consequence, praedial ser\ itudes, though incorporeal rights, were classified as res mmicipi. Failure to appreciate Roman legal pragmatism has led scholars to hold that the earl\’ Romans and their successors for a long rime concei\ ed of serx itudes as corporeal objects, and that the holder of the serx itude right had oxvnership of'the corresp(xnding strip of'land, or alternatix elx’ that oxvnership of the strip of land xvas functionallx’ divided hetxveen the oxx ner of the land and the neighbor in right of the serx itude. Diosdi has given the conclusixe arguments against such X iexvs hx' analx zing txx^o prox isions of the Tzrelve I'ahlcs. One prox ides that the oxvner of the land must lav a road, via, xx ith stones (or, alternatixelx', set curbstones), and if he does not, the other max' drixe his beast xvherexer he xvants." As Diosdi savs, if the person entitled to passage had become the (xxvner of the strip of land, the oxvner of the serx ient land xvould he under no obligation to pax e it, nor if the oxvner failed to do so, xvould the other he able to lead his beast xvhere he xvished.'' d'he other prox ision is even more to the point and declares that the breadth of the via should he eight feet on the straight, sixteen feet on the bends."’ This pnnision, as Diosdi claims, xvould hax e been superfluous if x ia gave oxvnership, since the transfer itself xvould then define the territorx." It should he stressed that it is the fact that nunicipario is used to create serx itudes that has led modern scholars to claim that serx itudes xvere considered hv the early Romans to be corporeal things. Strong is the belief that laxx is rational. .Waacipatio, xvith a xariant xvording for the nature of the takingakin to fuic et fiduciac {"to mv faith and trust")-xxas used to create real 7 For the extensive literature, see Diosdi, Ownership, pp. io9ff. 8 Festus, s.v. v/ae; Tab. 7.7 9 Diosdi, Ownership, p. 114. 10 D.8.3.8; Tab. 7.6. 11 Diosdi, Ownership, p. 114. 68
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