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1. Ulpianus, On the Edict, Book LII.

It is promised by this Section of the Edict that where a work is either rightfully or wrongfully undertaken, it can be prohibited by a notice; and the prohibition can be removed where the person who forbade the continuance of the work had no right to do so.

(1) Moreover, this Edict, and the remedy of the notice granted on account of a new structure, applies to any that may hereafter be undertaken but does not apply to such as already have been completed; that is to say it can prevent those which have not yet been begun. For where a structure which the person had no right to erect has been finished, the Edict relating to notice to stop the same has no application, and recourse for the purpose of obtaining restitution must be had to the interdict quod vi et clam; and when anything has been built in a sacred or religious place, or in a public river, or on the bank of the same, restitution can be obtained under this Edict, if it was done contrary to law.

(2) Notice under this Edict does not require previous application to the Praetor, for anyone can serve such a notice without appearing before him.

(3) We can also serve a notice of this kind in our own name, as well as in that of another.

(4) Such a notice can be served on any day.

(5) This notice operates also against persons who are absent; against such as are unwilling to accept it; and against those who are not aware that a new work has been undertaken.

(6) Moreover, in the service of a notice with reference to a new work, the adversary must be in possession.

(7) Where he upon whom the notice of a new work has been served, began to build it before permission was obtained, and he afterwards attempts to prove that he had a right to do so, the Praetor should refuse to grant him any action, and should allow an interdict against him, to compel him to restore the property fo its former condition.

(8) Again, anyone can serve such a notice, even though he may be ignorant of what kind of a work is to be constructed.

(9) After notice to suspend operations, the parties are subject to the jurisdiction of the Praetor.

(10) Hence it is asked by Celsus, in the Twelfth Book of the Digest, whether an exception, based upon an agreement, should be granted, if you have made a compromise with your adversary, after notice has been served to prevent the erection of the building. And Celsus says that it should be granted, for there is no reason why any contract entered into by private individuals should take precedence of an order of the Praetor; for what else is the duty of the Praetor but to do this, and dispose of such controversies? Where the parties voluntarily settle their dispute, he should ratify their action.

(11) He is considered to undertake a new work, who either by building or by removing anything, changes the original form of the property.

(12) This Edict, however, does not refer to all kinds of building operations, but only to such as are attached to the soil and whose construction or demolition is considered to include some new work. Hence it has been held that where anyone gathers a harvest, cuts down a tree, or prunes a vineyard, although he does, work, it will not come within the terms of the Edict, because it only has reference to such labor as interferes with the soil.

(13) If anyone props up an old building, let us see whether we can serve notice upon him to desist. The better opinion is that he cannot do so; for he is not erecting a new structure, but is merely providing a remedy by supporting an old one.

(14) The notice served under this Edict applies to any new structures erected within or without the walls of towns, or in the country, whether the work is performed on private or on public lands.

(15) Now let us see for what reasons such a notice may be served, who can serve it, upon whom it may be served, in what places this may be done, and what is the effect of the notice.

(16) The notice is served either for the purpose of protecting our rights to avert threatened injury, or to maintain the public welfare.

(17) Moreover, we serve this notice for the reason that we have a right to prevent the work either in order to protect ourselves from impending danger through the act of someone who is about to erect a structure in a public or private place, or where something has been • done contrary to the laws and the Edicts of the Emperors, promulgated with reference to the manner of constructing buildings, whether this be done in a sacred, religious, or a public place, or on the bank of a stream; and in cases of this kind interdicts are also granted.

(18) But if anyone constructs a building in the sea or on the shore of the same, although he does not build upon his own land, he renders it his by the Law of Nations. Therefore, if anyone desires to prohibit him from constructing it in such a place, he will have no right to do so, nor can he serve notice upon him not to erect a new structure, unless he is in a position to demand that security against threatened injury be furnished him.

(19) The person to whom the property belongs has the right to serve the notice to suspend any undertaking, for the purpose of preserving his rights, or to avert threatened injury.

(20) An usufructuary, however, cannot serve such a notice in his own name, but he can do so as the agent of the owner; or he can claim his usufruct from the person who constructs the new work, and this claim will obtain for him an amount equal to his interest in not having it constructed.

2. Julianus, Digest, Book XLIX.

If, however, the usufructuary should serve the notice upon the owner of the land himself, the service will be void, for he cannot bring an action against the owner, as he can against the neighbor, alleging that he has not built his house any higher against the usufructuary's consent. But if the usufruct become diminished in value through the construction of the new building, he can claim his usufruct.

3. Ulpianus, On the Edict, Book LII.

Where anything is constructed on land in a province a notice to suspend operations can be served.

(1) Where anything of this kind is done on land held in common, a notice can be served against a neighbor. It is clear that if one of us erects a new structure upon ground held in common, I cannot, as a joint-owner, notify the other party not to proceed with it; but I can forbid him by an action for partition of property held in common, or I can do so by applying to the Praetor.

(2) If a joint-owner with myself makes an addition to a house owned by us in common, and I have an adjoining house of my own, which will be injured by his doing so, can I serve notice upon him to stop the work? Labeo thinks that I cannot do so, because I can forbid him to build by other means, that is to say by applying to the Praetor, or by bringing an action for partition of property owned in common. This opinion is correct.

(3) If I have only a right to the surface of the land, and a new building is erected by a neighbor, can I serve notice upon him to desist? In this case, there is a difficulty; because I am, as it were, only a tenant. The Praetor, however, will grant me an action in rem, and therefore I would also be entitled to an action on the ground of a servitude; hence the right to serve the notice to suspend operations should be given me.

(4) Where a new work is begun in a public place, any citizen has the right to serve notice to suspend it.

4. Paulus, On the Edict, Book XLVIII.

For it is to the interest of the State that the greatest number of persons possible should be permitted to protect its property.

5. Ulpianus, On the Edict, Book LII.

The question was raised with reference to a ward. Julianus, in the Twelfth Book of the Digest, says that permission to serve notice to suspend the erection of a new work should not be granted to a ward, unless it interferes with his own private convenience; as, for instance, where it shuts off his light, or obstructs his view. Moreover, a notice served by a ward will not be valid unless this is done by the authority of his guardian.

(1) Notice to suspend operations can also be served upon a slave, but he himself cannot serve such a notice, nor, if served by him, will it have any effect.

(2) Again, it must be remembered that the service of a notice of this kind must be made on the property itself; that is to say, in the very place where the work is being done, whether anyone is already building, or has made preparations to build there.

(3) It is not necessary that notice be served upon the owner himself, as it will be sufficient for it to be served on the premises and upon anyone who happens to be present, and this can even be done upon the workmen, or artisans who are performing the labor. And, generally speaking, notice to suspend operations can be served upon all those who are present in the name of the master, or upon the workmen themselves. Nor does it make any difference who he is, or what may be the rank of the person present at the time, for if the notice is served upon a slave, upon a woman, or a boy or a girl, it will be valid; as it is sufficient that service be made of the notice upon the premises in such a way that the owner can be informed of it.

(4) If anyone should serve notice upon the owner of property in a public place, it is perfectly clear that such a notice will be of no force or effect, for it must be served on the land, and I should say almost in the building itself; and this has been decided in order that by means of a notice the work may immediately be suspended. If, however, the notice is served elsewhere, the result will be that the same inconvenience would result as if any structure had been erected through ignorance during the time it took to reach the place, where this was done contrary to the Edict of the Praetor.

(5) Where the property on which a new building is in course of construction belongs to several persons, and notice is served upon one of them, the service is properly made, and it is held that all the owners have been notified. If, however, one of them should continue to build after notice to stop has been served, those who did not continue will not be liable, for the act of another should not prejudice anyone who did nothing.

(6) If the new structure should injure property belonging to several owners, will a notice served by one of the joint-owners be sufficient, or must they all serve it? The better opinion is that a notice by one of them is not sufficient for all, but each of them must serve the notice individually, because it might happen that one of them had the right to serve the notice to prohibit the construction of the work, and that the others did not have such a right.

(7) Where anyone desires to serve notice upon the Praetor himself with reference to the erection of a new building, he should, in the meantime, show that he cannot serve the notice upon the other party; and if he should do so afterwards, whatever has been built after he notified the Praetor must be destroyed, just as if two notices had been served at different times.

(8) But if anyone should insert beams into my house, or build upon my land, it is only just that I should protect my rights by a notice to stop the erection of the building.

(9) Sextus Pedius very properly remarks that there are three reasons which give rise to a notice to prevent the erection of a new structure, namely, a natural reason, a public reason, or a reason growing out of the imposition of a servitude. A natural reason exists where someone has inserted beams into my building, or erected a structure upon my land. A public reason exists where, by the service of notice to suspend a new work, we protect the execution of the laws, the Decrees of the Senate or the Imperial Constitutions. A reason growing out of the imposition of a servitude exists where anyone, after having diminished his own right, increases that of another; that is to say, after having imposed a servitude upon his own land, he performs some act against the right of him who was entitled to the servitude.

(10) Moreover, it must be remembered that when anyone wishes to erect a building upon our land, to insert beams into our houses, or to project a structure over our property, it is better that he should be prevented from doing so, either by the Praetor or by one's own hand, that is to say, by casting a stone, than by serving notice to desist from the construction of a new work; for, by serving such a notice, we constitute the person upon whom it is served the possessor of the property. If, however, he should do something upon his own land which may injure us, then the service of a notice to suspend operations will be necessary. And if anyone should continue to build upon our premises, it will be perfectly just for us to make use of the interdict Quod vi aut clam, or Uti possidetis against him.

(11) Where anyone desires to repair or clean out any watercourses or sewers belonging to him, a notice to suspend operations cannot be served upon him; and this is reasonable, as it is to the interest of the public health and security, that sewers and streams should be cleaned out.

(12) Moreover, generally speaking, the Praetor also excepts other works, when delay in their construction is attended with danger. For, with reference to them, he thinks that a notice to suspend them should not be obeyed. For who can doubt that notice to suspend a new work should not be obeyed, rather than that the construction of some necessary building should be prevented? This Section of the Edict is applicable whenever delay is liable to cause injury.

(13) Hence, where anyone, in a case where danger may be caused by delay, serves notice to stop some new work, for instance, where repairs are being made to the channel of a sewer, or to the walls of the same; we hold that an inquiry should be made in court whether the work is of such a character that a notice to suspend operations should be disregarded. For if it should be apparent that any danger will result from delay in repairing a sewer, or a water-course, or anything of this kind, it must be said that it should not be apprehended that the notice will cause any injury.

(14) He who serves notice to stop a new work must swear that he does not do so for the purpose of annoyance. This oath is tendered by the authority of the Praetor; hence it is not required that he who exacts the oath should first be sworn.

(15) The person who serves the notice must show in what place the new structure to which the notice has reference is situated; in order that he who is notified may know where he can build, and where he must refrain from building. This designation must be made as often as notice has been served with reference to a part of the edifice. If, however, the notice refers to the entire building, it is not necessary to show this, but merely to mention the fact.

(16) Where the work complained of is being done in several places, will one notice be sufficient, or are several required? Julianus, in the Forty-ninth Book of the Digest, says that, because the notice should be served on the land itself, several notices as well as several withdrawals are necessary.

(17) If he who was notified to suspend operations gives security or promises to indemnify the other party, or if it was not his fault that he did not give security, or promise indemnity, in accordance with the judgment of a good citizen; it is just the same as if the notice had not been served. This remedy is a convenient one, for it prevents the annoyance of appearing before the Praetor, and of making application to have notice issued.

(18) Where the service of notice is made by an agent, and he does not give security that his principal will ratify his act, the notice will be without effect, even though the agent was regularly appointed.

(19) Where anyone, in the name of an absent person, asks for a withdrawal, whether this has reference to a private or a public right, he will be compelled to furnish security, for he takes the part of a defendant. This security, however, does not refer to ratification by the principal, but merely to the notice to suspend the construction of the new work.

(20) Again, if an agent should notify me to stop a new work, and accepts security from me, and I afterwards make use of an interdict against him to prevent him from employing force against me to prevent me from building, he will be obliged to give me security to execute the judgment, because he takes the part of a defendant.

6. Julianus, Digest, Book XLI.

Therefore, exceptions based on agency should not be interposed against him, nor should he be compelled to furnish security that his principal will ratify his act.

7. Ulpianus, On the Edict, Book LII.

If he should not give security, he can be barred from the construction of the new work, and any actions which he may try to bring in the name of the principal must be refused him.

(1) A guardian and a curator can serve notice to arrest the construction of a new building.

8. Paulus, On the Edict, Book XLVIII.

I can not only serve notice upon my nearest neighbor to suspend operations, but also upon one immediately beyond him; for servitudes may exist between two tracts of land which are separated by other property either public or private.

(1) Anyone who serves notice to suspend operations where anything has already been done, must state this in his application, in order that what has been done afterwards may be apparent.

(2) If I cannot legally prevent you from doing something, and I should notify you to suspend operations on a new structure, you will not have the right to proceed with your building unless you give me security.

(3) If I should notify you to erect a building forbidden by the laws in a public place, you must bind yourself by a promise, because I contest your right to construct it not in my own name, but in that of another, and as I am maintaining the right of another, I should be content with a mere promise.

(4) It must be remembered that where notice to suspend a new work has been served, the person notified must desist until he furnishes security, or until a withdrawal of a notice is made; for then, if he has the right to build, he can properly continue to do so.

(5) In order to prove that any building was done after the notice was served, the party who served it must measure the building; and the Praetor ordinarily decrees that the measurement shall be taken and be produced.

(6) Notice is extinguished by the death of the person who served it, or by the alienation of the property; because in these ways the right of preventing the construction of the work is lost.

(7) Where the person on whom notice was served to discontinue a new work dies, or sells the house, the effect of the service of the notice will not be ended. The proof of this is apparent from the fact that mention is made therein of the heir, where a stipulation is entered into with reference to the matter.

9. Gaius, On the Urban Edict, Under the Title, Concerning Notice to Suspend a New Work.

A creditor, by whom a tract of land is held in pledge, can legally serve notice to discontinue a new work (that is to say where a servitude is involved), for the right to bring suit to recover the servitude is granted to him.

10. Ulpianus, On Sabinus, Book XLV.

Notice to discontinue a new work is a proceeding in rem and not in personam. Therefore, it can be served upon an insane person, or an infant, and the authority of his guardian is not required.

11. Paulus, On Sabinus, Book XI.

Notice served upon anyone of ordinary intelligence, for instance upon a laborer, will bind an infant or an insane person.

12. The Same, On Sabinus, Book XIII.

If security is furnished with reference to a notice to discontinue a new work, the stipulation becomes operative in accordance with the judgment rendered.

13. Julianus, Digest, Book XLI.

When an agent serves notice for a discontinuance of a new work, and gives security that his principal will ratify his act, withdrawal is also granted in the name of the owner.

(1) If the owner serves notice for the discontinuance of a new work within a certain time, which is included in the stipulation made with reference to the notice, the stipulation will become operative; if he should serve the notice after the time has expired it will not become operative. For, after the owner has served notice once, he is not permitted to do so a second time, as long as the stipulation entered into with reference to the notice to discontinue the new work holds.

(2) Where an agent appears with reference to withdrawal, on the part of him who served notice for the discontinuance of a new work, the Praetor should make an investigation to prevent a false agent from prejudicing the rights of the absent party, as it would be intolerable if the benefit granted by the Praetor should be lost by the intervention of anyone else whomsoever.

14. The Same, Digest, Book XLIX.

Where a person who is entitled to a right of way serves notice upon someone who has a built a house where he has the right to pass, his act will be void; but he will not be prevented from bringing an action to recover the servitude to which he is entitled.

15. Africanus, Questions, Book XIX.

Where suit is brought to prevent a house from being raised to a greater height by a neighbor, before any work has been performed, and the case is not defended by the said neighbor, it has been held to be the duty of the judge that nothing else shall be done before the party, against whom the action has been brought, shall be ordered to give security that he will not proceed with his building, before establishing his right to raise it higher. On the other hand, the same rule will apply when anyone brings an action, claiming that he has a right to build his house higher against his adversary's consent, and, in like manner, no defence is made; for it is held to be the duty of the judge to order the adversary to give security that he will not notify him to discontinue the new work, nor employ violence against him to prevent him from building. In this case, also, he who does not defend the action is punished by requiring him to prove his right, for this is, in fact, to take the part of the plaintiff.

16. Ulpianus, On the Edict, Book XIII.

If the Praetor should order notice to be served to discontinue a new work, and then should forbid it; an action founded upon the first notice will not lie, as this would be contrary to the ruling of the Praetor.

17. Paulus, On the Edict, Book LVII.

If an agent prevents the construction of a new work, the owner will be entitled to the interdict Quod vi aut clam.

18. Papinianus, Questions, Book III.

Where notice to discontinue the construction of a new building is served upon one of several joint-owners, if the work is done by the consent of all of them, the notice will bind them all. If, however, some of them are not aware of the construction of the new building, he who has acted in violation of the Praetorian Edict will be individually liable in full.

(1) Nor does it make any difference to whom the land upon which the work is in course of construction belongs, for he alone is considered who is in possession of the property, provided the work is done in his name.

19. Paulus, Questions, Book VIII.

It must be remembered that when the prosecution of a new work has been refused by the Praetor, the party interested can still have recourse to his legitimate actions, as the right to them continues to exist in all those cases in which the Praetor, in the beginning, refuses to permit service for discontinuance of the erection of a new structure.

20. Ulpianus, On the Edict, Book XVII.

The Praetor says: "Where anyone has been notified on the ground to discontinue the construction of a new work, the right to proceed with which is in dispute, and he persists in doing so, in the same place, before withdrawal has been granted; or where the circumstances are such that withdrawal should be granted, he shall restore the property to its original condition."

(1) An interdict is granted in the following instances. It is stated in the Edict that no work shall be done, after the service of notice, before withdrawal is granted, or, in lieu of this, security has been furnished to restore the property to its former condition. Therefore, he who proceeds with the work, even though he may have the right to do so, is, nevertheless, considered to have violated the interdict of the Praetor, and he will be compelled to demolish the structure.

(2) There is ground for this interdict, whether notice has been served upon land which is vacant, or which has been built upon.

(3) The Praetor says, "He shall restore the property to its original condition." He orders what has been done to be restored, and it makes no difference whether it was done in accordance with law or not, hence, the interdict will be applicable whether the act was legal or illegal.

(4) Again, whatever was done before withdrawal upon notice, or before anything occurred which is considered to take the place of a withdrawal, is held not to have been legally done.

(5) If he who erected the building should be willing to give security, and the plaintiff refuses to enter into a stipulation, this should be considered as a withdrawal; for as this is the plaintiff's fault, it is evident that the circumstances are such that withdrawal ought to be made.

(6) This interdict is granted perpetually, and will lie in favor of the heir and other successors.

(7) There will be ground for the interdict against the person himself who constructed the work, or against him who ratified it after it was finished.

(8) It is clear that this interdict will lie against the heir of him who constructed the work; and where this question arises, it must be noted that Labeo was of the opinion that it should only be granted against the heir where he had obtained some benefit from the structure, or where he had prevented himself, by fraudulent conduct on his part, from obtaining any benefit therefrom. Some authorities hold than an action in factum should be granted in addition to the interdict ; which opinion is correct.

(9) The Praetor next says: "Where anyone has been notified, on the premises, not to proceed with the new work, and if security has been given, or it is your fault that it was not given, I forbid force to be employed to prevent the other party from proceeding with the work in that place."

(10) This interdict is prohibitory, as it prohibits interference with anyone, who gives security, from proceeding with his work, for the ornamentation of cities is concerned in not permitting buildings to be abandoned.

(11) Nor does it make any difference whether the person in question is entitled by law to build, or not; as he who notified him to discontinue the new work is safe after security has been furnished him.

(12) This interdict will also lie in favor of the person to whom security was given.

(13) The Praetor adds, "Or if it is your fault that security was not given." Hence, there will not be ground for the interdict if security is not furnished, but merely a promise for indemnity is made; for a building should not be permitted to be erected in a public place, before it is ascertained by what authority this is done.

(14) If security is given, but should not continue to exist, the interdict will cease to be applicable.

(15) Where it was the fault of the person who served the notice that security was not furnished for a certain time, but it is no longer his fault, the interdict will cease to apply.

(16) This interdict is also available after the lapse of a year, and will lie in favor of the heir and other successors.

21. The Same, On the Edict, Book LXXX.

A stipulation is usually entered into with reference to the notice to discontinue the construction of a new work, whenever one neighbor says that he has a right to hinder another from constructing it against his consent.

(1) Moreover, where anyone desires to proceed with impunity, and continue to build after having been notified to stop, he should offer security to the person who served the notice upon him. If he does this, it will be to the advantage of both parties; to that of the one who served the notice, as he has security to restore the premises to their former condition; and to him upon whom the notice was served, because his building is not interfered with. For if he builds at all before furnishing security, he can, by means of a restitutory interdict, be compelled to demolish what he has erected.

(2) Again, this stipulation is dependent upon a condition, and only becomes operative after judgment has been rendered, unless something has happened before this was done, and the case was not defended ; and the clause with reference to bad faith is also added.

(3) We consider a structure to have been completed, not where one or two rows of stone have been laid, but where the work has assumed some form, and has the appearance of a building.

(4) The stipulation becomes operative, and the property must be restored to its former condition in accordance with the judgment of a good citizen, whether a decision has been rendered in the case, or whether no defence is made. If the property is not restored to its former condition, the defendant must pay a sum of money in proportion to the damages sustained, if the plaintiff will consent to this.

(5) Where several joint-owners construct a building, the question arises whether all of them must furnish security. Labeo says that one should do so, because the restoration of the property cannot be partially made.

(6) He also says that even though several owners serve notice, care must be taken that security be given to one of them, if all agree to this; for it is evident that if one should not consent, security must be given to each of them.

(7) He also says that it must be added in the stipulation that an amount equal to the interest of each must be paid; if the parties desire this to be done. If, however, security is furnished to the amount of the value of the property, he says that a doubt will arise whether these words refer to the value of the entire property, or merely to that of the interest of the party who enters into the stipulation. I think that if security for the value of the property is furnished one of the parties, it can be maintained that the stipulation will be sufficient for all of them; since this has reference to the amount of the damages caused by the work.

22. Marcellus, Digest, Book XV.

The person upon whom notice was served died before obtaining the withdrawal of the notice. His heir must permit his adversary to demolish the structure, for in a restoration of this kind the penalty must be paid by him who violated the Edict; but the heir does not succeed to the penalty.

23. Javolenus, Epistles, Book VII.

A certain man who had been notified to discontinue the construction of a new building sold the land, and the purchaser continued the work; do you think that either the purchaser or the vendor is liable for having violated the Edict? The answer was that if, after notice had been served, the construction of the building was continued, the purchaser, that is to say, the owner of the land, would be liable; because a notice for discontinuance is not personal, and he only is liable who is in possession of the property on which the notice to discontinue the work was served.

 

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Tit. 2. Concerning threatened injury and the encroachments and projections of a neighboring house.

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1. Ulpianus, On the Edict, Book I.

Where the imminence of threatened injury demands celerity, and delay seems to the Praetor to be dangerous, and, on this account, he reserves jurisdiction for himself, he will act very properly if he delegates his authority to the municipal magistrates of the district.

2. Gaius, On the Provincial Edict, Book XXVIII.

Threatened injury is such as has not yet taken place, but which we fear may be caused in the future.

3. Paulus, On the Edict, Book XLVII.

The terms damnum and damnatio have reference to the taking away, and, so to speak, the diminution of an estate.

4. Ulpianus, On the Edict, Book I.

If the time for furnishing security has elapsed, it is the duty of the Praetor or the Governor, after a hearing, either to hold the party liable, or release him; and, if the latter requires a local investigation, to send the case to the municipal magistrates for a decision.

(1) If security is not furnished within the time fixed by the Praetor, the complainant should be placed in possession of the property, and by the term "property" is understood either all of it, or a portion of the same.

(2) If the other party is unwilling to permit his neighbor to obtain possession, can he be compelled by the magistrate to furnish pledges? I do not think that he can; but he will be liable to an action in factum, for if he is not permitted to take possession after having been sent by the Praetor, he should have recourse to the above-named action.

(3) Therefore, the Praetor or the Governor directs municipal magistrates to do two things; namely, to require security, and to grant possession; the other matters he reserves for his own jurisdiction.

(4) If there is a delay in giving security, not the duumviri but the Praetor or the Governor should grant permission to take possession (which is usually done where proper cause is shown), and the same rule also applies where, after proper cause has been shown, possession is relinquished.

(5) The Praetor says, "Where the party upon whom notice must be served is absent, I order that the notice shall be left at his residence." He is considered to be absent who does not appear in court; which opinion Pomponius approves. Moreover, the Praetor directs that the notice shall be served without rudeness, and not that the defendant shall be forcibly removed from his house. However, by the words, "The notice must be left at the house where he resides," we must understand that it must be served upon him there, even if he lives in a house belonging to another. When he has no domicile, the notice must be served on the premises, either upon his agent or the tenant.

(6) Whenever the Praetor requires notice to be served, this means if there is anyone upon whom service can be made. If, however, no such person can be found, for example, because the house belongs to an estate which has not yet been entered upon, or if there is no heir, and the house is not inhabited, this Section of the Edict will not apply. The safer plan, however, is to attach a written notice to the house itself, for it may happen that in this way someone, having been notified, may appear for the defence.

(7) If the judge should neglect any of the matters mentioned above, judgment will be granted against him for the amount of damages sustained through not requiring security to be furnished against threatened injury. This does not have reference to the amount that might have been recovered, but only for the interest that the plaintiff had in obtaining security, and is imposed for the benefit of the latter, and not as a penalty.

(8) Again, this action is dependent upon a certain condition, that is if application was made to the judge, but where this was not done, suit cannot be brought against him. We say that the demand for security is properly made when application is made in court, and not elsewhere.

(9) Where the town in which application is to be made is so near the City of Rome that if the magistrate does not intervene, the Praetor or the Governor can be applied to, it may be said that this action will not lie against the magistrate, for it is just as if the complainant had no interest, since it was in his power to ask to be placed in possession by either the Praetor or Governor.

(10) Moreover, this Section, which has for its object the pursuit of the property, is granted both in favor of and against an heir, and is a perpetual one.

5. Paulus, On the Edict, Book I.

It is the duty of the Praetor, where the plaintiff is placed in possession, to enable him to acquire ownership of the property, after he has held it for a long period of time.

(1) Where there are several joint-owners who should furnish security, and one of them does not do so, the plaintiff shall be placed in possession of his share. And, on the other hand, where there are several persons who desire security to be furnished them, and some have houses more valuable than the others, or where they are all owners of unequal shares of the same house, all, nevertheless, will be placed in possession on an equal footing, and not with reference to the extent of their respective ownership.

(2) If both the owner of the property and the usufructuary demand security against threatened injury, both of them should be heard; for the promisor does not suffer any wrong, because he will only be obliged to pay each one in proportion to the amount of his interest.

6. Gaius, On the Provincial Edict, Book I.

It sometimes happens that, where injury has been sustained, we will not be entitled to any action, if security had not previously been given; for instance, when the house of my neighbor, which is in a ruinous condition, falls upon my building. This rule is applicable to such an extent that it has been held by many authorities that he who is to blame can not even be compelled to remove the rubbish, provided he intends to abandon everything upon the ground.

7. Ulpianus, On the Edict, Book LIII.

The Praetor says, "In the case of threatened injury, I order every one who appears in his own behalf to promise indemnity, and all others to give security to the other party, who is willing to swear that neither he nor the person for whom he acts makes the demand for the purpose of causing annoyance; and that application may be made until the day which I shall fix for having the case. If it is disputed whether the party who is to give security is the owner of the property, or not, I direct that security shall be given provisionally. Where any structure is erected in a public stream, or on the bank of the same, I shall order security to be furnished for ten years. Moreover, I shall order the party to whom security is furnished to take possession of the property, in the name of him who makes the demand for security; and, if just cause is shown, I shall order him to obtain actual possession of the same. I will grant an action against him who refuses to give security, or who does not permit the other party to remain in possession, or to acquire it; in order that he may pay as much as he would have been required to pay if security had been furnished with reference to said property, in accordance with my decree, or with that of a judge having jurisdiction over said property, which is also in my jurisdiction. If he to whom I have granted possession in the name of another does not give security against threatened injury, I shall order him to whom security has not been furnished to be placed immediately in actual possession of the said property."

(1) This Edict has reference to injury which has not yet been committed, while other actions which relate to injuries have reference to reparation, as that of the Aquilian Law, and others. Under this Edict nothing is provided with reference to injury already committed, for when animals have caused damage it is not customary to render us liable, except to compel us to surrender them by way of reparation; and there is much more reason for the same rule to be applicable where property destitute of life is considered, as we should not be liable to a greater amount; especially where the animals which committed the damage are still in existence; but the house that caused ruin by falling has ceased to exist.

(2) Therefore, if the house should fall before security has been given, and the owner is not willing to remove the rubbish, and abandons it, the question arises whether an action can be brought against him. Julianus, in a case where a ruinous house had fallen, before a stipulation with reference to threatened injury had been entered into, having been consulted as to what he upon whose premises the rubbish had fallen should do in order to obtain damages, answered that if the owner of the house which had fallen wished to remove the rubbish, he should not be permitted to do so, unless he removed everything; that is to say, even what was worthless, and should also give security, not only with reference to future injury but also with reference to that which had already been sustained. If the owner of the house which has toppled over does not do anything; an interdict should be granted him upon whose premises the rubbish had fallen by which his neighbor may be compelled either to remove the rubbish, or to abandon the entire house which had been destroyed.

8. Gaius, On the Edict of the Urban Praetor: Title, Concerning Threatened Injury.

It may then very properly be said that these proceedings should not be taken where the owner of the ruined house failed to furnish security, not through negligence on his part, but on account of some obstacle which prevented him from doing so.

9. Ulpianus, On the Edict, Book LIII.

Julianus further says, it may be held that, in this case, the owner of the house can be compelled to give security for the damage which has already taken place; for, as protection can be provided while the building is still intact, it is not inequitable for it to be furnished after it has fallen into ruin. However, while it was intact, anyone can be compelled either to give security against threatened injury, or to abandon the house which he is unwilling to repair. Finally, he says that if anyone, on account of the shortness of the time required, or because of his absence on business for the State, cannot enter into a stipulation against threatened injury, it is not unjust for the Praetor to provide that the owner of the ruinous house should either repair the damage, or abandon it. Reason approves the opinion of Julianus.

(1) The question arises whether an interdict can be granted with reference to things which have been transported by the current of a river. Trebatius says that when the Tiber becomes swollen, and carries the property of some persons upon the premises of others, an interdict is granted by the Praetor to prevent violence from being employed against the owners of said property to prevent them from removing what belongs to them; provided they promise indemnity against threatened injury.

(2) Alfenus says that if a portion of your land falls upon mine, and you claim it, an action will be granted against you for injury already committed. This opinion is approved by Labeo; for the injury which I already have sustained cannot be left to the decision of the judge before whom the recovery of the earth which has fallen is demanded; nor should an action be granted unless everything which has fallen is removed. Alfenus also says that the earth which has fallen can only be claimed where it has not become united with, and constitutes a part of my land. Nor can a tree, which, having been carried into my field and has taken root in my soil, be claimed by you. Nor can I bring an action against you on the ground that you had no right to your part of the land deposited on mine, if it was already united with mine, for the reason that it then becomes my property.

(3) Neratius, however, says that if your boat is carried upon my land by the force of the stream, you cannot remove it unless you furnish me with security for any injury which I may have sustained.

(4) The question arose, when the land belongs to one person, and the surface of it to another, whether the latter should promise indemnity for threatened injury, or should give security. Julianus says that whenever a house which stands on the land of another is ruinous, the owner must promise indemnity, not only with reference to the defective condition of the land but also with reference to that of the building; or that he to whom the surface belongs must furnish security both with respect to the land and to the house; and if either one of them fails to do so, the neighbor should be placed in possession of the property.

(5) Celsus very properly holds that if the usufruct of your house belongs to Titia, you, as the owner, must promise indemnity against threatened injury, or Titia must give security. If he to whom security against threatened injury should be furnished is placed in possession of the property, he will prevent the use and enjoyment of the same by Titia. He also says than an usufructuary, who does not repair the property, should be prevented by the owner from enjoying it; and therefore, if the usufructuary does not give security against threatened injury, and the owner is compelled to promise indemnity, the usufructuary should be prevented from enjoying the property.

10. Paulus, On the Edict, Book XLVIII.

Cassius says that even if the usufruct is separated from the property, the owner must promise indemnity for future-injury. Unless the owner promises indemnity in full, or the usufructuary furnishes security, the person to whom security is not given must be placed in possession of the property; but if the usufructuary does not give security to the owner, who was promised indemnity, Julianus says that he will not be entitled to an action to recover his usufruct. If, however, the usufructuary should pay anything on account of some defect of the land, the right of ownership should be transferred to him.

11. Ulpianus, On the Edict, Book LIII.

What shall we say with reference to a creditor who has received a house by way of pledge? Must he promise indemnity against threatened injury, in order that his rights may be protected; or must he give security because he is not the owner of the property? This point is treated in an opposite sense by Marcellus; for he asks whether security against threatened injury should be given to a creditor who holds a house by way of pledge. Marcellus says that it is not necessary for him to give security, and adds that the same rule will apply to a person who did not purchase the house from the owner, for the stipulation would have no force, so far as the latter is concerned. I think, however, that it would be perfectly just that the interest of the creditor should be taken into account; that is to say, that he should be secured by means of a stipulation.

12. Paulus, On the Edict, Book XLVIII.

The condition of a person to whom security against threatened injury has not been furnished is preferable to that of creditors who have accepted property in pledge, if he should be permitted to take possession of it and acquire it by usucaption, after the lapse of a long period of time.

13. Ulpianus, On the Edict, Book LIII.

Let us see whether a purchaser in good faith, who obtained property from one who was not its owner, should promise indemnity against threatened injury, or should give security. The latter opinion is adopted by certain authorities; it, however, is reasonable that the purchaser should rather promise indemnity than give security, since he does so in his own name.

(1) Where a question arises whether the owner of the land or one who has a right in it (as, for instance, a servitude), should furnish security against threatened injury, I think that he should promise indemnity, and not give security, because he acts in his own name and not in that of another.

(2) Where another house, which is in good repair, stands between mine and yours which is ruinous, let us see whether you alone should give security to me, or whether he, whose house is in good condition, should alone obtain security; or whether I can require it of both of you. The better opinion is that both should furnish security; because it is possible that the ruinous house might injure mine by falling upon the one which is in good condition, although it may be said that this did not take place through any defect in the building, which was in good repair, if the other, by falling upon it, causes me damage. But, as the owner of the intervening house could have protected himself by obtaining security against threatened injury, it is but reasonable that he should be liable to an action.

(3) Where anyone demands that security against threatened injury be given him, he must, in the first place, swear that this is not done for the purpose of annoyance. Therefore, anyone who is willing to take an oath to this effect shall be permitted to enter into a stipulation, and no inquiry will be made whether he has any interest in the property, or whether he has an adjoining house, or not; for the entire matter must be submitted to the decision of the Praetor, who shall determine to whom security must be given, and who is not entitled to it.

(4) But security should not be given to anyone who has a right to cross my land, or to wash thereon, or to lodge in my house.

(5) Labeo says that it is clear that security should be given by the owner of a building, which is not in good repair, not only to the neighbors, their tenants and their wives, but also to those who reside with them.

(6) The question arises whether the owner of the house should give security to his tenants. Sabinus says that security should not be given to the tenants, for they either rented the house which was ruinous in the beginning, and it is their own fault that they did so; or the house has subsequently become ruinous and they can bring an action under the lease. This opinion is the more correct one.

(7) Where anyone builds a house near a monument, or suffers a monument to be erected near his house, security against threatened injury should not be given to him afterwards, because he allowed an unlawful act to be committed. In other cases, however, where a building injures a monument, and the person to whom the right to the monument belongs is not to blame, security must be furnished the latter.

(8) It is now settled that persons who have the right to the surface and the usufruct of land can enter into a stipulation providing against threatened injury.

(9) Marcellus, however, says that he who, in good faith, purchases property from someone who is not the owner of the same, cannot enter into a stipulation with reference to threatened injury.

(10) Where anyone serves notice for the discontinuance of a new work, Julianus discusses the question as to whether security against threatened injury should, nevertheless, be furnished him; and he is inclined to the belief that this ought to be done. Julianus also says that security should be given to a person entitled to the interdict Quod vi et clam against his adversary; because the security has no reference to any defects in a building or to any injury which may result from the work.

(11) Where anyone is placed in possession of a house for the reason that security was not given him, and afterwards the person to whom the house belonged, who has other buildings adjoining the former, demands that security against threatened injury on account of the ruinous house should be furnished him by the complainant who has been placed in possession of the same; let us see whether the latter should be compelled to furnish security, or whether the other party should be heard. Julianus holds that the person who has surrendered the ruinous house and retained those which were in good condition acts very dishonorably in demanding security from him who has just taken possession of the one in bad repair, when he himself lost possession of it because he refused to furnish security against threatened injury. And, indeed, he can with little propriety demand security to protect himself on account of a building for which he neglected to furnish security. This opinion is correct.

(12) Where anyone, about to enter into a stipulation, was sworn, but failed to conclude the agreement, let us see if he should again be sworn if he afterwards desires to enter into it. I think that he should be sworn a second time, for the reason that it is possible that either at first, or at present, he may have intended to cause annoyance.

(13) If I demand that security be furnished me against threatened injury, in the name of another, I must swear that he in whose name I demand security does not do so for the purpose of causing annoyance.

(14) If, however, I make the demand in the name of a person who, if he did so in his own proper person, would not be compelled to be sworn, as for instance, a patron, or a parent, it must be held that there is no ground for an oath; as in a case where the principal need not be sworn, he who acts for him should "not make oath in a stipulation of this kind.

(15) In this stipulation a certain term should be prescribed, within which the bond will become operative if any injury is sustained, for the person giving security should not perpetually be liable under the stipulation. Therefore, the Praetor himself prescribes the term for the stipulation, the circumstances of the case being taken into account, as well as the nature of the injury which it is apprehended may result.

14. Paulus, On the Edict, Book XIV.

In investigating the circumstances of the case, the distance separating the two pieces of property, and the dimensions of the structure should be considered,

15. Ulpianus, On the Edict, Book LIII.

If the time prescribed by the bond has passed, new security can be furnished by a decree of the Praetor.

(1) When a stipulation is entered into without fixing any time, or where, by an agreement of the parties, the stipulation was to become operative when the injury was done; or if the omission was made through mistake, and the time has expired which it is customary to prescribe in such cases; the party who furnished the security can apply to the Praetor to be released.

(2) The Praetor next says, "With reference to any structure erected in a public stream, or on the bank of the same, I shall order security to be given for ten years." A bond is necessary in this instance, and a time must be prescribed for the expiration of the stipulation; and this is done because the structure is erected in a public place. Moreover, where this is done upon the property of another, the Praetor requires a bond to be furnished.

(3) It must be remembered that security is given not only on account of defects in the soil, but also with reference to the structure itself; and, even though the latter is erected upon private ground, the security applies both to the soil and to the building itself. Where, however, the land is public property, it is not necessary for security against threatened injury to be furnished with reference to anything but defects in the construction of the building.

(4) Any damage which may occur within ten years is therefore included in this stipulation.

(5) Where the Praetor says, "With reference to any work," we must understand this to refer to any damage resulting from a structure erected on public land.

(6) Where anything is built on a public highway, security must be given for the reason that it is erected on the land of another.

(7) The Praetor, however, after investigation, will fix the time in accordance with the nature of the work.

(8) Where anyone performs labor to protect a highway, or does any other work with reference to the same, security should be furnished to prevent damage being sustained by private persons.

(9) Nothing is expressly provided with reference to other public places, but, on account of the general clause referring to structures erected upon the premises of others, security against threatened injury should be furnished.

(10) Where a public place is repaired by public labor; Labeo very properly holds that the rule that security against threatened injury shall not be given applies, where any injury may result from either a defect in the land or the work; but the work should be performed in such a way that no injury or damage may be sustained by the neighbors.

(11) Under the terms of this Edict, if security is not furnished, the plaintiff is placed by the Praetor in possession of that part of the building which seems to be in a ruinous condition.

(12) Let us see whether he should be placed in possession of the whole house. An opinion of Sabinus is extant which says that he should be placed in complete possession; otherwise, he says if damage is apprehended only on account of the building, the Edict cannot be carried into effect, nor will it benefit him to be placed in possession which he cannot legally hold, or which will be of no advantage to him. This opinion of Sabinus is the better one.

(13) Where a building is divided into several parts, let us see whether the plaintiff should be placed in possession of a portion of the same, or of all of it. If it is so large that spaces exist between the part which is ruinous and that which is in good repair, it must be said that the plaintiff should be placed in possession of the ruinous portion alone; but if the entire building is closely united, he should be placed in complete possession of it. Therefore, in houses of great extent, the better opinion is that the plaintiff should be placed in possession of the part which is contiguous to that which is in a ruinous condition. If, however, but a very small portion of a house of great extent is in a ruinous state, how can it be held that the person to whom security against threatened injury has not been given should be directed to take possession of the entire building, when it is of such vast dimensions.

(14) Again, what shall we say if an addition to the house is in a ruinous condition? Shall the plaintiff be placed in possession of the addition, or of the entire building? The better opinion is that he should not be placed in possession of the entire building, but only in possession of the addition to the same.

(15) Where several persons demand that security shall be given to them, it is customary for all of them to be placed in possession. Labeo adopts this opinion, where one has already been placed in possession, and another desires this to be done; for we shall not consider the order in which they appear, but both of them will be entitled to possession. Where, however, one has already been directed to take possession, and another demands that security against threatened injury be furnished; then, unless this is done, the second one shall be placed in possession.

(16) Julianus says that where anyone is placed in possession on account of threatened injury, he cannot acquire the title to the property by lapse of time, unless he is made the owner by a second decree of the Praetor.

(17) If another has also been placed in possession before this decree was issued, both of the parties will become joint-owners of the house; that is to say, if they were ordered to take possession of the same. If, however, the one who is first placed in possession has become the owner, and Titius should demand that security against threatened injury be given him, and the first should refuse to furnish it, Titius alone will remain in possession.

(18) Where several persons are placed in possession, they are all on the same footing, and the amount of damage which may affect each one is not considered; and this is reasonable, for when one person is placed in possession this is not done with reference to the proportion of damage which he may apprehend, but it is done for the benefit of all. Hence, where several are placed in possession, all of them equally obtain complete possession, and their shares are regulated by contribution.

(19) If, however, anyone who is placed in possession should incur expense, and should afterwards be ordered to take possession by a second decree, can he recover the expense, and if he can, by what proceeding? It is established that he can recover the expense he has incurred by an action in partition.

(20) Where, however, a person is placed in possession, but has not yet been ordered to take complete possession by a second decree, let us see whether the owner of the property is obliged to relinquish possession. Labeo says that he is obliged to do so, as is the case where neither creditors nor legatees are placed in possession. This opinion is correct.

(21) When the Praetor places anyone in possession of property, he does not grant them complete possession at once, but only after proper cause is shown. Therefore, a certain interval of time should elapse, in order to show that the owner, by a long silence, considers the house as abandoned, or where a person has been placed in possession, and, after he has remained there for some time, no one furnishes security.

(22) If the owner should happen to be absent on business for the State, or for any other good reason, or if he should be of an age which entitles him to relief, the rule should be adopted that the Praetor ought not to use undue haste in promulgating the decree to place the party in complete possession of the property. And even if he should issue such a decree, there is no doubt that complete restitution will be granted the party interested.

(23) Where anyone is ordered to take complete possession, the owner should be compelled to relinquish it.

(24) Where any rights are due to the parties who have been able to give security against threatened injury, the assertion of those rights cannot be made against the person who has been placed in possession. Labeo approves this opinion.

(25) In the case of a creditor who holds a ruinous house in pledge, the question arises whether he can assert his rights to the pledge against anyone who has been ordered to take complete possession by virtue of the second decree of the Praetor. The better opinion is that he will be refused the right to claim his pledge, if the debtor should not promise indemnity, or the creditor furnish security. Celsus very properly holds that this rule also applies to the case of an usufructuary.

(26) Where a house is held under a perpetual lease, we are of the opinion that a person can be placed in possession, but cannot be authorized to obtain complete possession by a second decree of the Praetor; for the ownership of the property can never be acquired by possession. A decree should, however, be issued to the effect that the tenant will be in the same position as he who refused to give security, after which decree he can avail himself of the proper action for this purpose under his lease.

(27) With reference to land leased by a municipality, however, if the authorities do not give security, it must be said that ownership can be acquired by lapse of time.

(28) If the damage apprehended should occur whiie the Praetor is deliberating as to whether the stipulation should be granted or not, the following nice question has arisen; namely, whether the plaintiff can be indemnified. And, indeed, the placing in possession will not become operative. The Praetor should, nevertheless, decree that any damage which may have occurred shall also be included in that covered by the bond; or if he thinks that it would be proper for him to grant an action, he can issue a decree to that effect.

(29) Where a ward has no guardian by whose authority he can promise indemnity for threatened injury, the plaintiff can be placed in possession, just as in the case where no defence was made.

(30) Where anyone is placed in possession on account of threatened injury, some authorities hold that he should prop up and repair the building in question, and that he is responsible for negligence, as in the case of a person who receives a pledge. We, however, make use of another rule; for as he is only placed in possession instead of receiving security, he will not be to blame if he does not make repairs.

(31) If security is offered him after he has been placed in possession, let us see whether he should be obliged to vacate the premises, unless security is also furnished him for any damage which may have been committed after he was placed in possession. This opinion, indeed, is the better one. Therefore, the time prescribed should be stated twice in the promise for indemnity; and, moreover, security must be furnished him for any expense which he may have incurred.

(32) The question arises from what date the account of the damage must be estimated, whether from the time when the plaintiff obtained possession, or from the time when the Praetor decreed that he should enter into possession. Labeo says that it should be from the time that the decree was issued; and Sabinus holds that it should date from the time when the plaintiff obtained possession. I think that the adoption of one or the other of these opinions depends upon the circumstances of the case; for it is customary to come to the relief of one who has been directed to take possession, and for some reason did not do so, or who obtained possession too late.

(33) However, after anyone has been ordered by the Praetor to take complete possession by the right of ownership, there is no ground for the tender of security. Labeo adopts this opinion, for he says that, otherwise, the case would never be terminated. This is perfectly correct, except where the parties are entitled to relief, either on account of their age, or for some other good reason.

(34) Where a house has already fallen down, let us see whether the person to whom security has not been given should still be placed in possession of the ruins, or of the land. The better opinion is that this should be done. Labeo concurs in this, but he adds that it should be adopted only where the house had fallen after the Praetor had issued a decree placing the plaintiff in possession. I think that the opinion of Labeo is correct. Hence, if the plaintiff makes any repairs, it should be held that he is not compelled to depart before he has been paid for them, and security has been furnished for damage previously sustained. He can, however, recover what he has expended by an action in factum, but he cannot recover more than ought to have been expended in accordance with the judgment of a good citizen. The same rule applies where someone else has incurred expense by my order or request, without fraudulent intent; and a decision has been rendered against me on this account, or I have paid the amount in good faith.

(35) Where anyone relinquishes possession of a house through fear that it will fall, and he does so when he cannot prevent it, Labeo says that his right will remain unimpaired, just as if he had continued in possession; because, if he preferred to abandon the house when its condition could be remedied, he will lose the benefit of the decision of the Praetor, and he should not be heard if he afterwards applies for relief. Cassius, however, says that if he withdrew through fear that the house would fall, and not with the intention of abandoning it, he should be restored to possession. He also says that where the person placed in possession does not appear, and the building collapses, he will lose the benefit of the decree of the Praetor. This should be understood to mean if he neglected to take possession, and not where the house fell after he had come with the intention of taking possession of it.

(36) Where anyone has been sent by the Praetor to take possession under this Edict, and is not permitted to do so, he can avail himself of an action in factum, and ask that as much shall be paid to him as would have been required to be paid if security with reference to the property had been furnished. This action extends to the time when the damage was committed.

16. Paulus, On the Edict, Booh LX.

Before the damage is done the act of him who refused to promise indemnity, or to permit the plaintiff to take possession, will remain unpunished, provided that, before the damage was committed, he either gave security, or relinquished possession of the property.

17. Ulpianus, On the Edict, Book LIII.

Where anyone, who is under the control of another, refuses to admit the person who was placed in possession, many authorities hold that a noxal action on this ground will lie.

(1) What course must be pursued if an agent should prevent him from taking possession? Shall we grant an action against him, or against his principal? The better opinion is that the action should be granted against the agent.

(2) The same rule will apply to the agent of a municipality, a guardian, and those who appear for others.

(3) This action, which is in factum, is granted perpetually, and passes to and against the heir, as well as to and against other persons.

(4) The judge who has jurisdiction in a case of threatened injury, and also where a tract of land has been alienated by the party against whom suit was brought, ordinarily makes an estimate of all the damage which has been sustained before judgment is rendered.

18. Paulus, On the Edict, Book XLVIII.

The stipulation with reference to threatened injury can be given not only to the person who owns the property, but also to him who is responsible for the same.

(1) Where, however, the promisor has, by doing some work, obtained ownership of the property by usucaption, Pomponius says that he will not be liable on this ground, for the reason that he did not acquire the property through any defect of the land or on account of the work, but by the operation of public law.

(2) It is not necessary for security to be given to the person who has an usufruct in a house which is in bad repair, even though he may be the owner of other adjoining buildings, because he can make repairs; for he who should use property as becomes the careful head of a household has also the power to repair it. Therefore the owner of the house should not be heard if he desires security to be given him by the usufructuary for the protection of other houses which are near the one subject to the usufruct, since he has a right of action against the usufructuary to compel him to enjoy the property as a good citizen should do.

(3) I must, however, give security against threatened injury to my tenant, if he has houses near the one which he occupies, and which is in bad condition.

(4) The owner of the ground is not compelled to furnish security with reference to any injury which may be caused by the condition of the ground to a man who has erected a house on the said land, after having leased it; and, on the other hand, the latter is not obliged to give security to the owner, because each of them is entitled to actions under the lease, and in these proceedings nothing but negligence is considered. More, however, is included in a stipulation having reference to threatened injury, because, in this case, the bad repair of the property is said to be involved.

(5) If a person who has a house should enter into a stipulation, and then should purchase another neighboring house, the question arises whether the promisor will be bound with reference to the house which he purchased after the stipulation was entered into. Julianus says that it should be considered whether he who gave security is only liable for the condition of the house with reference to which the contract was entered into between him and the promisor, in the first place. The result of this would seem to be that where two joint-owners enter into a stipulation concerning a house held in common, security should only be given against any injury which might be sustained by either of the said joint-owners, with reference to his share in the building. Therefore, whether one of them purchased the share of the other, or the house was adjudged to him by the court, the obligation of the promise is not increased. Pomponius, in reporting this opinion of Julianus, says that he approves it.

(6) If, however, the stipulator brought any personal property into the house after the stipulation was concluded, and the said personal property was destroyed by the ruin of the neighboring building, he can bring an action under the stipulation, even though at the time when it was entered into the said property was not in the house.

(7) If the purchaser of a tract of land entered into a stipulation before delivery, he will be secured against any damage which may take place after the property has been transferred.

(8) The vendor of a house must, however, stipulate before he gives possession, because he gives security for any damage to the property through negligence.

(9) But what must be done, where the vendor was unable to stipulate for security, through no fault of his, and the purchaser himself has stipulated for it? Must not the purchaser suffer the damage? As this damage has happened to property belonging to another, would it riot fall upon the purchaser, because he has no right of action based on the sale? A stipulation of this kind is of no benefit whatever, unless the damage occurred after the transfer of the property; because, as long as the vendor is charged with its custody, he should stipulate that he will be responsible to the purchaser for the exercise of the greatest diligence; and whatever the purchaser can obtain by means of another action should not, under any circumstances, be included in the stipulation providing against threatened injury.

(10) If the vendor should make the stipulation, any damage which may happen after delivery of the property to the purchaser will be included therein. Aristo says that this is extremely unjust, since, if the purchaser had himself stipulated with reference to threatened injury, the promisor would be liable to two persons on the same ground, unless, perhaps, the contrary might occur; because, in this instance, the stipulation was made with reference to the interest of the stipulator, so that it might be held that the vendor had no longer any interest, after the stipulation with reference to threatened injury had been entered into.

(11) The opinion of Sabinus is correct, who held that if, while I was building a house, a neighboring building should, within the time fixed by the stipulation, fall upon my wall, and damage it, and even though it should fall after the time fixed by the stipulation has passed, I can still bring an action, because I sustained the damage at the time when the wall was in bad condition; nor is there anything to prevent the bringing of an action even before it falls; and if it is so shaken that it cannot be repaired, and therefore must be taken down, the estimate of the damage made in court should not be less than if the wall had fallen.

(12) If you and I have adjoining houses, and we desire security against threatened injury to be reciprocally furnished, there is no reason why I should not be placed in possession of your house, and you be placed in possession of mine.

(13) If a ward prevents anyone from taking possession on account of threatened injury, it is held that an action in factum can immediately be brought against him.

(14) If another person, acting under my direction, prevents a person from taking possession, this action can be brought against me.

(15) The Praetor not only punishes the person who was in possession at the time when the first decree was issued, but also him who will not permit possession to be obtained under the second decree; as otherwise, he who has begun to obtain possession under the second decree, and to acquire ownership by means of his possession, is either not permitted to enter upon the premises, or is ejected, he will be entitled to an interdict on the ground of violence, or to the Publician Action. If, however, he should bring an action in factum, he cannot avail himself of the other, as the Praetor permits this in order to prevent the plaintiff from causing any injury by which he may profit.

(16) Where my agent enters into a stipulation with reference to threatened injury, I will be entitled to an action based on the stipulation, where proper cause is shown.

19. Gams, On the Edict of the Urban Praetor: Title, Concerning Threatened Injury.

In a stipulation for indemnity against threatened injury, the rights of those who are absent in good faith are not prejudiced; if, after their return, power is granted them to give security which is only just, whether they are the owners of the property, or have any rights therein, either as creditors, usufructuaries, or ground lessees.

(1) If any damage is apprehended through the bad condition of a house, or any other structure, which may happen with reference to a building situated either in the city or in the country, or in a private or a public place, the Praetor must see that security is furnished to the person who fears that such damage will occur.

20. The Same, On the Provincial Edict, Book XIX.

Security against threatened injury takes place between the usufructuary and the owner of the property when the usufructuary demands that it be given him on account of bad condition of the ground, and the owner of the property on account of some defect of the work, when the usufructuary is constructing something, for neither of them can demand security from the other on account of a house which was in danger of falling; the usufructuary, because he is not responsible for the repair of the house, and the owner, for the reason that a stipulation is usually entered into by them, under which the usufructuary gives security to repair the property, a provision which applies to this case.

21. Paulus, On Plautius, Book VIII.

Where a son under paternal control is a tenant, let us see whether he can be placed in possession of a neighboring house on account of threatened injury; for the question arises whether a son under paternal control is not considered to sustain damage, when his property consists of his peculium, and his father can enter into a stipulation to provide against any damage which he may suffer. It is established that both of them should be placed in possession, unless the son, when he rented the house, agreed that it should be at his risk; for then, as he alone is liable under the lease, it is very properly held that he himself should be placed in possession, if security is not given him.

22. The Same, On Plautius, Book X.

If the owner of the property promises indemnity against threatened injury, or has paid something on this account; or, on the other hand, the usufructuary has paid something, it is only just that one of them should enjoy the use of the house, or that the other should retain the ownership of the same without any risk. If the owner has paid anything on this account, the usufructuary should not be permitted to use the property unless he contributes his proportion. This also applies to the usufructuary, and the owner of the property will be compelled to contribute his share. Hence if the house should fall, the usufructuary can hold the ground until he is reimbursed for the damage, so that what the neighbor would have been entitled to, if he had been placed in possession, the usufructuary, who reimbursed him for the damage, should have. The same rule applies where even a very small amount is paid for damage sustained.

(1) Plautius: I demand security from a person whom I deny to be the owner of certain property, under the exception, "If he should not be the owner," and I say that another, whom I consider to be the owner, must simply promise me indemnity. It has been settled that I cannot obtain both of these demands, but that I must choose which one of the parties I prefer to furnish me security.

23. Ulpianus, On the Edict, Book LXIII.

In a stipulation relating to security against threatened injury, which is entered into on account of a house, the plaintiff shall be placed in possession, unless the bond covers everything.

24. The Same, On the Edict, Book LXXXI.

The use of public streams is common, as well as that of public highways, and the sea-shore; therefore anyone whosoever can build in such places, and tear down what he has constructed, provided this can be done without causing others inconvenience. For this reason a bond with sureties is only given with reference to the structure itself, and no provision is made for the bad condition of the ground; that is to say, the rule only applies to the work which anyone performs. If, however, there is any apprehension of threatened injury on account of the bad condition of the ground, it can, by nd means, be said that it is necessary to enter into a stipulation with reference to threatened injury, for who can doubt that there is no one from whom the stipulation can be obtained; since, if no one should build anything, suppose the public place aforesaid causes some damage on account of its nature. Therefore, the stipulation only has reference to such structures as are built by private individuals. What rule, then, will apply, if a public work is built, and what conclusion shall we come to with reference to any defect in its construction? It is clear that recourse must be had to the Emperor; or, if the structure was erected in the province, to the Governor of the latter. However, what has been said with reference to defects in the erection of a building must be understood to relate not only to the time when the work was done, but also to a case where any damage results subsequently; for what if the house should fall because it had been improperly constructed?

(1) The names of the heirs or successors, and of all other persons who have an interest in the property, are included in this stipulation; and the term "successors" not only has reference to those who succeed to all of it, but also to such as only succeed to a certain portion of the same.

(2) Any damage which may result to the house, the ground, or the work, on account of its bad condition, or its defective construction, is provided for by a stipulation without security, and this refers not only to the entire house, but also to a portion of the same. Labeo says that the bad condition of the house or the ground includes anything which, arising from an external source, renders either less durable. No one, however, can say that a stipulation will become operative on the assumption that the ground is in bad condition, where it is either marshy or sandy; because these are natural defects, and therefore the stipulation does not apply to such a case, and, even if it has been entered into, it will not become operative on this account.

(3) The question arises whether this stipulation only refers to damage resulting from injury, or whether it also includes all damage arising from an outside source. Labeo says that proceedings cannot be instituted where damage has been sustained, if it occurred through an earthquake, an inundation, or any other fortuitous event.

(4) Servius, also, says that where tiles, blown off by the wind, have fallen from the house of the promisor upon that of his neighbor, the former will only be liable if this occurred through some defect in his building, and was not caused merely by the violence of the storm, or by any other catastrophe due to Divine agency. Labeo gives as a reason for this that injustice would be done if this rule were not adopted; for where could a house be found strong enough to sustain the force of a river, or of the sea, or of a tempest, or of ruin, or of fire, or of an earthquake?

(5) Servius also thinks that if the violence of a stream should overwhelm an island, and the buildings of the stipulator should fall, he can recover nothing under the stipulation, because the occurrence cannot be attributed to any defect of the buildings, or to the bad condition of the ground. If, however, the water should undermine the foundation of a building, and it should be ruined in consequence, he says that the stipulation would become operative; for it makes a great deal of difference where a structure which is substantially built is instantly overthrown by the force of the stream, and where it has previously become decayed, and afterwards falls. Labeo, also, approves this opinion, for this case by.no means resembles that provided for by the Aquilian Law, where anyone kills a slave who is sound, or one who has become infirm.

(6) Moreover, although the stipulation becomes operative when damage results through some defect of construction, still, if the work had been done by someone whom the promisor could not interfere with, the stipulation will not become operative. It is clear that it will become operative, if he could have prevented him from building. Where, however, anyone constructs the edifice in the name of the promisor, or in the name of him for whose benefit indemnity has been promised, or of anyone else who can be prevented from doing the work, this stipulation will become effective.

(7) If security should have been furnished to provide against injury resulting from the construction of an oven, and the damage should result from the negligence of the person having charge of the same, it is held by many authorities that this case will not come within the terms of this stipulation.

(8) Cassius, also, says that where damage resulted from some cause against which there was no means of making provision, the stipulation will not apply.

(9) The following case is mentioned by Vivianus. If the trees standing on the land of my neighbor are broken by the force of a storm, and fall in my field, and my vines or crops are injured thereby, or they demolish my buildings, a stipulation which contained the clause, "If any damage should result from trees being in bad condition," will have no effect; because the damage did not result from any defect of the trees, but was caused by the force of the wind. It is clear that if the damage resulted from the age of the trees, we can say that the accident occurred through their defect.

(10) He also says that if I should promise you indemnity on account of threatened injury caused by my house, and it should be thrown upon your building by the force of a storm, and destroy it, nothing will be payable under the stipulation; because you sustained no damage through any defect in my house, unless it was so badly out of repair that it would have fallen under the force of even the smallest storm. All of which is true.

(11) What Labeo thinks is also true, for it makes a difference whether a building is overthrown by the rising of a river, or whether it falls after having gradually been weakened.

(12) Now let us see when the damage should be held to be sustained; for the stipulation refers to damage caused by defects in the building, the land, or the construction. For instance, I dig a well in my premises, and, by doing so, I intercept the sources of your well; will I be liable? Trebatius says that I will not be liable on the ground of threatened injury, for there was no reason to believe that I caused you damage through any defect of my work, where I was only making use of a right tp which I was entitled. If, however, I should make an excavation on my land so deep that your wall cannot stand, the stipulation of indemnity against threatened injury will become operative.

25. Paulus, On the Edict, Book LXXVIII.

Trebatius says that he also sustains damage who has the lights of his house cut off.

26. Ulpianus, On the Edict, Book LXXXI.

Proculus says that when anyone erects a building On his own land, which he has a right to erect there, even though he has promised indemnity for threatened injury to his neighbor, he will still not be liable under this stipulation; for example, if you have a building adjoining mine, and you raise it higher than you have a right to do; or if you turn my water-course into your field by means of a canal or a ditch. For although, in this instance, you divert my water and, in the former one, you intercept my light, I will, nevertheless, not be able to sue you under the stipulation, because he should not be considered to have committed an injury who prevents another from enjoying some benefit, which, up to that time, he had been accustomed to enjoy; and it makes a great deal of difference whether anyone causes damage, or whether he prevents another from enjoying a benefit which he had hitherto been accustomed to enjoy. The opinion of Proculus appears to me to be correct.

27. Paulus, On the Edict, Book LXXVIII.

Joint-owners of the same house should each one stipulate for indemnity, without mentioning his individual share in the property, for the reason that each one stipulates with reference to the injury which he himself may sustain. Moreover, if mention is made of each share, it would be just as if each stipulated only for the half. On the other hand, where there are several owners of a house which is in bad condition, each one must promise indemnity with reference to his own share of the same, in order to prevent each from being individually liable for the entire amount.

28. Ulpianus, On the Edict, Book LXXXI.

The amount of the interest of the person demanding it is included in this stipulation. Hence Cassius says that if he who stipulated for indemnity against threatened injury should prop up the building on account of which he obtained security because he feared that it would fall, he can recover the expenses of doing so under the stipulation. The same rule of law applies where anyone who has obtained security for threatened injury on account of the defects of a party-wall props up his own building for the purpose of diminishing the burden sustained by the wall. The damage suffered because of the removal of tenants influenced by fear of accident is included in the same category. Aristo, moreover, very properly adds (as Cassius requires in this instance), that, if there was good ground for the fear which caused the tenants to depart, Cassius should also have added with reference to the person who propped up the building, that he was compelled to do so through a reasonable fear that it would collapse.

29. Gaius, On the Provincial Edict, Book XXVIII.

The same rule applies where no one is willing to rent the house on account of it being out of repair.

30. Ulpianus, On the Edict, Book LXXXI.

The stipulation for indemnity against threatened injury is also applicable, where I sustain any damage through a defect in the work done by my neighbor on my land for the purpose of conducting water on his own premises. For it is usual for work to be performed by anyone upon the land of another, when it is done under the right of a servitude in his favor with which the land of the latter is charged.

(1) In a case of this kind, let us see whether a person should merely promise indemnity, or should give security. A difficulty arises because he does the work on the premises of another, and anyone who gives security for work performed under such circumstances must furnish sureties; but where he does the work on his own land, he merely promises indemnity. Wherefore Labeo thinks that he who does any work on the land of his neighbor, which has reference to water-courses, or canals, must furnish security, because the work is performed on the premises of another. Where, however, a stipulation is required with reference to something which is already constructed, the result is that a promise of indemnity will be sufficient; for, in this instance, the person, to a certain extent, gives security with reference to his own property.

(2) What has been said with reference to conducting water has only been stated by way of example, but this stipulation is applicable to all kinds of labor.

31. Paulus, On the Edict, Book LXXVIII.

Those who repair public highways should do so without causing any damage to their neighbors.

(1) If a dispute should arise whether the person from whom security is required is, or is not, the owner of the property, he must furnish security with the reservation of his rights.

32. Gaius, On the Provincial Edict, Book XXVIII.

If a house which belongs to yourself and me in common adjoins another, which is my property, the question arises whether, if the house owned in common threatens to cause me any damage, you should furnish me security against the injury which may be sustained by my own building; that is to say, for that portion of the said house of which you are the owner. This opinion is adopted by several authorities. I, however, perceive a difficulty because I myself can repair my own house, and I can recover, in an action of partnership or one in partition, any expenses incurred for a portion of the same. For if I have a building in common with you, which is in bad condition, and you are in default in repairing the same, our instructors deny that you should be compelled to give security, because I myself can make the repairs and will be entitled to recover by an action on partnership, or in partition a proportionate share of the expenses which I have incurred; and therefore the giving of a bond would be of no use, because I can be reimbursed for any loss in another way. It is clear that the opinion of our instructors was, that we should consider a stipulation provided for indemnity in the case of threatened injury to be useless, where one can be indemnified for his loss by another action; which rule is understood to be applicable to the case above mentioned.

33. Ulpianus, On Sabinus, Book XLII.

An action under a bond of indemnity for threatened injury is not granted to a tenant, because he can proceed under his lease, if the owner of the property should prevent him from leaving;

34. Paulus, On Sabinus, Book X.

Provided always, that he is ready to give security for any rent which may have accrued; otherwise, the owner could justly retain his property by way of pledge. But even if he should retain it by way of pledge, and it should be destroyed by the fall of a neighboring house, it may be said that the owner would be liable to the tenant in an action on pledge, if he could have deposited the property in a safer place.

35. Ulpianus, On Sabinus, Book XLII.

In case of the demolition of a party-wall, inquiry must be made whether or not it was fitted to support the weight placed upon it.

36. Paulus, On Sabinus, Book X.

Several authorities hold that a party-wall, to be suitable, must be able to support the weights of both the houses which may legally be placed thereon.

37. Ulpianus, On Sabinus, Book XLII.

For, if it was not capable of sustaining these weights, it should be demolished. He who demolishes it should not be liable, if any damage results for this reason, unless he builds a new wall which is either too expensive, or not good enough for the purpose. If the wall which was demolished was a suitable one, the plaintiff will be entitled to an action under the stipulation for indemnity, to the amount of his interest in having the wall remain. This is reasonable, for if it ought not to have been demolished, he shall rebuild it at his own expense. Moreover, Sabinus says that if anyone lost any income on account of the demolition of the wall, it should be repaid to him. If the tenants leave the house, or cannot be so conveniently lodged, the builder of the new wall shall be responsible.

38. Paulus, On Sabinus, Book X.

The purchaser of a house cannot properly stipulate for indemnity before possession has been delivered to him; for the reason that the vendor is bound to exercise strict diligence with reference to the property, so far as the rights of the purchaser are concerned. It is certain that such a stipulation can be made, where the vendor is in no way to blame; for instance, if he permitted the purchaser to remain in the house under a precarious title, and when about to depart, he gave him the custody of the same.

(1) If security is not furnished with reference to a field, the plaintiff should be placed in possession of that part of it where some damage is apprehended. The reason for this is, that in the case of buildings, the portions which are in good repair may be pulled down by those which are ruinous, and this is not true of vacant land. It must, however, be said that, with reference to very large houses, the Praetor should sometimes determine, after investigation, in which part of the building the person, to whom security has not been given, should be placed in possession.

(2) Where a new wall is erected, the expense should be calculated after having deducted the cost of the old one to ascertain whether there is any excess; or if any of the old wall was used in the construction of the new one the value of it should be deducted in making the estimate.

39. Pomponius, On Sabinus, Book XXI.

Where there is a party-wall between two houses, it is customary to stipulate against threatened injury with reference to the house belonging to each individual owner; but security is not necessary, except where one of them alone builds, and damage is feared on account of the work, or where one of them has a more valuable house than the other, and will sustain greater damage if the wall should fall. Otherwise, where the risk is equal on both sides, the same amount of security given by one of them to his neighbor should also be exacted from the former.

(1) Where the title to a building is in dispute, the burden of furnishing security against threatened injury rests upon the party in possession, as he can recover from the owner of the land whatever he may be compelled to pay out for this purpose. If, however, he should not furnish security, possession shall be given to the plaintiff, who demanded security against threatened injury; for it would be unjust for the stipulator to be compelled to abandon the land, which he fears may be damaged, in order to search for the owner.

(2) The stipulation with reference to threatened injury has a very broad application. Hence this stipulation is advantageous to one whose house, built upon the land of another, is damaged. It is also advantageous to the owner of the land, in case the latter is injured in such a way that the entire surface is removed, for he will then lose the income which he would otherwise have received.

(3) It is lawful to stipulate in the name of another that any damage which may be sustained by the owner shall be included. He, however, who stipulates should give security that the owner will ratify the transaction, and the exception referring to the agent should be inserted in the stipulation, as in the case of those relating to legacies. If security is not furnished him, the agent should, by all means, be placed in possession, so that the exception relative to his agency may not prejudice him.

(4) In making the estimate for the new wall, an account must be taken of the expense, which should not exceed a reasonable sum; and the ornamentation of the old wall ought to be considered, provided the expense is not increased too much by doing so.

40. Ulpianus, On Sabinus, Book XLIII.

In entering into a stipulation for indemnity against threatened injury, an indefinite or extravagant valuation should not be made, as, for example, for stucco-work, or mural paintings; for even though great expense may have been incurred for these things, still, a moderate estimate should be made in the stipulation providing against threatened injury, because a just medium should be observed, and the extravagant luxury of anyone should not be encouraged.

(1) Whenever injury results from a defect in a party-wall, one of the joint-owners will not be liable for any damage sustained by the other, for the reason that it was caused by defective property owned in common. If, however, the damage resulted from one of them plac* ing too great a weight against it, or upon it, it must be said that he alone will be responsible for the damage which was caused by an attempt to benefit himself. If the wall should collapse on account of too great a burden having been imposed upon it by both parties, Sabinus very properly says that both of them will be liable. But if one of them loses more property, or property of greater value than the other, it is best to hold that neither of them will be entitled to an action against the other, because both placed the same burden on the party-wall.

(2) Whenever several persons bring an action on a bond given to provide against threatened injury, for the reason that they have sustained damage with reference to the same property, for instance, a house, each of them should not sue for the entire amount, but in proportion to his share, because the damage which all are entitled to recover has not been sustained by each one in full, but merely for a part; hence Julianus says that an action only for a part will be in favor of each one of them.

(3) Likewise, if a house which is in bad condition, and threatens to fall, belongs to several persons, can an action be brought against each of them for the entire amount, or only for a part? Julianus says, and Sabinus approves his opinion, that they should be sued for the interest which each one has in the property.

(4) Where several owners of a house demand security against threatened injury and no one furnishes it, all of them should be placed in possession on the same footing; although they may have different shares in the ownership of the property. This is also stated by Pomponius.

41. Pomponius, On Sabinus, Book XXI.

Where a party-wall is to be repaired, that owner should have the opportunity to do the work who can perform it in the most suitable manner. It must also be said that this rule will apply where the same road or water-course is to be repaired by two or more persons.

42. Julianus, Digest, Book LVIII.

If a slave owned in common enters into a stipulation providing against threatened injury, it is considered the same as if his master had stipulated orally with reference to their respective shares.

43. Alfenus Varus, Digest, Book II.

A certain man promised indemnity against threatened injury to his neighbor. Tiles from his building were thrown by the wind upon those of his neighbor and broke them. The question arose whether any damages were to be paid. The answer was that this should be done if the accident resulted from any defect or weakness of the building, but if the force of the wind was such that it could even have demolished buildings that were strongly constructed, no damages could be collected. And even though it were provided in the stipulation that damages would be payable even if anything should fall, nothing would be considered to have fallen, where anything was thrown down either by the violence of the wind, or by any other external force, but only what fell of itself.

(1) A man who desired to rebuild a party-wall which he owned in common with his neighbor, before he demolished it, gave him security against threatened injury, and obtained the same from him. After the wall was removed, the lodgers in the rooms of the neighbor left, and the latter attempted to recover from the other joint-owner of the wall the rent which the lodgers had not paid. The question arose whether he could lawfully make such a demand. The answer was that, as the party-wall was being rebuilt, it was not necessary for the joint-owners of the same to give security to one another, nor could either of them, under any circumstances, be compelled to do so by the other; but if they did give security, they still could not give it for more than the half owned by each, for neither of them should give security, even to a stranger, for any more than this, when he intended to rebuild the party-wall. As, however, both had given security for the entire amount, the one who built the wall must be responsible for any damage sustained by his neighbor on account of the loss of his rent.

(2) The same neighbor applied for advice as to whether he could not recover what he had paid on this account, for the reason that it had been agreed by his neighbor that he would reimburse him for any loss which he might have incurred on account of what he had built, and he had lost the money which he had paid on account of the work which he had done. The answer was that he could not do so, because the loss which he had sustained was not due to any defect of construction, but by virtue of the stipulation.

44. Africanus, Questions, Book IX.

I demanded that you give me a bond of indemnity against threatened injury and you refused to do so. Before I applied to the Praetor, your building fell down and caused me damage. It. was held that the Praetor should not render any decision in this case, and that I suffered the damage through my own Tault, because I began to institute proceedings too late. If, however, the Praetor decided that you should furnish me security, and you did not do so, and he then ordered me to take possession, and your building should collapse before I arrived, it was held that the same rule should be observed as if the injury had been sustained after I had come into possession of the property.

(1) Having been placed in possession of property on the ground of threatened injury, I obtained the ownership of the same through possession under the second decree of the Praetor. A creditor afterwards desired to prosecute his claim to the house which was hypothecated to him. It was held, and not without reason, that if I had incurred some expense in repairing the house, and the creditor was not willing to reimburse me for the same, he would not be permitted to bring suit against me. Why then should not this right also be conceded to a purchaser, if he had bought a house which had been hypothecated? These two cases cannot justly be compared with one another, since he who purchased the house entered into the transaction voluntarily, and therefore he could and should have been more diligent, and should have compelled the vendor to furnish him with security; but this cannot be said of him who failed to furnish indemnity against threatened injury.

45. Scaevola, Questions, Book XII.

You built a house, and I bring an action against you on the ground that you have no title to the same. You do not set up any defence. Possession should be granted me, but not in order that the house may be immediately demolished, for it would be unjust for this to take place at once, but it should be done within a certain time, unless you prove that you had the right to build it.

46. Paulus, Sentences, Book I.

It is the duty of the agent of a municipality to see that houses which have fallen into ruin are rebuilt by the owners.

(1) Where a house has been rebuilt at the public expense, and the owner of the same refuses to pay the money disbursed for that purpose, with interest to a certain date, the town can legally sell the house.

47. Neratius, Parchments, Book VI.

If the owner of two houses restricts the use of a passage which had been common to both of them, to one alone, it will only belong to the house to whose use it has been restricted, not only where the timbers by which it is supported form part of it, but even where they all rest upon the walls of another building. Moreover, Labeo, in his Last Works, says, where the owner of two houses built a portico attached to both of them, and made an opening to one of the houses from said portico, and then sold the other house, after imposing upon it the servitude of supporting the portico, that the entire portico will belong to the house which the vendor retained; even though it may extend the entire length of both houses, and is crossed by timbers supported on both sides by the walls of the house which was sold. He, however, says that this rule will not apply when the upper part of the building, which is not joined to the portico, and has no other entrance, belongs to another house than the one by which the portico is supported.

48. Marcianus, On Informers.

Where anyone is proved to have sold a house or a part of the same for the purpose of demolishing it and selling the materials, it has been decided that the purchaser and the vendor should each be liable for the amount for which the house was sold. If, however, he should dispose of the marbles or columns of his house to be used in some public work, he can legally do so.

 

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Tit. 3. Concerning the right to compel a neighbor to take cake of water and rain-water.

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1. Ulpianus, On the Edict, Book XLIII.

Where rain-water causes damage to anyone, he will be entitled to an action to compel his neighbor to divert it from his premises. By rainwater we mean that which falls from the heavens, and increases after a heavy rain, whether it does the damage of itself, or, as Tubero says, is mixed with other water.

(1) This action can be brought before the damage has been sustained, and after some building has been constructed, on account of which damage is apprehended. It will lie whenever water will probably result in injury through human agency, that is to say, whenever anyone does something which will cause the water to flow in some other way than it is naturally accustomed to do, that is, if by allowing it to run, he causes the amount to become greater, or the current to become more rapid, or stronger, or if, by confining it, he causes it to overflow. If, however, the water, by its nature, should cause damage, it cannot give rise to an action.

(2) Neratius says a certain man constructed a levee to exclude the water which ordinarily flowed from a marsh upon the land; if the marsh should be filled with rain-water, and it, having been turned aside by the levee which he constructed, should damage the field of his neighbor, he can be compelled to remove it by an action brought for that purpose.

(3) Quintus Mucius says that this action will not lie with reference to work performed with a plow, for the purpose of cultivating land. Trebatius, moreover, only allows this exception where the work done with the plow is only performed for the purpose of obtaining a better crop of grain, and not merely for the benefit of the land.

(4) Where ditches are dug for the purpose of draining fields, Mucius says that this is done for the sake of cultivation, but it must not cause the water to flow in a single stream; for a man has a right to improve his land, but he must not do so by damaging that of his neighbor.

(5) Moreover, if anyone can plow and sow his fields without making furrows for drainage, he will be liable if he makes any, even though he may be held to have done so for the purpose of cultivating his land. But if he could not sow his seed without opening furrows to carry off the water, he will not be liable. Ofilius, however, says that a person has a right to dig ditches for the purpose of cultivating his land, provided they all follow the same course.

(6) It is said by the authors on Servius, that if anyone has planted willows, and the flow of the water is arrested by them, and damages a neighbor, the latter can bring an action on this account.

(7) Labeo, also, says that this action does not apply to anything which is done for the purpose of gathering grain and fruit, and it makes no difference what kind of crops are to be gathered by means of the work performed.

(8) Both Sabinus and Cassius hold that this action is applicable to any work performed by the hand of man, unless it is done for the purpose of cultivating the soil.

(9) They also say that a party will be liable to this action if he makes any water-course on his land which the Greeks call helikes.

(10) The same authorities say that an action to control rain-water will not lie where the water flows naturally, but if by means of any work it is turned back, or falls on land below, suit can be brought.

(11) They also say that everyone has the right to retain rainwater on his own premises, or to use for his own benefit any which flows from those of his neighbor, provided he performs no work on the land of another; for no one is forbidden to profit by anything so long as he does not injure some one else, nor can anyone be held liable on this ground.

(12) In conclusion, Marcellus says that when anyone, while excavating upon his own land, diverts a vein of water belonging to his neighbor, no action can be brought against him, not even one on the ground of malice. And it is evident that he should not have such a right of action, where his neighbor did not intend to injure him, but did the work for the purpose of improving his own property.

(13) It must be remembered that this action can be brought by one owning land situated above against one owning land situated below, to prevent water which flows naturally from running over his fields as the result of some work which has been constructed, and by the owner of the land below to prevent him from diverting the water from its natural course.

(14) It should also be noted that this action will never lie where the nature of the ground causes the damage. For (properly speaking), it is not the water, but the nature of the ground which causes it.

(15) In short, I think that this action will only lie where the rainwater itself causes the damage, or where, having been allowed to collect it is the source of injury, and this occurs not naturally, but through human agency; unless the work is done for the purpose of cultivating the soil.

(16) Water is said to be increased by the rain, when it changes its color, or the quantity is greatly augmented.

(17) It must also be remembered that this action will not lie except where the water causes some injury to land, for it cannot be brought if it injures a building, or a house in a town; as, in the latter instance, suit can be brought on the ground that the neighbor has not the right to let the water drip or flow upon our premises. Therefore, Labeo and Cascellius say that an action of this kind is a special one, and that which has reference to canals and the dripping of water is one of general application, and can be brought everywhere. Hence, when water injures land, the party who is responsible can be sued to compel him to retain the water in its proper channel.

(18) We do not inquire from what source the water is derived; for if it has its origin in a public or a sacred place, and runs through the land of a neighbor, and he, by some means, diverts it upon my premises, Labeo says he will be liable to this action.

(19) Cassius also says that if water from a building in a city injures either land or a building in the country, an action must be brought under the law having reference to canals and the dripping of water.

(20) Moreover, I find it stated by Labeo that if water flowing from my field injures land situated between two buildings, an action cannot be brought against me to compel me to take care of the rainwater. This action, however, can be brought where the water flows from a place of this kind upon my land and damages it.

(21) Moreover, as where any work that is performed in such a way that rain-water causes me damage, this action can be brought; so, on the other hand, the question arises whether an action of this kind will lie if my neighbor should do some work to prevent the water from running over my land, and which is a benefit to him. Ofilius and Labeo hold that it cannot be brought, even if it was to my interest that I should have access to the water, because it will only lie where rain-water causes damage, and not where it is a benefit.

(22) If a neighbor should remove the structure which he had erected, and, after its removal, the water following its natural course should injure the field belonging to the owner below, Labeo thinks that this action cannot be brought; since it is a perpetual servitude enjoyed by land situated below to receive water pursuing its natural course. Labeo, however, acknowledges that it is evident if, on account of the work having been removed, the water should flow more rapidly, or collect in its channel, an action of this description can be brought.

(23) Finally, he says that certain laws have been enacted with reference to the different conditions of land; so that if on certain tracts there are large accumulations of water, I may be permitted to build levees or excavate ditches on your ground, for my own protection. Where, however, there is no condition mentioned with reference to land, the natural condition of the same must be preserved, and the lower tract will always be subject to the upper one; and this inconvenience must be naturally endured by the one situated below, for the benefit of the upper tract, and should be compensated for by other advantages; for, as all the fertile soil of the upper tract is carried upon the lower, so, also, the inconvenience of the water flowing upon it must be tolerated. But if no special law relating to the tract of land in question can be found, ancient custom is held to take the place of law. For, indeed, with reference to servitudes, we follow this rule that where a servitude is not found to have been imposed, and one has been enjoyed for a long time without force, or by a precarious title, or clandestinely, the servitude is held to have been created by a long-established custom, or by law. Therefore, we cannot compel a neighbor to build levees, but we ourselves can build them on his land, and to obtain the enjoyment of this species of servitude we are entitled to either a praetorian action or an interdict.

2. Paulus, On the Edict, Book XLIX.

In short, there are three causes by which a lower tract of land may be subject to an upper one; namely, a law, the nature of the ground, and ancient custom, which is always regarded as law, that is to say, for the purpose of terminating disputes.

(1) The following case was suggested by Labeo. An old ditch was in existence for the purpose of draining certain fields, and no one remembered when it was made. The neighbor below did not clean it out, and, for this reason, the water, being obstructed in its course, injured our land. Hence Labeo says that suit can be brought against the person owning the land below, to compel him to clean out the ditch himself, or to permit you to restore it to its former condition.

(2) Again, if the ditch is on the boundary line, and the neighbor does not permit the part which is on your side to be cleaned out, Labeo says that you can bring this action against him.

(3) Cassius states that if any works are constructed by public authority for the purpose of conducting water, this action will not lie; and that matters will be in the same condition as where ancient usage transcends the memory of man.

(4) It is, however, stated by Ateius that the neighbor above can be compelled to clean out a ditch by which the water flows upon the land of the neighbor below, whether the memory of its construction survives or not. I myself think that this opinion should be approved.

(5) Varus says the force of the current has broken the levee on the land of a neighbor, and the result is that the rain-water causes me damage. He holds that if the levee was a natural one, that I cannot bring this action against him to compel him to repair the levee, or to permit it to be repaired. He also holds that if the levee was built by human agency, and it is remembered when this was done, the neighbor will be liable to this action. Labeo, also, says that if the levee was built by the hand of man, the action can be brought to compel it to be restored, even if it should notbe remembered when it was constructed; for no one can be compelled by this proceeding to do something to benefit his neighbor, but only to prevent him from injuring him, or to force him to permit us to do what can be done by law. Although the action to compel him to take care of the rain-water cannot be brought, still I am of the opinion that I will be entitled to a praetorian action or an interdict against my neighbor, if I desire the levee to be rebuilt upon his land, which, if done, will be of advantage to me and at the same time will not cause him any injury. This course is suggested by equity, although we have no law which authorizes it.

(6) It is said by Namusa that, if water flowing through its regular channel is obstructed by a deposit of soil, and on account of being arrested injures land situated above, an action can be brought against the owner of the land below, to compel him to permit the channel to be cleaned out; for this action is not only available in the case of work performed by human agency, but also has reference to all obstacles which do not owe their existence to our will. Labeo does not agree with Namusa, for he says that the nature of land can be changed by itself; and therefore where the nature of a field is changed in this manner, both parties should endure it with equanimity, whether their condition is improved, or made worse. Hence, if the nature of the ground is changed by an earthquake, or by the force of a tempest, no one can be compelled to permit the land to be restored to its former condition. We also adopt the principles of equity in a case of this kind.

(7) Labeo adds that if the accumulation of water excavates a hole on your land, an action to divert the water cannot be brought against you by your neighbor. It is, however, clear that if a channel has been dug in accordance with law, or the right to it has been established by custom beyond the memory of man, an action of this kind can be brought against you to compel you to make repairs.

(8) Labeo also says that when inquiry is made to ascertain whether the work was constructed within the memory of man, the exact date and the Consulate should not be required, but it will be sufficient if anyone knows when the work was constructed, that is to say, if there is no doubt on the subject; nor is it necessary that the persons who remembered it should be living, but only that others should have heard those who remembered its construction state the fact.

(9) Labeo also says that if a neighbor turns aside a torrent to prevent the water from reaching him and, by doing so, his neighbor is injured, an action cannot be brought against him for diverting the water from its course; since, in order to divert it, it must be prevented from flowing upon his premises. This opinion is perfectly true, provided he did not act with the intention of injuring you, but to prevent injury to himself.

(10) I also think that the opinion of Ofilius is correct, namely, if your land owes that of your neighbor a servitude, on account of which it receives its water, this action will not lie unless the damage sustained is excessive. The result of this is, and it coincides with the opinion of Labeo, that if anyone should transfer to his neighbor the right to allow water to flow upon his land, he cannot bring an action of this kind against him.

3. Ulpianus, On the Edict, Book LIII.

It is related by Trebatius that a certain person, on whose land there was a spring, established the business of a fuller near the said spring, and permitted the water, after being used in this way, to flow upon the land of his neighbor. He says that he would not be liable to an action of this kind brought by his neighbor, but many authorities hold that if he confines the water to a channel or throws any filth into it, he can be prevented from doing so.

(1) Trebatius also thinks that where anyone is damaged by a flow of warm water, he can bring a suit of this kind against his neighbor, but this is not true, for warm water is not rain-water.

(2) If a neighbor who was accustomed to irrigate a field during a certain season of the year should make a meadow of it, and by constant irrigation should cause his neighbor damage, Ofilius says that he will not be liable to an action on the ground of threatened injury, or for the diversion of rain-water, unless he has levelled the ground so that, in this way, the water will be carried more rapidly upon the land of his neighbor.

(3) It has been established, and we adopt the rule, that a person is not liable to this action, except when he does the work, which causes the damage, upon his own land. Therefore, if anyone performs any work upon public land, this action will not lie; and he who did not provide against threatened injury by obtaining the execution of a bond has no one to blame but himself. If, however, the work is performed upon private premises, as well as upon public land, Labeo says that an action of this kind can be brought for everything.

(4) An usufructuary cannot bring this action, nor can it be brought against him.

4. The Same, On the Edict, Book LIII.

Moreover, although this action can only be brought against the owner of the work, still Labeo says that if anyone builds a sepulchre, and the water from it injures a neighbor, it is preferable to adopt the rule that the owner will be liable to this action, even if he had ceased to be such because of the ground having become religious, for he was the owner at the time when the structure was erected. If he should be compelled by order of court to restore the work to its former condition, an action for the violation of the sepulchre will not lie.

(1) Julianus also said that, if after proceedings had been instituted to compel him to take care of the rain-water, and he against whom suit had been brought for damages previously sustained, and for the restoration of the property to its original condition, should alienate the land, the judge must render the same decision which he would have done if no alienation had taken place; for, after the land had been alienated, the case remains the same, and the account of the damage should include any which had been suffered after the alienation took place.

(2) Julianus also says that this action cannot be brought against anyone but the owner of the property, and therefore, if a tenant should erect any structure without the owner of the land being aware of it, the latter is not compelled to do anything except to suffer the structure to be destroyed. The tenant, however, can, by the interdict Quod vi OMt clam, be compelled to restore the property to its former condition, and to pay any damages which may have been sustained. If, however, the owner should wish to obtain security against threatened injury from the owner of the land, it would be perfectly just for it to be given him.

(3) If, however, I did not construct such a work, but my agent did, and my neighbor is injured by the water, the action can be brought against me, just as it can be against the tenant. The agent, however, can, according to the opinion of Julianus, have proceedings instituted against him under the interdict Quod vi aut clam, even after the property has been restored to its former condition.

5. Paulus, On the Edict, Book XLIX.

If a tenant, without the knowledge of the owner, should construct a work by means of which the water injures a neighbor, Labeo gives it as his opinion that the tenant will be liable under the interdict Quod vi aut clam, and that the action relating to the care of rain-water can be brought against the owner of the land, because he alone can restore the property to its original condition; but, in this instance, he can only be compelled to allow it to be restored where a bond of indemnity providing against threatened injury has been obtained by a stipulation. If he should incur any expense in restoring the property to its former condition, he can recover it from the tenant in an action on lease, unless someone should decide that he cannot do so, because it was not necessary for him to restore it. If, however, he acted by the direction of the owner of the land, the latter will also be liable to the interdict.

6. Ulpianus, On the Edict, Book LIII.

If the neighbor next above the one adjoining me constructs a work by which the water, running over the land of my nearest neighbor, causes me damage, Sabinus says that I can bring an action either against the one immediately above me, or against the one above him, if the former fails to do so. This opinion is correct.

(1) If the water flowing from land owned by several persons causes damage, or if it injures land belonging to several persons, it has been decided, and we adopt the same rule, that where it belongs to several owners, suit can be brought by each one in accordance with his interest, and judgment can be rendered proportionally; or where the action is brought against several persons, judgment shall be rendered against them individually in proportion to their respective shares.

(2) Hence the question arises, if water from your land should cause damage to a field held in common by yourself and me, whether this action can be brought. I think that it can, in such a way, however, that only a portion of the damage shall be paid by the party who loses the case.

(3) On the other hand, where the water from a field held by joint-owners damages land owned by one of them, an action of this kind can be brought, but the party who brings it can only obtain damages in proportion to his share.

(4) If anyone, before instituting proceedings, should transfer the ownership of the land to another, he will cease to have a right to bring this action, and it will pass to the person to whom the field belongs, for the action has reference to injury which may, in the future, be sustained the owner; although the work may have been done when the land belonged to the former proprietor.

(5) It must be remembered that this action is not a real, but a personal one.

(6) It is the duty of the judge, in a case of this kind, where any work has been done by a neighbor, to order him to restore the property to its former condition, and to pay all damages sustained after issue has been joined. If, however, any damage was caused before issue was joined, he should only compel him to restore the property to its original condition, and not to pay any damages.

(7) Celsus says, that if I build anything by which rain-water may cause you any damage, I can be compelled to remove it at my own expense. If anyone else, over whom I have no authority, should do this, it will be sufficient if I permit you to remove the structure. But if my slave, or anyone whose heir I am, should do the work, I will be obliged to surrender the slave by way of reparation; but if the person whose heir I am, did it, it is just the same as if I myself had erected the building.

(8) The judge must estimate the damage in accordance with the truth of the matter; that is to say, according to the amount of damage which appears to have been sustained.

7. Paulus, On the Edict, Book XVIII.

He against whom suit is brought to compel him to take care of rain-water, and who has performed the work*rendering him liable to such an action, will be compelled to join issue in the case, even if he is ready to abandon it, since he is sued personally in his own name to compel him to remove the structure.

(1) The case is different with a bona fide purchaser, for he can only be compelled to permit the destruction of the work; and therefore if he abandons the property he should be heard, for he offers to do more than is required of him.

8. Ulpianus, On the Edict, Book LIII.

In granting the right to conduct water, the consent, not only of those on whose ground the source of the water is situated, but also of those who have the use of the same, must be obtained; that is to say, the consent of the persons to whom the servitude of said water is due. This is not unreasonable, for their right is diminished, and hence their consent is required. Generally speaking, it is held that the consent of all those who have any right to the water itself, or any interest in the land through which it flows, or on which its source is situated, must be obtained.

9. Paulus, On the Edict, Book XLIX.

In the case of the conditional sale of land, the consent of both the purchaser and the vendor must be obtained; so that it may be certain that the transfer of the right to the water is made with the permission of the owner, whether the property remains in the hands of the purchaser, or is returned to the vendor.

(1) Therefore, consent is required to prevent the owner from being injured without his knowledge, for he who has once given his consent cannot be considered to have sustained any injury.

(2) In the transfer of the right to use water, the consent not only of him to whom the right to the water belongs, but also that of the owner of the land is required, even though the latter cannot at present make use of the water, because the right to do so may afterwards revert to him absolutely.

10. Ulpianus, On the Edict, Book LIII.

When there are several owners of the same land in which a stream of water has its source, there is no doubt that the consent of all of them must be obtained; for it would be unjust if the consent of one who is the owner of, perhaps, a very small share, should prejudice the rights of the other joint-owners.

(1) Let us see whether subsequent consent can be obtained. It is established that it makes no difference whether the consent precedes or follows the conducting of the water, because the Praetor must also take into consideration consent afterwards given.

(2) Labeo says that, if a river is navigable, the Praetor must not grant permission for enough water to be taken from it to render it less navigable. The same rule applies where another river is rendered navigable by means of the water of the one in question.

11. Paulus, On the Edict, Book XLIX.

An aqueduct cannot legally be constructed so as to interfere with a right of way. Nor can a person who is entitled to a right of way legally build a bridge for the purpose of enjoying his right. But if, for this purpose, he should conduct the water by means of a covered, and not an open canal, the water will become deteriorated, because it remains under ground, and the stream will dry up.

(1) Cassius says that if water flowing from a tract of land owned in common, or upon one owned in common, causes any damage, one of the joint-owners can bring an action against one of the proprietors of the other tract, or can sue each of them separately; or, on the other hand, each of them can sue one of their number, or they can all individually sue one another. If one of them brings suit, and the damage is estimated and paid in court, the right of action of the others is extinguished. Likewise, where one of them is sued and makes payment, the others will be released from liability, and whatever has been paid by him for the benefit of his fellow joint-owners can be recovered by an action in partition. The action, however, cannot be brought by the person who did the work against his fellow joint-owners, as he who was responsible for it must make restitution for all damages sustained.

(2) Proculus says it is stated by Ferox that if an action of this kind is brought against one of several joint-owners, who did not himself do the work, he must be reimbursed for his expenses, because he is entitled to an action in partition. He, however, holds that this joint-owner can only be compelled to allow the land to be restored to its former condition, because it was the fault of the plaintiff that he did not sue the person by whom the work had been performed, and it is unjust for him who did not perform it to be compelled to restore the land to its former condition, as he has a right to bring an action in partition. But what course must be pursued if his fellow joint-owner should not be solvent?

(3) Julianus says that he is in doubt as to what course should be pursued by the judge, where the structure to which the injury is attributed belongs to two joint-owners, and the land damaged by the water belongs to one alone. If the land on which the work was done belongs to several persons, and suit is brought against one of them, shall judgment be rendered against all on account of any damage sustained after issue has been joined, and restoration of the property to its original condition has been refused; just as in the case of a slave owned in common, where a noxal action is brought against one of his owners, and judgment is rendered against both of them, since whatever one of them paid he can recover from his fellow joint-owner? Or shall we say that the owner who is sued on account of his share, and has judgment rendered against him for damages sustained and failure to restore the land to its original condition, as is done in an action for threatened injury where several persons own the land which it is feared will be damaged, and only one of them is sued, even though the work from which damage is apprehended is indivisible, and neither the building itself nor the ground can partially cause damage, the owner against whom the action is brought can, nevertheless, have judgment rendered against him in proportion to his share of the property? Julianus thinks that the same course should be pursued in an action to compel anyone to take care of rain-water, as is done to provide against threatened injury; because, in both instances, proceedings are instituted, not with reference to damage which has already been sustained, but on account of that which is apprehended.

(4) If the land injured by rain-water belongs to several persons, each one of them can bring suit against his neighbor; but he can not, after issue has been joined, obtain damages on account of injury sustained for an amount greater than his share. Moreover, if the land is not restored to its former condition, judgment must not be rendered against each one of the joint-owners for a larger sum than the value of his interest in the property.

(5) Ofilius says that one joint-owner can bring an action against another, where water is conveyed from the private premises of one of them upon land belonging to both in common.

(6) Trebatius thinks that if suit is brought on account of work due to human agency, the land must by all means be restored to its¹ original condition by the party against whom the suit was brought. If, however, the land should be injured by the force of the water, or the ditches should be filled with gravel, or soil, then the owner of the land will only be compelled to permit this to be removed.

12. The Same, On Sabinus, Book XVI.

The purchaser, as well as the other successors (unless the sale is a fictitious one), must either restore the property to its original condition, if they are willing to do so, or must permit this to be done; for it is clear that the plaintiff will be prejudiced by delay. The joint-owner of the person who performed the work is in the same position if he himself had nothing to do with it. The same rule also applies where land is acquired by donation or devise.

13. Gaius, On the Edict of the Urban Praetor; Title, The Action Having Reference to Taking Care of Rain-water.

The vendor, or the donor, however, will be liable for damages sustained as well as for expenses incurred by the plaintiff through the interdict Quod vi aut clam.

14. Paulus, On the Edict, Book XLIX.

Ateius says that if anyone, after having constructed a work which causes damage, should sell the land to a more powerful person in order to cease to be the owner of the same, proceedings may be instituted against him under the interdict Quod vi aut clam, and after the expiration of a year, an action based on fraud can be granted against him.

(1) When an action is brought to compel another to take care of rain-water, the question arises whether or not the injury results from some act already performed; and hence, if through some defect in the ground a part of the soil has settled, even though on this account damage may be caused by rain-water to a neighbor below, the action will not lie. The same rule will also apply where anything attributable to human agency is deposited upon the land.

(2) In this action, as well as in that relating to threatened injury, anticipated damage is taken into consideration; while in almost all others payment is made for damages already sustained.

(3) With reference to damage caused before the action was brought, proceedings should be instituted under the interdict Quod vi aut clam; and with regard to that which may occur after the decision has been rendered, security against threatened injury must be furnished, or the property must be placed in such a condition that there will be no longer any danger of injury.

(4) A new action must be brought where a work has been constructed after issue has been joined in the case.

15. The Same, On Sabinus, Book XVI.

Sometimes the work which has been constructed after issue has been joined is removed, where that which was constructed before it cannot be removed without destroying the other.

16. Pomponius, On Sabinus, Book XX.

After the sale and transfer of land which has been injured, before judgment has been rendered in an action of this kind, the vendor can still obtain damages under the judgment; not because he has sustained any injury, but because the property has been damaged, and he must pay anything which he may recover to the purchaser. If, however, the party who was sued should sell the land before any damage was done, suit must either immediately be brought against the purchaser, or within a year against the person who sold the land, if he did so for the purpose of avoiding a judgment.

17. Paulus, On Plautius, Book XV.

If the servitude to draw water at night should be granted me, and afterwards, by another transfer, I should also obtain the privilege of drawing water by day, and, during the time prescribed by law, I should only make use of my privilege at night, I will lose the servitude to draw water during the day, for the reason that in this instance there are two servitudes derived from different causes.

(1) It has been very properly decided that water cannot be conducted by means of stone aqueducts, unless this was included in the grant of the servitude, for it is not customary for a person who has water to conduct it through a channel made of stone. However, what is customary in cases of this kind can be done, as, for instance, water can be conducted through pipes, even if nothing on this point was stated in the grant of the servitude, provided always that no damage is caused to the owner of the land by doing so.

(2) It has been decided that the servitude of drawing water can be granted where there is a public highway between two tracts of land; and this is true. This is not only the case where there is a public highway between the two tracts, but also where they are divided by a public stream, in case the servitude of driving or of passage can be established, notwithstanding that the public stream divides the two tracts of land, that is to say, where the width of the stream does not prevent it from being crossed.

(3) The rule is the same where my neighbor owes a servitude to my land, which does not join his but joins another belonging to me, as I can bring an action against him, and maintain my right to pass through his premises to my land beyond, although I may not have a servitude attaching to my intermediate tract; just as where a public road, or river which can be crossed by fording, lies between two separate tracts of land. None of these servitudes, however, can be imposed where the intervening tract is sacred, religious, or holy, and cannot be used.

(4) If there is an intermediate tract of land which belongs to a third party between your premises and mine, I can impose the servitude for drawing water upon your land if the owner of the intermediate tract grants me the right of way through his premises; just as when I wish to obtain the perpetual right to take water from a public stream which forms the boundary of your land you can grant me a right of way to the stream.

18. Javolenus, On Cassius, Book X.

If the work which causes damage by rain-water is erected in a public place, the action cannot be brought; but where the two tracts are separated by a public place, it can be. The reason for this is that the owner alone is liable under this action.

(1) Water cannot be conducted across a public highway without the consent of the Emperor.

19. Pomponius, On Quintus Mucius, Book XIV.

Labeo says that if I construct any work and my neighbor does not object, and in consequence he suffers damage from rain-water, I will not be liable to an action of this kind.

20. The Same, On Sabinus, Book XXXIV.

This, however, only applies where he is not deceived through mistake or ignorance, for anyone who makes a mistake does not give consent.

21. The Same, On Quintus Mucius, Book XXXII.

If water which has its source on your land rushes with great force upon mine, and you intercept its course, so that it ceases to flow upon my premises, you will not be considered to have acted with violence, if I was not entitled to any servitude for the use of the water; nor will you be liable to an interdict Quod vi aut clam.

22. The Same, Various Passages, Book X.

If the usufruct of land is bequeathed, the action to compel care to be taken of the rain-water will lie for, as well as against the heir of him to whom the property belonged. If the usufructuary should suffer any inconvenience on account of some work which has been performed, he can sometimes avail himself of the interdict Quod vi aut clam. If the action cannot be brought by the usufructuary, the question arises whether equitable action should be granted him, as the owner, to compel the water to be taken care of; or whether he can also maintain that he has the right to enjoy the property. The better opinion, however, is that an equitable action to compel care to be taken of the rain-water should be granted.

(1) He who constructs a new work will not be considered to have restored the property to its former condition, unless he intercepts the course of the water of which complaint is made.

(2) But even if the usufructuary should construct the work by which the rain-water may cause damage to anyone, the legal action against the owner of the property will lie; but the question arises whether an equitable action to compel the water to be taken care of should not be granted against the usufructuary. The better opinion is that it should be granted.

23. Paulus, On Sabinus, Book XVI.

Any work which is performed by order of the Emperor, or the Senate, or by those persons who have first rendered the land capable of cultivation, is not included in this action.

(1) This action is also available with reference to lands owned and leased by the State.

(2) Levees made upon private lands along the banks of streams are also the object of this action, even though they cause damage on the other side of the stream, provided they have been constructed within the memory of man, and there was no right to make them.

24. Alfenus, Epitomes of the Digest by Paulus, Book IV.

A man who owned a field situated above that of another plowed it in such a way that the water was carried by the furrows and ridges upon the land of his neighbor below. The question arose whether he could be compelled by an action requiring him to take care of the rainwater, to plow in a different direction, so that the furrows would not be turned toward the premises of the neighbor. The answer was that he could not do anything to interfere with his neighbor plowing in any way that the latter desired.

(1) If, however, anyone plows across a water-course, and by means of the furrows, the water should be diverted upon the land of a neighbor, in such a way as to obstruct the water-course, he can be compelled to open it by means of this action.

(2) But if he should dig ditches by which the rain-water could injure a neighbor, he can be compelled by the court to fill them up, if it appears that the rain-water might afterwards cause damage, and judgment could be rendered against him, unless he did so; even though, before a decision was rendered, the water had not yet begun to flow through the ditches.

(3) When lakes either rise or fall, the neighbors have no right to do anything to affect either the increase or the diminution of the water.

25. Julianus, On Minicius, Book V.

Where a right of way is imposed upon the land of anyone, the person entitled to it can bring an action to compel care to be taken of rain-water for the benefit of the land, because by damaging the right of way the land also will be injured.

26. Scaevola, Opinions, Book IV.

Scaevola gave it as his opinion that those who have the right to render judicial decisions are accustomed to authorize the continuance of aqueducts, whose use has been confirmed by time, although the legal right by which they exist cannot be established.

 

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Tit. 4. Concerning farmers of the public revenue, leases of public lands, and forfeitures.

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1. Ulpianus, On the Edict, Book LV.

The Praetor says: "If a farmer of the public revenue, or anyone belonging to the family of a farmer of the public revenue, takes anything by force in his name, and it is not restored to the owner, I will grant an action for double its value, and if suit is brought after a year has elapsed, I will grant one for its simple value. Moreover, I will grant an action, if any damage has been sustained, or any theft is said to have been committed. If the parties concerned in the matter are not produced, I will grant an action against the masters, without the privilege of surrendering their slaves by way of reparation."

(1) This Title has reference to farmers of the public revenue. Those are farmers of the revenue who handle the public funds, and they bear this name whether they pay a certain percentage to the Treasury, or collect tribute. Those, also, who lease property from the Treasury are properly called farmers of the revenue.

(2) Someone may ask, of what benefit is the Edict in question, just as if the Praetor had not elsewhere made provision for thefts, injuries, and robbery wifh violence. The Praetor, however, thought that, under the circumstances, it was best to issue a special Edict against farmers of the revenue.

(3) The penalty inflicted by this Edict is, in some respects, less severe, as damages are given for double the amount; whereas in the case of robbery with violence, they are quadrupled, as they also are in the case of manifest theft.

(4) Moreover, the farmer of the revenue is granted the power to restore property taken by violence, and if he does so, he will be released from all responsibility, and will not be liable to a penal action under this Section of the Edict. Hence, the question arises, if anyone desires to bring an action against a farmer of the revenue, not under this Edict, but under the general law relating to taking property by violence, unlawful damage, or theft, can he do so? It is established that he can, and Pomponius also holds the same opinion, for it would be absurd for the legal position of a farmer of the public revenue to be considered better than that of other persons.

(5) The term "family," mentioned in the Edict, not only refers to the slaves of farmers of the revenue, but also to all those included in their households. Therefore, whether their own children or the slaves of others are employed in the collection of taxes, they will be included in this Edict. Hence, if the slave of a farmer of the revenue commits robbery with violence, but is not among the number of those who are employed in the collection of taxes, this Edict will not apply.

(6) What the Praetor says in the last place, namely, "If they are not produced, I will grant an action against their masters, without the privilege of surrendering them by way of reparation," is a special provision of this Edict, because if the slaves are not produced, an action will be granted without the privilege of surrendering them by way of reparation, whether the masters have them in their power or not; and whether they can produce them or not.

2. Gaius, On the Provincial Edict, Book XXI.

A master shall not be allowed to defend his absent slave.

3. Ulpianus, On the Edict, Book LV.

If the slave should not be produced by the master, the noxal action should be brought against him. Therefore, what makes the condition of the farmers of the revenue so trying is that they must select good slaves for this employment.

(1) Where the Praetor says, "Against the masters," we must understand this to mean against the associates of the collectors of taxes, although they may not be their masters.

(2) The plaintiff must mention beforehand the person or persons whom he may desire to be produced, so that, if this is not done, he will have a right of action. Even if he should say, "Produce all the parties, in order that I may recognize the one who is guilty," I think that he ought to be heard.

(3) Where several slaves have committed the theft or the damage, the rule ought to be observed that if the farmer of the revenue pays as large a sum as if a freeman had perpetrated the offence, he should be released from liability.

4. Paulus, On the Edict, Book LII.

If a farmer of the revenue, who removed the property by force should die, Labeo says that the action should be granted against his heir who profited by the act.

(1) The Divine Hadrian, in a Rescript addressed to the Governors of Gaul, stated with reference to property which the Governors were accustomed to have transported for their use, that when anyone sends for the purpose of making purchases for the benefit of those who command armies or govern provinces, or for that of their agents, he shall sign an order with his own hand, and send the same to the farmer of the revenue, so that if the latter should transfer anything more than he had been ordered to do, he must make it good.

(2) In the collection of all revenues, the custom of the neighborhood is usually considered; and this is provided by the Imperial Constitutions.

5. Gaius, On the Edict of the Urban Praetor, Title: Farmers of the Revenue.

It is provided by this Edict that if the property should be restored before issue has been joined, the right of action will be extinguished; still, after this, suit for the penalty can be brought. If, however, Ihe farmer of the revenue is ready to make restitution even after issue has been joined, he should be released from liability.

(1) We may ask whether the payment of double damages provided by the Edict is entirely a penalty, and suit can afterwards be brought for the recovery of the property; or whether the recovery of the property is included in the double damages, so that the penalty is only simple. The weight of opinion is that the property is included in the double damages.

6. Modestinus, On Penalties, Book II.

Where several farmers of the revenue have unlawfully exacted something, the action to recover double damages is not multiplied, but all of them must pay their shares, and what cannot be paid by one shall be collected from another, as the Divine Severus and Antoninus stated in a Rescript; for they held that there was a great difference between persons who perpetrated a crime, and those who participated in the commission of a fraud.

7. Papirius Justus, On Constitutions, Book II.

The Emperors Antoninus and Verus stated in a Rescript that in the case of the taxes on public lands, the lands themselves, and not the persons holding them, should be made the subject of the action, and therefore that the possessors must pay any tax which was due, even for time which had passed before they obtained possession; and that, in a case of this kind, if they were not aware that any tax was due, they would be entitled to an action.

(1) It was also stated in the Rescript that a ward would be released from liability to the penalty of confiscation, if he paid the tax within thirty days.

8. Papinianus, Opinions, Book XIII.

The offence of evading taxation by fraud is transmitted to the heir of the person who committed the fraud, to the extent of causing confiscation of the property.

(1) Where one of several heirs for the purpose of evading the tax removes any of the property held in common, the others will not be deprived of their shares.

9. Paulus, Sentences, Book V.

If the heat of competition should induce a bidder desiring to obtain the farming of public revenues to raise his offer above the ordinary amount, it must be accepted, if he who makes the highest bid is ready to furnish sufficient security.

(1) No one can be compelled, against his consent, to lease the collection of taxes; and therefore when the time of the lease had expired, a new contract must be made.

(2) Farmers of the revenue, who have not made a settlement for the taxes collected by them, and who wish to enter into a new contract, shall not be permitted to do so before paying what is due under the former one.

(3) The debtors of the Treasury, as well as those of a city, are forbidden to contract to collect taxes, in order that their responsibilities may not be increased from another cause, unless they offer sureties who are able to satisfy their obligations.

(4) Where partners in collecting the revenue administer their office separately, one of them can legally petition to have the share of another who is less fitted for the place transferred to himself.

(5) Where anything has been unlawfully exacted, either from the public, or from private individuals, double the amount shall be paid to those who suffered the injury; anything, however, which has been extorted by violence shall be refunded together with a triple penalty, and, in addition to this, they will be liable to extraordinary prosecution; for, in the first instance, the right of private individuals, and in the second, the interest of the public demands it.

(6) Taxes on property on which no tax has ever been paid cannot be collected. If the indulgence of the farmer of the revenue should release property from taxation, on which it has been customary to pay, another is not forbidden to make the collection.

(7) It has been established that property for the use of the army is not liable to taxation.

(8) The Treasury is exempt from the payment of any tax. Merchants, however, who are accustomed to deal in goods purchased with funds belonging to the Treasury cannot enjoy immunity from the payment of taxes.

10. Hermogenianus, Epitomes, Book V.

Neither the Governors of provinces, the agents of municipalities, nor assemblies of the people are permitted to impose taxes, or to modify, add to, or diminish those already imposed, without the authority of the Emperor.

(1) Where farmers of the revenue have not paid what they owe to the Treasury, they cannot be discharged, even if the terms of their leases have expired; but interest can be collected from them when they are in default.

11. Paulus, Opinions, Book V.

It is not permitted, under penalty of death, to sell to enemies flints used for striking fire, iron, wheat, or salt.

(1) Public lands, which are held under a perpetual lease, cannot be taken from the lessee by an agent of the government without the authority of the Emperor.

(2) If either the owner of a ship, or any of the passengers, should unlawfully bring any merchandise on board, the ship as well as the merchandise can be confiscated by the Treasury. If anything of this kind is done in the absence of the owner, by the master, the helmsman, the pilot, or any sailor, he shall be put to death, and the merchandise shall be confiscated, but the vessel must be restored to the owner.

(3) Prosecution for dealing in contraband merchandise also extends to the heir of the guilty party.

(4) The owner of property which has been confiscated is not forbidden to purchase the same either himself, or through others whom he has directed to do so.

(5) Persons who have profited greatly from the farming of the public revenues are compelled to take them on the same terms on which they formerly held them, if the same amount cannot be obtained from others.

12. Ulpianus, On the Edict, Book XXXVIII.

There is no one who is not aware of the audacity and insolence of farmers of the revenue, and therefore the Praetor promulgated this Edict for the purpose of controlling them.

(1) "If anyone belonging to the household of a farmer of the revenue is accused of having committed theft, or has caused unlawful injury, and the property in question is not produced, I shall grant an action against the master, without the privilege of surrendering the slave by way of reparation."

(2) It must be noted that, in this instance, the slaves of the farmer of the revenue are meant by the term "household." If, however, a slave belonging to another should be in the service of the farmer of the revenue, in good faith, he will also be included. Perhaps this would also be the case where he served him in bad faith, for wandering and fugitive slaves are often employed in work of this kind by persons who know who they are. Hence, if a freeman is serving in good faith as a slave, this Edict will also apply to him.

(3) Those also are called farmers of the revenue who lease the income from public lands.

13. Gaius, On the Provincial Edict, Book XIII.

They also are included under the term farmers of the revenue who lease the income from salt pits, quarries, and mines belonging to the State.

(1) This Edict also applies to one who leases from the government the collection of taxes from a municipality.

(2) He who has a number of seditious slaves employed will be liable for the acts of one of them, if he should sell or manumit him, or even if the slave should take to flight.

(3) But what must be done if the slave should die? Let us see whether the farmer of the revenue will be responsible, as for his own act. I think that he should be released from liability, as he had not the power of producing the slave, and was not guilty of fraud.

(4) We grant this action as perpetual, and it will pass to the heir and other successors.

14. Ulpianus, Disputations, Book VIII.

The confiscation of property on the ground of non-payment of taxes also extends to the heir, for what is confiscated immediately ceases to belong to the party who committed the crime, and the ownership of the same is acquired by the Treasury. Therefore, proceedings for confiscation can be instituted against the heir, just as against any possessor whomsoever.

15. Alfenus Varus, Digest, Book VII.

When the Emperor leased the quarries of the island of Crete, he inserted the following clause in the lease: "No one except the farmer of the revenue shall make an excavation, or remove, or take out a single stone from the quarries of the Island of Crete, after the Ides of March." A ship belonging to a certain individual, which was loaded with flints, having departed from the harbor of Crete before the Ides of March, was driven back into the harbor by the wind and departed the second time after the Ides of March. Advice was asked whether the flints should be held to have been removed contrary to law after the Ides of March. The answer was that although the harbors, which themselves were parts of the island, should all be considered as belonging to it, still, as the vessel, having left the port before the Ides of March, was driven back to the island by a storm, and afterwards departed, it should not be held to have done so in violation of law; especially as the flints must be considered to have been removed before the time prescribed, since the ship had already left the harbor.

16. Marcianus, On Informers.

Sometimes a slave, who has been confiscated, should not be sold, but his appraised value should be paid by his owner, instead. For the Divine Severus and Antoninus stated in a Rescript that where a slave, who was said to have transacted the business of his master, is confiscated, he should not be sold; but his appraised value should be paid in accordance with the judgment of a good citizen.

(1) The same Emperors stated in this Rescript that if the slave should fail to file a proper account, and was proved to have rendered himself liable to confiscation, or was alleged to have corrupted the wife of his master, or had committed any other serious offence, the Deputy of the Emperor should take cognizance of the matter, and if the slave is found to be guilty, his value should be appraised, and he must be delivered up to his master to be punished.

(2) The Divine Severus and Antoninus also stated in a Rescript, that where slaves have made themselves liable to confiscation, their peculium is not included unless property forming part of it should itself have become subject to forfeiture.

(3) Where anyone does not declare, as liable to taxation, slaves whom he is transporting either to be sold, or employed, he will incur the penalty of confiscation; still, this applies only to newly acquired slaves, and not to such as are old. Old slaves are those who have been in servitude for an entire year, in a town; new ones, however, are understood to be such as have not yet been in servitude for a year.

(4) Slaves, who are in flight, are not liable to confiscation, as they went away without the consent of their masters. This has been expressly provided by the Imperial Constitutions, as the Divine Pius frequently stated in Rescripts that it was not in the power of slaves to escape the control of their masters by taking to flight, if the latter were unwilling, or were not aware of the fact.

(5) The Divine Hadrian decided that, although a person may allege ignorance, he will, nevertheless, be liable to the penalty of confiscation.

(6) The Divine Marcus and Commodus also stated in a Rescript that a farmer of the revenue was not to blame for not instructing those who violated the law, but that he must be careful that those who were willing to declare their property for taxation should not be deceived.

(7) Merchandise subject to duty is as follows: cinnamon, long pepper, white pepper, pentaspherum, Barbary leaf, costum, costamomum, nard, Turian cassia, the wood of the cassia tree, myrrh, amomum, ginger, malabathrun, Indian spice, chalbane, benzoin, assafoetida, aloes, wood, Arabian onyx, cardamon, cinnamon wood, flax, Babylonian furs, Parthian furs, ivory, Indian iron, linen, all precious stones, pearls, sardonyx, crystals, hyacinths, emeralds, diamonds, sapphires, beryls, callaini, Indian drugs, Sarmation cloth, silk and muslin, painted hangings, fine fabrics, silk goods, eunuchs, Indian lions and lionesses, male and female panthers, leopards, purple, wool, crimson dye and Indian hair.

(8) The Divine Brothers stated in a Rescript that if a cargo was unavoidably exposed to bad weather it should not, on this account, be confiscated.

(9) The Divine Pius stated in a Rescript that where a person, said to be a minor under twenty-five years of age, declared that his slaves were for his own use, and he made a mistake, merely in the return of said slaves, he should be excused.

(10) The Divine Brothers also stated in a Rescript that where the slaves of anyone became liable to confiscation, not through fraud, but through mistake, the farmers of the revenue should remain content with double the amount of the tax, and should restore the slaves to the owner.

(11) The great Antoninus stated in a Rescript that if a tenant, or his own slaves, should unlawfully have a manufactory of arms on the land of the owner, without his knowledge, he would not be liable to any penalty.

(12) If anyone should make a declaration to a farmer of the revenue, and does not pay the tax, and it should be remitted by the farmer of the revenue (as is customary at times), the Divine Severus and Antoninus stated in a Rescript that the property should not be confiscated; for they say that there is no ground for confiscation after the declaration has been made, as what is due to the Treasury can be collected from the property of the farmers of the revenue, or from that of their sureties.

(13) Penalties cannot be collected from heirs where proceedings were not instituted during the lifetime of the person who was delinquent. This rule, as is the case with other penalties, is also applicable to those relating to taxation.

(14) The Divine Severus and Antoninus stated in a Rescript that if a farmer of the revenue, through the mistake of the person making payment, receives more than is due, he must refund it.

 

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Tit. 5. Concerning donations.

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1. Julianus, Digest, Book XVII.

There are several kinds of donations. A person makes a donation with the understanding that the property will at once belong to the person who receives it, and will, under no circumstances, revert to himself, and he does this for no other reason than to display his liberality and munificence. This is what is properly called a donation. Another gives something with the understanding that it will only become the property of the person who receives it, if something else takes place. This is not properly styled a donation, for it is a conditional gift. Likewise, when anyone gives something with the intention that it will immediately become the property of the person who receives it, but if something either happens, or does not happen, he wishes it to be returned to him; this is not properly called a donation, but it is merely a gift, which is dependent upon a condition; as, for instance, a donation mortis causa.

(1) Therefore, when we may say that a donation between betrothed persons is valid, we use the term in its correct sense, and we understand by it anything given by a person who bestows it for the sake of liberality in order that it may immediately become the property of the one who receives it, and that, under no circumstances, he desires it to be returned to him. And when we say that a man gives a donation to his betrothed with the understanding that, if the marriage should not take place, the gift may be returned, we do not contradict what was previously stated, but we mean that a donation can be made between such persons, and may become void under a certain condition.

2. The Same, Digest, Book LX.

When a son under paternal control desires to make a donation of money, he promises it by the order of his father, and the donation will be just as valid as if he had furnished a surety.

(1) If, however, the father, being about to donate the money to Titius, should order his son to promise it to him, it may be said that there is a difference if the son is indebted to his father, and if he is not. For where he owes his father a sum equal to what he promises, the donation is considered valid, just as if the father had ordered any other debtor to promise the money.

(2) If, however, I am about to donate money to Titius, and I order you who intend to give me an equal sum, to promise it to Titius, the donation is complete, as far as all the persons are concerned.

(3) A different rule of law will apply if, by your order, I promise to pay to someone, to whom you wish to make a donation, the money which I think that I owe you, for I can protect myself by an exception on the ground of fraud; and, moreover, I can compel the stipulator, by means of the proceeding called incerti, to give me a release from the obligation.

(4) In like manner, if I, by your order, promise to pay a certain sum of money, which I think that I owe you, to a third party whom you believe to be your creditor, I can bar the person making the demand by an exception on the ground of fraud; and, in addition to this, by availing myself of the proceeding called incerti against the stipulator, I can compel him to release me from the stipulation.

(5) If Titius should pay me a sum of money without any stipulation, but on the condition that it will only belong to me when Seius becomes Consul, the money will become mine when Seius obtains the consulship, even though the person who made the donation should be insane or dead at that time.

(6) If anyone, desiring to make a donation of money to me, gives it to someone else to bring to me, and he should die before he does so, it is settled that the ownership of the money does not pass to me.

(7) I gave Titius the sum of ten aurei on the condition that he would purchase Stichus with it. I ask, if the slave should die before he was purchased, whether I can recover the ten aurei by any action. The answer was that this is rather a question of fact than of law, for if I gave the ten aurei to Titius in order that he might purchase Stichus, and I would not have given them to him otherwise, and Stichus should die, I can recover the amount by an action. If, however, I had the intention of giving the ten aurei to Titius, in any event, and, in the meantime, he proposed to purchase Stichus, and I stated that I gave him the money in order that he might purchase him, what I have said should be considered rather a reason for the donation than the condition upon which the money was paid, and if Stichus should die, the money will remain in the hands of Titius.

3. Ulpianus, On the Edict, Book LXVII.

And, generally speaking, this question must be considered in making donations, for there is a great deal of difference whether there was a cause for making the donation, and whether a condition upon which it is dependent was imposed. If there was a cause, the property cannot be recovered; if a condition was imposed, there will be ground for its recovery.

4. Paulus, On Sabinus, Book LXXII.

A donation can be completed even by a party who intervenes.

5. Ulpianus, On Sabinus, Book XXXII.

Neither honorable nor dishonorable donations are prohibited, where they are made on account of affection. They are honorable where they are given to deserving friends or relatives; dishonorable, where they are given to harlots.

6. The Same, On Sabinus, Book XLII.

Where anyone permits me, by way of donation, to remove stone from his property, as soon as the stone is taken out it will be mine, and he cannot prevent me from having it by forbidding its removal, because it becomes mine, as it were, by delivery. It is clear that if someone, who had been employed by me, should quarry the stone, he quarries it for me. If, however, anyone purchases the stone from me, or leases it for a consideration, in such a way that I can permit him to quarry for himself, and, before he does so, I change my mind, the stone will continue to belong to me. If I should change my mind afterwards I cannot revoke his act, as delivery is presumed to have been made when he quarried the stone with the consent of the owner. What applies to the stone should also be considered to apply where a tree is cut down, or is taken out by the roots, under similar circumstances.

7. The Same, On Sabinus, Book XLIV.

A son under paternal control cannot make a donation even if he has free administration of his peculium, for this is not granted him in order that he may lose his property.

(1) But what if, induced by some good reason, he makes a donation? Can it be said that there is legal ground for making it? The latter is the better opinion.

(2) Again, let us see if anyone should grant a son under paternal control the free administration of his peculium, and should add specifically that this is done to enable him to make a donation; will the donation be valid? I do not doubt that he can make a valid donation under such circumstances.

(3) Sometimes the power to make a donation may be inferred from the rank of the person; for suppose that the son was of Senatorial rank, or had been promoted to some other portion, why can it not be said that his father, when he gave him the free administration of his peculium, granted him also the privilege of making a donation of it, unless he expressly deprived him of the power of doing so?

(4) For the same reason that a son under paternal control is forbidden to make a donation inter vivos, he is also forbidden to make one mortis causa. For although he can make a donation mortis causa with the consent of his father, he is prohibited doing so if his consent is not given.

(5) It must, however, be remembered that if anyone is permitted to make a donation without it being specified that he can make one mortis causa, he cannot do so.

(6) All these regulations apply to persons in civil life. Where, however, soldiers have a castrense or a quasi castrense peculium, they are in such a position that they can make a donation mortis causa as well as a donation inter vivos, since they have testamentary capacity.

8. Paulus, On Sabinus, Book XV.

Money paid by freedmen in order to obtain their liberty is not a donation, for a consideration is given for it.

9. Pomponius, On Sabinus, Book XXXIII.

When permission is given anyone to lodge without payment in the house of another, it is considered a donation; for he who has the lodging is held to obtain as a gift the rent which he does not pay. A donation can also be valid without the delivery of the property; as, for instance, where, by way of donation I make an agreement with my debtor that I will not demand payment of him before a certain time has elapsed.

(1) The income from property which is donated is not included as part of the donation. If, however, I should give you, not the ownership of a tract of land, but the right to gather the crops, this will be held to constitute a donation.

(2) If a son under paternal control makes a donation by the order, or with the consent of his father, it is the same as if the father himself had made it, or if you should make a donation to Titius of my property with my consent in your own name.

(3) No one can make a donation, unless what is given becomes the property of the person to whom it is made.

10. Paulus, On Sabinus, Book XV.

A donation can properly be made to a person who is absent, whether you send someone to take it to him, or whether you direct him to keep something which he has in his possession. If, however, he does not know that the property which is in his possession is given to him, or if, after it is sent to him, he should not accept it, he will not become the owner of the article designated, even if it has been sent to him by his own slave; unless it was given to the latter with the intention that it should instantly become the property of his master.

11. Gaius, On the Edict of the Urban Praetor Concerning Legacies.

When a dispute arises with reference to the amount of the donation, neither the children of female slaves, crops, rents, nor wages are held to be included.

12. Ulpianus, Disputations, Book III.

Anyone who binds himself to make a donation can, according to a Rescript of the Divine Pius, only be sued for an amount which he is able to pay, for what he owes to his creditors must first be deducted; but what he is bound to give in the same manner to others should not be deducted.

13. The Same, Disputations, Book VII.

A certain person, who desired to make a donation to me, delivered the property to a slave jointly owned by Titius and myself, and the slave received it as an acquisition for my fellow joint owner, or did so on behalf of both of us. The question arose, what should be done? It was decided that although the slave accepted the property with the intention of acquiring it for my fellow joint owner, or for both himself and me, he, nevertheless, acquired it for me alone. For if he delivered it to my agent, with the intention that he should acquire it for me, and he accepted it in order to obtain it for himself, this will have no effect so far as he is concerned, but he will acquire the property for me.

14. Julianus, Digest, Book XVII.

Anyone who cultivates the land of another, by way of making a donation, cannot reserve anything on account of expenses which he may incur, because he immediately transfers to the owner the right to any implements which he takes upon the land.

15. Marcianus, Institutes, Book III.

According to a Constitution of the Divine Severus and Antoninus, donations made after the accusation of a capital crime are valid, unless the defendant is convicted.

16. Ulpianus, Opinions, Book II.

By the following clause, "Let my heirs take notice that my entire wardrobe, and any other property which I had in my possession at the time of my death, has been given to So-and-So and So-and-So, my freedmen," the ownership of the property will, by a liberal interpretation, belong to the said freedmen.

17. The Same, On the Edict, Book LVIII.

Where property awarded by a judicial decision has been included in a new stipulation, and a release had been made of the latter for the purpose of making a donation, it must be said that the release will be valid.

18. The Same, On the Edict, Book LXXI.

Aristo says that when any other transaction is mixed with a donation, an obligation growing out of the former is not contracted with reference to the donation. Pomponius also says that he holds the same opinion.

(1) He also says that Aristo thinks that if I deliver to you a slave on condition that you manumit him after five years, you cannot act before the five years have elapsed, because a species of donation is considered to be included in the transaction. He, however, states that it will be otherwise if I deliver the slave to you in order that you may manumit him immediately; for, in this instance, there is no donation, and hence the obligation exists. Pomponius, however, says that in the first instance the intention of the parties should be ascertained, for the term of five years may not have been prescribed with a view to making a donation.

(2) Aristo also says, that if a slave is delivered for the purpose of making a donation on condition that he shall be manumitted after five years have elapsed, and the slave belongs to another, a doubt may arise whether the slave can be acquired by usucaption, because a species of donation exists in this case. Pomponius says that this question also applies to donations mortis causa, and he is inclined to think that if the slave was donated under the condition that he be manumitted after five years, it may be held that he can be acquired by usucaption.

(3) Labeo says that if anyone should give me property belonging to another, and I should incur considerable expense on account of it, and then it should be evicted, I will not be entitled to any action on this account against the donor; but it is evident that I will be entitled to one against him on the ground of fraud, if he acted in bad faith.

19. The Same, On the Edict, Book LXXVI.

It is our practice where, in public matters, a question arises with reference to a donation, to only ascertain whether the donor made a promise to the city for some just cause, or not; since if he did so in consideration of some office which he received, he will be liable; otherwise, he will not.

(1) Labeo says that compensation for services of this kind is not included in donations; for example, if they are made conditionally as follows, "If I come to your aid; if I give security for you; if you make use of my services, or influence in the transaction."

(2) A donation cannot be acquired by anyone who is unwilling to accept it.

(3) Where a man lends money to Titius to be paid to Seius, to whom he desires it to be donated, and Titius does not pay it to Seius until after the death of the donor; the result will be that it can be said that the money will belong to Seius, whether he who paid it knew that the donor was dead, or was not aware of that fact; because the money still belonged to the latter. If he did not know that the donor was dead, he will be released from his obligation, if he borrowed the money to be paid to Seius. If, however, I should direct you to pay a certain sum of money to Titius, to whom I intend to donate it, and you not being aware that I was dead should do so, you will be entitled to an action on mandate against my heirs; but if you knew it, you will not be entitled to this action.

(4) If anyone lends money to a slave, and the slave, having afterwards become free, makes a new promise to pay it, this will not be a donation, but the acknowledgment of a debt. The same rule applies to the case of a ward, who becomes indebted without the authority of his guardian, if he afterwards, with the consent of his guardian, contracts a new obligation.

(5) Stipulations which are entered into for a valid consideration are not held to be donations.

(6) In conclusion, Pegasus thinks that if I promise you a hundred aurei, under the condition that you swear to bear my name, this will not be a donation, because the promise was made for a consideration, and a consideration was paid.

20. Marcellus, Digest, Book XXII.

If a patron is appointed heir to the share of an estate to which he is legally entitled, and his freedman charges him to pay a certain sum of money to someone, and he promises to do so in the presence of the beneficiary of the trust, he will not be compelled to pay it, for fear that the share due to him as patron under the law may be diminished. (1) A doubt may arise with reference to an heir who, in accordance with the will of the testator, promises to pay a legatee what he would have a right to retain under the Falcidian Law, but the better opinion is that he cannot violate his obligation. For if he does make payment, he will be considered to have exactly complied with the wishes of the testator, and no suit for recovery will be granted him; just as where he had made a previous stipulation, and acted contrary to the wishes of the testator, which he already had acknowledged, his claim will, with good reason, be barred.

21. Celsus, Digest, Book XXVIII.

In order to make me a donation you bound yourself to my creditor, to whom I delegated you. The act is valid, for the creditor receives what he is entitled to.

(1) If, however, I order my debtor to bind himself to you for the purpose of making you a donation greater than that authorized by law, the question arises whether or not you can be barred by an exception upon the ground of the donation. My debtor cannot avail himself of the exception against you, if you bring an action, because I am in the same position as if I had given you the amount, after having collected it from my debtor, and you had lent it to him. If the money has not been paid by my debtor, I will be entitled to an action against him to annul anything which he has promised you above the amount authorized by law, so that he will only remain liable to you for the balance. If, however, you have already collected the entire amount from my debtor, I will be entitled to an action against you to recover the excess of what the law prescribes.

22. Modestinus, Differences, Book VIII.

It is perfectly equitable that he who has promised a sum of money, or anything else, for the purpose of making a donation, shall not be liable for interest on account of delay in paying the money; and this is especially the case where the donation is not included in the class of bona fide contracts.

23. The Same, Opinions, Book XV.

Modestinus gives it as his opinion that a creditor can, by mere agreement, entirely remit or diminish the amount of interest to be due hereafter, without affecting the validity of the donation on the ground that the amount is illegal.

(1) It is the opinion of Modestinus that a person whose mind is affected cannot make a donation.

24. Javolenus, On Cassius, Book XIV.

An exception should be granted to the surety of him who, for the purpose of making a donation, promised a sum of money greater than that authorized by law, even against the consent of the principal; for if the latter should not be solvent, the surety will lose the money.

25. The Same, Epistles, Book VI.

If I give you something in order that you may donate it to Titius, in my name, and you give it to him in yours, do you think that it becomes his property? The answer was that if I give you something for you to give to Titius in my name, and you give it to him in your own name, so far as the technicality of the law is concerned, it does not become the property of the person who receives it, and you will be liable for theft; but the more liberal construction is that if I bring an action against the person who has received the property, I can be barred by an exception on the ground of fraud.

26. Pomponius, On Quintus Mucius, Book IV.

A simple statement in an account does not render anyone a debtor; for instance, if we wish to make a donation to a freeman, we can make the statement in our account that we owe it, but no donation is understood to be made.

27. Papinianus, Questions, Book XXIX.

A young man named Aquilius Regulus wrote to Nicostratus, his teacher of rhetoric, as follows: "Because you have always remained with my father, and have benefited me by your eloquence and your care, I give, and permit you to lodge in and make use of, such-and-such an apartment." Regulus having died, the right of Nicostratus to the apartment was disputed; and when he consulted me, I told him that the act of Regulus could not be maintained to be a mere donation, but that he had remunerated him for his services, and granted him this privilege by way of compensation, and therefore, that the donation should not be held to be void for the time following the death of Regulus. If Nicostratus had been ejected, he could have gone into court and protected himself by an interdict, in the same way in which an usufructuary could have done, as he obtained the use of the apartment through having been given possession of the same.

28. The Same, Opinions, Book III.

A father donated an estate, which had been left to him, to his daughter, who had become her own mistress. The daughter must satisfy the creditors of the estate, and if she should not do so, and the creditors should have recourse to her father, she can be compelled by an action praescriptis verbis to defend her father against the creditors.

29. The Same, Opinions, Book XII.

A donation is held to be made if property is given when the donor is not compelled to do so by any law.

(1) A certain person, having been interrogated in court, answered that the heirs of his guardian did not owe him anything. I gave it as my opinion that, by doing so, he had lost his right of action, for although these words may be understood to indicate not a business transaction, but a donation, still, he who has made an admission in court cannot contradict it.

(2) It has been settled that where anyone makes a donation of a portion of the estate of his next of kin, who is still living, it is void. But it was held that if he who made the donation afterwards succeeded to the estate under the Praetorian Law, all suits arising from it should be refused him, because his acting in such haste was contrary both to good morals and the Law of Nations.

30. Marcianus, On Informers.

For he should be deprived of the estate as being unworthy of it.

31. Papinianus, Opinions, Book XIII.

It is established that donations made to a concubine cannot be revoked, for not even if marriage should afterwards be contracted by the parties, will what formerly was valid by law become of no force or effect? But where the question was asked if marital honor and affection did not already exist, I answered that this should be determined by considering the character of the persons and the nature of their union in life, for a mere written contract does not constitute marriage.

(1) Where certain property was given by a mother to the husband of her daughter, in addition to the dowry, I gave it as my opinion that it should be considered to have been given to the daughter, who herself was present, and delivered it to her husband; and that the mother, who was offended, had no right to recover the property, nor could she under the law bring a personal action to do so, because the husband had specifically provided that the said property should be given to him for the benefit of the girl, in addition to her dowry; since by this statement, not only was the character of the donation indicated, and it was clear that the property was not separated from the use of the same, but it also showed that it was a peculium separate and distinct from the dowry. The magistrate, however, should determine whether the mother should recover the property if she was justly offended with her daughter, and he must render a decision with proper regard to the respect to be manifested toward a mother, and one which will coincide with the judgment of a good citizen.

(2) A father who gave certain slaves to his daughter, who was under his control, and did not deprive her of her peculium when he emancipated her, is held to have perfected the donation by his subsequent act.

(3) I gave it as my opinion, that where property was deposited in a temple under the condition that he alone could remove it who left it there, or Aelius Speratus, after the death of the owner, it would not be considered as a donation.

(4) Donations cannot be valid after the crime of treason has been committed, as the heir is also liable, even though the guilty party should die before having been convicted.

32. Scaevola, Opinions, Book V.

Lucius Titius sent the following letter: "So-and-So to So-and-So, Greeting. You can make use of such-and-such an apartment and all the rooms above it, gratuitously; and I notify you by means of this letter that you can do so with my consent." I ask whether the heirs of the writer can forbid the use of the apartment? The answer was that, according to the facts stated, the heirs of the person who wrote the letter can change the intention of the latter.

33. Hermogenianus, Epitomes of Law, Book VI.

Anyone who has made a new promise to pay, after having entered into an agreement to make a donation, can be sued in an action based on the promise, not for the entire amount, but only for what he is able to pay; for it has been settled that the cause and origin of the promise to make payment, and not the authority of the judge, must be considered. He, however, who has had judgment rendered against him on account of a donation, and an action is brought against him to enforce the judgment, can very properly ask that he only be sued to the extent of his pecuniary resources.

(1) Where money has been paid to Titius as a donation, under the condition that he will immediately lend it to the donor, the transfer of ownership is not prevented; and for this reason where the same money is lent to the donor, a new ownership of it is acquired.

(2) Persons who are dumb and deaf are not prohibited from making donations.

(3) When anyone desires to make a donation to you, and you intend to donate the same article to another, the donation will be perfected if the first promises, with your consent, to give it to the second; and because the first gave nothing to the second, by whom he can be sued, he can have judgment rendered against him for the entire amount, and not for as much as he is able to pay. The same rule is observed where he who is to receive the donation has delegated the donor to his creditor; for, in this instance, the creditor is merely transacting his own business.

34. Paulus, Decisions, Book V.

If a father should lend money at interest in the name of his emancipated son, with the intention of giving it to him as a donation, and the son makes a stipulation with reference to said money, there is no doubt that the donation is perfected by operation of law.

(1) If anyone should rescue a person from the hands of robbers, or enemies, and receive something from him as a reward for doing so, a donation of this kind is irrevocable, and should not be designated a reward for an eminent service rendered; as it has been decided that no limit should be fixed to an act performed for the purpose of saving life.

35. Scaevola, Digest, Book LI.

A man wrote to a slave whom he had manumitted, as follows: "Titius to Stichus, his freedman, Greeting. After having manumitted you I notify you by this letter, written by my own hand, that I give to you everything which you have in credits, in movable property, and in money." He also made the same freedman heir to two-thirds of his estate by will, and Sempronius his heir to the remaining third; but he did not bequeath to Stichus his peculium, nor did he direct that he should have the rights of action growing out of the same. The question arose whether an action should be granted to Stichus for the entire amount of the credits, including his peculium; or whether it should be granted to both of the heirs in proportion to their respective shares of the estate. The answer was that, in accordance with the facts stated, the action should be granted to both of them in proportion to their respective shares of the estate.

(1) Lucius Titius gave to Maevia a tract of land, by way of a donation, and a few days afterwards before delivering the same, he pledged the land to Seius, and then, within thirty days, gave Maevia possession of the said land. I ask whether the donation was perfected or not. The answer was that, in accordance with the facts stated, it was perfected, but that the creditor was undoubtedly entitled to his right in the land under the pledge.

(2) A grandmother lent money, in the name of Labeo, her grandson, and always collected the interest, and the evidences of indebtedness were received by Labeo, and were afterwards found among the assets of his estate. I ask whether the donation should be considered to have been perfected. The answer was that, as the debtors were liable to Labeo, the donation was perfected.

 

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Tit. 6. Concerning donations and other acquisitions mortis causa.

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1. Marcianus, Institutes, Book IX.

A donation mortis causa is one where the party wishes to retain the property himself instead of transferring it to him to whom he donates it, but prefers that the donee shall have it rather than his heir.

(1) Telemachus gives a donation of this kind to Piraeus, in Homer.

2. Ulpianus, On Sabinus, Book XXXII.

Julianus, in the Seventeenth Book of the Digest, says that there were three kinds of donations mortis causa. The first, where the donor, who is under no apprehension of impending death, makes a donation solely with a view to his decease. He says another kind of donation mortis causa is where anyone is disturbed by the immediate prospect of death and makes a donation, so that the article immediately becomes the property of the person who receives it. He says that the third kind of donation is where a man, apprehensive of death, does not give the property so that its ownership will immediately vest in the person entitled to it, but provides that it shall belong to him after the death of the donor.

3. Paulus, On Sabinus, Book VII.

It is lawful to make a donation mortis causa not only when a person is induced to do so by failing health, but also because of the danger of impending death, either at the hands of enemies, or robbers; or on account of the cruelty or hatred of some powerful man, or when anyone about to undertake a sea voyage;

4. Gaius, Diurnal or Golden Matters.

Or travel through dangerous places,

5. Ulpianus, Institutes, Book II.

Or where one is exhausted by old age:

6. Paulus, On Sabinus, Book VII.

For all these conditions indicate impending danger.

7. Ulpianus, On Sabinus, Book XXXII.

If anyone convicted of a capital crime should make a donation mortis causa, the donation will be annulled as imperfect; although other donations made by him previous to the suspicion that he was liable to such a penalty may be valid.

8. The Same, On Sabinus, Book VII.

Where anyone, having received a sum of money, rejects an estate, whether it passes to a substitute, or whether an heir succeeds to it on the ground of intestacy, he is considered to have obtained the money mortis causa; for whatever is acquired on account of the death of anyone is obtained mortis causa. Julianus adopts this opinion, and we make use of it. For where anything is received by a slave, who is to be free under a certain condition, for the purpose of complying with the condition; or anything is obtained by a legatee mortis causa; or where a father gives anything on account of the death of his son, or of a relative; Julianus states that it is acquired mortis causa.

(1) Hence, he says that a donation can be made in such a way that it will revert to the donor, if the sick person should recover.

9. Paulus, On Sabinus, Book III.

Everyone is permitted to acquire a donation mortis causa who has the right to receive a legacy.

10. Ulpianus, On Sabinus, Book XXIV.

It is settled that he to whom a donation mortis causa is made can be substituted in such a way that he can promise the property to someone else, if the latter cannot himself acquire it, or cannot do so under some other condition.

11. The Same, On Sabinus, Book XIII.

A father can legally make a donation on account of the death of his son, even during the existence of his son's marriage.

12. The Same, On Sabinus, Book XLIV.

Where a woman fraudulently asks to be placed in possession of an estate in the name of her unborn child, and receives money on this account, in order to favor a substitute, or to exclude the appointed heir, for some reason or other, Julianus frequently stated that she obtained this money mortis causa.

13. Julianus, Digest, Book XVII.

If I give property belonging to another as a donation mortis causa, and it should afterwards be acquired by usucaption, the true owner cannot recover it, but I can do so, if I regain my health.

(1) Marcellus says that questions of fact may arise with reference to donations mortis causa, for the donation may be made in such a way that if the donor should die of his illness, it shall not be returned; or that it shall be returned if the donor, having changed his mind, desires it to be restored to him, even if he should die of the same illness. A donation of this kind can also be made subject to the provision that it shall not be returned unless the person who is to receive it dies first. A donation mortis causa can be made in such a way that the property shall not be returned in any event; that is to say, not even if the donor should recover his health.

14. Julianus, Digest, Book XVIII.

Where a tract of land is donated mortis causa, and necessary and useful expenses are incurred with reference to it, parties bringing an action to recover the land can be barred by an exception on the ground of fraud, unless they reimburse the donee for the said expenses.

15. The Same, Digest, Book XXVII.

Marcellus says that where sons under paternal control, who are serving in the army, have obtained the unrestricted right to dispose of their property by will to anyone whom they may select, it may be held that they are also released from the observance of the ordinary formalities required in the case of donations mortis causa. Paulus says, with reference to this, that it is established by the Imperial Constitutions that donations mortis causa can be revoked in the same way as legacies.

16. Julianus, Digest, Book XXIX.

A donation mortis causa can be revoked even while it is yet uncertain whether or not the donor can recover his health or not.

17. The Same, Digest, Book XLVII.

Even if a debtor may not have had the intention to defraud his creditors, his donee can be deprived of property given to him mortis causa; for, as legacies bequeathed by the will of a person who is insolvent are absolutely void, it can be held that donations mortis causa made under such circumstances should also be annulled because they resemble legacies.

18. The Same, Digest, Book LX.

We obtain a donation mortis causa not only when anyone gives it to us on account of his death, but also where he makes the donation dependent on the death of another, as, for instance, if anyone should give to Maevius a donation in case of the death of his son, or his brother, under the condition that if either of them should recover from his illness, the property shall be restored to him, but if either of them should die, it will belong to Maevius.

(1) If you should make a donation mortis causa to me, by directing your debtor to pay my creditor, I shall, in any event, be held to be entitled to as much money as will release me from liability to my creditor. If, however, I should make a stipulation with your debtor, I will be considered to be entitled to only as much as the debtor is able to pay. For even if you, being the creditor, should recover your health, and the donor should do the same, you can only bring an action for recovery, or one in factum for an amount equal to the obligation of the debtor.

(2) Titia, desiring to donate to her debtors Septitius and Maevius their promissory notes, gave them to Ageria, and asked her to give them to the said debtors, if she, Titia, should die, but if she should be restored to health, to return them to her. She, having died, Mavia, the daughter of Titia, became her heir; but Ageria gave the notes to the above-mentioned Septitius and Maevius, as she had been requested to do. The question arises if Maevia, the heir, brought an action to recover the sum due on the above-mentioned notes, or one to recover the notes themselves, whether she could be barred by an exception. The answer was that Maevia could be barred by an exception based on the execution of the contract, or by one on the ground of fraud.

(3) Where anyone has received a slave by way of satisfaction for damages caused by him, or for some other liability, as a donation mortis causa, he is understood to have only acquired as much as the slave can be sold for. The same rule should be observed with reference to a tract of land which is encumbered, in order to ascertain the value of what is donated.

19. The Same, Digest, Book LXXX.

Where property is donated mortis causa to a son under paternal control, and the donor is restored to health, he can bring an action De peculio against his father. But if the head of the household receives the donation mortis causa, and then gives himself in adoption, the property given can be recovered by the donor. This case is not similar to that where he who receives a donation mortis causa gives it to another, for the donor cannot recover from him the property itself, but only its value.

20. The Same, On Urseius Ferox, Book I.

A tract of land is devised to a person who cannot legally acquire but a portion of it, under the condition that he will pay ten aurei to the heir. He is not required to pay the entire sum in order to obtain his share of the land, but only an amount in proportion to the legacy which he is entitled to receive.

21. The Same, On Urseius Ferox, Book II.

Several authorities, and among them Priscus, have held that a person who receives a sum of money to induce him to accept an estate obtains the money mortis causa.

22. Africanus, Questions, Book I.

In the case of a donation mortis causa, where the capacity of anyone to receive the property is the subject of investigation, the time of death, and not that of the donation should be considered.

23. The Same, Questions, Book II.

Where a donation mortis causa is made to a son under paternal control, and he dies during the lifetime of the donor, but his father survives, the question arises, what is the rule of law in a case of this kind? The answer was that, by the death of the son, an action to recover the property will lie; provided the donor had the intention of giving it to the son rather than to the father. Otherwise, if the agency of the son was only employed for the benefit of his father, then the death of the father must be taken into consideration. The same rule will apply where a question arises with reference to the person of a slave.

24. The Same, Questions, Book IX.

When a release is given to a debtor as a donation mortis causa, and the donor recovers his health, he can collect the debt, even if the debtor has been released by lapse of time; for, by the release, the creditor has renounced his claim under the prior obligation, and it has been merged in the right to recover the donation.

25. Marcianus, Institutes, Book IX.

A donation mortis causa can be made whether the party executes a will or not.

(1) A son under paternal control, who cannot make a will even with the consent of his father, can, nevertheless, make a donation mortis causa, if his father permits him to do so.

26. The Same, Rules, Book II.

Where two persons make reciprocal donations, mortis causa, of the same property, and both of them die, the heir of neither can recover the property, for the reason that neither one survives the other. The same rule of law will apply, if a husband and wife should make reciprocal donations.

27. The Same, Rules, Book V.

Where a donation mortis causa is made in such a way that it cannot be revoked under any circumstances, it is rather a donation inter vivos than one mortis causa. Hence it should be considered as any other donation inter vivos, and will be void as between husband and wife; and the Falcidian Law will not apply, as it does in the case of donations mortis causa.

28. Marcellus, Opinions.

A nephew, desiring to make a donation mortis causa to his uncle of the amount which he owed him, made the following statement in writing, "I wish any registers or notes of mine, wherever they may be found, to be void, and that my uncle shall not be obliged to pay them." I ask, if the heirs bring suit to recover the money from the uncle of the deceased, whether they can be barred by an exception on the ground of fraud. Marcellus answered that they can be, for the heirs most assuredly are making a demand upon the uncle contrary to the wishes of the deceased.

29. Ulpianus, On the Edict, Book XVII.

Where property is donated mortis causa, and the donor recovers his health, let us see whether he will be entitled to an action in rem. If anyone should make a donation under the condition that, in case of death, the property should belong to the person to whom it was given, there is no doub that the donor can recover it, and if he should die, he to whom.it was given can do so. If the condition was that the donee should immediately have the property as his own, but should return it if the donor recovered his health, or returned after a battle or a long journey, it can be maintained that the donor will be entitled to an action in rem, if any of these events take place; but, in the meantime, the property will belong to the person to whom it was donated. If, however, he to whom the donation was made, should predecease the donor, it may be held that the latter will be entitled to an action in rem.

30. The Same, On the Edict, Book XXI.

Anyone who makes a donation mortis causa, and afterwards changes his mind, will be entitled to either an action to recover the property or to an equitable action.

31. Gaius, On the Provincial Edict, Book VIII.

Property is acquired mortis causa when an occasion arises for obtaining it on account of the death of anyone, except in such instances as have a particular designation; for it is certain that anyone who acquires property by hereditary right, or as a legatee or the beneficiary of a trust acquires it, on account of the death of another, but for the reason that these methods of acquiring property are designated by specific names, they are distinguished from the one in question.

(1) It is held by Julianus that, although the debtor who has been released may not be solvent, the donation will still be considered to have been made mortis causa.

(2) Property can also be acquired without a donation; as, for instance, where a slave or a legatee pays a sum of money for the purpose of complying with some condition, whether the person who receives it is a stranger, or an heir. The case is similar where anyone receives money to accept or reject an estate, or to refuse a legacy which has been bequeathed to him. Even a dowry which has been stipulated for and will belong to the husband if his wife should die, is evidently acquired mortis causa, and dowries of this kind are designated as returnable. Again, anything which is donated mortis causa, or is given while in imminent danger of death, or with the expectation of mortality, for the reason that we understand that we will die sooner or later, is included in this category.

(3) If, with the intention of making a donation mortis causa, you should direct your debtor to make a new promise to my creditor to pay ten aurei, the question arises, what would be the rule of law if the debtor should not prove solvent? Julianus says that if I stipulate in this way, I shall be held to have obtained as much money as your debtor is able to pay; for he says if the donor recovers his health, he will only be entitled to obtain the new obligation of the debtor. If, however, my creditor should enter into the stipulation, I will be held to have received only as much money as I would have the right to be released from payment of to my creditor.

(4) When a debtor, who is poor, is released from his indebtedness by way of a donation, he is considered to have obtained all the money from the payment of which he was released.

32. Ulpianus, On the Edict, Book LXXVI.

A donation made mortis causa is not considered to be perfect until after the death of the donor.

33. Paulus, On Plautius, Book IV.

Where anyone acquires by usucaption property belonging to another which was donated mortis causa, he is not considered to have obtained it from the party to whom the property belongs, but from him who gave him the opportunity for usucaption.

34. Marcellus, Digest, Book XXVIII.

A donation mortis causa can also be made, even if it can be proved that the donee stipulated for payment every year, as long as he lived; that is to say, that collection should begin after the death of the promisor.

35. Paulus, On the Lex Julia et Papia, Book VI.

The Senate decreed that where donations mortis causa were made to those whom the law forbade to receive them, they are in the same position as persons to whom legacies are bequeathed by will, and who are not permitted by law to accept them. A great variety of questions have arisen under this Decree of the Senate, a few of which we shall mention.

(1) The word "donation" is derived from donum, meaning "presented with a gift." It is taken from the Greek, for the Greeks say dwron kai dwreisvai, that is to say, "a gift and to give."

(2) A donation mortis causa, however, differs greatly from a genuine and absolute gift, which is made in such a way that it can, under no circumstances, be revoked; and where he who makes it would rather that the donee should have the property than he himself. On the other hand, he who makes a donation mortis causa thinks of himself and, through his love of life, prefers to keep the property, rather than to give it away. This is the reason why it is commonly said that the donor would rather have the property than allow him to whom he gives it to have it, but that he would rather that he should have it, than that it should pass to his heir.

(3) Therefore, he who makes a donation mortis causa, so far as his thoughts of himself are concerned, concludes a business transaction; that is to say, he imposes the condition that the property shall be returned to him if he is restored to health. The followers of Cassius entertained no doubt that the property could be recovered, as in the case of an unfinished transaction; for the reason that, where anything is given, it is done either that you may perform some act, or that I may perform one, or that Lucius Titius may do so, or in case some event takes place; and in all these instances, the property may be recovered by an action.

(4) A donation mortis causa is made in several different ways. Sometimes it is made by a man who is well and has no anticipation of immediate death, who enjoys excellent health, but who reflects that man is liable to die. Sometimes it is made through the fear of death, either on account of present or future danger. For the danger of death may be apprehended on land and sea, in peace and in war, at home as well as in the army. A donation may also be made under the condition that if the donor should die of his illness, the property shall not, under any circumstances, be returned; or that it shall be returned if he should change his mind, and desire it to be restored to him, even before he died of the same illness. A donation can also be made under the condition that it shall not be returned unless the person entitled to it dies before the donor. A donation mortis causa can also be made in such a way that it cannot be recovered in any event, that is, not even if the donor should recover his health.

(5) If anyone should form a partnership with another for the purpose of making a donation mortis causa, it must be said that the partnership is void.

(6) When a creditor wishes to make a donation mortis causa to two of his debtors, of what they owe him, and releases one of them from liability, and regains his health, he can sue either one of them that he may select.

(7) He who stipulates for the payment of a sum of money annually as a donation mortis causa does not resemble the person to whom a legacy, payable annually, has been bequeathed; for although there are many legacies, still there is only one stipulation, and the status of him to whom the promise was made must always be considered.

36. Ulpianus, On the Lex Julia et Papia, Book VIII.

Where anything is given for the purpose of complying with a condition, although it may not be derived from the estate of the deceased, still, he whom the law says shall only receive a certain amount cannot receive a larger sum than that fixed by law. It is certain that where a sum of money is paid by a slave for the purpose of complying with the condition, the amount will be regulated in accordance with that which the legatee is legally entitled to receive, provided the slave had that much in his peculium at the time of his death. If, however, the sum was acquired after his death, or if another person gave it for him, as it did form part of the property which the testator had when he died, the case will be the same as where charges are imposed on legatees.

37. The Same, On the Lex Julia et Papia, Book XV.

Generally speaking, it must be remembered that donations mortis causa are comparable to legacies. Therefore, any rule of law which applies to legacies must be understood also to apply to donations mortis causa.

(1) Julianus says that if anyone should during the lifetime of the donor sell a slave given to him as a donation mortis causa, the latter will be entitled to a personal action to recover the price, if he should regain his health, and choose to do so; otherwise, the donee will be compelled to return the slave himself.

38. Marcellus, On the Lex Julia et Papia, Book I.

The following difference exists between a donation mortis causa and other ways by which anyone acquires property by reason of death. A donation mortis causa is made when both parties are present, and anything not included in this kind of a donation, it is understood, may be obtained on account of death. For when a testator, by his will, directs his slave Pamphilus to be free under the condition that he pays me ten aurei, he is not considered to have made me a donation; and nevertheless, if I accept the ten aurei from the slave, it is established that I accept them mortis causa. The same thing happens where an heir is appointed on condition that he pay me ten aurei; as, by accepting the money from him who is appointed heir, I acquire it mortis causa, for the purpose of complying with the condition.

39. Paulus, On Plautius, Book XVII.

If he to whom a slave has been donated mortis causa manumits him, he will be liable to an action to recover the value of the slave, as he knows that he can be sued if the donor should regain his health.

40. Papinianus, Questions, Book XXIX.

If a donation mortis causa made between husband and wife takes effect, the donation is referred to the time when it was made.

41. The Same, Opinions, Book II.

Where a slave, who is to be free under the condition of paying a certain sum out of his peculium to one of the heirs to the estate, does so, he must account for that sum as well by reason of the Falcidian Law, as where suit is brought for the estate, and also where restitution is made under the Trebellian Decree of the Senate. What the slave received as a donation, and paid, is considered to have been given out of his peculium, and if it was paid by another in his presence, and in his name, it is understood as having been paid by himself.

42. The Same, Opinions, Book XXXII.

Seia, having transferred her property to her relative Titius, by way of donation, reserved the usufruct of the same for herself; and it was agreed that if Titius should die before she did, the said property should go to him, and if she died during the lifetime of the children of Titius, it should then belong to them. Hence, if the heirs of Lucius Titius should claim the property, they could not ineffectually be opposed by an exception on the ground of bad faith. However, suit having been brought in good faith, it was asked whether the woman was not obliged to promise to give the property to the children of Titius when he died. Some doubt arose on the point that the donation should not be extorted, where title to it had not yet vested in the children; still, might it not be said that, on account of the security given, the first donation which was perfected by the delivery of the property, and which, being actually given in the beginning, should be perpetuated; and not the second one which was merely promised? Therefore, was the donation made under a certain condition, and should it be so considered, or was it made on account of death? It cannot be denied that it should be considered to have been made mortis causa. The result is that the first donation having been annulled, the second one should be held to have been extorted, as Seia survived Titius. Finally, after the death of the woman, if the children of Titius had accepted the bond with her consent, they would be liable to contribute to the Falcidian portion in proportion to their respective shares.

(1) Where a father, at the point of death, gave certain property to his emancipated son, without imposing upon him the condition of returning the same, and his brothers and co-heirs desired contribution to be made out of the property, on account of the Falcidian Law, I gave it as my opinion that the ancient rule should be observed, as the new constitution had nothing to do with the other donations, which were made under positive conditions, and, in the case of death, there should be a deduction from the property of the estate, without the heirs having the hope of retaining it; for he who made the gift absolutely did so when dying, rather than as a donation mortis causa.

43. Neratius, Opinions, Book I.

Fulcinius: A donation mortis causa can be made between husband and wife, if the donor has an exceedingly well-founded apprehension of death. Neratius: It is sufficient if the donor has a belief of this kind, and thinks that he is going to die, and no inquiry should be made whether his opinion was well grounded or not. This rule should be observed.

44. Paulus, Manuals, Book I.

Where a donation mortis causa is made to a slave, let us see whose death must be taken into consideration, that is to say, the death of the master, or that of the slave himself, in order that there may be ground for a personal action to recover the property. The better opinion is that the death of the person to whom the donation was made should be considered; still, the donation does not follow the manumitted slave after the death of his master, before the will is opened.