1Ulpianus, On the Edict, Book IV. Rights of action with reference to servitudes, whether they are rustic or urban, belong to those who own the land; but our burial-places are not the subject of our ownership, although we can claim a right of way to a tomb.

2The Same, On the Edict, Book XVII. We are entitled to actions in rem for servitudes, (just as we are in the case of those relating to an usufruct), whether such actions are confessory or negatory; a confessory one being that employed by a party who claims he is entitled to a servitude, and a negatory one being that which can be brought by an owner who denies that one exists. 1This confessory action in rem lies in favor of no one else but the owner of the land; for no one can bring an action to recover a servitude except a party who has the ownership of adjacent land, and alleges that the servitude is attached to it. 2Neratius very properly states that if the usufruct of land situated in the middle of a tract is bequeathed, a right of way must also accompany it; that is to say, through such portions of said tract over which he who granted the usufruct would establish the right of way so far as is necessary for the enjoyment of the usufruct; for it must be borne in mind that where a right of way is granted an usufructuary for the purpose of enjoyment it is not a servitude, nor can a servitude exist for the benefit of a party entitled to the usufruct of the soil; but if one is attached to the land, the usufructuary can use it. 3Pomponius says that an usufructuary can apply for an interdict for a right of way, if he has availed himself of it within the year; for there are two kinds of judicial inquiries, one, relating to a question of law, that is to say in a confessory action; another relating to a question of fact, as in this interdict: as Julianus also stated in the Forty-eighth Book of the Digest. Labeo says in support of the opinion of Julianus, that even if the testator who bequeathed the usufruct himself made use of the right of way, an interdict could justly be granted the usufructuary; just as an heir or purchaser is entitled to such an interdict.

3The Same, On the Edict, Book LXX. It may also be stated that the same rule is applicable where anyone purchases part of an estate.

4The Same, On the Edict, Book XVII. The actual locality is not a part of the ownership of the person to whom its servitude is due; but he is entitled to the right of way. 1A party who has a right to pass on foot without the right to drive, or has the right to drive without the right to pass on foot, can make use of an action for a servitude. 2In a confessory action which is brought with reference to a servitude, the profits can also be included. Let us consider, however, what the profits of a servitude are; and with reference to this, the better opinion is that the only thing which can come under the denomination of profits is the interest, (if any), which the plaintiff has in not being excluded from the enjoyment of the servitude. But in a negatory action, (as Labeo says), the profits are computed with reference to the interest of the plaintiff in not having his adversary use a right of way over his premises; and Pomponius concurs in this opinion. 3Ad Dig. 8,5,4,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 132, Note 4.Where the land to which the right of way is attached belongs to several persons, each one is entitled to an action for the whole; and this Pomponius lays down in the Forty-first Book. In the appraisement of the damages, however, the amount of the interest will be taken into consideration, that is, the interest of the party who institutes the proceedings. Therefore, where only the right is concerned, any one of the parties can proceed separately, and if he gains his case, the others will profit by it; but the estimate will be limited to the amount of his interest; although the servitude cannot be acquired through one joint-owner alone. 4Ad Dig. 8,5,4,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 132, Note 5.Where the land subject to the servitude belongs to two parties, suit can be brought for this purpose against either of them (as Pomponius says in the same Book), and whichever one defends the case must restore the whole, because this is something which is not capable of division. 5Where anyone does not question my right to walk, or drive, or use a right of way, but does not permit me to make repairs, or to cover the road with stone, Pomponius in the same Book says that I am entitled to a confessory action; for if a neighbor has a tree which hangs over in such a way as to make the road or path impassable or useless; Marcellus, in a note on Julianus, states, that an action can be brought for the right of passage or to recover the right of way. With reference to the repairs of roads, we can also make use of an interdict, that is the one which is available for the repair of a pathway, or a driveway, but this proceeding cannot be instituted where the party wishes to cover the road with stone, unless this was expressly agreed upon. 6We are also entitled to actions in rem with reference to a right to draw water, for the reason that this is a servitude. 7The owner of a building is also entitled to an action relating to a servitude where he denies that he is subject to a servitude in favor of his neighbor, when his house is not entirely free, but is not subject to a servitude for the benefit of the party against whom the suit is brought. For example, I have a house adjacent to the Seian and Sempronian houses, and I owe a servitude to the Sempronian house, but I wish to institute proceedings against the owner of the Seian house, because he prevents me from raising the height of mine. I must bring an action in rem against him, for although my house is subject to a servitude, still, it is not subject to one in favor of the parties sued; and therefore I claim that I have the right to raise my house still higher, even against his consent, for my house is free, so far as he is concerned. 8Where a man is not permitted to raise his house any higher, an action can very properly be brought against him, alleging that he has no right to raise it. This servitude may even exist in favor of a party who owns a house some distance away:

5Paulus, On the Edict, Book XXI. And, therefore, if you have a house between mine and that of Titius, I can impose a servitude on the house of Titius to prevent him from raising his any higher, although a servitude of this kind can not be imposed on yours; because so long as you do not raise yours, the benefit of the servitude remains.

6Ulpianus, On the Edict, Book XVII. And if it should happen that the person who owns the intervening building, as he is not subject to a servitude, raises his house still higher, so that now I cannot be held to obstruct your lights if I should build; you will allege in vain that I have no right to build in this way without your consent; but if, within the time prescribed by law, the neighbor should demolish his building, your right of action will be revived. 1Ad Dig. 8,5,6,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 4; Bd. II, § 465, Note 18.It should be borne in mind, however, that with reference to these servitudes, the possessor of the right may be also the plaintiff; and if perchance, I have not raised the height of my building; then my adversary is the possessor of the right, for, since nothing new has been done, he is in possession and can prevent me from building, by means of a civil action, or by an interdict Quod vi aut clam. The result will be the same if he hinders me by casting a pebble. But if I build without his objecting, I myself will then become the possessor. 2Moreover, we are entitled to an action with reference to a servitude which was imposed for the support of a burden, for the purpose of compelling the servient owner to maintain the support, and repair his building in the way which was provided when the servitude was imposed. Gallus thinks that a servitude cannot be imposed in such a way that a man shall be compelled to do something, but that he shall not prevent me from performing some act; for in every servitude the duty of making repairs belongs to the party who claims the right, not to him whose property is subject to the same. The opinion of Servius, however, has prevailed so that, in the case stated, anyone can claim the right to compel his adversary to repair his wall, in order to support the burden. Labeo says, however, that this servitude is not attached to the person but to the property, hence the owner is at liberty to abandon the property. 3This action indeed is rather a real than a personal one, and will lie in favor of no one else but the owner of dominant tenement; and it can be brought against the owner of the servient tenement, just as in the case of other servitudes. 4Papinianus, in the Third Book of Questions, discusses the point whether, where a house belongs to several joint-owners, suit can be brought with reference to the entire servitude? He says that the owners can bring suit separately for the whole, just as can be done in the case of other servitudes with the exception of usufruct. This answer should not be given, he adds, where the house which sustains the burden of a neighbor is owned in common. 5The nature of the repairs which can be the subject of this action is dependent upon what was stated when the servitude was imposed; it might have been agreed that the party should repair with dressed stone, or ordinary building stone, or any other kind of material which was mentioned when the servitude was created. 6Profits are taken into consideration in this action, that is to say, the benefit which the party would have obtained if his neighbor had supported the weight of his house. 7The servient owner has a right to make the wall better than was agreed upon, when the servitude was imposed; but if he attempts to make it worse, he can be prevented from doing so either by this action, or by notice of a new structure.

7Paulus, On the Edict, Book XXI. The result of these actions is that the plaintiff, if he gains the case, by application to the judge will either have relief granted or security furnished. The relief which should be granted is that the judge must order the defendant to repair the defect of the wall and place it in a proper condition. The security is, that the judge shall order him to give a bond for the repair of the wall, and to provide therein that neither he nor his successors will prevent the plaintiff from raising it higher, and will maintain the edifice after it is built; and if he gives this security he shall be discharged from liability. But if he does not either allow the relief to be granted, or furnish security, he shall be ordered to pay damages to the amount to which the plaintiff will make oath in court.

8Ulpianus, On the Edict, Book XVII. It being thus the duty of one neighbor to repair the wall, the support of the building of the other neighbor who is entitled to the servitude, while the repairs are going on, is not a part of the duty of the owner of the lower building; for if the owner of the upper one does not wish to prop up the building himself, he can demolish and rebuild it when the wall is rebuilt. In this instance also, as in that of other servitudes, a counter action will be granted; that is to say, one in which it is set forth that you have no right to use compulsion against me. 1An action will lie in my favor against him who grants me a servitude such as the following, namely: that I shall have the right to insert timbers into his wall, and upon said timbers (for example), to build a gallery in which to promenade, and to place columns on the top of the wall, for the purpose of supporting the roof of said gallery. 2These actions differ from one another in that the first may be employed to compel the adjoining neighbor to repair my wall; but the second is only available to compel him to receive my timbers; for this is not contrary to the ordinary nature of servitudes. 3Ad Dig. 8,5,8,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 16.If, however, it should be asked which party should sustain the position of possessor and which one that of plaintiff; it must be remembered that if the timbers are already inserted, the party who alleges that he is entitled to the servitude is in the position of possessor; but if they are not inserted, he who denies this right is the possessor. 4And if he who claims the servitude for himself should be successful, the servitude should not be granted to him, because he has it already, if the decision was rendered in accordance with law; nor should it be if it was wrongfully rendered, for the reason that, by the decree, the servitude was not to be established, but to be declared to exist. It is clear that if, after issue had been joined, the plaintiff lost the servitude by not making use of it through the malicious fraud of the owner of the building, it must be restored to him; just as has been decided in the case of the owner of the building. 5Aristo, in an opinion given to Cerellius Vitalis states, that he does not think that smoke can lawfully be discharged from a cheese-factory upon buildings situated above it, unless a servitude of this kind is imposed upon said buildings; and this is admitted. He also says that it is not legal to discharge water or anything else from an upper on to a lower building, as the party has only the right to perform such acts on his own premises as will not discharge anything upon those of another, and there can be a discharge of smoke as well as of water; hence the owner of the higher building can bring suit against the owner of the lower and allege that the latter had no right to do this. He says, in conclusion, that Alfenus holds that an action can be brought in which it is alleged that a party has no right to cut stone on his own ground in such a way as to allow the pieces to fall on my premises. Hence Aristo says that a man who rented a cheese-factory from the people of Minternæ could be prevented by the owner of a house above it from discharging smoke, but the people of Minternæ would be liable on the lease; and he also says that the allegation which he can make in his suit against the party who discharges the smoke is that he has no right to do so. Therefore, on the other hand, an action will lie in which it may be alleged that he has the right to discharge smoke, and this also Aristo approves. Moreover, the interdict Uti possidetis is applicable where a party is prevented from making use of his own property in any way that he pleases. 6Ad Dig. 8,5,8,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 8.A doubt is raised by Pomponius in the Forty-first Book of Passages, as to whether anyone can allege in an action that he has a right, or that another has no right to make a light smoke; as for example, one from a hearth on his own premises. He holds that such an action cannot be brought, just as one cannot be brought alleging that a party has no right to make a fire, or to sit down, or to wash on his own premises. 7He also approves of an opposite decision, for he says that, in the case of a bath, where a certain Quintilla had built an underground passage for vapors which were discharged upon the property of Ursus Julius, it was established that such a servitude could be imposed.

9Paulus, On the Edict, Book XXI. If you build on a place through which I have a right of passage, I can allege in a suit that I have a right to walk and drive there; and if I prove this, I can prevent you from working. Julianus also says that if a neighbor of mine, by building upon his land, avoids receiving the drip from my roof, I can bring an action based on my right; that is to say, the right to discharge the water of my roof on his premises; just as we have stated with respect to the right of way. But where he has not yet built, the other party, whether he has the usufruct or the right of way, can set forth that he has a right to walk or drive, and the right of enjoyment; but if the owner has already built, he who is entitled to the right of way can still allege that the right belongs to him, but the usufructuary cannot do so, because he has lost the usufruct; and therefore Julianus says that an action on the ground of fraud should in this case be granted. On the other hand, if you build across a right of way to which my estate is subject for your benefit, I can properly allege that you have no right to build, or to have a building there; just as I could do if you built anything on unoccupied land which belongs to me. 1Where a man has been accustomed to use a broader or a narrower road than he was entitled to, he will retain the servitude; just as a party who has a right to use water and uses it mixed with other water retains his right.

10Ulpianus, On the Edict, Book LIII. Where anyone has obtained the right of conducting water by long use, and, as it were, by long possession, it is not necessary for him to establish by law the right which he has to the use of the water; for instance, to show that it was derived from a legacy or in any other way; but he is entitled to an equitable action to prove that he has had the use of said water for a certain number of years, and that this was not obtained by force, or by stealth, or by sufferance. 1This action can be brought not only against the party on whose land the source of the water is situated, or through whose premises it is conducted, but also against all persons who try to prevent me from conducting the water; just as in the case of other servitudes. Generally speaking, I can institute proceedings by means of this action against anyone whomsoever that attempts to prevent me from conducting the water.

11Marcellus, Digest, Book VI. The inquiry was made can one of a number of joint-owners legally build on land held in common by them without the consent of the others; that is to say, if he is forbidden to do so by the said joint-owners, can he institute proceedings against them and allege that he has a right to build; or can the other joint-owners bring an action against him, and assert they have a right to prevent him, or that he has no right to build; and if the building is already constructed, can they not bring suit against him on the ground that he has no right to have a building there under the circumstances? This can be best answered by saying that a joint-owner has a better right to prevent building, than to build; because he who is attempting to perform an act of this kind (as I have already stated), if he wishes to use the common property, according to his own pleasure, as if he were the sole owner of the same, is appropriating to his own individual use a right which belongs to others.

12Javolenus, Epistles, Book III. I alleged in an action that the defendant had no right to have his timbers inserted into my wall; must he also give security that he will not insert any into it hereafter? I answered that I think it is part of the fluty of the judge to compel him to give security with reference to future work as well.

13Proculus, Epistles, Book V. I have pipes by which I conduct water on the public highway, and these, having burst, flooded your wall; I think that you are entitled to an action against me, in which you can allege that I have no right to allow water to flow from my premises against your wall.

14Pomponius, On Sabinus, Book XXXIII. If a wall belongs to me, and I permit you to insert into it timbers which you had there formerly, and you then wish to insert others, you can be prevented from doing so by me; and, indeed, I have a right of action to compel you to remove any timbers which you have recently inserted therein. 1If a party-wall which you and I own, should, on account of any work which you have done, incline towards my house, I can bring an action against you and allege that you have no right to have a wall in that condition.

15Ulpianus, Opinions, Book VI. By raising his house a person caused it to obstruct the lights of a building belonging to a minor under twenty-five years of age, or under the age of puberty, of whom he was the curator or guardian; and although, in this instance, he himself and his heirs would be liable to be sued, for the reason that he had no right to commit an act which, on account of his office, he was required to prevent anyone else from doing; still, an action should be granted to the boy, or to the minor, against anyone who is in possession of the said house, to compel him to remove what was not lawfully constructed.

16Julianus, Digest, Book XVII. If I purchase from you permission to let rain-water drip from my house on to yours, and afterwards, with your knowledge, on account of the purchase, I allow it to do so; I ask, whether I can on this ground be protected by any action or exception? I answered that I can avail myself of either resource.

17Alfenus, Digest, Book II. If there should be a wall between two houses, which projects a half a foot or more towards the adjacent building, proceedings must be instituted alleging that the defendant ought not to permit the wall to project in this manner over the premises of the plaintiff without his permission. 1A certain part of the premises of Gaius Seius was subject to a servitude for the benefit of the house of Annius, which provided that Seius should have no right to put anything in that place; but Seius planted trees there, and under them kept basins and other vessels. All persons learned in the law advised Annius to bring suit against Seius on the ground that he had no right to have those things in that place without his consent. 2Ad Dig. 8,5,17,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 7.A neighbor placed a dunghill against the wall of another party from which the wall became damp; and advice was asked in what way he could compel his neighbor to remove the dunghill. I answered, that if he had done this in a public place he could be compelled to remove it by means of an interdict; but if it was done in a private place, it would be necessary to bring an action with reference to a servitude; and if there had been any stipulation for the prevention of threatened injury, the party could avail himself of the stipulation if he had sustained any damage on account of what had been done.

18Julianus, On Minicius, Book VI. The slaves of a certain man had prevented a neighbor from conducting water, and the responsible party having concealed himself to avoid suit being brought against him, the complainant asked what he can do? I answered that the Prætor, after having heard the case, must order the property of the defendant to be taken into possession and not surrendered until he had established a right of conducting water for the benefit of the plaintiff, if he had suffered any damage from drought, because he had been prevented from conducting water; as for instance, if his meadows or his trees had been dried up.

19Marcianus, Rules, Book V. Where anyone makes proper allegations in a suit with reference to a servitude which he enjoys in common with others, and loses the case in some way through his own negligence, it is not just that this should cause any damage to the other joint-owners; but if, through collusion, he abandons the suit to his adversary, an action on the ground of fraud should be granted to the others; as Celsus says, and he adds that this was also held by Sabinus.

20Scævola, Digest, Book IV. A testatrix owned some houses adjoining a tract of land which she bequeathed; the question arose, whether, if these were not included with the land and the legatee should bring suit to recover it, the said land would be subject to any servitude for the benefit of the houses; or if the legatee claimed that the land should be conveyed to him in compliance with the terms of a trust, whether the heirs ought to reserve a servitude in favor of the houses? The answer was that they should do so. 1Several citizens of a town, who owned different estates, purchased a tract of woodland, to be held in common for the enjoyment of the right of pasturage, and this arrangement was carried out by their successors; but some of those who had this right subsequently sold the separate estate above mentioned. I ask whether, after the sale, the right follows the said estates, since it was the intention of the vendors to also dispose of this right? The answer was that what had been understood between the contracting parties must be observed; but if their intention was not evident, that this right would also pass to the purchasers. I also ask, if when a portion of the said individual estates has been conveyed by the legatees to anyone else, whether it would carry with it any part of the right of pasturage? The answer was, that as this, right must be considered to be attached to the estate which was bequeathed, it would also go to the legatee.

21Labeo, Epitomes of Probabilities by Paulus. Where no water has yet appeared, no right of way to it, nor any canal for the conduct of the same can be established. Paulus says, I think, that this is not true, by any means; because a grant can be made permitting you to look for water, and, if it should be found to convey it.