[198]. See Maine’s Ancient Law, Ch. 5 ad fin.; Markby’s Elements of Law, § 178; Hunter’s Roman Law, p. 138, 3rd ed.
[199]. See Savigny, System, § 59; Moyle, Inst. Just. pp. 86–94, 183–193.
[200]. The Romans termed them servitutes, but the English term servitude is used to include one class of jura in re aliena only, namely the servitutes praediorum of Roman Law.
[201]. The owner of an encumbrance may be termed the encumbrancer of the servient right or property over which it exists.
[202]. In addition to the distinctions between different kinds of rights considered in this chapter, there must be borne in mind the important distinction between Primary and Sanctioning Rights, but this has already been sufficiently dealt with in the chapter on the Administration of Justice.
[203]. Pollock, Jurisprudence, p. 175: “Ownership may be described as the entirety of the powers of use and disposal allowed by law.... The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere.”
[204]. The figurative identification of a right with its object is not absolutely limited to the case of material things, though this is by far the most important instance. Similar reasons of convenience of speech and ease of thought lead to a similar metonymy in other cases, when the object of a jus in re propria has a recognised name. We speak, for example, of the ownership of a trade-mark, or of that of the good-will of a business; meaning thereby the ownership of a jus in re propria in respect of these things.
[205]. A similar explanation of the distinction between corporeal and incorporeal ownership is given by the following writers:—
Windscheid I. sect. 42: “A very common form of speech ... substitutes for the right of ownership (Eigenthumsrecht) the thing in respect of which it exists.”
Baudry-Lacantinerie, Des Biens, sect. 9: “This confusion finds its excuse, if not its justification, in the consideration that the right of ownership, being the most complete right which can exist in respect of a thing, since it is absolute and exclusive, is identified with the thing itself.”