Papinianus, Questions, Book VII. An usufruct can, in the beginning, be created with reference to a share of property whether it be divided or undivided, and it can also be lost by lapse of time fixed by law; and on the same principle it can be diminished by the operation of the Lex Falcidia. Where, however, the party who promised an usufruct dies, the obligation to grant the same is divided in proportion to the shares of the estate; and if it must be granted in land held in common, and one of the owners is defendant in a suit, the transfer shall be made in proportion to the share of the said defendant.

Papinianus, Questions, Book VII. Servitudes cannot be created by direct law from a certain time, or until a certain time, or under a condition, or on a certain contingency; (for example, “as long as I wish”,) nevertheless, if such provisions as these are added, and a party brings suit for the recovery of the servitude, in violation of the terms of the contract, an exception may be interposed on the ground that the claim is contrary to what had been agreed upon, or for fraud, and this Cassius states was the opinion of Sabinus in which he himself concurred. 1It is established that limitations can be added to servitudes; as, for instance, with reference to what kind of transactions shall be permitted, or shall not be permitted upon a roadway, as, for instance, that it must only be traversed by a horse, or that only a certain weight shall be transported, or such-and-such a flock shall be driven over it, or that charcoal shall be carried. 2Where intervals of a certain number of days and hours are mentioned, this does not relate to the question of time, but only to the manner in which a servitude created in accordance with law shall be enjoyed.

Papinianus, Questions, Book VII. A man had two houses covered with a single wooden roof; and bequeathed them to different persons. I said that, because it is established that the timbers of a building could belong to two persons since they own certain parts of the same edifice, in this instance the timbers over their houses will belong to the two persons; for they will not have rights of action against one another to prevent the insertion of beams into their respective houses; and it makes no difference whether the houses are bequeathed to both absolutely, or to one of them conditionally.

Papinianus, 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?

Papinianus, Questions, Book VII. Where a neighbor builds a wall across your land with your permission, he cannot be proceeded against by means of the interdict Quod precario habet; nor, after the wall has been built, is it understood that the grant of a servitude is complete; nor can the neighbor legally claim that he has a right to hold the wall without your consent; since the building follows the condition of the land, and this renders the claim invalid. But where a party who was subject to a servitude for your benefit builds a wall across his own premises with your consent, he will not obtain freedom by usucaption; and proceedings can be brought against him on the interdict Quod precario habet. If, however, you should permit him to build a wall by way of gift, you cannot apply for the interdict, and the servitude will be extinguished by the donation.

Papinianus, Questions, Book VII. Disposal of property after issue has been joined is forbidden, but this only applies to such as is voluntary, and not to such as becomes necessary through some former liability and originates in some legal requirement.

Papinianus, Questions, Book VII. Where a slave who is pledged is redeemed by one of the heirs, then, even if he should afterwards die, the office of the arbiter will, nevertheless, continue to exist; for there is sufficient reason for this on account of the joint ownership which previously existed and would have continued to exist up to this time, if the property had not been destroyed.

Papinianus, Questions, Book VII. Sabinus says that no joint-owner can legally perform any act with reference to common property without the consent of the other, hence it is manifest that the right of prevention exists; and where parties are in the same position, it is established that he who objects has the advantage. But, although where property is in common, one joint-owner may be prevented from proceeding where a building is in course of erection, he cannot be compelled to remove it if the other failed to prevent him from constructing it when he could have done so; and, therefore, compensation for the damage can only be obtained by means of an action for the partition of common property. Where, however, he consented to the erection of the building, he will not be entitled to an action for damages; but if one party did something during the absence of his co-heir to the injury of the latter, he can then be forced to remove it.

Papinianus, Questions, Book VII. A river swept away two hundred jugera from a tract of land which contained a thousand when it was transferred. If two hundred jugera of the undivided remainder should afterwards be evicted, the stipulation for double damages will apply to the fifth, and not to the fourth part of said land; for the loss of what was swept away must be borne by the purchaser, and not by the vendor. Where the entire tract which was diminished by the river is evicted, the obligation providing for eviction will not be lessened by law, any more than if a tract of land or a slave should become depreciated in value through neglect; as, on the other hand, the amount for which the vendor is liable, in case of eviction, will not be increased if the property should have been improved. 1Where the amount of land which was transferred remains unimpaired, and two hundred jugera are added to the same by alluvion, and afterwards a fifth part of the entire undivided tract is evicted, the fifth part alone must be made good by the vendor; just as would be the case if two hundred jugera of the thousand which had been delivered were evicted, because the vendor does not guarantee any loss due to alluvial deposit. 2Where two hundred jugera were lost out of a thousand which have been conveyed, and afterwards two hundred more were added by alluvium to another part of the tract, and then an undivided fifth part of the entire tract should be evicted; the question arose for what proportion will the vendor be liable. I stated that, according to what has been previously laid down, the vendor will not be liable either for the fifth part, or the fourth part of the thousand jugera, on the ground of eviction; but will only be liable if merely a hundred and sixty out of the eight hundred jugera should be evicted, for the remaining forty which have been taken away from the entire tract should be understood to belong to the addition to the land, pro rata. 3Again, where a certain part of a tract of land, which is separate, is evicted, although a certain number of jugera were conveyed, still, the amount evicted must be made good, not in proportion to the quantity of the land, but with reference to its quality. 4Where a party who owned a half interest in an undivided jugerum of land, sold and delivered it, he did not, according to the opinion of the authorities, convey the entire ownership, but only the undivided half of the same; just as if he had transferred a certain tract of land or a field in this way.

Papinianus, Questions, Book VII. In considering the application of the Falcidian Law with reference to the bequest of a servitude, as a servitude cannot be divided, the legacy of the same need not be entirely delivered, unless an appraised value of a portion of the same is tendered.