a BOOK III. Pt. I. _Ch. 1. Cf. D. 41, 2, 44, 2, and 1. 46. 41, 3, 4, 22, and 1. 33, § 2. clandestine occupation, by obstructing his return,a Ulp.: Praetor ait: VNDE TV ILLVM VI DEIECISTI .] DE EO QVAEQVE ILLE TVNC IBI HABVIT TANTVMMODO INTRA ANNVM, POST ANNVM DE EO, QUOD AD EVM QVI VI DEIECIT PERVENERIT, IVDICIVM DABO.-Ad solam autem atrocem vim pertinet hoc interdictum, et ad eos tantum, qui de solo deiiciuntur, ut puta de fundo sive aedificio; ad alium autem non pertinet.-1. I pr., § 3, D. de vi 43, 16.' Id. Qui ad nundinas profectus neminem reliquerit et, dum ille a nundinis redit, aliquis occupaverit possessionem, videri eum clam possidere Labeo scribit (retinet ergo possessionem is qui ad nundinas abiit): verum si revertentem 1 The Praetor says: 'In the place whence thou hast violently ejected so and so, or thy servants have ejected him, [in that place reinstate him]; in respect of whatever he possessed there at that time, I will give an action, but only within the space of a year, after the expiration of a year in respect of what came to the hands of the violent dispossessor.'-But this interdict relates merely to violence coupled with outrage, and to those only who are ejected from the ground, as for example, from an estate or building; others it does not concern. oration Pro Long's notes on same. BOOK III. Pt. I. Ch. I. dominum non admiserit, vi magis intelligi possidere, non clam.-D. 41, 2, 6, 1.1 Id. Si clam dicatur possidere. . . de clandestina possessione competere interdictum (Iulianus) inquit.-D. 10, 3, 7, 5.2 Id. Ex interdicto unde vi etiam is, qui non. possidet restituere cogetur.-1. 1, § 42, de vi.3 Qui vi deiectus est, quidquid damni senserit ob hoc, quod deiectus est, recuperare debet: pristina enim causa restitui debet, quam habiturus erat, si non fuisset deiectus.-Quod autem ait praetor 'quaeque ibi habuit' sic accipimus, ut omnes res contineantur, non solum quae propriae ipsius fuerunt, verum etiam si quae apud eum depositae vel ei commodatae vel pigneratae vel locatae sunt.-Ibid. §§ 31, 33. Ex causa huius interdicti in heredem . . . in factum actio competit in id quod ad eos pervenit. -Ibid. § 48.* Id.: non solum resistere est permissum, ne 1 When a man has set out for the market without leaving any one behind, and whilst he returns from market, some one assumes possession, Labeo writes that such person is considered to have clandestine possession (he accordingly retains possession who went to market), but that if he refuse admittance to the owner upon his return, his possession is the rather to be taken as violent, not clandestine. ... 2 If it be alleged that he possesses secretly. . . . (Jul.) says the interdict concerning clandestine possession is available. 3 And he that does not possess is obliged to deliver up by virtue of the interdict unde vi.' He that has been dispossessed by violence ought to recover whatever loss he has sustained by reason of his having been ousted; for the former state of things must be restored in which he would have been if he had not been ejected.-The words of the Praetor, 'what he at that time held,' must be so understood that all things are included in them, not only property that was his own, but whatever was deposited with him, lent or pledged, . . . or let out to him. 5 ... Upon the ground of this interdict an action in factum lies against the heir, . . . for that which has come to their hands. deiiciatur, sed et si deiectus quis fuerit, eundem (2) The interdictum DE PRECARIO is given against a person who does not upon the request of the 'precario dans' restore to him the thing-movable or immovable-the possession of which has been allowed him 'precario,' that is, with power of revocation. Ulp. Precarium est, quod precibus petendi Ait praetor: QVOD PRECARIO AB ILLO HABES : Ulp. Meminisse autem nos oportet, eum qui precario habet etiam possidere.-1. 4, § I eod.* Id.: -receptum est rei suae precarium non esse. Quaesitum est, si quis rem suam pignori mihi dederit et precario rogaverit, an hoc interdictum locum habeat, mihi videtur verius precarium consistere in pignore.-1. 4, § 3, 1. 6, 1 A man is allowed not only to offer resistance to ejectment, but even if he have been ejected, to oust the disseisor, not after a respite, but there and then. 2 A precatory possession is that which is granted upon the request of the applicant, to be used so long as the grantor suffers. 3 The Praetor says: 'That which you hold by sufferance of so and so, or of which you have fraudulently managed to terminate your possession, that concerning which proceedings are taken, do you make over again to so and so.' But we must remember that he who holds anything upon sufferance also has possession. 5 —it has been supposed that no precarium obtains of one's own property.-The question has been raised, if a man has given me his property in pledge, and has applied for it as a precarium, whether this interdict is available. I rather think that a precarium can exist in a pledge. BOOK III. Pt. I. Ch. 1. a Cf. D. 41, 2, 3, § 121, infra. Cf. Austin, lect. 52. Id.: Illud adnotatur, quod culpam non praestat is qui precario rogavit, sed solum dolum ; . . . culpam tamen dolo proximam contineri quis merito dixerit."-1. 8, § 3 eod.' TIT. III.-IURA IN RE ALIENA. § 92. GENERAL VIEW. The essence of the 'fura in re sc. aliena' (real rights in a thing owned by another) consists in this, that the non-owner of a thing possesses an independent privilege, contained in the ownership, immediately to operate upon such thing in a definite direction, and to treat it as subservient to a definite proprietary interest of his own. The thing itself is thereby partially subjected to his control, and a limit is imposed upon the control of the owner, whether on its positive or negative side. All iura in re aliena are called forth by requirements of human society and intercourse; in particular, they contemplate the full economic exercise and realisation of ownership, in the interest of the particular owner, as well as of the community, which would be impeded if the Law should only recognise unlimited ownership. The several kinds of rights in things owned by others are 1. Servitudes, as the oldest kind of what by the Romans are simply called iure in re. 2. Superficies. 3. Emphyteusis. 4. Right of Pledge (pignus, hypotheca). 1 It is remarked that he who has applied for it as a precarium commits no offence, but only sharp practice; . . . but that an offence closely related to sharp practice is contained in it might be justly maintained. 93. NATURE OF SERVITUDES," AND THE RULES OF LAW IN GENERAL APPLICABLE TO THEM. by Easements prendre. See, 9s. 404, 899. ; pp. 163, 8qq. lectt. 48-50. SERVITUDES are real rights of user in property owned in English Law by another inseparable from the subject entitled, i.e., and Profits a transferable to no other subject, by which such thing generally, becomes subservient to a person who is not its owner Markby, (res serviens; servitus-libertas rei). The servitude and Holland, can either belong to an individual person, or to a cf. Austin, particular estate, that is, to the owner of it as suchPersonal and Praedial servitudes. According to their fundamental principle, Praedial servitudes rest upon the reciprocal operation, called forth by vicinity of estates (urban or rural) and the necessity of an adjustment of their mutually permanent requirements; whilst Personal servitudes-which, moreover, for the most part are grounded upon an act of pure liberality— have as their object the vesting in a definite person that use or enjoyment of a thing which is perpetual and independent (i.e., of the person owner for the time being), and so resting on a more assured basis. : Ulp. ius suum deminuit, alterius auxit, hoc Marc. Servitutes aut personarum sunt, ut Diverse as are personal and praedial servitudes, according to their intrinsic principle and object, so also is their special legal form. But some general legal principles exist for both kinds. (1) All servitudes relate either to the positive or to the negative element of ownership: in the -he abridged his own right, enlarged that of another man, that is, burdened his house with a servitude. Servitudes either belong to persons, as use and enjoyment, or to things, as the servitudes of rural and urban estates. |