How comes it, then, that one who has neither title nor possession is so far favored? The answer is to be found, not in reasoning, but in a failure to reason.In the first Lecture of this course the thought with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as where an axe was made the object of criminal process; and also in the metaphysical stage, where the language of personification alone survived, but survived to cause confusion of reasoning.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 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." 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. 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. The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. So, in another passage, Celsus asks, What else are the rights attaching to land but qualities of that land? So Justinian's Institutes speak of servitudes which inhere in buildings. So Paulus speaks of such rights as being accessory to bodies."And thus," adds Godefroi, "rights may belong to inanimate things." It easily followed from all this that a sale of the dominant estate carried existing easements, not because the buyer succeeded to the place of the seller, but because land is bound to land. All these figures import that land is capable of having rights, as Austin recognizes.Indeed, he even says that the land "is erected into a legal or fictitious person, and is styled 'praedium dominans.'" But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far.
The dominant estate was never "erected into a legal person,"either by conscious fiction or as a result of primitive beliefs.
It could not sue or be sued, like a ship in the admiralty.It is not supposed that its possessor could maintain an action for an interference with an easement before his time, as an heir could for an injury to property of the hereditas jacens.If land had even been systematically treated as capable of acquiring rights, the time of a disseisee might have been added to that Of the wrongful occupant, on the ground that the land, and not this or that individual, was gaining the easement, and that long association between the enjoyment of the privilege and the land was sufficient, which has never been the law.
All that can be said is, that the metaphors and similes employed naturally led to the rule which has prevailed, and that, as this rule was just as good as any other, or at least was unobjectionable, it was drawn from the figures of speech without attracting attention, and before any one had seen that they were only figures, which proved nothing and justified no conclusion.
As easements were said to belong to the dominant estate, it followed that whoever possessed the land had a right of the same degree over what was incidental to it.If the true meaning had been that a way or other easement admits of possession, and is taken possession of with the land to which it runs, and that its enjoyment is protected on the same grounds as possession in other cases, the thought could have been understood.But that was not the meaning of the Roman law, and, as has been shown, it is not the doctrine of ours.We must take it that easements have become an incident of land by an unconscious and unreasoned assumption that a piece of land can have rights.It need not be said that this is absurd, although the rules of law which are based upon it are not so.
Absurd or not, the similes as well as the principles of the Roman law reappear in Bracton.He says, "The servitude by which land is subjected to land, is made on the likeness of that by which man is made the slave of man." For rights belong to a free tenement, as well as tangible things....They may be called rights or liberties with regard to the tenements to which they are owed, but servitudes with regard to the tenements by which they are owed....One estate is free, the other subjected to slavery." " may be called an arrangement by which house is subjected to house, farm to farm, holding to holding." No passage has met my eye in which Bracton expressly decides that an easement goes with the dominant estate upon a disseisin, but what he says leaves little doubt that he followed the Roman law in this as in other things.
