Bracton: Thorne Edition: English. Volume 3, Page 163

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Volume 3, Page 163

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[001] because no one may have a servitude over his own land.¹ No one can constitute servitudes
[002] of this kind except him who has an estate and a tenement.² ³Of estates, some
[003] are free, others subject to a servitude. That may be called free which is in no way
[004] bound or burdened in favour of the lands of neighbours. If it is bound, then what
[005] was formerly free is said to be subject to a servitude, whether it is bound to another's
[006] estate or tenement by the agreement and constitution of the lords, in return for a
[007] service certain, or because of vicinage.⁴<[Certain], because if it is uncertain, as where
[008] one [sometimes] gives more, sometimes less, it will be the purchase of herbage rather
[009] than pasture,⁵ and personal rather than praedial.⁶ And so [if he has it at uncertain]
[010] times,⁷ as [the other] wishes. It may also be called herbage if it is granted to one who
[011] has no free tenement to which pasture can be appurtenant.>⁸ That may be called a
[012] constitution by which house is made subject to house, land to land, estate to estate,⁹
[013] or tenement to tenement, and not only to the person alone or the tenement alone but
[014] to both together, the tenement and the person. As servitudes are appurtenant to an
[015] estate by force of a constitution or imposition, by the will of the lords, so they may
[016] be appurtenant without a constitution by long use, continuous and peaceful, uninterrupted
[017] by any hindrance of a contrary nature, by virtue of acquiescence, which,
[018] when the parties are present, is the equivalent of consent.¹⁰ Hence though a servitude
[019] is not expressly imposed or constituted by the consent of the lords, if one uses for
[020] some time, peacefully and without any interruption, neither by force nor stealth nor
[021] at will,¹¹ which is the same as of grace, he cannot, to say the least, be disseised without
[022] judgment.¹²<[Force], because if force is used, right will never become the disseisor's
[023] by the passage of time, unless through the negligence of him who suffers the violence.
[024] Through long, peaceful and continuous possession, the parties being present; it is
[025] otherwise when they are not. [Without interruption, because] such seisin may be
[026] interrupted in many ways. If seisin is clandestine, that is, [if use was made of the
[027] thing] in the absence of the lords, or without their knowledge, a use which, had they
[028] known of it they would have forbidden, it ought not to be valid, though made with
[029] the consent or the dissimulation of the bailiffs.¹³ If it is at will and of grace, which
[030] may be revoked in season and out, no right is acquired through the passage of time,
[031] nor is it in the case next noted. That which is of grace may be revoked at the will of
[032] the grantor at any time, which is not so in the case of a loan.> Just¹⁴ as a servitude is
[033] constituted in another's land, it may also be constituted in one's own, that the
[034] owner may not pasture his cattle in his own land.¹⁵ [Just as a servitude] is sometimes
[035] constituted by man, sometimes by acquiescence and use, so it sometimes is imposed
[036] by law, neither by man nor by use,¹⁶ that is, that no one do anything on his own land
[037] by which damage or nuisance accrues to a neighbour, [A nuisance may

Notes

1. D. 7.6.5.pr.: supra 130, infra 195

2. Inst. 2.3.3.: infra 195

3. New sentence; om: ‘quia’

4. Supra i, 400

5. Infra 167, 186

6. Infra 167, 182, 186

7. Infra 164

8. Infra 167, 171, 195

9. Inst. 2.3.3; supra ii, 49

10. Supra ii, 158, infra 166, 185

11. Supra ii, 157, 158, iii, 13

12. Supra i, 400

13. Supra ii, 157, 158, infra 166

14. ‘sicut’

15. ‘potest etiam . . . in suo proprio,’ from lines 33-35; supra 130

16. Infra 189-90