18 THE ARGUMENT OP THE UNITED STATES. 



The servitudes were either positive or negative, and were said to 

 consist in patiendo, the allowance by the owner to another of some 

 beneficial use of his land, or, in non faciendo, the owner being obliged 

 to refrain from doing some act in connection with his land which he 

 would otherwise be at liberty to do. No servitude could consist in 

 faciendo; that is, that the owner be obliged to perform some affirma- 

 tive act or duty. Rights of the latter class were called obligations 

 and were in personam. Rights of the former class were true jura in 

 re aliena and were rights in rem. Servitudes, once created and until 

 extinguished, were inseparably connected with the land, passing with 

 the land (both the praediiim serviens and the praedium, dominans) 

 when conveyed to third persons and to their successors. 



Doctor Moyle" defined a servitude, embracing both real and per- 

 sonal servitudes in his definition, as " a real right, vested in or an- 

 nexed to a definite person or piece of land, over some object belonging 

 to another, and limiting the enjoyment of that object by that other in 

 a definite manner." 



Doctor Sohm traces the development of servitudes to the exigen- 

 cies of human intercourse, which can not be satisfied by ownership 

 alone, but require that it be possible for one person to lawfully 

 deal with things which belong to another ; and to the fact that mere 

 obligatory rights of that character would be incomplete because sub- 

 ject to be defeated, and not capable, while subsisting, of adequate 

 protection. He says: 6 



Thus the rights we acquire in respect of the property of others 

 by means of obligatory transactions are but incomplete, because their 

 effect is merely personal. The need we are here discussing is there- 

 fore not adequately met by transactions of this description. There 

 must be rights in respect of the property of others which enjoy a 

 more effectual protection. It was for the purpose of satisfying the 

 need in question that the real rights in re aliena were developed. 

 The rights they confer in respect of the things are stronger, because 

 they are absolute, i. e. they are rights which operate and are en- 

 forceable as against any third party. 



The servitude of the Roman Law is thus a real right, that is to 

 say, a jus in re aliena, as distinguished from a mere obligation. It ex- 

 isted between estate and estate for the benefit of the dominate estate ; 

 it was created for the benefit of that estate, and the right of enjoy- 

 ment passed with the land into whose hands soever it came, until the 



Moyle: Impcratoris Justiniani Institutiones, 2 ed., p. 216, note. 

 6 Sohm : Institutes of Roman Late, 2 ed., pp. 357-358, sec. 68. 



