YET a proprietor of the ground has not an actual property in the river as he has in his eftate, or in his cattle, to recover them when they go aftray. "Et quidem naturali jure communia funt hæc: aer, aqua profluens, et mare" And fo in England: "I cannot" (fays Blackstone) " bring an action to recover poffeffion of a pool, or other piece of water, by the name of water only, either by calculating its capacity, as for fo many cubical yards, or by fuperficial measure, for 20 acres of water; or by general defcription, as for a pond, a water course, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it 20 acres of land covered with water. For water is a moveable wandering thing, and muft of neceffity continue common by the law of nature; fo that I can only have a temporary, tranfient, ufufructuary, property therein. Wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land which the water covers is permanent, fixed, and immoveable: and, therefore, in this I may have a certain fubftantial property; of which the law will take notice, and not of the other."

THE right then of bringing back de recenti the river to its old channel,. feems to be founded lefs on legal than equitable confiderations. The one proprietor has fuftained a lofs, the other gained an advantage, unexpectedly. We readily fympathife with the former, who may have paid a higher price for the eftate, or have been in the habit of putting a higher value upon it on account of that advantage; to recover which his recent attempts appear excufable. But if he make no attempts de recenti, it is plain he does not feel" for himself.

11, Inflit. de rerum Divifione.

c. 2, p. 18.

m Black. B. ii, c. 2, p.

$ 3. WATER.

There is no room therefore for equity to interfere. It will not fupport his attempts, after a long interval, to recover it. But if the current has been changed by the other proprietor, and not by a natural cause, it may be brought back any time within 40 years.

CHAP. III.

L

Of Servitudes.

ERVITUDE is a burden affecting land, or other
fubject, whereby

SERV

from the full use of his property, or whereby another has
right to do fomething upon it. The general doctrine, and
ndeed with few exceptions, the particular fervitudes, we
have derived from the Roman jurifprudence. Hence the
milarity in this particular between the Scottish code and
thofe of the greatest part of continental Europe: whereas
our neighbours in England have not, in their law, any such
tle or nomen juris as fervitudes. With them fuch rights,
t is faid, "would fall to be confidered under the head of
asements or nuisances." For, (fays the learned profeffor of
ivil law in the university of Dublin, taking notice of the
defect), "fo the fervices of the Romans would be claffed
by us." And the rights of paflure, of fishing, of turf, of

a Lectures of Arthur Browne, efq. B. i, Lect. 11, p. 138.

§ 1.

IN GEN

ERAL.

What is it

Natural.

Legal.

Conventional.

Grant,

way, are treated of by judge Blackstone, along with things no less diffimilar than offices and dignities, under one common denomination of incorporeal hereditaments.

SERVITUDES are either natural, legal, or conventional. Nature itself may be faid to constitute a fervitude upon inferior tenements, whereby they must receive the water that falls from those that stand on higher ground. Legal servi tudes are established by ftatute or custom, from confider ations of public policy. Conventional fervitudes are conftituted either by grant, where the will of the party burdened is expressed in writing, or by prescription, where his confent is presumed from his acquiefcence in the burden for 40 years. by prefcrip- In fervitudes that may be acquired by prescription, 40 years exercise of the right is fufficient, without any title in writ ing, other than a charter and fafine of the lands, to which Negative. the fervitude is claimed to be due. Negative servitudes do not admit of any vifible ufe, but it has been found that they do affect fingular fucceffors. The law has provided no record for fervitudes; but purchafers muft inquire, or truft to the warrandice of their authors, if there be any undue concealment d.

tion.

SERVITUDES conftituted by grant are not effectual in a queftion with the fuperior of the tenement burdened with the fervitude, unless his confent be adhibited; for a fuperior cannot be hurt by his vaffal's deed. But where the fervitude is acquired by prefcription, the consent of the superior, whofe right afforded him a good title to interrupt, is implied.

ib B. ii, c. 3.

Incorporeal hereditaments, in the English law, may be defined to be fuch rights and eftates defcending, or capable of defcending, in fee-fimple

or fee-tail; of which the fence
merely ideal, and not the object o
our outward fenfes." (Woodefens
Viner. Lectures, Vol. ii, p. 57.)
d See p. 387-

fr.

IN GEN

A fervitude by grant, though followed only by a partial pos-
felion, muft be governed, as to its extent, by the tenor of ERAL.
the grant; but a fervitude by prefcription, is limited by the
measure or degree of the use had by him, who prefcribes
agreeably to the maxim tantum præfcriptum quantum poffeffum.
The two general claffes of fervitudes are, perfonal and real,
or predial. In the one cale prædium fervit perfona, in the
other fervit prædio.

II. AMONG the Romans there were three perfonal servitudes, ufufruct, ufe, and habitation. The firft only is known in our practice.

§ 2.

PERSONAL

SERVI
TUDES.

RENT.

things m

A LIFERENT or ufufruct" is a right to poffefs and enjoy -LIFEthe whole benefit of fubjects belonging to another in fee, during one's life, without prejudicing the fubftance, fee, or ftock." A liferent cannot, therefore, be constituted upon In what things which perish in the ufe; and though it may upon it be con! fubjects which gradually wear out by time, as household tuted? furniture, &c.. yet with us it is generally applied to heritable fubjects. He, whofe property is burdened, is ufually called Fiar. the Fiar.

tional,

LIFERENTS are either conventional or legal. Conventional Conveniferents are either by refervation, that is, referved by the proprietor in the fame writing by which he conveys the property to another, or by a feparate conftitution by the proprie- By cont tor in favour of fome other perfon. This latter is called a tion. fimple liferent, and is lefs favoured than the other. It requires fafine in order to affect fingular fucceffors: whereas the proprietor's former fafine fupports his liferent by refervation and a liferenter by reservation may enter heirs or fin- By refer gular fucceffors of vaffals, as if he were fiar, and is entitled ation. to the cafualties of fuperiority that fall during his life; his

4