Servitude (Roman law)

In Roman law, the praedial servitude or property easement (in Latin: iura praedorium or servitutes praediorum), or simply servitude (servitutes), consists of a real right the owners of neighboring lands can establish voluntarily, in order that a property called servient lends to other called dominant the permanent advantage of a limited use.

[3] In principle, intrusions into another's real estate are not legally permitted, so the owner has the possibility to prevent them (ius prohibendi), and in case of persistence, he can resort to interdicta uti possidetis and quod vi aut clam or to the corresponding negatory actions.

Although there is no reason to believe that jurisprudence could not recognize more types of easements than those stipulated in its casuistic works, there is an established series of these types, which the scholastic authors grouped into rustic and urban 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 the amenities of a building that is imposed on the neighbor.

It was mainly the early classical Roman jurisprudence that dealt with the casuistry of easements, a position that led to a series of criticisms from non-lawyers, such as Cicero, who considered such questions as ridiculous.

The vindicatio servitutis, which was characterized by its similarity to the vindicatory action, contained an arbitrary clause that made acquittal easier in exchange for a bond not to continue to disturb (de non amplius turbando).

In order to exercise this injunction, the plaintiff had to have previously made a complaint to the builder of the new work (novi operis nuntiatio).

When the complaint was accepted by the magistrate, the latter required the defendant to provide a bond of indemnity in the event that he was defeated in the vindicatio servitutis to be exercised by the plaintiff.

Meanwhile, in the provincial estates, servitudes were often constituted through written agreements accompanied by a stipulatio, generally penal (pactiones et stipulationes).