InRoman law, thepraedial servitude orproperty easement (inLatin:iura praedorium orservitutes praediorum), or simplyservitude (servitutes), consists of areal right the owners of neighboringlands can establish voluntarily, in order that a property calledservient lends to other calleddominant the permanent advantage of a limited use. As use relations, servitudes are fundamentally solidary and indivisible rights, the latter being what causes the servitude to remain intact despite the fact that any property involved may be divided. Furthermore, there is no possibility of acquisition or partial extinction.^[1][2]

As a type of concurrence of rights, the servitude produces a limitation of theownership of theservient estate. It is the property that suffers theencumbrance, but the owner is at no time personally obliged; this is why the servitude cannot consist in a doing, but rather in a limitation. Although on the part of the servient estate the service may involve a tolerance, from thedominant party's point of view it may consist of a lawful interference (immissio) on the servient estate (affirmative servitude), or of a right to prevent (ius prohibendi) certain acts on the servient estate (negative servitude). When the service provided can be recognized by a sign, such as a window or a canal, the easement is called apparent, while in the opposite case, that is, when there is no such sign, the easement is called not apparent.^[3]

In principle, intrusions into another'sreal estate are not legally permitted, so the owner has the possibility to prevent them (ius prohibendi), and in case of persistence, he can resort tointerdictauti possidetis andquod vi aut clam or to the corresponding negatory actions. For his part, the owner may do whatever he sees fit on his property as long as his actions do not entail an interference with the neighboring estate. Only by means of the constitution of an servitude can an intromission be made lawful, or one of the acts of the owner on the property become unlawful.^[4]

Property servitudes are typified on the basis of their specific content. Although there is no reason to believe thatjurisprudence could not recognize more types of easements than those stipulated in its casuistic works, there is an established series of these types, which thescholastic authors grouped intorustic andurban depending on whether they referred to being able to pass or bring water through the neighboring property, among other advantages of a markedly agricultural nature, or whether they dealt with theamenities of a building that is imposed on the neighbor. It was mainly the earlyclassical Roman jurisprudence that dealt with thecasuistry of easements, a position that led to a series of criticisms from non-lawyers, such asCicero, who considered such questions as ridiculous.^[5]

The most importantrustic property servitudes (servitutes praediorum rusticorum) are those of passage on foot orhorseback (iter), the passage oflivestock (actus) or way forcarts (via). Also relevant are those ofsurface water conduction (aquae ductus),water extraction (aquae haustus), which according to jurisprudential interpretation entails access to thewell orspring (iter ad hauriendum) and the right to pour water on neighboring property (aquae immissio).^[6]

The most important urban property servitudes (servitutes praediorum urbanorum) are those oflight andviews, either in its variant of being able to open windows (ius luminum), prevent the neighbor to raise an existing building (ius altius non tollendi) or the right of views (ius ne prospectui vel luminibus officiatur). Others are thesanitary sewer easements (also called "of waters".Sewer), support of abeam (ius tigni immittendi) or burden of an overconstruction (ius oneris ferendi). There are also those of overhangs, to let rainwater fall from the roof (ius stillicidii) or through a gutter (ius fluminis, both are exercised by theactio aquae pluviae arcendae), and that of projectingbalconies or terraces over a neighboring property (ius proiiciendi protegendive).^[6]

The owner of the dominant estate had avindicatio servitutis (this may also appear asactio confessoria inpost-classical writings) that could be exercised against theowner orpossessor of the servient estate, or against any other person who did not allow the exercise of the servitude. Thevindicatio servitutis, which was characterized by its similarity to thevindicatory action, contained an arbitrary clause that madeacquittal easier in exchange for a bond not to continue to disturb (de non amplius turbando). This same caution was demanded by thepraetor from the person who did not defend himself against thevindicatio servitutis with the intention of not preventing the use of the servitude until the denial action was exercised and the servitude was declared non-existent. At the same time, from the person who did not accept the denial action, a bond was required not to exercise the denied servitude as long as a favorable judgment was not issued in his favor. In other situations, the use of servitudes could be defended by means of special injunctions. However, the interdictuti possidetis was not applicable, since the servitude consisted in a use and not in a possession.^[7][8]

The owner of the dominant property had a restitutory injunction against works started on the neighboring property that infringed the integrity of a servitude right, the objective being the destruction of what had been done, as long as the work had not been completed. In order to exercise thisinjunction, theplaintiff had to have previously made a complaint to the builder of the new work (novi operis nuntiatio). When the complaint was accepted by themagistrate, the latter required the defendant to provide a bond ofindemnity in the event that he was defeated in thevindicatio servitutis to be exercised by the plaintiff. If this bond was not granted, the interdict would proceed, and the magistrate would then defend the plaintiff who prevented the work from proceeding against the interdictuti possidetis of the builder. However, if the surety was given, the magistrate dispensed with the denunciation (nuntiatio remissa) and the result of the real action was awaited.^[9]

The most frequent way of constituting an easement was thein iure cessio in avindicatio servitutis initiated by the owner of the future dominant estate against the owner of the future servient estate; it was also common for it to be constituted by means of a vindicatory legacy or judicial adjudication. Regarding the ancient servitudes ofpassage andwater conduction on Italian estates, it is worth mentioning that these could be acquired bymancipation, as they were consideredres mancipi as well as the estates between which they were established. The servitudes could beusucapted until the so-calledScribonia law appeared (issued in the1st century B.C., it suppressed the possibility of usucapting servitudes in order to prevent them from being consolidated due to negligence or absence of the owners). However, usucaption was maintained in those cases of recovery of an extinguished servitude due to disuse. Meanwhile, in the provincial estates, servitudes were often constituted through written agreements accompanied by astipulatio, generally penal (pactiones et stipulationes).^{[10][11][12][13]}

The constitution of servitudes could take place in a direct or indirect way. That is to say, it was also permissible the constitution of the same by means of the reservation of the same in an act ofalienation of the property, either in an act of dispositioninter vivos ormortis causa.^[14][8]

There were several cases that led to the extinction of established servitudes: first, when the two properties (servient and dominant) were completely owned by the same owner, the servitude disappeared by virtue of a principle that stated that there could not be an servitude on one's own property. In short, the extinction of the easement was produced byconfusion.^[15]

Secondly, the servitude was extinguished by a renunciation of the holder, by means of the use of anin iure cessio in a negatory action. It was also extinguished by disuse or lack of prohibition with respect to acts contrary to a negative action, for a period of two years (withJustinian I the term was increased to ten years, as was thelongi temporis praescriptio). Finally, the servitude was extinguished by loss of the utility of the service as a result of a change in the property, definitiveflooding, and in general, any other phenomenon leading to the uselessness of the same (in some cases, as happened when the course of a river withdrew from a property it had been occupying permanently or when the confusion of the property disappeared, the servitudes could be reestablished).^[16]

• Condominium
• Usufruct
• Traditio (Law)
• Easement

• García Garrido, Manuel Jesús (1986).Diccionario de jurisprudencia romana (in Spanish). Dykinson.ISBN 84-86133-16-5.
• D´Ors, Álvaro (2004).Derecho privado romano (in Spanish). EUNSA.ISBN 978-84-313-2233-5.
• Betancourt, Fernando (2007).Derecho romano clásico (in Spanish). Universidad de Sevilla.ISBN 978-84-472-1099-2.