Bracton: Thorne Edition: English. Volume 3, Page 178

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Volume 3, Page 178

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[001] and is taken to use in the name of the church though he does not put in a beast; and
[002] [if], when he wishes to do so, he is hindered, he will recover his seisin and the estate
[003] of his predecessor by an assise of novel disseisin.¹ If during vacancy, before he is
[004] instituted, it loses possession, let a writ for recovering seisin then be drawn in the
[005] name of his church, which his predecessor had on the day he died. But what if before
[006] the death of the rector who died the church has been disseised? The [new] rector must
[007] then be aided by a writ of entry, as in other disseisins, though he cannot be called heir
[008] but successor. These rules are not to be observed in the case of those who succeed by
[009] hereditary right, because it is an hereditas iacens until taken up by the heir. But
[010] when he has taken it up, his position will be as above, because the right of pasturing
[011] inheres in the inheritance, as above.>

How mutual agreement is dissolved by the expression of a contrary intention and disagreement.

[013] We must note among other things that just as a servitude is established in another's
[014] property by the mutual agreement of the contracting parties, by common consent,
[015] so it may be completely extinguished by a contrary mutual agreement, by common
[016] dissent.² Common dissent, I say; for it does not suffice if only one party dissents, not
[017] unless both do so. It may be extinguished completely by common dissent and turned
[018] into a use of another kind by another consent, whether that be between parceners
[019] and heirs, or neighbours, the several owners of a tenement or strangers who claim
[020] nothing but common in a tenement, as where it is agreed that a tenement which
[021] formerly was common be divided among the parties in shares, so that what was
[022] common now be the separate property of each according to his share,³ according as
[023] that is great⁴ or small. When they have once consented they may not withdraw their
[024] consent. The constitution of a servitude may sometimes be limited and restricted,
[025] as where it is first constituted over the whole and throughout, it may be restricted to a
[026] certain place,⁵ [changed, as where what was in one place certain is changed to another
[027] place certain,] or what was formerly unlimited in number, restricted to a certain
[028] number, [or] what was granted for beasts of all kinds, limited to a certain kind,
[029] [or] what was granted at all times, restricted to a certain time,⁶ provided it is done
[030] by the agreement of the contracting parties. In the same way all the aforesaid may be
[031] increased and enlarged, but not without the consent of the contracting parties, for
[032] if so an

Notes

1. Supra 173

2. Supra ii, 289, iii, 167-8

3. D. 27.3.1.11: ‘pro portionibus virilibus’

4. ‘maius’

5. Supra 172

6. Ibid.