Paulus, On Sabinus, Book XV. Ad Dig. 8,1,14 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 11.Servitudes of rustic estates, even though they are attached to corporeal property are, nevertheless, incorporeal, and therefore can never be acquired by use; there may be servitudes of such a kind that they do not admit of certain and continuous possession, for no one can have permanent and continuous possession of a path in such a way that it can be held not to be interrupted for any time. The same rule must be observed with reference to the servitudes of urban estates. 1The servitudes of a path leading to a tomb remains private property, and therefore it can be released to the owner of the land subject to the servitude; and, it can also be acquired even after the tomb has been invested with a religious character. 2Where land belonging to the public or a highway is situated between two estates, a servitude for drawing water may be imposed, but a water-course cannot. It is, however, customary to petition the Emperor to permit the party, “to conduct water across a highway in such a manner as to cause no inconvenience to the public”. The existence of sacred and religious places between two tracts of land prevents the creation of the servitude of a pathway; since no one is entitled to a servitude through places of this kind.

The Same, On Sabinus, Book XV. Servitudes which are only attached to the surface of the ground are retained by possession; for if I should happen to have a beam extending from my house and inserted into yours, then, since I have the right of such insertion, I have possession of the privilege on account of the said beam. The result will be the same if I have a balcony supported by something on your land, or if I permit the dripping of water on your premises since I am using something which belongs to you, and thus, as it were have possession by my own act. 1If my yard is higher than your house, and you have granted me the right to walk or drive through your yard to my house, and there is no level approaching to my house through your yard; I can legally build steps, or an inclined plane to my door, so long as I do not demolish anything more than is necessary for the purpose of establishing the right of way. 2Where a building from which water drips from the roof is removed in order that another of the same shape and nature may be erected there, the public welfare requires that the latter should be understood to be the same structure; for, otherwise, if a strict interpretation is made, the building afterwards erected on the ground will be a different one; and therefore when the original building is removed the usufruct will be lost, even though the site of a building is a portion of the same. 3Where the servitude of the dripping of water is imposed, the owner of the ground subject to the same cannot legally build upon the place where the water falls. 4Where the water was discharged in the first place from a tile-roof it can not subsequently be discharged from the one of boards, or one constructed of any other material. 5In whatever manner a servitude of the dripping of water was acquired, the fall can be made greater by raising the building to a higher level, since by this means the servitude will be more easily tolerated, as what falls from a height does so more gently, and sometimes is dispersed, and does not reach the place subject to the servitude; but it cannot be lowered, because that the servitude would become more onerous, that is to say, instead of a drip there will be a stream. For the same reason the drip may be carried back, as in this instance, it will begin to fall more on our premises; but it cannot be brought forward, since it would then fall on another place than that subject to the servitude; for we can render anything less onerous, but not more so. And, by all means, it should be borne in mind that the condition of a neighbor may be improved, but not made worse, unless at the time that the servitude was imposed, some change was expressly provided for. 6Where anyone builds upon ground which is subject to the servitude of a drip from a roof, he has the right to raise his building to the place from which the drip proceeds; and indeed, if it falls upon the building itself he can erect it still higher, provided, however, the drip is still properly taken care of.

Paulus, On Sabinus, Book XV. Where a person has a building which is higher than that of another, he can legally raise his own house as high as he wishes, so long as this does not impose a more onerous servitude on the buildings below than they should bear.

Paulus, On Sabinus, Book XV. Where property is held in common, none of the owners can, by virtue of a servitude, build anything without the consent of the others, or prevent the others from building anything; since no one can have a servitude attached to his own property. Therefore, on account of the interminable controversies that may result, the property is usually divided; but, by means of an action in partition, one of the parties in interest can prevent any work from being done, or can cause the others to remove anything which has already been constructed, provided this is for the benefit of all.

Ad Dig. 8,2,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 209, Note 7.Paulus, On Sabinus, Book XV. Where an opening is made in the lower portion of the wall of a room or a hall belonging to another, which was done for the purpose of washing the floor; it is not considered to be a ground for the creation of a servitude for a flow of water, or an act by which a right can be acquired by lapse of time. This is true because no water falls on that place from the sky, since what is performed by the hands is not perpetual; but water that falls from the sky, although it is not continuous, is, nevertheless, due to a natural cause, and for that reason is considered as perpetual. Again, all servitudes attaching to real property must be based upon perpetual causes, and therefore the right to conduct water which has its source in a reservoir or a pond, cannot be granted as a servitude. The right to have water drip from a roof must also depend upon a natural and perpetual cause.

Paulus, On Sabinus, Book XV. Where anyone purchases and receives by delivery a house on which a servitude is imposed for the benefit of his own, the servitude is merged and extinguished; and if he wishes afterwards to sell the house, the servitude must be expressly renewed; otherwise the house will be sold free. 1If I obtained a portion of an estate over which I have a servitude, or to which I owe one, it is established that the servitude is not merged; as it is retained with reference to a portion of said estate. Therefore, if my land is servient to yours, and I transfer a share of mine to you, and you transfer a share of yours to me, the servitude will remain unimpaired. Moreover, an usufruct acquired in either of the two tracts of land will not interrupt the servitude.

Paulus, 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.

Paulus, 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,

Ulpianus, On Sabinus, Book XV. Where one tract of land is subject to a servitude for the benefit of another, and either one is sold, the servitudes pass with the property; and where buildings are subject to servitudes for the benefit of tracts of land, or vice versa, the same rule applies.

Paulus, On Sabinus, Book XV. Where anyone uses other water than that which is agreed upon at the time when the servitude was imposed, the servitude is lost. 1The time during which the last owner of the land to which a servitude is attached did not use the water is counted against the party who succeeds to his place. 2If you have the right to insert a beam into an adjacent house, and your neighbor has not built it within the time prescribed by law, and therefore you are unable to insert it, you do not, for that reason, lose your right; because your neighbor cannot be considered to have acquired by usucaption freedom from the servitude to which his house was subject, since he never interrupted the use of your right.

The Same, On Sabinus, Book XV. Because the highway or the river constitutes my boundary, rather than the land of my neighbor.

Paulus, On Sabinus, Book XV. Money paid by freedmen in order to obtain their liberty is not a donation, for a consideration is given for it.

Paulus, On Sabinus, Book XV. A donation can properly be made to a person who is absent, whether you send someone to take it to him, or whether you direct him to keep something which he has in his possession. If, however, he does not know that the property which is in his possession is given to him, or if, after it is sent to him, he should not accept it, he will not become the owner of the article designated, even if it has been sent to him by his own slave; unless it was given to the latter with the intention that it should instantly become the property of his master.

Paulus, On Sabinus, Book XV. When anyone possesses an entire house, he is not considered to possess the different articles which are contained in the building. 1We lose possession in several ways; as, for instance, if we bury a dead body in a place which we possess, for we cannot possess a place which is religious or sacred, even if we despise religion, and continue to hold it as private property. The same rule applies to a freeman who is held as a slave. 2Labeo says that the owner of a building loses possession against his will when the Prætor orders possession of it to be taken, where security against threatened injury is not furnished. 3Likewise, we do not cease to possess land which is occupied by the sea, or by a river, or if anyone who has possession of property comes under the control of another. 4Again, we cease to possess property which is movable, in several ways, as where we are unwilling to possess it, or where for example, we manumit a slave. Moreover, if I possess something and its form is changed, as, for instance, a garment is made out of wool, the same rule will apply. 5Anything that I possess by a tenant, my heir cannot possess, unless he actually obtains possession of it, for we can retain, but we cannot acquire possession by intention alone. What I possess as a purchaser, however, my heir can obtain by usucaption through the agency of a tenant. 6If I lend you anything, and you lend it to Titius, and he thinks that it is yours, I will still continue to possess it. The same rule will apply if my tenant sublets my land, or he with whom I have deposited property should again deposit with another; and the same rule must be observed, even if this is done by several persons.

Paulus, On Sabinus, Book XV. Although a ward is not bound without the authority of his guardian, we can still retain possession by him. 1If a lessee sells the property, leases it from the purchaser, and pays rent to both lessors, the first one who rented it legally retains possession through the lessee. 2Ad Dig. 41,2,32,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 155, Note 13.An infant can lawfully possess anything if he obtains it with the consent of his guardian, for the want of judgment of the infant is supplied by the authority of the guardian. This opinion has been adopted on account of its convenience, for otherwise, an infant who receives possession of property would not know what he was doing. A ward can, nevertheless, obtain possession without the authority of his guardian, and an infant can possess peculium through the medium of a slave.

Paulus, On Sabinus, Book XV. We can acquire by usucaption property which is considered to be abandoned, when we think that this is the case, even if we do not know by whom it has been abandoned.