How comes it, then, that one who has neither title nor possession is so far favored?  The answer is to be found, not in reasoning, but in a failure to reason.  In the first Lecture of this course the thought with which we have to deal was shown in its theological stage, to borrow Comte’s well-known phraseology, as where an axe was made the object of criminal process; and also in the metaphysical stage, where the language of personification alone survived, but survived to cause confusion of reasoning.  The case put seems to be an illustration of the latter.  The language of the law of easements was built up out of similes drawn from persons at a time when the noxoe deditio was still familiar; and then, as often happens, language reacted upon thought, so that conclusions were drawn as to the rights themselves from the terms in which they happened to be expressed.  When one estate was said to be enslaved to another, or a right of way was said to be a quality or [383] incident of a neighboring piece of land, men’s minds were not alert to see that these phrases were only so many personifying metaphors, which explained nothing unless the figure of speech was true.

Rogron deduced the negative nature of servitudes from the rule that the land owes the services, not the person,—­Proedium non persona servit.  For, said Rogron, the land alone being bound, it can only be bound passively.  Austin called this an “absurd remark.” 1 But the jurists from whom we have inherited our law of easements were contented with no better reasoning.  Papinian himself wrote that servitudes cannot be partially extinguished, because they are due from lands, not persons. 2 Celsus thus decides the case which I took for my illustration:  Even if possession of a dominant estate is acquired by forcibly ejecting the owner, the way will be retained; since the estate is possessed in such quality and condition as it is when taken. 3 The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. 4 So, in another passage, Celsus asks, What else are the rights attaching to land but qualities of that land? 5 So Justinian’s Institutes speak of servitudes which inhere in buildings. 6 So Paulus [384] speaks of such rights as being accessory to bodies.  “And thus,” adds Godefroi, “rights may belong to inanimate things.” 1 It easily followed from all this that a sale of the dominant estate carried existing easements, not because the buyer succeeded to the place of the seller, but because land is bound to land. 2

All these figures import that land is capable of having rights, as Austin recognizes.  Indeed, he even says that the land “is erected into a legal or fictitious person, and is styled ‘praedium dominans.’” 3 But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far.  The dominant estate was never “erected into a legal person,”