Servitude

In the vernacular, more commonly means the condition of being bound as a servant; but in its legal use, it is applied to things. Kent defines it as a charge upon one estate for the benefit of another; a species of incorporeal right, derived from the civil law, resembling and answering to the easement of the common law. (3 Kent Com. 436.) When the freedom or ownership in land is fettered or restricted, by reason that some person, other than the owner thereof, has some right therein, the land is said to serve such person; the restricted condition of the ownership, or the right restriction, is termed a servitude; and the land so burdened with another's right is termed a servient tenement, while the land belonging to the person enjoying the right is called the dominant tenement. The principles with regard to servitudes, and the terms employed in treating of them, are borrowed from the Roman law. In the language of the Roman law, a thing is said to be servient in which, although it is owned by one person, another has a real right, by virtue of which, and for the advantage of his person or property, the latter can require the owner, or any possessor of the thing, to suffer, or omit to do something with respect to such thing, which he would not have to submit to, if the rights which constitute ownership remained in himself undiminished. Servitude is, therefore, a jus in re, as distinguished from a jus ad rem: the former is a real right, or a right in the thing itself, and, consequently, has effect against eveiy third person; while the latter is a personal right, or a right to the thing, and hence applies only against the actual obligee. The word servitude may be said to have both an active and a passive signification, — in the former sense, denoting the restrictive right belonging to the entitled party; in the latter, the restrictive duty entailed upon the proprietor or possessor of the servient land. See Brown. As to penal servitude, see that title.