published between 476 and 484, decided the controversy in the sense
that the contract was a peculiar one, standing, as it were, between a sale
and a lease (C. Just. iv. 66, i). The meaning of such a doctrine was, of
course, that in many cases rights arose under cover of dominium (Roman
absolute property), which amounted in themselves to a new hereditary
possession, and arising from the labour and capital sunk by the subordinate possessor into the cultivation of the estate, and leaving a very small
margin for the claims of the proprietor. Such hybrid legal relations do
not come into being without strong economic reasons, and these reasons
are disclosed by the history of the tenure in question. Its antecedents
go far back into earlier epochs, although the complete institution was
matured only towards the end of the fifth century. One of the roots of
emphyteusis we have already noticed in the occupation of waste land by
squatters or cultivators dwelling on adjoining plots. In the fourth and
fifth centuries the emperors not only allow such occupation, but make
it a duty for possessors of estates in a proper state of cultivation to take
over waste plots. This is the basis of the so-called epibole (impokij),
of the “imposition of desert to fertile land," an institution which arose
at the time of Aurelian and continued to exist in the Byzantine Empire,
It is worth noticing that a law of Valentinian, Theodosius, and Arcadius
gives every one leave to take possession of deserted plots; should the
former owner not assert his right in the course of two years and compensate the new occupier for ameliorations, his property right is deemed
extinguished to the profit of the new cultivator (C. Just. xi. 59, 8).
In this case voluntary occupation is still the occasion of the change of
ownership, but several other laws make the taking over of waste land
compulsory. An indirect but important consequence of the same view
may be found in the fact that the right of possessors of estates to
alienate portions of the same was curtailed : they were not allowed to
sell land under profitable cultivation without at the same time disposing
of the barren and less profitable parts of the estate; the Government
took care that the “nerves” of a prosperous exploitation should not be
cut.
A second line of development was presented by leases made with the intention of ameliorating the culture of certain plots. The practice of such leases may be followed back into great antiquity, especially in provinces with Greek or Hellenised population; and it is on such estates that the terms ^vrevciv, emphyteusis first appear in a technical sense. A good example is presented by the tables discovered on the site of Heraclea in the gulf of Tarentum, where land belonging to the temple of Dionysos was leased to hereditary tenants about b.c. 400 on the condition of the construction of farm buildings and the plantation of olives and vines.[1] Emphyteutic leases of the same kind, varying in
- ↑ Dareste, Houssoulier et Reinach, Recueil d'inscriptions juridiques grecques, i. pp. 201 ff.
