Toward a Modern Law of Servitudes: Reweaving the Ancient Strands 55 Southern California Law Review 1981-1982

55 S. Cal. L. Rev. 1261 (1981-1982)
Toward a Modern Law of Servitudes: Reweaving the Ancient Strands

handle is hein.journals/scal55 and id is 1279 raw text is: TOWARD A MODERN LAW OF
SERVITUDES: REWEAVING THE
ANCIENT STRANDS
SUSAN F. FRENCH*
One of our primary objectives in making a comparative study of ser-
vitudes is to seek out functional similarities and dissimilarities; an-
other is to discover unifying theories that can put back together a law
of servitudes come apart at the seams.t
The law of easements, real covenants, and equitable servitudes is the
most complex and archaic body of American property law remaining
in the twentieth century.' These devices, referred to in this Article col-
lectively as servitudes,2 are used to effectuate private arrangements for
* Professor of Law, University of California, Davis; A.B. 1964, Stanford University; J.D.
1967, University of Washington.
t J. DUKEMINIER & J. KRIER, PROPERTY 967 (1981). Among scholars to early recognize
the value of a comparative study was U. Reichman, Servitudes in Residential Private Government
Systems (1975) (unpublished manuscript) (available in University of Chicago Law Library).
1. The literature of servitudes law is rich in derogatory epithets. Among my favorites are:
The law in this area is an unspeakable quagmire. The intrepid soul who ventures
into this formidable wilderness never emerges unscarred. Some, the smarter ones, quick-
ly turn back to take up something easier like the income taxation of trusts and estates.
Others, having lost their way, plunge on and after weeks of effort emerge not far from
where they began, clearly the worse for wear. On looking back they see the trail they
thought they broke obscured with foul smelling waters and noxious weeds. Few will-
ingly take up the challenge again.
E. RABIN, FUNDAMENTALS OF MODERN REAL PROPERTY LAW 489 (1974).
This is not an area of land law in which the common law performance deserves admiration.
Rather it is one where rigid categories, silly distinctions, and unreconciled conflicts over basic
values have often led to unhappy results for landowners. C. HAAR & L. LIEBMAN, PROPERTY
AND LAW 703 (1977).
Among the most complicated and confusing of all legal rules are those which concern the
enforceability of promises on behalf of and against successors of the original parties to
the agreement ....
Since the first English case interpreting the first English statute on the subject, com-
mentators have doubted that the courts understood the law, and a study ofjudicial opin-
ions, from Spencer's Case on, is bewildering at best.
G. LEFCOE, LAND DEVELOPMENT LAW 768-69 (1974) (footnote omitted).
Unfortunately, the law that relates to affirmative covenants presents the ordinary mortal
with one of the most confounding intellectual experiences he can suffer. Krasnowiecki, Town-
houses with Homes Associations: A New Perspecti'e, 123 U. PA. L. REv. 711, 717 (1975).
2. Servitudes, of course, are imposed in other kinds of arrangements such as real property
security interests, covenants for title, and the exploitation of natural resources. Mortgages, profits,
1261

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