ARTICLE III: ON SERVITUDE

680. Definition. - Servitude (servitudes, services, easements) is a right belonging to a third party in another's thing, by force of which the owner of the thing is compelled to suffer something in it or not do something, for the utility of the third party.

It is said: 1) right in a thing; for it is proper to a servitude to adhere to a thing, and therefore with the thing itself it passes into whatever possessor.

It is said: 2) another's; for the advantages which the owner perceives from his own thing he perceives by right of dominion, not by right of servitude.

It is said: 3) by force of which the owner of the thing is compelled to suffer something in it or not do something. To suffer; for example, that a third party lead water from his land. - Not to do, for example, that he not build his house higher. Hence servitude is a diminution of dominion, a part of which is taken away from him who owes the servitude, and accedes to him to whom it is owed; and therefore there is added: for the utility of the third party.

Therefore servitude is taken either actively, and it is the right which someone has in another's thing so that it may serve him; or passively, and it is the subjection of another's thing so that something be done in it or not done, for the advantage of another.

681. Division. - Servitude is divided:

1° By reason of origin into natural, which flows from the position of places, and thus the owner of a lower estate cannot throw up a bank so that the waters of a higher estate no longer flow down through his land; just as neither can the owner of a higher estate do anything so that the flow of waters be increased unusually. Legal, which arises from law, and conventional, which arises from contract.

2° By reason of mode into continuous and non-continuous. The former can endure without an act of man, such as the course of water through land. The latter cannot endure without an act of man, such as to draw water from a well existing on another's land. - Moreover into apparent, which is openly declared by an exterior sign, for example a door or window, and non-apparent, which lacks such a sign, as for example the prohibition of building in some place.

3° By reason of object into personal, which is owed by a person to a person, and is proper to a slave toward a master; mixed, which is owed by a thing to a person, of which kind are use and usufruct; and real or predial, which is owed by a thing to a thing and to which alone the definition given above fits, and concerning which alone we treat here. The thing or estate to which servitude actively inheres is called the dominant estate; that to which it inheres passively, the servient.

Real or predial servitude is subdivided into urban and rustic, according as it turns to the utility of an urban or rustic estate. An urban estate is called every building erected for the sake of dwelling, whether in a city or in a village, and the garden annexed to it. A rustic estate is called a field, vineyard, meadow, stable of animals separated from the house.

There are four urban servitudes: 1° that a beam be admitted into your wall (Right of support); 2° that dripping be received upon your building (Right of drip); 3° that a wall not be raised higher (Right of light and air); 4° that a window not be opened in a wall.

Among rustic servitudes some are called named, because they have received a name in law; others unnamed, which lack a special name in law. - The named are path, cattle-drive, road, which three come under one name, Right of way, and aqueduct (Right of drain).

682. • The rights and obligations of servitudes generally depend upon the nature of the thing, upon law, and upon convention. But especially these are established: 1° He who actively has right to a servitude can carry out all works which are necessary for using and conserving it. 2° If the land for whose utility the servitude has been constituted is divided, the servitude is owed to each part of that land. 3° The owner of the servient estate can do nothing by which the use of the servitude can be diminished; and in turn he to whom the servitude is owed can do nothing by which the condition of the servient estate becomes heavier. Thus natural equity bears.

683. • Servitudes are constituted:

1. By mutual convention of the parties, which can be called conventional. But they are constituted in this way: a) By title, for example donation. But only the owner of the estate, not the usufructuary, whose consent is nevertheless required whenever it is of interest to him, can impose a servitude upon a thing. But if two have common dominion of a thing, neither can induce a servitude without the consent of the other. - Nothing prevents a mode or condition from being added to the contract, for example that I draw water from the well of my neighbor only at certain hours. - b) By partition of an estate to which they inhere, if it is a question of continuous and apparent servitudes. But this will be present if, for example, the owner of two neighboring estates has dug a channel in one of them so that he may lead water into the other, and sells this other one without mention being made in the contract of sale concerning the aqueduct; for the servitude of aqueduct will exist actively in the estate sold, passively in the one not sold.

2. By prescription, at least if there is discussion of continuous and apparent servitudes. Among the English twenty years suffice; this law has been received among us, although not in all States altogether. Therefore let each one consult the laws of his own State.

3. By law, and then they are called legal, of which kind among us is, for example, that a public way be left free alongside a canal.

Note. - 1° The right which is called Right of light and air cannot be acquired by prescription in the States of New York, Connecticut, Massachusetts. The practice in almost the other States agrees; for, as Kent observes: "By such a prescriptive claim the value of vacant lots with old and low buildings upon them, would be destroyed, if substantial buildings could not be erected on them, lest they might obstruct the lights of some building in an adjoining lot which has stood for twenty years."¹

2° "The right of free and pure air, as incident to the estate, is under the protection of the law. If, therefore, anything offensive be erected so near the house of another, as to corrupt or pollute the air (or probably even as to render the enjoyment of life there uncomfortable), it becomes a nuisance and an action lies for the injury."¹

3° Concerning path, cattle-drive, and road (Right of way), anyone among us, without another title, can obtain that right by authority of the court, insofar as there is need, so that he may come from his own land to a public road or city. But the damage which the owner of the estate through which passage is sought will be able to undergo will have to be compensated.

684. • Servitudes are extinguished: 1° By the appointed time having elapsed, if they exist for a time, or by the condition being fulfilled, if they were conditional. 2° By express or tacit renunciation of the proprietor. 3° By consolidation, by which the owner of the dominant estate becomes at the same time owner of the servient estate, or conversely. 4° If they no longer serve, for example if the spring from which you could draw water dries up. Yet if things are reduced to the former state, the servitudes revive, unless prescription stands in the way. 5° By prescription, or non-use through the time required for constituting servitudes by prescription (n. 683. 2).

The rights and burdens which exist between neighbors are akin to servitudes, and regard:

685. • I. Walls common to two houses (Party-walls). "If there be a party-wall between two houses, and a) the owner of one of the houses pulls it down in order to build a new one, and with it he takes down the party-wall belonging equally to him and his neighbor, and erects a new house and new wall, he is bound, on his part, to pull down the wall and reinstate it in a reasonable time, and with the least inconvenience; and if b) the necessity of the reparation of the old wall be established, the neighbor is bound to contribute ratably to the expense of the new wall. But he is not bound to contribute to the building of the new wall higher than the old one, nor with more costly materials. - If c) the owner of a house in a compact town finds it necessary to pull it down, and remove the foundations of his building, and he gives due notice of his intention to the owner of the adjoining house, he is not answerable for the injury which the owner of that house may sustain by the operation, provided he remove his own with reasonable and ordinary care. d) The common use of a wall separating adjoining lots belonging to different owners is prima facie evidence that the wall, and the land on which it stands, belong equally to the different owners, in equal, undivided moieties, as tenants in common."¹

686. • II. Hedges (division fences). "The legal obligation of the tenants of adjoining lands to make and maintain partition fences, where no prescription exists, and no agreement has been made, rests entirely on positive prescriptions by statute; and trespass will lie against the owner of cattle entering on the grounds of another, though there be no fence to obstruct them, unless he can protect himself by statute, or prescription, or agreement. The public have no rights, even in a public highway, but a right of way or passage; and if cattle be placed in the highway for the purpose of grazing, and escape into an adjoining close, the owner of the cattle, unless he owns the soil of that part of the highway on which he placed his cattle, cannot avail himself of the insufficiency of the fences in excuse of the trespass."²

687. • III. Waters which run near fields or through them (Running waters). "Every proprietor of lands on the banks of a river has naturally an equal right to the use of water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat), without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. (Aqua currit et debet currere ut currere solebat.) Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant or an uninterrupted enjoyment of twenty years, which is evidence of it."¹