one with reference to water which has not yet been found? Moreover, if it is lawful for us to grant a servitude for a party to seek for water, it can also be granted premitting him to conduct it after it has been found.

11Celsus, Digest, Book XXVII. Where the right of passing or driving through land belongs to several persons, it can be granted to me separately by each of them. Therefore, strictly speaking, the right will not become mine unless all of them grant it; and when the last grant is made all those made previously will become operative. The more favorable construction, however, is, that before the last party makes the grant, those who have previously done so cannot prevent me from using the right already granted.

12Modestinus, Differences, Book IX. There is a difference between the right to drive cattle, and the right of passage; where anyone can travel either on foot, or on horseback, the latter right exists; but where he can drive a herd of cattle, or take a vehicle, the former right is implied.

13Javolenus, On Cassius, Book X. A servitude may be acquired in favor of certain kinds of land, as for instance, vineyards, because this would have reference rather to the soil itself than to the surface of the same; so that, if the vineyards were removed, the servitude will remain. But if another intention existed when the servitude was created, an exception on the ground of malicious fraud will be necessary. 1Where an entire field is subject to a servitude of passage or the driving of cattle, the owner cannot do anything in the said field by which the servitude may be interfered with; because it is so extended that every clod is subject to it. But where the right of passage or to drive cattle is bequeathed without any limit, the limits shall be established at once, and where they are first established there will the servitudes be created, and the remaining parts of the field will be free. Hence, an arbiter must be appointed who, in both instances, should determine the direction of the right of way. 2The width of a driveway for cattle, and that of a pathway, is the one which was designated; and if nothing was said with reference to it, it must be fixed by the arbiter. In the case of a right of way the rule is different; for if the width is not stated, that which is established by law is the proper one. 3If the place is designated but the width is not given, the party can cross said place wherever he wishes. But if the place is not mentioned and the width is not stated, a right of way may be chosen over any portion of the land, but the width of the same must be that prescribed by law; and if there is any doubt as to the direction, the services of an arbiter must be enlisted to decide it.

14Pomponius, On Quintus Mucius, Book XXXII. If I grant a right of way to anyone through a certain place, I cannot grant a water-course to another through the same place; and if I grant a water-course, I cannot sell or grant a footpath to another through the same place.

15The Same, On Quintus Mucius, Book XXXI. Quintus Mucius says that where a party has the right to conduct water every day, or during the summer, or for longer intervals, through the land of another; he has also the right to place pipes of earthenware or of any other material in the channel, so as to distribute the water more widely, and that he can do whatever he pleases in the channel, provided he does not render the water-course less valuable to the owner of the land.

16Callistratus, On Judicial Inquiries, Book III. The Divine Pius stated in a Rescript to bird-catchers, “It is not proper for you to catch birds on the land of others without the consent of the owners”.

17Papirius Justus, On Constitutions, Book I. The August Emperors Antoninus and Verus stated in a Rescript, that, “Where water is taken from a public river for the purpose of irrigating fields, it should be divided in proportion to the size of the same; unless someone can prove that, by virtue of a special privilege, he is entitled to more”. They also stated in a Rescript that, “A party should only be permitted to conduct water where this can be done without injury to another”.

18Ulpianus, On Sabinus, Book XIV. Where a right of way is created through several different tracts of land, it is still a single road, just as the servitude is also single, hence the question arises: If I pass through one tract of land but not through another for such a time as is necessary for the servitude to be extinguished, do I retain the servitude? The better opinion is that it is entirely lost, or entirely retained; therefore if I did not make use of either tract at all, the whole servitude is lost; but if I make use of one, the entire servitude is preserved.

19Paulus, On Sabinus, Book VI. Where one of several joint-owners stipulates for a right of passage through land held in common, the stipulation is void, as the right can not be given him; but where they all stipulate, or a slave owned in common by them does so, each of the joint-owners can bring an action asking that the right of way be granted him, because this can be granted by you to all of them in this manner; lest if the stipulator for the right of way should die and leave several heirs, the stipulation may become of no effect.

20Pomponius, On Sabinus, Book XXXIII. If you grant me at the same time the right to walk and drive over your premises, and also the right to use and enjoy the same, and then I surrender to you my right of use and enjoyment, you cannot use and enjoy the property, unless you leave me the unimpaired right to pass through or drive. Moreover, if I have a right to conduct water through your land, and you do not have the right to build upon the same without my consent, and I grant you the right to build, you must, nevertheless, grant me the servitude that you will not erect any building except in such a way, that my water-course may remain unaltered; and the condition of everything must continue to be the same as it would have been if, in the beginning, only a single grant had been made. 1A servitude can damage the land subject to it naturally, and not through anything due to the agency of man; as, for instance, if the water in the channel should be increased by showers; or water should flow into it from an adjoining field; or a spring should afterwards be discovered along the channel or within it. 2If there is a spring adjoining the Seian Estate from which spring I have a right to conduct the water through the said estate, and the estate should become mine, the servitude will remain. 3The right to draw water does not attach to a person but to the land.

21Paulus, On Sabinus, Book XV. If you grant me a water-course through your land without designating the part through which I shall conduct it, all your land will be subject to the servitude.

22Pomponius, On Sabinus, Book XXXIII. But then the only parts of the land which would be affected by the servitude are those which were free from buildings, trees, or vines, when the grant was made.

23Paulus, On Sabinus, Book XV. A right of way can be granted wider or narrower than eight feet, so long as it is wide enough to be traversed by a vehicle; otherwise it would be a right of passage and not a right of way. 1Where there is a permanent lake on your premises, the servitude of navigating it may be imposed, in order to obtain access to adjoining land. 2If the servient estate, or that to which the servitude is attached, should be confiscated, the servitude remains unimpaired in both instances, because land which is confiscated retains its former condition. 3Wherever a servitude is attached to an estate, it is attached to every part of it; and therefore if the property is sold a portion at a time, the servitude follows every portion; hence the separate owners can properly bring actions setting forth that they have a right of way over said land. Where, however, land subject to a servitude is divided into certain tracts among several owners, although the servitude attaches to all portions of the same, it will, nevertheless, be necessary for those who own shares that do not join the land subject to the servitude to have a legal right of passage through other parts of the land which has been divided; or traverse it, if the adjacent owners allow this to be done,

24Pomponius, On Sabinus, Book XXXIII. Labeo states with reference to a water-course of mine, that I can lend it to any of my neighbors; but Proculus, on the other hand, says that it cannot be used for the benefit of any part of my land except that for which the servitude was acquired. The opinion of Proculus is the more correct one.

25The Same, On Sabinus, Book XXXIV. If I sell you a certain part of my land, the right to an aqueduct will also belong to you, even though it is principally used for the benefit of another part; and neither the excellence of the soil, nor the use of the water should be taken into consideration to imply that the right of conducting the water is only attached to that part of the property which is most valuable, or especially requires the use of it; but the division of the water must be made in proportion to the quantity of land reserved or alienated.

26Paulus, On the Edict, Book XLVII. Where a right of way, a right to pass on foot, a right to drive cattle, or a right to an aqueduct through land is bequeathed, it is in the power of the heir to establish the servitude over any part of the same that he wishes, provided no advantage is taken of the legatee with reference to the servitude.

27Julianus, Digest, Book VII. If the Sempronian Estate is subject to a servitude in favor of land owned by you and me in common, and we purchase the same to be held in common, the servitude is extinguished; because the right of each owner has become the same in the two estates, respectively. But where the land purchased was subject to my own estate and to yours as well, the servitude will remain; because a servitude over an estate held in common can be attached to land owned in severalty.

28The Same, Digest, Book XXXIV. Where a right to pass through land is bequeathed to an estate held in common by two persons, unless both of them agree as to the direction of the pathway, the servitude is neither acquired nor lost.

29Paulus, Epitomes of the Digest of Alfenus, Book II. A party who had two adjoining tracts of land and sold the upper one. In the agreement it was stated that the purchaser should have the lawful right to discharge water upon the lower tract of land through an open ditch. The question then arose, if the purchaser should receive water from another tract, and wishes to discharge it upon the lower one, can he do so legally, or not? I answered that the lower neighbor was not obliged to receive more water than was necessary for the purpose of draining the land of the purchaser.

30The Same, Epitomes of the Digest of Alfenus, Book IV. A man who had two tracts of land, in the sale of one of them reserved the water which came from a spring on the land, and also a space of ten feet around it. The question arose whether the ownership of the ground reserved belonged to him, or merely whether he was entitled to access to it? The answer was that, “If what he retained was ten feet wide around said spring”, it should be held that the vendor had only a right of way.

31Julianus, On Minicius, Book II. Three tracts of land which were contiguous belonged to three owners, and the owner of the lowest one had acquired for his tract from the highest one the servitude of a water-course, and this he conducted into his own land through the intervening tract with the permission of the owner of the same, and he afterwards bought the highest tract, and sold the lowest one on to which he had conducted the water. The question was asked whether the lowest tract had lost the right of conducting the water, because as both estates had become the property of the same owner no servitude could exist between them? It was denied that the lowest tract had lost the servitude because the land through which the water was conducted belonged to another, and as no servitude could be imposed in any other way upon the uppermost tract so that the water might reach the lowest one, except by being conducted through the intermediate tract; so the same servitude in favor of the same tract of land could not be lost, unless, at the same time, the watercourse should cease to be conducted through the intermediate tract, or unless all three tracts should simultaneously become the property of a single owner.

32Africanus, Questions, Book VI. Where a tract of land is held in common by you and myself, and you have conveyed your portion of it to me, and also a right of way to said tract through your own adjoining property; it was held that the servitude was properly created in that way; and that, in this instance, the ordinary rule that servitudes cannot either be imposed or acquired with reference to shares is not applicable; for in this case the servitude is not acquired with reference to a share, but is acquired with reference to the time when the entire property shall belong to me.

33The Same, Questions, Book IX. Where you and I held two tracts of land, the Titian and Seian Estates, in common, and in dividing the same it was agreed that the Titian Estate should belong to me, and the Seian to you, and we conveyed our respective shares to one another, and in doing so it was stated that each one should be allowed to conduct water through the land of the other; it was held that the servitude was properly established, especially if a stipulation was added to the contract. 1You conduct water through the land of several persons. No matter in what way the servitude was created, unless an agreement was entered into, or a stipulation made with reference to it, you cannot grant to any of the owners, or to any neighbors the right to draw water from channels, but where an agreement or a stipulation was entered into, it is usual for this to be granted; although no land can be the subject of a servitude in favor of itself, nor can the usufruct of a servitude be created.

34Papinianus, Questions, Book VII. If one joint-owner of a tract of land permits anyone to have a right to walk or drive over it, the grant is void, and therefore if two tracts, which are servient to one another, become the common property of the owners, then, since it is established that servitudes can be retained with reference to a share, the servitude cannot be released by one of the parties to the other; although each joint-owner to whom a servitude is due enjoys the right in severalty; still, since it is not the persons but the estates which are subject to the servitudes, freedom cannot be acquired, nor can a servitude be released with reference to a part of an estate. 1Where a spring from which I have the right to conduct water dries up, and after the time fixed by law for the extinction of the servitude, it begins to flow again, the question arises whether the right to convey the water is lost?

35Paulus, On Plautius, Book XV. And Atilicinus says that the Emperor made the following statement in a Rescript to Statillus Taurus: “Those who were accustomed to obtain water from the Sutrine Estate appeared before me, and said that they were unable to conduct the water from the spring on the Sutrine Estate which they had used for several years, because the spring had dried up; and that afterwards the water began to flow from said spring, and they petitioned me that, as they had lost their right through no negligence of their own, but because they could not obtain the water, it might be restored to them. As their request did not seem to be unjust, I though that relief should be granted. It is therefore decreed that the right which they had on the first day when they could not succeed in obtaining water shall be restored to them.”

36The Same, Opinions, Book II. When a vendor retains one of two estates, and a servitude for the conduct of water is imposed upon it by him, the servitude acquired for the estate which is purchased will follow the same if a sale is afterwards made; nor does it matter whether the stipulation by which it was agreed that a penalty should be promised had reference to the person of the purchaser, and made certain provisions in the event that he should not be permitted to enjoy the servitude.

37The Same, Opinions, Book III. “Lucius Titius to his brother Gaius Seius, Greeting: Of the water which flows into the reservoir which my father built on the isthmus, I give and grant to you gratuitously the depth of an inch, to be conducted either into the house which you have on said isthmus, or anywhere else you may wish”. I ask whether by these terms the use of the water also belongs to the heirs of Gaius Seius? Paulus answered that as the use of the water was personal, it could not be transmitted to the heirs of Seius, as they occupied the position of parties entitled to the use of the same.

38The Same, Manuals, Book I. A right of way can be granted through a place where a river flows, if it can either be crossed by a ford or there is a bridge; but it is different where it must be crossed by ferry-boats. This is the case where the river runs through the land of one of the parties; but it is otherwise if your land joins mine, and then comes the river, and the land of Titius, and then a highway up to which I wish to acquire a right of way. Let us consider whether there is anything to prevent you from giving me a right of way as far as the river, and then my receiving one from Titius as far as the highway. Again, let us consider whether the same legal principle will apply even if you are the owner of the land which is beyond the river on this side of the highway; because a right of way can be complete as far as a town, or as a highway, or as a river which must be crossed by ferry-boats, or as far as the land belonging to the same owner. If this be the case the servitude is not held to be interrupted, even though a public river intervenes between two tracts of land belonging to the same person.