Gardens and Neighbors: Private Water Rights in Roman Italy

3. Utility, Productivity, and Planning

{ 145 } THREE UTILITY, PRODUCTIVITY, AND PLANNING Aservitude could be established only if it was useful to the dominant estate but there were questions about what was “useful.”The jurists developed the concept of utilitas or utility to de‹ne what useful meant in cases involving servitudes. In a short legal case reported in the Digest of Justinian, Paul lists negative examples that limit the scope of the so-called rustic servitudes , that is, servitudes attached to rural rather than urban property. A servitude cannot be imposed for us to pick an apple or go for a stroll or dine on someone else’s [property]. [Ut pomum decerpere liceat et ut spatiari et ut cenare in alieno possimus, servitus imponi non potest.] (D. 8.1.8 pr. Paul. 15 ad Plaut.) Picking apples might be farmwork, but picking just one is clearly not—this is the force of the speci‹c, singular fruit, pomum. Similarly, dining and strolling do not directly contribute to working the land. These somewhat fanciful examples highlight, by contrast, the essential connection between rustic servitudes and agricultural productivity: what can be referred to as utility, or utilitas.The Latin noun utilitas is not used consistently when the jurists write about servitudes; instead they use a variety of expressions, including the adjectives utilis (useful) and commodum (advantage) and the phrases opus est (there is need of) and interest (it is useful/advantageous).The { 146 } GARDENS AND NEIGHBORS term utilitas ef‹ciently sums up these ideas and is regularly used in modern legal scholarship on servitudes. A servitude could exist if it provided something useful to the dominant estate, that is, if it offered utilitas. In legal discussions, utilitas functioned as an objective standard that limited the scope of servitudes, but the standard was open to interpretation.1 What was “utility” for the farm?Was it strictly self-suf‹ciency? Or could it include crops grown for the market? The ‹rst section of this chapter addresses the relationship between servitudes and these two goals, as expressed in the concept of utilitas. Central to the investigation is the analysis of a long legal case that contrasts servitudes with usufruct (another legal mechanism for having a right in someone else’s property ). The jurists attempt to distinguish these institutions on the basis of their connection with self-suf‹ciency and market aims, respectively, but a broader examination of cases involving utility and the purpose of rustic servitudes yields a more nuanced picture of the institution and of the ways that Romans actually used servitudes on their land. As the analysis proceeds, it becomes apparent that these two goals—self-suf‹ciency and market participation —continue to be entwined in legal approaches to servitudes and private water rights, which is not surprising, since literary sources reveal the same ambiguities. In the second part of this chapter, the discussion of utility is oriented toward commercial farming, as we consider how landowners adapted servitudes to support speci‹c kinds of cultivation on their property; a case in point is the servitude for collecting vine props. A servitude could make it possible for a landowner to specialize in crops that could be sold on the market. It could provide not only needed resources but also a guarantee for the landowner’s investment, because he could claim monetary damages if the servitude was interrupted. In the third section of this chapter, the focus shifts from the landowner’s current needs to his future plans. When the jurists considered servitudes for the future, utility came to be broadly de‹ned, open-ended, in a way that allowed landowners to plan ahead for capital investment and to calculate the best use of resources on their property.The jurists ’ approach is consonant with such modern approaches to utility as that adopted by Jongman in his study of the economy at Pompeii: “Economic behaviour is an aspect of all behavior (as long as there is scarcity), rather than a peculiar sphere of behavior (to the exclusion of other spheres of be1 . On the case cited here, D. 8.1.8 pr. Paul. 15 ad Plaut., see Biondi, Categoria, 379–82; Solazzi , Specie ed estinzione, 48. See also, in general, Grosso, Servitù prediali, 97–108; cf. 42–45. Utility, Productivity, and Planning { 147 } haviour).We may distinguish economic behavior, but we cannot separate it. In modern theory, utility is a subjective concept. Pro‹t or money are not valuable...