Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article III. On Servitude
- Definition. Servitude, passively taken, is a burden imposed on a thing for the utility of another. - But actively taken, it is a right which someone has in another's thing, so that it may serve him 1 or his thing.
1 By this word "him," perhaps the Author indicates the broader range to which the name of servitude extends among the Doctors. For they take the name of servitude passively indeed for an obligation by which a thing or person is so bound to another that it serves him in some way; but actively for a right which inheres in someone, so that another's thing or another person may serve him.
Hence comes the distinction, concerning which the Author says nothing, according to which servitude can be 1. personal, which is owed by person to person, and is proper to a slave toward his master; 2. mixed, which is owed by a thing to a person, such as use, usufruct, habitation; 3. real, which is owed by a thing to a thing, and is customarily defined passively indeed as a burden imposed on an estate for the utility of another estate; but actively as a right inhering in an estate, so that another may serve it. And concerning this last alone both the Author and others are accustomed to treat in this place.
Division. 1. By reason of origin, servitude is either natural, legal, or conventional, according as it arises either from the disposition of places, or from law, or from mere agreement.
- By reason of object, it is urban or rural, according as it is instituted for the utility of an urban or rural estate.
- By reason of mode, it is continuous or not continuous, according as it can endure without the deed of man, as is the servitude of an aqueduct, or cannot be exercised without it, for example, the servitude of a path. Again it is apparent or non-apparent, according as it is openly declared by an exterior sign, for example, a door, window, etc., or lacks such a sign, as is, for example, the prohibition of building in some place, etc.
- Questions. Q. 1. What are the rights and obligations of servitudes?
Resp. Generally speaking, these depend on the nature of the thing, or on law, or on agreement; but these are chiefly established. 1. He who actively has a right to the servitude can perform all works which are necessary for using it and for preserving it. 2. If the estate for whose utility the servitude was constituted is divided, this servitude is owed to each part of that estate. 3. The owner of the servient estate can do nothing from which the use of the servitude could be diminished; and conversely he to whom the servitude is owed can do nothing whence the condition of the servient estate may become more burdensome. Thus natural equity bears, to which the laws also are consonant.
Q. 2. How are servitudes extinguished?
Resp. 1. By the established time having elapsed, or by the condition having been fulfilled; 2. by express or tacit renunciation; 3. by consolidation, by which the owner of the dominant estate becomes at the same time owner of the servient estate, or vice versa; 4. by prescription, or by non-use of the right of servitude for at least 30 years. Nay, since servitudes have the character of immovables, they can be prescribed through the space of time which is observed in prescribing these.
- Resolutions. 1. If it is a matter of natural servitudes, or of servitudes which follow from the natural disposition of places, the owner of the lower estate cannot construct a dike so that the waters of the higher estate no longer flow down through his land; just as neither can the owner of the higher estate do anything so that the flow of the waters be unusually increased.
- For acquiring by prescription a right of servitude, for example, a right of way, aqueduct, etc., through another's land, the one prescribing must exercise positive acts by which he may acquire such a right, and at the same time have good faith by which he believes that that right pertains to him. Nor does the knowledge and tolerance of him against whom prescription is made suffice, if he does not have a title. But if he has a title, knowledge and tolerance of this sort are not required.
- Those who possess fields at the banks of navigable rivers cannot stand in the way of a road necessary for the course of ships being opened. The same must be said of those whose estates lie beside roads or other public works; for they are held to suffer the servitude so long as it is necessary for the making or repairing of the aforesaid works. But in both cases the injured proprietors have a right to some indemnity, if this can be done.
- The owner of the servient estate cannot change the position, for example, of the road, waters, or little stream, unless the servitude has become more burdensome, or impedes repairs useful to the estate from being made.