1696 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



by the President as to the historic origin of the term if I find I am 

 able to do it in the time at my disposal. The praedial servitude, of 

 course, goes back to the Roman law and there it was admittedly a 

 right over land over one praedium or piece of land in respect of 

 another praedium or piece of land. These praedial servitudes are 

 enumerated exhaustively by different writers on Roman law and I 

 expected to hear Mr. Turner point to some passage that I have not 

 been able to discover in which a jus piscandi a right of fishing is 

 enumerated among the possible servitudes. I cannot find it so 

 enumerated ; so that, to take the United States argument at its very 

 inception, in the Roman law, the liberty of fishing upon another man's 

 land was never treated as a praedial servitude at all. The character 

 of the rights was well known. You have rights of way, usufructus, 

 usus, habitatio, and operce servorum. All these rights were strictly 

 in relation to the enjoyment of a piece of land. 



DR.-DRAGO: In Roman law there is what is known as a personal 

 servitude ? 



SIR W. ROBSON : Yes. 



DR. DRAGO : That is a servitude created for the benefit of a person 

 and relating to real estate usufructus or habitatio. 



SIR W. ROBSON: You have the right of usufructus, habitatio, and 

 various other rights of the kind which constituted personal servitudes. 

 You have the usufruct of land and under it the usufructuary enjoys 

 the fruits of the land. It is something like what we call a lease in 

 English law. The thing was committed to the usufructory and he 

 was bound to hand it back as he had received it, but in the meantime 

 he had all its fruits and advantages. 



DR. DRAGO : It was for the life of the person. 



1026 SIR W. ROBSON : For the life of the person. In such a case 



as that the right of fishing would go with the usufruct, the 



praedium. The usufructuary would enjoy the right of fishing. That, 



of course, is not a question of servitude, except of personal servitude. 



I think the nearest parallel that could be found in Roman law 

 would be probably to treat the right of fishing as a usus a usuary 

 rather than a usufructuary right; but in no case is it a praedial servi- 

 tude; because a praedial servitude exists solely and entirely for the 

 benefit of the adjacent property, and the property alone; and it was 

 very necessary to confine the scope of a praedial servitude to the needs 

 of the adjoining praedium, because otherwise you had no limits to it 

 at all. The measure of the servitude was to be found in the needs of 

 the dominant tenement. 



THE PRESIDENT: But if it be considered as a usus. there would also 

 be some measure, of course. Where would be the measure in the ca.se 

 of its being considered as a usus? 



