[CELSUS libro quinto digestorum. ] §8.6.6.prnam satis est fundi nomine itum esse.
[CELSUS, from the fifth book of the Digests.] For it is sufficient that there has been passage in the name of the estate.
§8.6.6.1Si ego uia, quae nobis per uicini fundum debebatur, usus fuero, tu autem constituto tempore cessaueris, an ius tuum amiseris? et e contrario, si uicinus, cui uia per nostrum fundum debebatur, per meam partem ierit egerit, tuam partem ingressus non fuerit, an partem tuam liberauerit? Celsus respondit: si diuisus est fundus inter socios regionibus, quod ad seruitutem attinet, quae ei fundo debebatur, perinde est, atque si ab initio duobus fundis debita sit: et sibi quisque dominorum usurpat seruitutem, sibi non utendo deperdit nec amplius in ea re causae eorum fundorum miscentur: nec fit ulla iniuria ei cuius fundus seruit, immo si quo melior, quoniam alter dominorum utendo sibi, non toti fundo proficit.
If I have used the way which was owed to us through our neighbor's estate, but you have ceased to use it for the established time, have you lost your right? And conversely, if the neighbor, to whom a way was owed through our estate, has walked and driven through my part, but has not entered your part, has he freed your part? Celsus replied: If an estate has been divided between partners by regions, as far as concerns the servitude which was owed to that estate, it is just as if it had been owed to two estates from the beginning; and each of the owners maintains the servitude for himself, and loses it for himself by non-use, nor are the interests of those estates mixed further in that matter. Nor is any injury done to him whose estate is subject to the servitude; indeed, his position is, if anything, better, since one of the owners, by using it, benefits himself and not the whole estate.
§8.6.6.1aSed si is fundus qui seruierit ita diuisus est, plusculum dubitationis ea res habet: nam si certus ac finitus uiae locus est, tunc, si per longitudinem eius fundus diuisus est, eadem omnia seruanda erunt, quae si initio constituendae eius seruitutis similiter hic duo fundi fuissent: si uero per latitudinem uiae fundus diuisus est (nec multum refert, aequaliter id factum est an inaequaliter), tunc manet idem ius seruitutis, quod fundo indiuiso fuerat, nec aut usu detineri aut non utendo deperire nisi tota uia poterit: nec si forte inciderit, ut semita, quae per alterum dumtaxat fundum erit, uteretur, idcirco alter fundus liberabitur, quoniam unum atque eo modo indiuiduum uiae ius est.
But if the estate which was subject to the servitude has been divided in this way, the matter involves a little more doubt. For if the location of the way is fixed and defined, then, if the estate has been divided along its length, all the same rules must be observed as if there had similarly been two estates here at the beginning when the servitude was established. But if the estate has been divided along the width of the way (and it does not matter much whether this was done equally or unequally), then the same right of servitude remains as had existed when the estate was undivided, and it can neither be retained by use nor lost by non-use except as a whole way. Nor if it should happen by chance that a path, which is only through one of the estates, is used, will the other estate be freed for that reason, because the right of way is single and in that way indivisible.
§8.6.6.1bPossunt tamen alterutrum fundum liberare, si modo hoc specialiter conuenit: certe si is cui seruitus debebatur alterum ex ea diuisione fundum redemerit, num ideo minus ea re fundi alterius seruitus permanebit? nec uideo, quid absurde consecuturum sit eam sententiam fundo altero manente seruo: si modo et ab initio potuit angustior constitui uia quam lege finita est et adhuc id loci superest in eo fundo, cui remissa seruitus non est, ut sufficiat uiae: quod si minus loci superest quam uiae sufficiat, uterque fundus liberabitur, alter propter redemptionem, alter, quia per eum locum qui superest uia constitui non potest.
They can, however, free one or the other estate, provided that this has been specially agreed. Certainly, if the person to whom the servitude was owed has bought one of the estates from that division, will the servitude of the other estate remain any less because of that fact? Nor do I see what absurd consequence would follow from that opinion, with the other estate remaining subject to the servitude, provided that even from the beginning a narrower way could have been established than is defined by law, and that enough space still remains in that estate, from which the servitude has not been released, to suffice for a way. But if less space remains than suffices for a way, both estates will be freed, one on account of the purchase, the other because a way cannot be established through the remaining space.
§8.6.6.1cCeterum si ita constitutum est ius uiae, ut per quamlibet partem fundi ire agere liceat, idque uel subinde mutare nihil prohibet atque ita diuisus est fundus: si per quamlibet eius partem aeque ire atque agi possit, tunc perinde obseruabimus atque si ab initio duobus fundis duae seruitutes iniunctae fuissent, ut altera retineri, altera non utendo possit deperire.
Moreover, if the right of way was established in such a way that one may walk and drive through any part of the estate, and nothing prevents changing it from time to time, and the estate has been divided in this manner: if one can walk and drive equally through any part of it, then we shall observe just as if from the beginning two servitudes had been imposed on two estates, so that one can be retained and the other can be lost by non-use.
§8.6.6.1dNec me fallit alieno facto ius alterius immutatu iri, quoniam ante satius fuerat per alteram partem ire agere, ut idem ius ei in altera parte fundi retineretur: contra illud commodum accessisse ei cui uia debebatur, quod per duas pariter uias ire agere possit bisque octonos in porrectum et senos denos in anfractum.
Nor am I unaware that the right of one person is going to be changed by the act of another, since previously it had been better to walk and drive through one part, so that the same right would be retained for him in the other part of the estate. On the other hand, that advantage has accrued to the one to whom the way was owed, that he can walk and drive through two ways equally, and have sixteen feet in a straight line and thirty-two in a turn.