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Justinian I · The Digest of Justinian §8.6.18.pr-8.6.18.2

Servitude Extinction by Altered Use and Successor Non-Use

Passage 1504 of 9271 · Latin

Summary

Paulus explains the loss of a servitude through using an unauthorized water source, the imputation of a predecessor's non-use period to their successor, and why a right to insert beams is not lost when the neighbor did not build.

[PAULUS libro quinto decimo ad Sabinum. ] §8.6.18.prSi quis alia aqua usus fuerit, quam de qua in seruitute imponenda actum est, seruitus amittitur.
[PAULUS, from the fifteenth book on Sabinus.] If anyone has used water other than that which was agreed upon in the establishment of the servitude, the servitude is lost.
§8.6.18.1Tempus, quo non est usus praecedens fundi dominus, cui seruitus debetur, imputatur ei, qui in eius loco successit.
The period during which the preceding owner of the land to which the servitude is owed did not use it is imputed to the person who succeeded to his place.
§8.6.18.2Si, cum ius haberes immittendi, uicinus statuto tempore aedificatum non habuerit ideque nec tu immittere poteris, non ideo magis seruitutem amittes, quia non potest uideri usucepisse uicinus tuus libertatem aedium suarum, qui ius tuum non interpellauit.
If, when you had the right of inserting beams, your neighbor did not have a building erected for the prescribed period, and therefore you could not insert them either, you will not on that account lose the servitude, because your neighbor, who did not obstruct your right, cannot be deemed to have acquired the freedom of his building by usucapion.

Notes

  1. §8.6.18.prquam de qua in seruitute imponenda actum est — This construction depends on 'alia... quam...' (other than...). After 'quam', the relative clause 'de qua... actum est' (about which agreement was made) follows. The antecedent 'aqua' is omitted and must be understood as the antecedent of 'qua'. 'in seruitute imponenda' is an ablative phrase where the gerundive 'imponenda' agrees with the noun 'seruitute' ('in imposing the servitude'). 'actum est' is an impersonal passive meaning 'it was agreed'.
  2. §8.6.18.2aedificatum non habuerit — This construction combines the perfect participle 'aedificatum' (neuter singular accusative of 'aedifico') as the object of 'habere'. Rather than the simple perfect 'aedificauerit' (had built), this expression emphasizes the continuous state of 'not having a building erected', serving as a precursor to the auxiliary perfect tense in Romance languages.
  3. §8.6.18.2libertatem aedium suarum — The 'freedom of his building' (libertas aedium) in Roman law refers to the liberation of a property from the burden of a servitude (usucapio libertatis). If a neighbor's property remains free from the exercise of a servitude for a prescribed period, that property is 'freed' from the servitude and acquires its original free state by usucapion. However, here, since there was no obstruction (interpellatio) of the right, such usucapion is deemed not to have occurred.

Cite this passage

Justinian I, The Digest of Justinian §8.6.18.pr-8.6.18.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.6.18.pr-8.6.18.2

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