Ad Dig. 8,2,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 6.Marcellus, Digest, Book IV. Gaurus to Marcellus: I have two houses, I bequeathed one of them to you, and my heir raised the other and obstructed your lights; can you bring an action against him, and do you think that it makes any difference whether the house which he raised was his own or the one which he inherited? I wish also to ask whether an heir is obliged to grant access to property, which has been bequeathed, through a house belonging to another; as this inquiry is frequently made where the usufruct of land is bequeathed, which cannot be reached except through the property of another. Marcellus answered: Where a man has two houses and bequeathed one of them, there is no doubt that the heir can obstruct the light to the one bequeathed by raising the other; and the same must be said where a party bequeathed a house to one legatee, and the usufruct of another house to another. A similar rule, however, is not always applicable to a right of way, because, without access, the legacy of usufruct is worthless; but a man can live in a house where the light has been obstructed. Moreover, where an usufruct of land is bequeathed, access to it should also be given, because if what was left was the privilege of drawing water, a right of way for this purpose ought also to be granted. It should, however, be stated that the heir is permitted to obstruct the light and to darken the house, only to such an extent that the light should not be entirely cut off, but as much left as will be sufficient for the ordinary requirements of the inmates of the house during the day.

Marcellus, Digest, Book IV. Where a party who was entitled to a right of way or a right to drive, provided he made use of vehicles of a certain kind, used one of another kind; let us consider whether he has not lost his servitude, and whether the case is not different where a party has been transporting a heavier load than he had a right to do; for the latter may be held to have made an excessive use of his right of way rather than to have done so wrongfully; just as if he had used a wider road, or had driven more beasts of burden than he should have done, or had obtained water from some ether source. Therefore, in all these instances, the servitude is not lost, but the party is not permitted to have as a servitude more than is included in the contract. 1Where land was left as a legacy under a condition, and the heir imposed certain servitudes upon it; if the condition of the legacy is complied with, the servitude will be extinguished. Let us consider whether if they had been acquired by the land, they would follow the legacy for the benefit of the legatee, and the better opinion is that they would.

Marcellus, Digest, Book IV. In decisions having reference to deposits or loans for use, although the property may have been lost through the fraud of the defendant, it is customary to grant him relief by compelling the owner to transfer to him his rights of action.