Servitude

From Roman law and now a feature of civil law; equivalent to ther common law's easement: access rights over the property of another.

An easement is type of servitude as is a profit a prendre.

This is one of the infrequent concepts of common law that is equally known to civil law (from where it originated). Indeed, the Roman law recognized servitudes, which it called servitus or  servitutes, especially to allow for shortcuts over the land of others for the purpose of gathering water.

In Justinian's Institutes, according to Schultz, a servitus was:

"... a burden imposed upon a corporeal thing by a private legal act concerning the use of that thing.

"As a rule servitus implies a right to use a thing belonging to another person.

"Sometimes, however, a servitude only limits the use of the thing by its owner.

"Servitudes fall into two classes: personal servitudes and praedial or real servitudes.

"The personal servitude is vested in an individual person. The object charged with such a servitude may be moveable or immovable.

"The real or praedial servitude must always be attached to the ownership of a thing, so that when this thing changes its owner, the new owner automatically acquires the right contained in the servitude. Servitudes of this kind can only be created in favor of an owner of land...."

In the civil law jurisdiction of Louisiana, the Civil Code defines servitudes as follows, from §533 and §534:

"There are two kinds of servitudes: personal servitudes and predial servitudes.

"A personal servitude is a charge on a thing for the benefit of a person.  There are three sorts of personal servitudes: usufruct, habitation, and rights of use."

From the 2009 official English version of France's Civil Code, at §637 and §639:

"A servitude is a charge imposed on an immovable for the use and utility of another immovable belonging to another owner....

"It results either from the natural location of the premises, or from obligations imposed by statute, or from agreements between owners."

Section 1177 of Quebec's Civil Code, circa 2009, and a robust specimen of legalese, is as follows:

"A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner.

"Under the charge the owner of the servient land is required to tolerate certain acts of use by the owner of the dominant land or himself abstain from exercising certain rights inherent in ownership.

"A servitude extends to all that is necessary for its exercise."

REFERENCES:

• Civil Code of Québec, Statutes of Québec 1991, Chapter 65
• Duhaime, Lloyd, Civil Law Dictionary
• Duhaime, Lloyd, Legal Definition of Easement
• Duhaime, Lloyd, Legal Definition of Usufruct
• Schultz, F., Classical Roman Law (Oxford: Clarendon Press, 1951), page 381.
• Walton, F., Historical Introduction to the Roman Law (London: W. Green & Son Ltd., 1916), page 140