Servitude is a burden affecting land or other heritable subjects, by which the proprietor is either restrained from the full use of his property or is obliged to suffer another to do certain acts upon it, which, were it not for that burden, would be competent solely to the owner (Erskine, Inst. II. ix. 1).
The name is borrowed from the Roman law, and most of the rules regulating this class of rights in the countries of western Europe are derived more or less directly from the same source. In the Roman law, as now, servitudes are either predial or personal. Predial or real servitudes are those constituted over one subject or tenement in favour of the proprietor of another subject or tenement. It is only as owner of the property that a person enjoys the predial servitudes accessory thereto; and when the property is transferred the servitudes pass along with it. The tenement in respect of which the servitude is enjoyed is called the dominant tenement, and its owner the dominant owner; while the tenement in or over which the right is exercised is called the servient tenement. There is thus always a right on the one side and a corresponding obligation on the other. The term servitude in Scotland is used equally to express the right and the obligation; but the term Easement (q.v.), which is the nearest English equivalent, more generally expresses only the right. Personal servitudes, on the other hand, are those constituted over any subject in favour of a person in his own right, and not as owner of another subject. In Scotland the only rights that have been classed under this head are the different kinds of usufruct or liferent. Real or predial servitudes, which are really the only proper servitudes, were divided in Roman law into urban and rural—the former including all servitudes connected with buildings wherever situated, the latter all those relating to land uncovered by buildings, whether situated in town or country. Rural servitudes comprise rights of road or way, of driving cattle to water, of pasturage, of fuel, feal and divot, as well as several minor rights of bleaching or of taking away sea-ware, stone, slate, sand, or gravel from the ground of the servient subject. Urban servitudes comprehend such rights as eavesdrop or stillicide, support, and light, air or prospect. Both Scots and English law have taken from the Roman law another division, very useful in practice, of servitudes or easements into two principal classes, which are termed positive and negative. By a positive servitude the dominant owner is entitled to perform some act, affecting the servient tenement, which, but for the servitude, the servient owner could have prohibited; thus, all the rural servitudes above mentioned are positive. By a negative servitude the owner of the servient tenement is prohibited from the exercise of some natural right of property—as where he is prevented from building on his own land to the obstruction of light.
Positive servitudes are constituted by grant, recorded or unrecorded, where the consent of the party burdened is expressed in writing, holograph or tested; or by prescription—i.e. by acquiescence in the use of the servitude for forty years. A servitude acquired by prescription is, however, limited by the measure or degree of the use had by him who prescribes. Positive servitudes may also be constituted by implied grant; e.g. in the case of a severance of one property into two distinct properties, such servitudes as are necessary for the convenient and comfortable enjoyment of the respective properties are held to be granted by implication. Negative servitudes, on the other hand, can be constituted only by a formal written grant.
In all servitudes the benefit is confined entirely to the dominant tenement; but the owner of such tenement must exercise his rights civiliter, and in the way least burdensome to the servient tenement. The servient proprietor must do nothing to diminish the use or convenience of the servitude; and the dominant proprietor is entitled to access for doing, at his own cost, any work which may be necessary for the proper use or preservation of the servitude. Servitudes are extinguished by express release or the renunciation of the right in a holograph or tested writing; by implied release, as the extinction of either the dominant or servient tenement; by the two tenements being merged into the property of one person; or by nonuser, prolonged for the prescriptive period, so as to imply abandonment. See EASEMENT.