The
case put seems to be an illustration of the latter. The language
of the law of easements was built up out of similes drawn from
persons at a time when the noxoe deditio was still familiar; and
then, as often happens, language reacted upon thought, so that
conclusions were drawn as to the rights themselves from the terms
in which they happened to be expressed. When one estate was said
to be enslaved to another, or a right of way was said to be a
quality or [383] incident of a neighboring piece of land, men's
minds were not alert to see that these phrases were only so many
personifying metaphors, which explained nothing unless the figure
of speech was true.
Rogron deduced the negative nature of servitudes from the rule
that the land owes the services, not the person,--Proedium non
persona servit. For, said Rogron, the land alone being bound, it
can only be bound passively. Austin called this an "absurd
remark." /1/ But the jurists from whom we have inherited our law
of easements were contented with no better reasoning. Papinian
himself wrote that servitudes cannot be partially extinguished,
because they are due from lands, not persons. /2/ Celsus thus
decides the case which I took for my illustration: Even if
possession of a dominant estate is acquired by forcibly ejecting
the owner, the way will be retained; since the estate is
possessed in such quality and condition as it is when taken.
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