§ 159 Servitudes
A servitude is that form of encumbrance which consists in a right to the limited use of a piece of land without the possession of it; for example, a right of way over it, a right to the passage of light across it to the windows of a house on the adjoining land, a right to depasture cattle upon it, or a right to derive support from it for the foundations of an adjoining building.433
It is an essential characteristic of a servitude that it does not involve the possession of the land over which it exists. This is the difference between a servitude and a lease. A lease of land is the rightful possession and use without the ownership of it, while a servitude over land is the rightful use without either the ownership or the possession of it. There are two distinct methods in which I may acquire a road across another man’s property. I may agree with him for the exclusive possession of a defined strip of the land; or I may agree with him for the use of such a strip for the sole purpose of passage, without any exclusive possession or occupation of it. In the first case I acquire a lease; in the second a servitude.434
Servitudes are of two kinds, which may be distinguished as private and public. A private servitude is one vested in a determinate individual; for example, a right of way, of light, or of support, vested in the owner of one piece of land over an adjoining piece, or a right granted to one person of fishing in the water of another, or of mining in another’s land. A public servitude is one vested in the public at large or in some class of indeterminate individuals; for example, the right of the public to a highway over land in private ownership, the right of the public to navigate a river of which the bed belongs to some private person, the right of the inhabitants of a parish to use a certain piece of private ground for the purposes of recreation.
Servitudes are further distinguishable in the language of English law as being either appurtenant or in gross. A servitude appurtenant is one which is not merely an encumbrance of one piece of land, but is also accessory to another piece. It is a right of using one piece for the benefit of another; as in the case of a right of way from A.’s house to the high road across B.’s field, or a right of support for a building, or a right to the access of light to a window. The land which is burdened with such a servitude is called the servient land or tenement; that which has the benefit of it is called the dominant land or tenement. The servitude runs with each of the tenements into the hands of successive owners and occupiers. Both the benefit and the burden of it are concurrent with the ownership of the lands concerned. A servitude is said to be in gross, on the other hand, when it is not so attached and accessory to any dominant tenement for whose benefit it exists. An example is a public right of way or of navigation or of recreation, or a private right of fishing, pasturage, or mining.435