Bracton: Thorne Edition: English. Volume 3, Page 61

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 61

Next

Go to Volume: Page:

[001] between neighbours, which divides demesnes and distinguishes the limits of lands,
[002] may be of many kinds, as, in the first place, the king's highway, which cannot be
[003] common between neighbours nor the property of anyone except the lord king. It is a
[004] quasi-sacred thing,¹ and he who occupies any part thereof, by exceeding the limits
[005] and boundaries of his land, is said to have committed a purpresture upon the king.²
[006] The same may also be said of a military road which may be called public and leads
[007] to the sea and the ports,³ sometimes to markets. A balk is made with the consent of
[008] neighbours, and out of their lands, and is common between those from whose lands it
[009] has been made up; hence the tenement so constructed is said to be common between
[010] them, so⁴ that no one owns it by himself but in common. And so if by common consent
[011] earth out of a common tenement is made into a bank or wall. A boundary (divisa) is
[012] so called because it divides lands and tenements. Running water is called a boundary
[013] only as long as it holds its right course; when it changes its bed it ceases to be a
[014] boundary. A boundary may also be a boundary stone or a wooden stake, and all are
[015] the common property of the neighbours, not that of any one of them, as below.>⁵
[016] [The jurors] must also see whether the tenement is sacred and dedicated to God, or
[017] quasi-sacred, as one that is public or the property of a universitas, as a stadium, a
[018] theatre, the walls and gates of cities.⁶ Just as they must make a view of the tenement
[019] from which the rent issues, so they must see the tenement because of which the rent
[020] is paid, as where one establishes for another, out of his chamber and that of his
[021] heirs, a rent certain so that he may conduct water over his estate,⁷ [or] have the
[022] right to pasture in it, or to go over it, or to do some other such thing, whether he
[023] conducts the water or does not,⁸ or does [or does not] graze his beasts,⁹ or does
[024] whatever it is or does not, the rent is always due, and for the rent the servitude.
[025] [Hence if one of the contracting parties wishes to withdraw from the contract, the
[026] other will not withdraw, unless he so wishes.] Hence if he who has granted the servitude
[027] refuses to accept the rent, the servitude is owed nonetheless.¹⁰ If the servitude
[028] is permitted and the rent denied or withheld, [since] there is no place or tenement
[029] where distraint may be made, the assise of novel disseisin as of a quasi free tenement
[030] will lie,¹¹ [And if there is no tenement from which the rent issues and of which the
[031] view may be made, it suffices if it is made of the tenement because of which the rent is
[032] owed.] because if he distrained in the servitude owed, for example, if a rent were
[033] constituted in order

Notes

1. Supra 40

2. Infra 130, 136; Selden Soc. vol. 59, no. 415 (William of Luddington: supra 58)

3. D. 43.7.3

4. ‘ita’

5. Supra 31, infra 127

6. Supra ii, 57, iii, 40, infra 69, 128, 130, 136

7. Infra 116; om: ‘Item si . . . modo’

8. ‘si talis . . . non duxerit,’ from line 23

9. Om: ‘vel diverterit’

10. Om: ‘et ius . . . pascendi,’ redundant

11. Infra 117