Bracton: Thorne Edition: English. Volume 3, Page 168

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Volume 3, Page 168

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[001] so it may be extinguished by the mutual assent of the parties, if they wish to disaffirm,
[002] by a renunciation based upon mutual assent and by a release and quit-claim. It does
[003] not suffice if one of them wishes to remit and withdraw unless both agree, for nothing
[004] is so appropriate etc.¹ Just as it is acquired by common consent, so is it lost by common
[005] dissent. Just as it is acquired without any formal constitution or consent, by
[006] acquiescence and use, though acquiescence borders on consent, so may it be lost by
[007] negligence and non-use, [Permanently or only for a time: permanently, as where
[008] time bars every action for its recovery, both on the possession and on the property,
[009] or permanently in the sense that it bars an assise on the possession but not [an action]
[010] on the right, because the assise is limited to a certain period; thus time extinguishes all
[011] actions or some.]² as where one is so negligent that he cannot recover his seisin without
[012] writ and judgment. For since negligence like force may hurt him, everyone ought to
[013] be diligent in using, and if he is driven out by force today, let him, if he can, put in his
[014] cattle on the morrow and use, and so from day to day; in that way he will not lose
[015] his seisin, because of his diligence, though he has a disputed seisin.³ But if he is completely
[016] repelled by a force which cannot be resisted,⁴ or if not completely driven out,
[017] is unable to use advantageously, or according to the modus of the constitution of the
[018] servitude, recourse must at once he had to him who safeguards rights,⁵ and he will
[019] have a remedy by the assise provided for the purpose of recovering possession, by
[020] this writ.⁶ [I say ‘advantageously’ as where something is done on the other's property
[021] to the damage of the servitude, by which he may not use at all or not advantageously,
[022] as where one builds a wall or a fence. They may be demolished at once, or
[023] if time has passed, by the assise.]⁷ [If common is to be conveyed to another, it must
[024] be transferred to persons certain and from persons certain, and from specific tenements
[025] to specific tenements, because rights of this kind cannot exist without corporeal
[026] things,⁸ that is, without corporeal things that are servient and corporeal things
[027] to which the servitudes are owed.⁹ And because incorporeal things do not admit of
[028] livery and cannot be possessed, only quasi-possessed, and so cannot be transferred
[029] only quasi-transferred,¹⁰ for livery a view of the place in which the rights are constituted
[030] and the mutual consent of the contracting parties and the animus possidendi
[031] suffice,¹¹ and the donee, solely through will and intention, is in quasi-possession, and
[032] though he does not immediately use he always uses or quasi-uses until by non-use,
[033] that is, by force, negligence or long acquiescence, he loses seisin, as where he who
[034] has granted

Notes

1. D. 50.17.35; supra, 124, 129, infra 178

2. Om: ‘Item . . . voluntatem,’ a connective; supra ii, 157, 293

3. Supra ii, 160, infra 169, 173, 177

4. D. 4.2.2.; supra 20

5. C. 3.28.35.pr.: ‘qui iura tuetur’; infra 170, 174

6. The writ appears infra 171; the intervening matter seems a later addition

7. Supra 164, infra 189, 192

8. Supra ii, 292

9. ‘[a] quibus servitus debentur,’ from lines 28-29

10. Supra ii, 159, iii, 165

11. Supra ii, 126, iii, 165, infra 173