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 [other] land, is made on the likeness of that by
which man is made the slave of man." /1/ "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." /2/ "[A servitude] may be called an arrangement by
which house is subjected to house, farm to [386] farm, holding to
holding." /1/ 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.
The writ against a disseisor was for "so much land and its
appurtenances," /2/ which must mean that he who had the land even
wrongfully had the appurtenances. So Bracton says an action is in
rem "whether it is for the principal thing, or for a right which
adheres to the thing,... as when one sues for a right of way,
... since rights of this sort are all incorporeal things, and are
quasi possessed and reside in bodies, and cannot be got or kept
without the bodies in which they inhere, nor in any way had
without the bodies to which they belong." /3/ And again, "Since
rights do not admit of delivery, but are transferred with the
thing in which they are, that is, the bodily thing, he to whom
they are transferred forthwith has a quasi possession of those
rights as soon as he has the body in which they are." /4/
There is no doubt about the later law, as has been said at the
outset.
We have thus traced two competing and mutually inconsistent
principles into our law. On the one hand is the conception of
succession or privity; on the other, that of rights inhering in a
thing. Bracton seems to have vacillated a little from a feeling
of the possibility of conflict between the two. The benefit of a
warranty was confined to those who, by the act and consent of the
[387] grantee, succeeded to his place. It did not pass to assigns
unless assigns were mentioned. Bracton supposes grants of
easements with or without mention of assigns, which looks as if
he thought the difference might be material with regard to
easements also. He further says, that if an easement be granted
to A, his heirs and assigns, all such by the form of the grant
are allowed the use in succession, and all others are wholly
excluded. /1/ But he is not speaking of what the rights of a
disseisor would be as against one not having a better title, and
he immediately adds that they are rights over a corporeal object
belonging to a corporeal object.
Public-domain text, read in full here on John Shaqi.
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