1.
Ulpianus, On the Edict, Book LXVII.
Let us see in what cases interdicts
are available. It should be noted that they are applicable to both
Divine or human affairs; to Divine affairs, where sacred or religious
places are concerned. Interdicts are granted with reference to human
affairs, where property has an 6wner, or where it belongs to no one.
Free persons are included in that which belongs to no one, and interdicts
will lie where they must be produced in court, or conducted anywhere.
Things which have an owner are the property of the public, or of individuals.
Public property consists of public places, highways, and rivers; property
belonging to individuals is such as relates to property in its entirety,
as in the case of an interdict Quorum, bonorum, and that which
is separated, as in the case of the interdict Uti possidetis or
De itinere actuque.
(1) There are three kinds of
interdicts, exhibitory, prohibitory, and restitutory. There are also
certain interdicts which are of a mixed nature, and which are both
prohibitory and exhibitory.
(2) Some interdicts have reference
to the present time, and others to future time. The interdict Uti
possidetis has reference to the present time, and the one De
itinere actuque de aqua sestiva has reference to future time.
(3) All interdicts are personal
in their application, although they appear to relate to property.
(4) Some interdicts only last
a year, and others are perpetual.
2. Paulus, On the Edict,
Book LXIII.
There are double and single
interdicts. The interdict Uti possidetis is an instance of
a double one. Exhibitory and restitutory interdicts are single, and
there are also prohibitory interdicts, as for instance, those De
arboribus caedendis and De itinere actuque.
(1) Moreover, interdicts will
lie in favor either of persons, or for the purpose of upholding the
Divine Law, and protecting places which are religious; for example,
to prevent any act being committed in a sacred place, or to compel
matters to be restored to their former condition, where anything has
been done; which includes the interdict having reference to burials
and the construction of tombs. Those which have been established in
favor of persons either have reference to the common welfare, the
maintenance of the rights of individuals, the discharge of official
duty, or the preservation of private property. The interdict granting
the use of public highways and public rivers, and prohibiting any
obstruction from being placed upon a highway is an instance of one
instituted for the common welfare; the interdicts to compel the production
of children and freedmen in court are examples of those established
for the protection of private rights. The interdict requiring the
production of a freeman in court is an example of one to compel the
performance of an official duty. Other interdicts are granted for
the protection of property.
(2) Some interdicts include
the pursuit of property, as, for instance, the one which has reference
to private rights of way, for by proceedings under this interdict
the title to property is involved. Interdicts which refer to sacred
and religious places also embrace, to a certain extent, the title
to property. That which has reference to the production of children
in court, and which we have stated has for its object the maintenance
of private rights, is also of this description, so that it is not
strange that interdicts relating to private property include the title
to it and not the right to its mere possession.
(3) Those interdicts which have
reference to private property are instituted either for the purpose
of acquiring, recovering, or retaining possession. Interdicts to obtain
possession are such as are available by parties who have not hitherto
acquired it; and an example of these is the interdict Quorum bonorum.
The Salvian Edict which relates to pledges is one of this kind,
and is as follows: "I forbid violence to be employed to prevent
the purchaser from using a right of way which was used by the vendor."
Interdicts for the recovery of possession are mentioned under the
title, "Unde vi," for there are certain interdicts
which are classed under this head. The interdict, "Uti possidetis,"
is an instance of one of those issued for the purpose of retaining
possession. As we have previously stated there are also interdicts
which are double; these are for the purpose of both recovering and
retaining possession.
3. Ulpianus, On the Edict,
Book LXIX.
In interdicts issued to compel
the return of crops, the date when they were issued is taken into
consideration, and not any previous time.
4. Paulus, On the Edict,
Book LXVII.
In cases where the interdicts
are only in force for a year, Sabinus is of the opinion that an action
should be granted after the year has elapsed, if the party who is
sued has obtained any of said crops.
5. The Same, On Sabinus,
Book XIII.
Noxal interdicts are those which
are granted on account of some crime committed by persons under our
control; as, for instance, where they have forcibly ejected anyone,
or have erected a new work either by violence, or clandestinely. It
is, however, the duty of the judge to release the owner, if he places
the property in its former condition at his own expense; or if he
permits the work to be removed, and directs a slave to be surrendered
by way of reparation. If he does not surrender the slave, judgment
must be rendered against him for the amount of expense incurred in
removing the work; and if he neither suffers it to be removed, nor
removes it himself, if he can do so, he shall have judgment rendered
against him for an amount which the court may determine, just as if
he himself has constructed the work in question.
Tit. 2.
Concerning the interdict quorum bonorum.
1. Ulpianus, On the Edict,
Book LXVII.
The Praetor says: "Whenever
possession of the property of an estate is granted to anyone under
my Edict, you will restore to him everything belonging to said estate
which you hold, either as heir, or merely as possessor, if there is
no usucaption, or if he did not act in bad faith in order to avoid
retaining possession."
(1) This interdict is restitutory,
and applies to all property, and not to certain specific things. It
is styled Quorum bonorum, and has for its object the obtaining
possession of the entire property in dispute.
2. Paulus, On the Edict,
Book XX.
The debtors
of an estate are not liable under the interdict Quorum bonorum,
but only those who have possession of any property.
Tit. 3.
Concerning the interdict quod legatorum.
1. Ulpianus, On the Edict,
Book LXVII.
This interdict is commonly called
Quod legatorum.
(1) It is also for the purpose
of obtaining possession.
(2) It has for its object the
restoration to the heir of everything belonging to the estate of which
a legatee, against the consent of the heir, has taken possession.
For it seemed perfectly just to the Praetor that anyone should not
define his rights himself, by taking possession of the legacy, but
should first apply to the heir. Therefore the Praetor, by means of
this interdict, places in the hands of the heir property which is
in the possession of others as legacies, so that the legatees can
sue the heir.
(3) This interdict, on the ground
of public convenience, is said to extend to the heir of the heir,
both civil and praetorian, as well as to other successors.
(4) But as it is sometimes uncertain
whether anyone has possession of property as legatee, as heir, or
as possessor under the Praetorian Edict, Arrian very properly says
that proceedings should, be instituted to claim the estate, and that
this interdict ought to be granted whether anyone in possession is
liable under it as an heir, a possessor, or a legatee; just as we
are accustomed to do when it is doubtful which of two actions should
be brought; for we propose two actions, alleging that we can obtain
what we are entitled to by one or the other of them.
(5) When anyone has possession
of property through a donation mortis causa, this interdict
will not apply; because, of course, the Falcidian portion will remain
in possession of the heir by operation of law, even though all the
property has been actually transferred.
(6) Anyone who has received
a preferred legacy is liable under this interdict, but only for what
he is legally entitled to as a bequest, and not for that part of the
estate which he holds in the capacity of heir.
The same rule will apply to a legacy bequeathed to an heir in any
other way, for, in this case, it must be decided that the interdict
will not be applicable to that part of the estate to which he is entitled
as heir.
(7) Where the Praetor says,
"or has ceased to hold possession by fraud," we must understand
this to mean if he has ceased to have the power to make restitution.
(8) Hence the question arises,
if the right of usufruct or use is bequeathed to anyone, and he takes
possession of it, can he be compelled to restore it by the provisions
of this interdict? The difficulty is that neither the usufruct nor
the use can be actually possessed, but they are rather held. It can,
however, be maintained that an interdict will lie. The same rule applies
to the bequest of a servitude.
(9) The question arises, where
anyone is placed in possession of an estate for the preservation of
legacies, whether he can be compelled by this interdict to make restitution.
The difficulty in the first place, is, that he who is placed in possession
of the property for the purpose of insuring the payment of the legacies
is not actually in possession, but rather has charge of the property;
and in the second place, because this has been authorized by the Praetor.
It will be safer to hold, however, that this interdict will lie; especially
if security has already been given for the legacies, and the legatee
does not withdraw, for then he is considered to have possession.
(10) We can not only say the
legatee possesses the property by virtue of the legacies, but also
that his heir and other successors can possess the same.
(11) Where the Praetor says,
"with the consent of him to whom the property belongs,"
this must be understood to signify that, if permission to take possession
had been granted to the legatee after the estate has been entered.
upon, or praetorian possession has been obtained, the interdict will
not lie; because if this is done before the estate has been entered
upon, or the consent to praetorian possession has been secured, it
may properly be held that this will not prejudice him, if he desires
to avail himself of the interdict.
(12) Where two articles are
bequeathed, and one of them is taken with the consent of the heir,
and the other without it, the result will be that one of them can
be recovered, and the other cannot. The same rule should be adopted
with reference to a single article, a part of which is taken with
the consent of the heir, and a part without it, for he can only be
deprived of a portion of the same by means of an interdict.
(13) It must be held that there
will be ground for this interdict, if possession has begun to be taken
by you, or by someone to whose place you have succeeded. We understand
one person to have succeeded to the place of another when he succeeds
to the entire property, or merely to part of it.
(14) Possession is always a
benefit when it has been begun with the consent of him to whom the
property belongs. If, however, the consent of the owner is not obtained
until afterwards, it will still benefit the possessor. Therefore,
if anyone begins to hold possession with the consent of him who has
an interest in the property, and his consent is afterwards withdrawn,
this will not prejudice him, because he began to hold possession with
the consent of the party interested.
(15) If one of two heirs, or
any other persons who have an interest in the property, gives his
consent to possession of the same by the legatee, and the other does
not, it is evident that an interdict will only lie against the one
who refused his consent.
(16) Where the Praetor says,
"unless security is furnished," we should understand this
to mean if the security continues to exist; for if it does not, the
legatee will be placed in possession of the property of the estate
for the purpose of insuring the payment of the legacies.
(17) I think that proper security
should be furnished to the legatee either directly by operation of
law, or in such a way that he can obtain it by an action on mandate,
and then there will be ground for the interdict.
(18) If security is given for
certain property, and not for some other, there will be no difficulty
in instituting proceedings under the Edict with reference to the property
for which security has been furnished, but this cannot be done to
compel the return of the other.
2. Paulus, On the Edict,
Book LXIII.
The case is different if anything
has afterwards been added to the legacy, for, in this case, the sureties
will be liable for the entire amount.
(1) Where the Praetor says,
"if the praetorian possessor of the estate is not required to
give security," we must understand this to mean, if he is ready
to give it. Hence, he should not offer to furnish security, but should
not delay to do so if the legatee demands it.
(2) When anyone does not make
restitution, judgment to the amount of his interest should be rendered
against him under this interdict.
(3) If the legatee is satisfied
with a mere promise, the interdict should be granted. The same must
be said, if the legatee refused to be secured by pledges.
(4) If the legatee was to blame
for security not having been given, even though none was furnished,
he will be liable under the interdict. If, however, he was to blame
for security not having been given, but, at the time that the interdict
was issued, he was ready to accept security, the interdict will not
lie, unless security was given. But if the possessor under the Praetorian
Edict was responsible for security not having been given, but was
afterwards ready to furnish it, the interdict will lie; for the time
when it was issued is taken into consideration.
Tit. 4.
Concerning the interdict which prohibits violence being employed against
a person placed in possession.
1. Ulpianus, On the Edict,
Book LXXII.
The Praetor says: "I will
grant an action in factum, for the amount of the value of the
property of which a person was placed in possession, against anyone
who acts fraudulently to prevent him from obtaining control of said
property by my permission, or by that of any other magistrate having
jurisdiction."
(1) It was with the greatest
wisdom that the Praetor introduced this interdict; for it would be
useless for him to place anyone in possession of property for the
purpose of preserving it, unless he protected him, and punished those
who prevented him from occupying it.
(2) Moreover, this Edict is
of general application, for it has reference to all persons placed
in possession of property by the Praetor, as it seemed proper to him
that all those whom he placed in possession should be protected. Where
persons are placed in possession, either for the purpose of preserving
the property, or to insure the payment of their legacies, or to protect
the rights of an unborn child, they will be entitled to an action
in factum under this Edict, if a master or anyone else should
prevent them from doing so.
(3) This action will not only
lie against anyone who prevents another from taking possession, but
also against a person who drives him away, after he has already obtained
possession. It is not required that he who prevents him from taking
possession should use force.
(4) Therefore, where if anyone
hinders another from taking possession, because he thinks that the
property belongs to him, or is encumbered to him, or, in fact, does
not belong to the debtor, the result will be that he will not be liable
under this Edict.
(5) The following words, "for
the amount of the value of the property of which he was placed in
possession," include the entire interest of the creditor, so
that the defendant shall have judgment rendered against him to the
extent of the interest he had in not being prevented from obtaining
possession. Hence, if he was placed in possession by virtue of a false
claim or demand which was groundless, or if he should have been barred
by an exception, this Edict will be of no advantage to him, because
there was no reason why he should have been placed in possession.
(6) It is established that neither
a minor nor an insane person is liable under this Edict, because they
are destitute of will power. We should understand a minor to be one
who is incapable of committing fraud, but if he is already capable
of doing so, the opposite opinion must be held; therefore, if a guardian
should commit a fraudulent act, we will grant an action against his
ward, provided the guardian is solvent. Julianus says that the guardian
himself can be sued.
(7) If anyone is prevented from
obtaining possession with the consent of a master or a father, an
action will be granted against them, just as if they committed the
act by the agency of others.
(8) This action can only be
brought within a year, except where anyone is placed in possession
to insure the payment of a legacy; and it must be noted that it cannot
be brought after the year has expired, as it is a penal one; nor will
it be granted against heirs and other persons of this kind, unless
with reference to property which has come into their hands. It will,
however, be granted to the heir and other successors. For when anyone
is prevented from obtaining possession on account of the preservation
of legacies or trusts, the action is perpetual and is granted against
the heir, because it is in the power of successors to avoid the operation
of the interdict by offering to give security.
2. Paulus, On the Edict,
Book LIX.
It makes no difference whether
anyone is prevented from taking possession in his own name, or in
that of another, for the words, "For the amount of the value
of the property," have reference to the owner personally.
(1) He also is liable who, either
in his own name or in that of another, prevents possession from being
taken.
3. Ulpianus, On the Edict,
Book LXVIII.
Where anyone is awarded possession
for the protection of a trust, and is not admitted, he should be placed
in possession by the authority of him who granted it to him. If he
wishes to avail himself of the interdict, it must be said that it
will be applicable. It would, however, be better for the judge to
have his decree executed by extraordinary process, derived from the
power of his office, and sometimes even to accomplish this by armed
force.
(1) It was decided by Antoninus
that a person may, under certain circumstances, be permitted to take
possession of the property of the heir himself. Therefore, if anyone
is not permitted to take possession of such property, it must be held
that this equitable proceeding will lie. He can also make use of extraordinary
execution.
(2) The Praetor places an unborn
child in possession. This interdict is both prohibitory and restitutory.
If the mother prefers to bring an action in factum, it must
be remembered that she can do so (as in the case of creditors), rather
than avail herself of the interdict.
(3) If the woman is alleged
to have obtained possession for the purpose of causing annoyance,
or because she is not pregnant, or is not pregnant by the man whose
property is in question, or where anything is alleged with reference
to her status, the Praetor promises possession to the unborn child,
under a Rescript of the Divine Hadrian, in conformity with the presumption
of the Carbonian Edict.
4. The Same, On the Edict,
Book LXIX.
The Praetor, by means of this
Edict, conies to the relief of a person who has been placed in possession
by him for the prevention of threatened injury, in order to prevent
violence being employed against him.
(1) Moreover, the penalty imposed
upon him who does not promise security or furnish it is that his adversary
shall be placed in possession. Therefore, if he promises to give security,
or if he was not required to do so, the interdict will not apply,
and the plaintiff can be barred by an exception.
(2) The Praetor promises an
action against a party who neither gave security, nor suffered him
who had been placed in possession to enter upon the premises, for
the amount which he must have paid if he had furnished security.
(3) The Praetor introduced this
action for another reason, namely, so that, if when a person desired
to be placed in possession he was unable to appear in court, and in
the meantime while his inability continued, he sustained any injury
he might be entitled to bring the action.
(4) It was also added that if
anyone who was placed in possession was alleged to have been prevented
for some other reason, he would have a right to an action in factum.
Title
V. Concerning the production of papers relating to a will.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "If you
have in your possession any documents which Lucius Titius is alleged
to have left, and which have reference to his will; or if you have
committed some fraudulent act to avoid having them in your possession,
you must produce them for So-and-So. I shall include in my decree
all memoranda, or anything else which he is said to have left."
(1) If anyone acknowledges that
the will is in his possession, he should be ordered to produce it,
and time should be granted him to do so, if he cannot produce it immediately.
If he states that he cannot produce it, or denies that this ought
to be done, the interdict will lie.
(2) This interdict not only
has reference to the will itself, but also to everything relating
to it, as, for instance, a codicil.
(3) It must be said that the
interdict will be applicable whether the will is valid or not (whether
it was void originally, or has been broken, or is defective in any
other respect, or even if it is alleged to be forged, or to have been
made by one who did not have testamentary capacity to make a will).
(4) It must be held that this
interdict will apply whether the will in question was the last or
the first one executed.
(5) Therefore, it should be
said that this interdict has reference to every written will, whether
it is perfect or imperfect.
(6) Hence, if there are several
wills, made at different times, it must be held that this interdict
will apply; for all instruments having reference to the will which
have been drawn" up at different times should be produced.
(7) If a discussion arises with
reference to the condition of the testator, and a son under paternal
control, or a slave is alleged to have drawn up the will, it shall
be produced.
(8) Moreover, there will be
ground for this interdict where a son under paternal control makes
a will disposing of his castrense peculium.
(9) The same rule will apply
if he who executed the will dies while in the hands of the enemy.
(10) This interdict does not
refer to the will of a person who is living, because the Praetor employs
the term "left."
(11) If the will has been erased
without fraudulent intent,
2. Paulus, On the Edict,
Book LXIV.
Either entirely, or partially,
3. Ulpianus, On the Edict,
Book LXVIII.
This interdict will be applicable.
(1) If the will is written upon
several sheets, they are all included under this interdict, because
they constitute but a single will.
(2) If the will is deposited
with anyone by Titius, proceedings can be instituted by virtue of
this interdict, both against the person who has the will, and against
him who deposited it with him.
(3) Hence, if the guardian of
a temple or a notary has the will as a depositary, it must be said
that he will be liable under this interdict.
(4) When the will is in the
hands of a slave, his master will be liable under the interdict.
(5) If the testator himself
says that the will is his, and wishes it to be produced, this interdict
will not lie; but an action for its production must be brought to
enable him to claim the will after it has been produced.
This rule should be adopted in all cases where persons claim the ownership
of documents.
(6) If anyone commits fraud
in order to avoid having a will in his possession, he will still be
liable under this interdict. Proceedings under the Cornelian Law relating
to testaments will not, however, be prevented; as, for instance, if
the party in question is alleged to have fraudulently suppressed the
will. For no one can retain a will with impunity under the pretext
that he has committed a more serious crime, and by the production
of it, the crime, which is admitted, will be the more readily proved.
Anyone may be guilty of fraud and yet not come within the provisions
of this law, as for example, if he did not steal or hide the will,
but delivered it to another to avoid being compelled to produce it
for the inspection of the party making use of the interdict; that
is to say, if he did this, not with the intention of suppressing the
will, but in order to avoid producing it.
(7) This interdict is exhibitory.
(8) Let us see what it is to
produce anything. It is to place it in such a position as to afford
an opportunity for it to be taken hold of.
(9) Production must be made
before the magistrate in such a way that by his authority the witnesses
may be notified to appear and acknowledge their seals. If they do
not obey, Labeo says that they should be compelled to do so by the
magistrate.
(10) All persons to whom anything
has been left by a will can demand its production.
(11) In a case of this kind
the amount of the judgment should be in proportion to the interest
of him for whose inspection the person having the will in his possession
refuses to produce it.
(12) Therefore, if the appointed
heir makes use of this interdict, the estimate of the damages must
be in proportion to the value of the estate.
(13) If a legacy is in dispute,
the amount of the damages must be in proportion to the value of the
legacy.
(14) If the legacy was bequeathed
under a condition, the estimate will be made just as if the condition
had been complied with; nor shall the legatee be compelled to give
security to restore whatever he obtains, if the condition should not
be fulfilled; because the decree imposes the penalty for contumacy
incurred by the heir for not producing the will.
(15) Hence, if the legatee,
having received the value of his legacy in this way, afterwards claims
the legacy itself, the question arises whether he should be heard.
I think that if the heir paid the amount, the legatee will be barred
by an exception on the ground of fraud; but if anyone else paid it,
he will not be barred. Therefore, the same distinction should be made
if the heir obtained the value of the legacy, after having availed
himself of the interdict.
(16) It is established that
this interdict can be employed even after the year has elapsed.
(17) It will lie in favor of
the heir and other successors.
4. Paulus, On the Edict,
Book LXIX.
If the will is in the possession
of a ward, and he has been deprived of it by the fraudulent act of
his guardian, the interdict will lie against the guardian himself;
for it is only just that he should be liable for his own crime and
not his ward.
5. Javolenus, On Cassius,
Book XIII.
The interdict,
requiring a person to produce a will, will not lie where any controversy
with reference to the estate is pending, or any public question is
involved. Therefore the will should in the meantime be deposited either
in a temple or in the hands of some responsible person.
Tit. 6. Concerning the
interdict for the purpose of preventing anything being done in a sacred
place.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "I forbid
any labor to be performed in a sacred place, or anything to be carried
there."
(1) This interdict has reference
to sacred places, and not to one where holy objects are kept.
(2) Where the Praetor says that
no labor shall be performed in a sacred place, this does not refer
to anything which is done to adorn it, but to acts committed for the
purpose of defacing it, or rendering it inconvenient.
(3) The care of temples and
of other sacred places is entrusted to those who have charge of them.
2. Hermogenianus, Epitomes
of Law, Book III.
It is not permitted to do anything
to the walls or doors or any other parts of sacred edifices, from
which injury or inconvenience may result.
3. Paulus, Decisions, Book
V.
Neither the walls nor the doors
can be utilized for habitation, without the permission of the Emperor,
on account of the danger of fire.
Tit. 7.
Concerning the interdict relating to public places and highways.
1. Pomponius, On Sabinus,
Book XXX.
Anyone shall be permitted to
avail himself of the benefit of public property intended for the use
of all, as, for instance, the public highways and roads; and therefore,
on the demand of any person whomsoever, interference with them may
be forbidden.
2. Ulpianus, Digest, Book
XLVIII.
No one is allowed to erect a
monument on a public highway.
3. Ulpianus, On Sabinus,
Book XXXIII.
Roads existing in any particular
neighborhood, which have been derived from the contribution of land
owned by private individuals, and date from time immemorial, are included
in the number of public highways.
(1) A difference exists between
roads of this kind and military highways, namely, military highways
terminate at the seashore, or in cities, or at public streams, or
at some other military highway, but this is not the case with roads
through a neighborhood, for some of them terminate at military highways,
and others end without any exit.
Tit. 8.
Concerning the interdict forbidding anything to be done in a public
place or on a highway.
1. Paulus, On the Edict,
Book LXIV.
The Praetor forbids any building
to be erected in a public place, and issues an interdict to that effect.
2. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "Nothing
shall be done in a public place, or brought there, which will cause
any damage to it; except what is permitted by some law, decree of
the Senate, Edict, or Rescript of the Emperors, and if anything of
this kind is done, I will grant an interdict."
(1) This interdict is prohibitory.
(2) By means of it, the public
as well as the private welfare is protected. For public places are
intended for the use of private persons, that is to say, as the property
of the State, and not as belonging to any individual; and we have
only as much right to their enjoyment as anyone of the people has
to prevent their being interfered with. For which reason, if any work
is done in a public place which tends to the injury of a private individual,
the person responsible for it can be proceeded against under the prohibitory
interdict which has been introduced for this purpose.
(3) Labeo defines the term,
"public place," as applying to such localities, houses,
fields, highways, and roads as belong to the community at large.
(4) I do not think that this
interdict has reference to places which belong to the Treasury, for
no one can do anything in such places, nor can any private person
prevent anything from being done there. Property of the Treasury,
to a certain extent, belongs to the Emperor as his own. Therefore,
if anyone builds anything on said property, there will be no ground
for the application of this interdict. If any controversy arises on
this point, the Imperial Prefects will be the judges.
(5) Hence, this interdict relates
to places which are intended for the use of the public, and if anything
is done there which may injure a private individual, the Praetor can
intervene by means of this interdict.
(6) If anyone has an awning
suspended over his portico, which shuts off the light from his neighbor,
the interdict will be issued in the following terms: "Do not
place anything in the public street which may interfere with the light
of Gaius Seius."
(7) If anyone wishes to repair
anything in a public place, Aristo says that there will be ground
for the application of this interdict, in order to prevent him from
doing so.
(8) This interdict is available
against anyone who builds a foundation in the sea, by a person who
may be injured by it; but if no one sustains any damage, he who builds
upon the shore, or constructs a foundation in the sea, should be protected.
(9) Where anyone is prevented
from fishing in, or sailing upon the sea, he will not be entitled
to this interdict, just as in the case of a person who is prevented
from taking part in games in a public field, or bathing in a public
bath, or being present in a theater; but in all these cases an action
for reparation of injury must be employed.
(10) The Praetor very properly
says, "where any injury is sustained by the party on this account."
For where anything is allowed to be done in a public place permission
should be granted, for it to be done without causing injury to anyone,
and the Emperor is accustomed to grant permission when a request is
made for the construction of any new work.
(11) Moreover, injury is considered
to be sustained when any benefit of any description whatever, which
is derived from a public place, is lost.
(12) Hence, if the view enjoyed
by anyone, or his approach to a public place is interfered with, and
diminished, or restricted, this interdict should be employed.
(13) Labeo thinks if I erect
a building in a public place, so as to prevent the water from flowing
from my premises upon yours, which they formerly did without any right
enjoyed by me, that I will not be liable under the interdict.
(14) It is clear that if the
building which I erected should intercept the light of your house,
this interdict will lie.
(15) He also says that if I
erect a building in a public place, and it interferes with one which
you have already erected in the same place, this interdict will not
apply, as you also have built contrary to law, unless you have done
so by virtue of some special privilege which has been granted to you.
(16) If anyone obtains from
the Emperor general permission to build in a public place, it must
not be believed that he can erect the building in such a way as to
cause inconvenience to anyone; for such a concession is not understood
to be granted unless this was expressly stated.
(17) If anyone constructs a
house in a public place without anyone preventing it, he cannot be
compelled to remove it, for fear that the city may be marred by its
demolition; and because the interdict is prohibitory and not restitutory.
If, however, the said building interferes with public use, it should
be demolished on the application of the officer in charge of public
works; but if it does not interfere with anything, a land tax can
be imposed upon it, for the tax receives this name because it is paid
on account of the ground.
(18) But if no work has yet
been done, it is the duty of the judge having jurisdiction to require
security that it will not be done, and the bond must be drawn up in
such a way as to render the heir and other successors liable.
(19) The rule with reference
to sacred places is different, for we not only forbid any work to
be done in a sacred place, but where any has been done, we order everything
to be restored to its former condition. This rule has been adopted
for the sake of religion.
(20) The Praetor says: "I
forbid anything to be built on a public highway or road, or to be
placed there, by which the said highway or road is, or may be damaged."
(21) By a public highway we
mean one whose soil belongs to the people, for we do not understand
a private road to mean the same as a public one. In the case of a
private road, the soil belongs to another, and we have only the right
of walking and driving over it; but the soil of a public highway is
owned by the community, and has been established with reference to
direction, and within certain limits, by him who had the right to
render it public, in order that everyone might travel upon it, and
traverse it.
(22) Some roads are public,
some are private, and others are local, belonging to the neighborhood.
We call roads public which the Greeks designated as royal, and we
name praetorian or consular roads. Private roads are such as some
persons style agrarian. Local, or neighborhood roads are those which
are situated in villages, or lead to towns; certain authorities also
call these public roads. This, however, is only true where they have
not been established by the contribution of land by private persons;
but it is otherwise if they are repaired at the expense of individuals,
for a road is not private on this account. The repairs of the same
are common, because such a road is for the common use and benefit.
(23) Private roads are understood
to be of two kinds, some of them are through land upon which a servitude
to furnish a right of way to the land of another has been imposed,
others give access to certain tracts of land, and anyone can make
use of them, after leaving a consular road, when a lane; a path, or
a road for driving is found leading to a farm. I think that roads
which lead from a consular highway to farms or villages are also public.
(24) This interdict only applies
to roads in the country and not to those in cities, for the magistrates
are charged with the care of the latter.
(25) If traffic is intercepted
on a public highway, or it is closed, the magistrates shall intervene.
(26) If anyone conducts a sewer
across a public highway, and, for that reason, it becomes less fit
for use, Labeo says that he who placed it there will be liable.
(27) Hence, if anyone digs a
ditch on his own land, and the water collected by it runs over the
highway, he will be liable under this interdict, for he will be considered
to have obstructed it.
(28) Labeo also says that if
anyone builds a house on his own ground, and the water then collects
upon the highway, he will not be liable under the interdict, because
he did not cause the water to flow upon the highway, but he merely
did not take care of it. Nerva, however, says, more properly, that
he will be liable in both instances, as it is clear that if the land
adjoins the public highway, the water flowing from it injures the
latter; for if the water flows from the land of a neighbor upon yours,
and you are compelled to take care of that water, there will be ground
for an interdict against your neighbor. If, however, it is not necessary
for you to take care of it, your neighbor will not be liable, but
you will be; for he who had the use of the water is considered to
have committed the act which damaged the highway. Nerva also says
that if proceedings under the interdict are instituted against you,
you will not be obliged to do anything more, or bring an action against
your neighbor to force him to do what will satisfy the person who
has sued you. If it should be decided otherwise, you will be considered
responsible, even if you have brought a bona fide action against
your neighbor, and it is not your fault that the person who sued you
is not content with what you have done.
(29) He also says that if the
place where the road is situated becomes unhealthy on account of a
bad odor, an interdict cannot be employed on this account.
(30) This interdict also applies
where animals are pastured on a public highway, or road, and injured.
(31) The Praetor also says,
"by which the said highway or road is, or may be damaged."
Therefore this applies, whether the road is immediately damaged, or
whether this takes place afterwards, for this is the meaning of the
words, "is, or may be." For there are certain things which
injure a road immediately, and others which do not do so at once,
but will in the future.
(32) Moreover, a road is understood
to be damaged if it is rendered less available for travel, that is
to say, for walking or driving; as, for instance, if, having been
level, it becomes hilly; or, having been smooth, it becomes rough;
or, having been wide, it becomes narrow; or, having been dry, it becomes
muddy.
(33) I know that the point has
been discussed whether an arch or a bridge can be constructed across
a public highway. Many authorities hold that the person who does this
will be liable under the interdict, because a highway must not be
rendered less available for use.
(34) This interdict is perpetual,
and popular, and judgment should be rendered to the extent of the
interest of the plaintiff.
(35) The Praetor says: "You
shall restore everything to its former condition, if you have done
any work, or placed anything upon the public highway by means of which
the said highway or road is, or may be damaged."
(36) This interdict is founded
upon the same reason as the former one, and the only difference between
them is that this is restitutory, and the other prohibitory.
(37) He is not liable under
this interdict who builds anything on the public highway, but he who
is in possession of what has been built. Hence, if one person should
erect something, and another should hold it, the latter will be liable;
and this is more fitting, for he who has control of the obstruction
can restore the highway to its original condition.
(38) We consider him to have
possession of the building who holds or enjoys it by the right of
possession, whether he himself constructed it or acquired it by purchase,
lease, bequest, inheritance, or in any other way.
(39) Hence Ofilius thinks that
if anyone abandons an obstruction which he has raised upon the highway,
by which it is injured, he will not be liable under this interdict;
for he does not have possession of what he constructed. But let us
see whether an action can be granted against him. I think that an
interdict will be available to compel him to remove whatever1
he built upon the public highway, and restore the latter to its former
condition.
(40) If a tree falls from your
land upon the public highway, in such a way as to obstruct it, and
you consider the tree as abandoned, Labeo says that you will not be
liable. He adds that if the complainant is ready to remove the tree
at his own expense, he can properly proceed against you under the
interdict relating to the repair of highways. If, however, you do
not consider the tree as abandoned, he can properly proceed against
you under this interdict.
(41) Labeo also says that if
my neighbor obstructs the public highway by some work which he does,
that is as advantageous to me as to himself, but did this only for
the benefit of his own land, I can not be sued under the interdict;
but if we caused this work to be performed in common, both of us will
be liable.
(42) This interdict also applies
against a person who has fraudulently avoided having possession of,
or holding the structure which injures the highway; for he who is
in possession of, or holds it, and he who has acted fraudulently to
avoid doing so, must be subject to the same restrictions.
The opinion of Labeo seems to me to be correct.
(43) When the Praetor says,
"you shall restore it to its former condition," he is understood
to mean that it shall be placed in its original state, which is accomplished
either by removing what has been built, or by replacing what has been
taken away, and this sometimes at his own expense. For if the party
who is sued under the interdict did the work, or someone else did
it by his order, or he ratified what the latter had done, he must
restore everything to its original condition at his own expense. If,
however, nothing of this kind took place, but he merely holds possession
of what has been constructed, we, in this instance, say that he must
only suffer the work to be removed.
(44) It must be remembered that
this interdict is not a temporary one, for it has reference to the
public welfare. Judgment is rendered under it to the extent of the
interest of the plaintiff in having the work which has been constructed
demolished.
(45) The Praetor says: "I
forbid violence to be employed to prevent anyone from freely passing
and driving over a public highway, or road."
3. Celsus, Digest, Book XXXIX.
I think that the shores of the
sea over which the Roman people have control belong to them.
(1) The use of the sea as well
as that of the air is common to all men, and the piles which are driven
into it belong to the person who •has placed them there; but
this should not be conceded if the shore is damaged, or the future
use of the sea is impaired on account of it.
4. Scaevola, Opinions, Book
V.
"It is allowed by the Law
of Nations to build upon the sea-shore, unless the public use of it
is interfered with by doing so."
5. Paulus, On Sabinus, Book
XVI.
If a stream which conducts water
through a public place injures a private person, he will be entitled
to an action under the Law of the Twelve Tables to compel security
to be given for any damage caused by the owner.
6. Julianus, Digest, Book
XLIII.
He who avails himself of this
interdict to prevent any work done in a public place from causing
damage to a private individual can employ an attorney, although the
proceeding under the interdict has reference to a public place.
7. The Same, Digest, Book
XLVIII.
Just as a person who builds
in a public place without anyone attempting to prevent him is not
compelled to demolish what he has constructed in order to prevent
the city from being defaced by the ruins, so anyone who builds contrary
to the Praetorian Edict should remove what he has erected; otherwise,
the authority of the Praetor becomes vain and illusory.
Tit. 9.
Concerning the edict relating to the enjoyment of a public place.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "I forbid
force to be employed to prevent anyone who has leased public property,
or his partner, from enjoying it in accordance with the terms of the
lease."
(1) It is evident that this
interdict was established for the general welfare, for it protects
the public revenue when it forbids violence to be employed against
anyone who has leased public land for the purpose of enjoying it.
(2) If a lessee and his partner
both apply to have the interdict issued, the lessee himself will be
entitled to the preference.
(3) The Praetor says, "In
accordance with the terms of the lease," and this is reasonable,
for a tenant who desires to enjoy the property beyond, or contrary
to the terms of his lease, should not be heard.
2. Paulus, Decisions, Book
V.
It is customary to permit pictures
and statues, which will be ornamental to a city, to be set up in public
places.
Tit. 10.
Concerning the edict which has reference to public streets and anything
done therein.
1. Papinianus, On the Duties
of the Mdiles.
The Ediles should see that the
streets of cities are kept in order, that the overflow of water does
not injure houses, and that bridges are constructed wherever this
is necessary.
(1) They should also see that
the walls of the city, as well as those of others, and especially
such as face the street, are not in bad condition, but should require
the owners of the same to repair and rebuild them. If, however, the
latter fail to repair or rebuild them, they should fine them until
they do so.
(2) They should also see that
no one digs holes in the streets or undermines them, or builds anything
in them. If a slave does anything of this kind, he can be beaten by
any passerby; if he is proved to be a freeman before the Aediles,
they can fine him in accordance with law, and demolish whatever he
has built.
(3) Every person must construct
the public street in front of his own house, clean the gutters which
are exposed, that is to say, open to the sky, and keep the street
in such a condition that a vehicle will not be prevented from traversing
it. Those who rent the houses must build the street, if the owner
does not do so, and they can deduct the expense from the rent.
(4) The Ediles shall also see
that nothing is allowed to project in front of the shops, unless where
a fuller desires to dry clothing, or a carriage-maker places his work
outside; but, in these instances, whatever they do must not interfere
with the passage of vehicles.
(5) The Ediles
must not permit any quarreling to take place in the streets, nor any
filth, dead animals, or skins to be thrown into them.
Tit. 11.
Concerning the interdict which has reference to repairs of public
streets and highways.
1. Ulpianus, On the Edict,
Book LXVIII
The Praetor says: "I forbid
force to be employed to prevent anyone from opening up or repairing
a public street or highway who has the right to do so, unless the
condition of the street or highway may be rendered worse thereby."
(1) To open up a street is to
restore it to its former height and breadth; and it is a part of the
repair of streets to clean them. Properly speaking, however, to clean
a street means to reduce it to its proper level by removing whatever
has been deposited on it. For he who repairs a street, as well as
he who opens up and cleans it, are persons who restore it to its former
condition.
(2) If anyone, under the pretext
of repairing a street, makes it worse, force can be employed against
him with impunity, because he who avails himself of the interdict
under the pretext of reparation cannot make the street wider, longer,
higher, or lower, nor can he throw sand into it, or pave it with stone,
if it is merely composed of earth; or, on the other hand, where it
has been paved with stone, can he remove it, leaving only the soil.
(3) This interdict is perpetual,
is granted for and against everyone, and judgment is rendered under
it to the extent of the interest of the plaintiff.
2. Javolenus, On Cassius,
Book X.
The public cannot lose a highway
by failing to make use of it.
3. Paulus, Decisions, Book
I.
Where anyone throws a public
highway on the land of his neighbor, the Actio vise receptae will
only be granted against him to the extent of the interest of him whose
property was injured thereby.
(1) If anyone
plows up a highway, he alone shall be compelled to repair it.
Tit. 12.
Concerning the interdict which has reference to rivers and the prevention of anything being done in them or on their banks which may interfere with navigation.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "Nothing
shall be thrown into a public river or deposited on its banks, by
means of which the landing of merchandise, traffic, or the movement
of shipping may be interfered with."
(1) A river is distinguished
from a small stream by its superior size, or by the opinion of the
people who live in the neighborhood.
(2) Some rivers have a continuous
flow, and others are torrential. Those which have a continuous flow
run always; those which are torrential only flow during the winter.
If, however, a river, which at other times continues to flow, should
dry up in the summer, it will not, on this account, be removed from
the former class.
(3) Some rivers are public,
and some are not. Cassius defines a public river to be one which flows
uninterruptedly. This opinion of Cassius, which is approved by Celsus,
seems to be plausible.
(4) This interdict has reference
to public rivers, but it does not apply to one which is private, because
a private river does not differ from other places which belong to
individuals.
(5) A bank is properly defined
to be what contains a river when it pursues its natural course, for
it does not change its banks on account of rain, the tide, or for
any other reason. No one says that the Nile, which covers Egypt with
its overflow, changes or enlarges its banks; for when it returns to
its ordinary dimensions, the sides of its channel should be repaired.
If, however, a river should naturally increase in size in such a way
as to acquire a permanent enlargement, either through the addition
of the water of another stream, or for some other cause, it undoubtedly
must be held that it has changed its banks, just as if, having changed
its bed, it begins to flow elsewhere.
(6) If an island is formed in
a public river, and anything is built upon it, it will not be considered
to have been constructed in a public place, for the island becomes
the property of the first occupant if the neighboring fields have
regular boundaries; or belongs to him to whose bank it is contiguous;
or if formed in the middle of the channel, it will belong to those
who own land on both banks of the stream.
(7) In like manner, if a river
leaves its bed and begins to flow elsewhere, anything which was built
in the old bed will not come under the terms of this interdict, for
what belongs to the neighbors on both sides is not constructed in
a public stream; or, if the land has boundaries, the bed of the river
will belong to the first occupant, and it certainly ceases to be public
property. Moreover, although the new bed which the river has made
for itself was previously private property, it at once becomes public;
because it is impossible for the bed of a public stream not to be
public.
(8) A canal, made by human hands,
through which a public river flows is, nevertheless, public property
to such an extent that if anything is built there, it is considered
to have been built in a public stream.
(9) It is otherwise if a river
overflows the land of another, and does not make a new bed for itself;
for then what the water covered does not become public property.
(10) Again, if a river surrounds
land, it must be noted that the land still remains the property of
the original owner. Therefore, if anything is built in it, it is not
built in a public stream. Whatever is done on private land does not
come within the scope of this interdict, any more than what is done
in a private stream; for anything which is done in a private stream
is just the same as if it was done in any other place belonging to
a private individual.
(11) We understand anything
to have been built in a public stream where this was done in the water
itself; for if anything is built outside of the water, it is not considered
to have been done in the stream, so that any structure erected upon
the bank is not held to have been built in the stream.
(12) The Praetor does not absolutely
prohibit any work being done in a public river, or on the bank of
the same, but only whatever may interfere with the landing of goods,
or navigation. Therefore, this interdict only applies to public rivers
which are navigable, and not to any others. Labeo, however, says that
even if anything is done to a river that is not navigable, which may
cause it to dry up, or which obstructs the course of the water, it
will not be unjust to grant an available interdict to prevent any
violence from being employed against removing or demolishing a structure
which has been built in the bed of the stream, or on its bank, that
interferes with the passage or current of the river, and to compel
everything to be re-established in good condition, in accordance with
the judgment of a reliable citizen.
(13) The word statio, a
landing-place for ships, is derived from the verb statuo. By
it, therefore, the place is indicated where ships can remain in safety.
(14) The Praetor says, "or
the movement of shipping may be interfered with." This is used
instead of the word navigation, and, indeed, we are accustomed to
employ the terms shipping and navigation, instead of the vessel itself.
Hence, by the term "shipping" may also be understood the
course of the vessel. Boats are also included in this term, for their
use is frequently necessary. If the approach for pedestrians is obstructed,
the movement of shipping is also interfered with.
(15) The anchorage and the course
of navigation are also considered to be interfered with where the
use of the same is interrupted, or rendered more difficult, or diminished,
or made less frequent, or entirely destroyed. Hence, if the water
is drawn away, and the river, having become smaller, is rendered less
navigable; or if its width is increased, or the water being more widely
distributed becomes shallower; or if, on the other hand, the stream
is rendered more narrow, and runs very rapidly; or if anything is
done to inconvenience navigation, make it more difficult, or entirely
prevent it; there will be cause for the interdict.
(16) Labeo says that an exception
on the ground that the work was only performed for the purpose of
preserving the bank should not be granted to him who is sued under
the interdict; but that it should be on the ground that nothing has
been done except what was authorized by law.
(17) Where anything has been
built in the sea, Labeo says that the following interdict will lie.
"Nothing shall be constructed in the sea, or on the shore of
the same, by which a harbor, anchorage, or the course of navigation
may be obstructed."
(18) He also thinks that the
same rule will apply to any public stream which is not navigable.
(19) The Praetor further says,
"If you have placed anything in a public river or done any work
therein, or on the bank thereof, by which the anchorage of vessels
or the course of navigation has been, or may be interfered with, you
shall restore everything to its former condition."
(20) The interdict above mentioned
is prohibitory; the one which has reference to the same case is restitutory.
(21) He who has done any work,
or placed anything in a river or upon its bank which may obstruct
navigation, is obliged to restore everything to its former condition,
if what he has done may interfere with the anchorage of vessels or
their movements.
(22) The following words, "has
done or placed," indicate that he who built or deposited the
obstruction is not liable, but that he who has possession of it after
this has been done is liable. Finally, Labeo says that if your agent
has diverted the course of the stream, you will be liable under this
interdict, if you use the water.
2. Pomponius, On Sabinus,
Book XXXIV.
There is nothing to prevent
anyone from taking water from a public stream unless this is forbidden
by the Emperor or the Senate; provided the water is intended for the
use of the public. If the stream is either navigable, or another is
rendered navigable by it, this is not permitted to be done.
3. Paulus, On Sabinus, Book
XVI.
Public rivers which have a regular
course, together with their banks, are public property.
(1) The banks of a river are
considered to be those that confine it when the water is at its highest
point.
(2) The places along the banks
of a stream are not all public, as they are accessory to the banks,
beginning at the point where the latter begins to incline from the
level ground to the water.
4. Scaevola, Opinions, Book
V.
Inquiry has
been made whether he who owns houses on both sides of a public stream
has a right to build a bridge which will be his private property.
The answer was that he cannot do so.
Tit. 13.
Concerning the interdict to prevent anything from being built in a
public river or on its bank which might cause the water to flow in
a different direction than it did during the preceding summer.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "I forbid
anything to be built in a public river or upon its banks, or anything
to be placed in such a river or on its banks, by means of which the
water may be caused to flow in a different direction than it did during
the previous summer."
(1) By means of this interdict,
the Praetor makes provision against the drying up of a river, due
to improper concessions for drawing off the water; and to prevent
the beds of streams from changing and injuring the neighbors.
(2) This refers to public rivers,
whether they are navigable or not.
(3) The Praetor says, "by
which the water may be caused to flow in a different direction than
it did during the previous summer." Hence, not everyone who built
or placed an obstruction in the river will be liable, but only he
who, by building or placing it there, caused the water to take a different
course than it had done during the previous summer. However, where
he says, "a different direction," this does not have reference
to the amount of the water, but to the power, manner, and course of
its current. And, generally speaking, it must be said that a person
will only be liable under the interdict, if the channel is changed
by what he has done, provided it is rendered lower or more narrow,
and, in consequence, the current becomes more rapid, and causes inconvenience
to those residing in the neighborhood. If the neighbors suffer any
annoyance from the act of the party in question, there will be ground
for the interdict.
(4) If anyone who formerly conducted
water from a river by means of a covered aqueduct now desires to conduct
it by an open aqueduct or vice versa, it has been settled that
he will be liable under the interdict, provided that by doing so he
causes any inconvenience to persons living near the river.
(5) In like manner, if he conducts
it by means of a ditch, or does so in any other place, or changes
the bed of the river, he will be liable under this interdict.
(6) There are some authorities
who hold that an exception to this interdict can be pleaded on the
ground that the work was only done for the purpose of repairing the
banks, so that if anyone causes the water to flow in a different direction
for the purpose of repairing the banks, there will be no ground for
the interdict. This opinion is not accepted by other authorities,
for the banks should not be repaired if it causes inconvenience to
those living in the neighborhood. We are, however, accustomed to have
the Praetor decide, after investigation, whether he ought to grant
this exception, for very frequently it is advantageous to permit this
to be done.
(7) If, however, any other advantage
is obtained by the person who did something to a public stream (suppose,
for instance, that the water usually caused him a great deal of damage,
and that his land was overflowed), and he raised levees, or took other
measures to repair the banks, so as to protect his land, and this,
to some extent, altered the course of the river; why should not his
interest be consulted? I know that several persons, with a view to
the protection1 of their land, have absolutely diverted
the course of streams, and changed their beds, for it is necessary
in cases of this kind to take into consideration the benefit and safety
of the party interested, if no injury is sustained by other persons
in the neighborhood.
(8) He also is liable under
this interdict who causes a river to flow in a different direction
from that in which it flowed during the previous summer. Therefore,
the authorities say, the Praetor included the previous summer, because
the natural course of a river is more certain in summer than in winter.
This interdict has reference to the past, and not to the present summer;
because the course of the river during the past summer is less subject
to doubt. The summer extends to the autumnal equinox. If recourse
is had to the interdict, during the summer, the previous season should
be considered; and if this is done during the winter, not the summer
which will follow the winter, but the past one must be taken into
account.
(9) This interdict will lie
for the benefit of any of the people, but it cannot be employed against
everyone, but only against him who has caused the water to flow in
a different direction, when he had no right to do so.
(10) This interdict is also
available against heirs.
(11) The Praetor finally says:
"You will restore everything to its former condition, if you
have anything in your possession which has been built or placed in
a public river, or on the bank of the same, by means of which the
water is caused to flow in a different direction from that in which
it flowed during the previous summer."
(12) The interdict in question
is restitutory; the former one is prohibitory and has reference to
work not yet performed. Hence, if anything has already been done,
restoration to its former condition can be obtained by means of this
interdict; and if it is desired that nothing shall be done, the former
interdict must be employed; and if anything is done after the interdict
has been granted, the person responsible shall be punished.
(13) It is not unjust, as Labeo
says, to include in this restitutory interdict whatever was done to
avoid remaining in possession of the structure with reference to which
the interdict was issued.
Tit. 14.
Concerning the interdict which has reference to the use of a public
river for navigation.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "I forbid
violence to be used to prevent anyone from conducting a vessel or
a boat upon a public river, or to hinder him from loading or unloading
the same, on the bank of said river. I also forbid any interference
with navigation on any lake, canal, or public body of water."
(1) It is provided by this interdict
that no one shall be prevented from using a public stream for the
purpose of navigation. For, just as an interdict was promulgated in
the case of a person prevented from making use of the public highways;
so, also, the Praetor thought that this interdict should be published.
(2) If the above-mentioned places
belong to private individuals, the interdict will not be applicable.
(3) A lake is a body of water
which has a perpetual supply.
(4) A pond is a body of water
which, for a time, is stagnant, and which ordinarily increases in
size during the winter.
(5) A ditch is a receptacle
for water made by human hands.
(6) All of these may be public.
(7) Sabinus, as well as Labeo,
is of the opinion that an interdict will lie where anyone is forbidden
to fish in a lake or pond, which he has leased from a farmer of the
revenue. Therefore, if he has leased it from a municipality, it will
be perfectly just for his rights to be protected by an interdict on
account of the revenue to be obtained.
(8) Where anyone desires to
make use of an interdict of this description for the purpose of lowering
ground to water his cattle, he should not be heard; and this was stated
by Mela. He also says that this interdict will lie to prevent anyone
from employing force to keep the cattle of another from approaching
a public river, or the bank of the same.
Tit. 15.
Concerning the interdict which has reference to raising the banks
of streams.
1. Ulpianus, On the Edict,
Book LXVIII.
The Praetor says: "I forbid
force to be employed to prevent anyone from doing any work in any
public river, or on the bank of the same, which he has a right to
do for the purpose of strengthening the said bank, or protecting his
land which adjoins it; provided that, by so doing, no interference
is made with navigation, and security against threatened injury is
furnished for ten years, in accordance with the judgment of a good
citizen; or where it is not the fault of the party in question that
a bond or sureties have not been given for this purpose."
(1) It is very advantageous
to repair and strengthen the banks of public streams. Therefore, as
there is an interdict which has reference to the repair of public
highways, so also there is one which relates to the strengthening
of the banks of rivers.
(2) The Praetor with good reason
adds, "provided that, by so doing, no interference is made with
navigation," for only such repairs shquld be permitted which
offer no impediment to navigation.
(3) He who wishes to repair
his bank should provide against threatened injury either by giving
a bond, or sureties, dependent upon the rank of the parties interested.
It is expressly stated in this interdict that security shall be given,
either by bond or surety, for any injury which may be caused within
ten years, in accordance with the judgment of a good citizen.
(4) Security should not only
be given to the neighbors, but also to persons owning land on the
other side of the stream.
(5) Care should be taken that
security is furnished to these persons before the work has been performed;
for, after this has been done, no one can be proceeded against under
this interdict; even if any damage should afterwards result, but suit
can be brought under the Aquilian Law.
(6) It should be noted that
the Praetor makes no provision for repairing the banks of a lake,
a canal, or a pond. The same rule, however, must be observed which
applies to the repairs of the banks of a stream.
Tit. 16.
Concerning the interdict against violence and armed force.
1. Ulpianus, On the Edict,
Book LXIX.
The Praetor says: "If you
or your slaves have forcibly deprived anyone of property which he
had at that time, I will grant an action, only for a year; but after
the year has elapsed, I will grant one with reference to what has
come into the hands of him who dispossessed the complainant by force."
•
(1) This interdict was established
for the benefit of a person who has been ejected by force; as it is
perfectly just to come to his relief under such circumstances. This
interdict was devised to enable him to recover possession.
(2) It is provided by the different
Leges Julia, having reference to public and private causes,
as well as by various Imperial Constitutions, that force shall not
be employed.
(3) This interdict does not
have reference to all kinds of violence, but only to such as is used
against persons who are deprived of possession. It only relates to
atrocious violence, and where the parties are deprived of the possession
of the soil; as, for instance, to a tract of land, or a building,
but to nothing else. If anyone is deprived of the possession of land
upon which no buildings are situated, there will undoubtedly be ground
for the interdict.
(4) Generally speaking, this
interdict has reference to anyone who is dispossessed of property
attached to the soil, and no matter what the place may be from which
he was forcibly ejected, the interdict will apply.
(5) Hence, if he was ejected
from a house, and has no interest in the ground on which it stands,
it is evident that there will be ground for the interdict.
(6) Nor does any doubt exist
that this interdict has no reference to chattels; for in a case of
theft, or where anything is taken by violence, another action will
lie. The injured party can also bring suit for the production of the
property. There is no doubt whatever that, if there is any personal
property on the land, or in the house from which he was ejected, the
interdict will also lie with reference to said property.
(7) This interdict is not applicable
where anyone is forcibly deprived of the possession of a ship, the
proof of which is, that where anyone is deprived of a vehicle in this
manner, no one will say that he can avail himself of this proceeding.
(8) No one entertains any doubt
that this interdict can be employed if a man is dispossessed of a
house built of wood; because no matter what the nature of the property
which is attached to the soil may be, the interdict will lie if he
is forcibly ejected from the house.
(9) He who possesses the property
is said to be forcibly ejected whether he held the same under Civil
or Natural Law, as natural possession affords ground for this interdict.
(10) Finally, if a wife is ejected
from property which her husband has given her, she can avail herself
of the interdict; but a tenant cannot do so if he is dispossessed.
(11) The Praetor says, "if
you or your slaves have forcibly ejected him." The slaves are
very properly mentioned, for the words, "you have forcibly ejected,"
have reference to him personally who committed the act of violence,
and do not refer to his slaves; for if my slaves should eject anyone,
I will not be considered to have done so; and hence it was necessary
to add, "or your slaves."
(12) He also is considered to
have ejected someone by force who directed or ordered this to be done.
For it evidently makes very little difference whether one person dispossesses
another with his own hands, or by the agency of someone else. Therefore,
if my slaves should eject anyone with my consent, I myself will be
held to have ejected him.
(13) Whenever a duly authorized
agent has ejected anyone by force, Sabinus says that proceedings can
be instituted against both parties, namely, against the principal
as well as the agent, and that one of them is discharged from liability
by the condemnation of the other; provided, however, that the amount
of the appraisement in court has been paid by one of them; for he
is not more excusable who ejected a person by the order of another
than if he had killed a man by the direction of someone else. But
where the alleged agent falsely represents himself as having authority,
proceedings under the interdict should be instituted against him alone.
The opinion of Sabinus is correct.
(14) If, however, I should ratify
the act of someone who, in my name, has ejected a person by force;
some authorities adopt the opinion of Sabinus and Cassius, who hold
that the ratification is equal to a mandate, and that I should be
considered to have ejected him, and hence I will be liable under this
interdict.
This is correct, because, where an offence is committed, it is perfectly
just to compare a ratification to a mandate.
(15) Where it is added, "or
your slaves," this is very properly stated with reference to
cases in which my slaves have forcibly ejected anyone. If, however,
the master ordered this to be done, he himself committed the act of
dispossession; but if he did not order it, he should not complain
if he is liable for the acts of his slaves, even though they did not
eject the person by his order; for he is not oppressed on this account,
as something has either come into his hands which he must return,
or if this is not the case, he will be released from liability if
he surrenders his slaves by way of reparation for the offence which
they committed. And although he is compelled to surrender his slaves
by way of reparation, he should take this into consideration in estimating
the damage which he has sustained; as a slave can injure his master
in this way.
(16) By the term "slaves"
the entire body of slaves is understood.
(17) But the inquiry is made,
what number of slaves are included in this term, whether only two
or three, or more. In considering the application of this interdict,
the better opinion is that if only a single slave should eject anyone
by force, the entire body of slaves shall be deemed to have committed
the act.
(18) In the term "slaves,"
it must be said that all of those are included whom we hold as such.
(19) If anyone refuses to defend
his slave, or slaves, he should be compelled to submit to this interdict;
or at least to the extent of forcing him to return whatever has come
into his hands.
(20) If a son under paternal
control, or a day laborer, dispossesses anyone by force, an available
interdict will lie.
(21) If I make use of the interdict
against anyone who, while in a state of freedom, is demanded as a
slave, or vice versa, after legal proceedings have been instituted,
and the man has been decided to be free, and it is proved that I have
been forcibly ejected by his slaves, without his knowledge, I must
be replaced in possession.
(22) An owner is considered
to have possession of property which is held by his slave, his agent,
or his tenant. Therefore, if any of these is forcibly deprived of
possession, he himself is also considered to be dispossessed, even
if he did not know that those by whom he had possession have been
ejected. Hence, if anyone else, by whom I held possession, should
be ejected, no one can entertain any doubt that I will be entitled
to the benefit of the interdict.
(23) This interdict, however,
will not lie in favor of anyone, unless he was in possession at the
time when he was ejected, for no one is considered to have been ejected
unless he was in possession.
(24) It is clear that anyone
should be considered to have been ejected by force, where he held
the property either corporeally or by intention. Hence, if he should
depart from his land or his house, leaving none of his people there,
and, on his return, should be prevented from entering upon his premises;
or if anyone should stop him in the middle of his journey, and take
possession of his property, he will be considered to have been ejected
by force; for he has been deprived of possession which he held by
intention, but not corporeally.
(25) The common saying that,
"Possession of winter and summer resorts is not held by intention,"
is given by way of an example, of which Proculus availed himself.
The same rule will apply to all real property from which we temporarily
withdraw without the intention of relinquishing possession of the
same.
(26) The better opinion is to
hold that a person is not dispossessed who did not have possession
of property either by intention or corporeally, and not he who was
prevented from entering upon the same, and taking possession of it;
for he is ejected who loses possession, and not he who is not permitted
to take it.
(27) Cassius says that one can
repel force with force; for this right is conferred by the Law of
Nature. Hence he holds that it is clear that armed aggression can
be repelled by arms.
(28) To possess by force should
be defined to mean where anyone having driven away the former occupant
obtains possession by means of violence; or where he comes upon the
ground ready and prepared to take possession, and contrary to good
morals, has adopted measures to avoid being prevented from taking
it. Labeo, however, says that he does not possess by violence who
retains anything by the exertion of force.
(29) Labeo also says that he
who, alarmed by the appearance of a crowd of persons, takes to flight,
is held to have been ejected by force. Pomponius, likewise, says that
violence does not exist without the exertion of corporeal force. I
think that he who fled on account of the approach of a crowd should
be considered to have been forcibly ejected, if they take possession
of his property.
(30) Anyone who has taken possession
of my property by force will be entitled to the benefit of the interdict,
if he himself is ejected by another.
(31) Anyone who has been forcibly
dispossessed can recover damages for all injury sustained through
being ejected; for he must be placed in the same condition in which
he would have been if he had not been dispossessed.
(32) If a tract of land of which
I have been dispossessed is returned to me, but any other property
of which I have been deprived by force is not returned, it must be
said that the interdict will still lie; because it is true that I
have been forcibly dispossessed. It is clear that if anyone desires
to avail himself of this interdict with reference to the possession
of the land, as well as of an action to compel the production of the
personal property in court, he can do so, according to his discretion.
This was stated by Julianus, and he adds that anyone has a right to
bring suit for property taken by violence, in a case of this kind.
(33) Where the Praetor says,
"which he had there," we should understand this to mean
all the property, not only that which belonged to him, but also all
that was deposited with him, or lent or pledged to him, and of which
he had the use or usufruct, or care, or any which was hired to him.
For when the Praetor uses the word, "had," property of every
description is included in the term.
(34) Moreover, the Praetor very
properly adds, "which he had at that time," and we must
understand the words, "at that time," to mean when he was
dispossessed. Hence, if he ceased to have possession of anything in
that place afterwards, it must be said that the interdict will apply.
Thus it happens that even if slaves or cattle have died since his
dispossession, there will be ground for the interdict. Finally, Julianus
says that where anyone has been forcibly deprived of a tract of land
on which there were slaves, and the slaves afterwards died without
his fault, their appraised value ought to be paid to him by means
of the interdict; just as a thief, who had stolen a slave, is liable
after the death of the slave.
(35) The result of this is that
he will be compelled to refund the price of farm-houses or other buildings
destroyed by fire; for Julianus says, where anyone has been ejected,
the other party is always held responsible for preventing him from
obtaining restitution.
(36) Therefore he asserts that
it is established that anyone who has ejected another by force, and
has afterwards lost possession without being guilty of fraud, will
be liable under the interdict.
(37) The word "there"
is mentioned by the Praetor, in order that no one can include property
which he did not have in that place.
(38) But how shall we understand
the word "there," which the Praetor makes use of? Is the
place from whence he was forcibly ejected meant, or does it refer
to the entire place of possession? It is better to hold that it does
not refer to a corner or place in which the person may have been,
but to the entire property possessed, of which he was deprived when
he was ejected.
(39) The year when this interdict
is involved is an available one.
(40) In estimating the profits,
the calculation is made from the day on which the person was ejected,
although, in other interdicts, it is calculated from the day upon
which they are issued, and the computation is not made beyond that
time. The same rule applies to movable property which happened to
be there, for its profits should be reckoned from the date on which
the person was forcibly dispossessed.
(41) Not only an accounting
for the profits must be had under this interdict, but that of any
other benefits to which the plaintiff might have obtained. For Vivianus
says that he who is dispossessed, even if violence was not used, will,
under this edict, be entitled to restitution of everything which he
would have had or acquired, or the judge must make an appraisement
of the same, so that the party may obtain judgment to the extent of
his interest in not having been dispossessed.
(42) Under the interdict Unde
vi, even if the party is not in possession, he will be compelled
to make restitution.
(43) As this interdict takes
into account the atrocity of the illegal act committed, the question
arises whether it will lie in favor of a freedman against his patron,
or in favor of children against their parents. The better opinion
is that it should not be granted to a freedman against his patron,
or to children against their parents; for it will be preferable for
them to bring an action in factum; unless the patron has employed
armed force against his freedman, or the parent has done so against
his children; for, under such circumstances, the interdict will lie.
(44) This interdict lies in
favor of the heir and other successors.
(45) What is stated by Vivianus
proves that the interdict Unde vi is only granted to the party
in possession; for if anyone has forcibly ejected me, and did not
eject my people, I cannot avail myself of the interdict, because I
retain possession by those members of my family who have not been
ejected.
(46) Vivianus also says that
if anyone has driven away your slaves by force, and kept others and
chained them, or given them commands, you are understood to have been
forcibly ejected, for you cease to hold possession, as your slaves
are possessed by another; and what is said with reference to a part
of the slaves applies to all, if none of them were driven away, but
all were taken possession of by the person who entered upon the property.
(47) Vivianus also discussed
the question and asks what shall we say if I should take possession
while someone else occupies the property, and I do not eject the possessor,
but, having chained him, compel him to work? I think that the better
opinion is that he who was placed in chains should be considered to
have been forcibly ejected.
(48) An action in factum
will, under this interdict, lie against the heir and the praetorian
possessor of an estate, as well as other possessors, for whatever
has come into their hands;
2. Paulus, On the Edict,
Book LXV.
Or for anything which they may
have acquired through any fraudulent acts committed by them.
3. Ulpianus, On the Edict,
Book LXIX.
The same rule will apply where
anyone has been ejected by armed force, because an action is granted
on account of any illegal act of the deceased for the amount which
may have come into the hands of the heir. It is, however, sufficient
that the heir should not have obtained any profit, for he must not
suffer any loss.
(1) This action, which can be
brought against the heir and other successors, is a perpetual one,
because it involves the pursuit of property.
(2) What shall we understand
the words, "ejected by armed force," to signify? Arms include
all missile weapons, that is to say, not only swords, spears, javelins,
or darts, but also sticks and stones.
(3) It is clear that if only
one or two persons have sticks or swords, the possessor will be considered
to have been ejected by armed force.
(4) Moreover, even where the
aggressors come unarmed, if, at the time of the quarrel, those who
came unarmed should proceed to use sticks or stones, this will be
the employment of armed force.
(5) Even if those who came armed
did not use their weapons in order to drive away the party in possession,
but laid them aside, armed force will be held to have been employed;
for the fear of weapons is sufficient to establish the fact of dispossession
by armed force.
(6) If anyone, having seen armed
men going elsewhere, became so terrified on this account as to take
to flight, he is not considered to have been dispossessed; because
the men who were armed had no intention of molesting him, but were
on their way elsewhere.
(7) Hence, if anyone should
hear that armed men are approaching, and relinquishes possession of
his property through terror, it must be said that he has not been
dispossessed by armed force; whether what he heard was true or false,
unless possession is actually taken by the said persons.
(8) If, however, when the owner
was about to take possession, armed persons, who have already seized
his property, should prevent him from doing so, he is considered to
have been ejected by armed force.
(9) Therefore, we can repel
by the use of arms anyone who comes armed, but this must be done immediately,
and not after some time has elapsed; if we remember that not only
resistance can be offered to forcible ejection, but also that he who
has been ejected can himself expel the intruder, if he does so at
once, and not after any time has passed.
(10) If the person who comes
armed is an agent, his principal will be considered to have used armed
force in the dispossession, whether he directed this to be done, or,
as Julianus says, subsequently ratified it.
(11) This also applies to the
case of slaves; for if my slaves come armed without me, I am not considered
to have come, but my slaves; unless I directed them to do so, or ratified
their act.
(12) This interdict can also
be employed against one by whose fraudulent conduct a person has been
dispossessed by armed force; and will be granted, after the lapse
of a year, for the recovery of whatever has come into the hands of
him who was responsible for the act.
(13) It is evident that the
interdict Unde m will be necessary for an usufructuary, if
he is prevented from using and enjoying the usufruct of land.
(14) An usufructuary is understood
to have been prevented from using and enjoying his right, when he
is forcibly ejected while availing himself of his privilege, or is
not allowed to enter upon the land, when he has left it without the
intention of relinquishing his usufruct. If, however, anyone should
prevent him from using and enjoying it in the beginning, there will
not be ground for this interdict. What, then, should be done? The
usufructuary must bring an action for the recovery of his usufruct.
(15) Again, this interdict has
reference to him who is prevented from using and enjoying land, as
well as to him who is interfered with in the use and enjoyment of
a house. Consequently, we hold that it does not apply to movable property,
where anyone is hindered from using and enjoying it, unless the said
movable property is accessory to the land. Therefore, if the property
was on the land, it must be said that this interdict will apply to
it.
(16) Likewise, if not the usufruct,
but only the use of the property was bequeathed, this interdict will
lie; for, no matter in what way the usufruct or use was established,
this interdict will be applicable.
(17) Anyone who has obtained
possession of property in any way whatsoever, as an usufructuary,
can avail himself of this interdict. If anyone who has been prevented
from enjoying his privilege should afterwards forfeit his civil rights,
or die, it is very properly held that this interdict will lie in favor
of his heirs and successors; not for the purpose of constituting another
usufruct, but in order that any damage which has been sustained in
the past may be made good.
(18) In like manner, the heir
is also liable to an action in faction for anything which has
come into Tiis hands.
4. The Same, On the Edict,
Book X.
If anyone dispossesses me by
force, in the name of a municipality, Pomponius says that I will be
entitled to an interdict against the said municipality, provided anything
has come into its hands.
5. The Same, On the Edict,
Book XI.
If I place you in possession
of property in compliance with a judicial decree, Pomponius says that
the interdict Unde vi will not apply, as he is not forcibly
ejected who is compelled to place another in possession.
6. Paulus, On the Edict,
Book XVII.
When a decision is rendered
under the interdict Unde vi, it should be for the value of
the interest the plaintiff had in remaining in possession of the property.
Pomponius says that this is our practice, that is to say, that the
property is considered to be equal in value to the interest of the
plaintiff. This may be either less, or more, for often it is more
to the interest of the plaintiff to retain a slave than he is worth;
for example, where it is to the interest of the owner to have possession
of him, either that he may be put to torture, or prove some fact,
or accept an estate.
7. The Same, On the Edict,
Book XXIV.
If I have been forcibly ejected
by you, and Titius has begun to possess the same property, I can institute
proceedings under the interdict against no one but yourself.
8. The Same, On the Edict,
Book LIV.
Fulcinius was accustomed to
say that possession was acquired by violence, whenever anyone who
was not the owner, but who was in possession, was forcibly ejected.
9. The Same, On the Edict,
Book LXV.
Where there are several heirs,
each of them is only liable for the amount which has come into his
hands. For which reason an heir will sometimes be liable for the entire
amount that came into his hands, even though he may only have inherited
a portion of the estate.
(1) The Praetor orders anyone
who has been forcibly deprived of an usufruct to be restored to his
former condition; that is to say, the condition in which he would
have been if he had not been ejected. Therefore, if the usufruct should
be terminated by lapse of time, after the usufructuary has been deprived
of it by the owner, the latter will, nevertheless, be compelled to
make restitution, that is to say, to again establish the usufruct.
10. Gaius, On the Edict of
the Urban Praetor, Title: On Cases Involving Freedom.
If a trespasser should expel
both the owner and the usufructuary from a tract of land, and the
usufructuary should lose his right on account of not having used it
during the prescribed time, no one doubts that the owner can institute
proceedings against the trespasser, either alone or with the usufructuary;
or, if he should not do so, he can retain the usufruct after it has
been restored to him, and any damages sustained by the usufructuary
shall be recovered from him who was responsible for the loss.
11. Pomponii, On Plautius,
Book VI.
He employs force who does not
permit the party in possession to make use of the property in any
way that he may desire, whether by sowing seed, or cultivating, or
digging, or plowing, or building upon it, or by the commission of
any other act which interferes with the free possession of the land
by his adversary.
12. Marcellus, Digest, Book
XIX.
A tenant refused to permit a
man to whom the lessor had sold the land and directed to take possession
to enter upon it; and this tenant was afterwards forcibly dispossessed
by another. The question arose, who would be entitled to the interdict
Unde vi? I held that it did not make any difference whether
the tenant prevented the owner himself, or the purchaser to whom the
owner had ordered possession to be given, from entering upon the premises.
Hence the interdict Unde vi would lie in favor of the tenant,
and he himself would be liable to a similar interdict in favor of
the lessor, whom he was considered to have ejected, when he refused
to give possession to the purchaser, unless he did so for a just and
reasonable cause.
13. Ulpianus, On Sabinus,
Book VIII.
Neither the interdict Unde
vi nor any other interdict implies infamy.
14. Pomponius, On Sabinus,
Book XXIX.
If, however, you are ejected
by armed force, you will be entitled to recover the land, even if
you originally obtained possession of it either by violence, or clandestinely,
or under a precarious title.
15. Paulus, On Sabinus, Book
XIII.
If you forcibly ejected me,
or if you cause this to be done by violence or clandestinely, even
though you may afterwards lose possession without being guilty of
fraud or negligence, you will still be liable to have judgment rendered
against you for the amount of my interest; because you were to blame
in the first place, as you either ejected me by force, or caused this
to be done by violence, or clandestinely.
16. Ulpianus, On the Edict,
Book XXIX.
It must be said with reference
to the interdict Unde vi that, in the case of dispossession
by a son under paternal control, his father will be liable for anything
which has come into his hands.
17. Julianus, Digest, Book
XLVIII.
Where anyone forcibly recovers
possession of property of which he was deprived by violence during
the same dispute, he is understood to have been restored to his former
position rather than to have regained possession of the property by
violence. Therefore if I deprive you of anything by force, and you
wrest it from me in the same way, and then I again take it from you,
you can avail yourself of the interdict Unde vi against me.
18. Papinianus, Questions,
Book XXVI.
If anyone sells a tract of land
which he has leased, and directs the purchaser to take possession
of the same, and the tenant prevents him from doing so, and the purchaser
afterwards forcibly expels the tenant, the question arises, who will
be entitled to the interdict Unde vi? It was established that
the tenant would be liable to the interdict in favor of the vendor;
because it made no difference whether he himself, or another who was
sent by him, had prevented him from taking possession. For possession
can not be held to have been lost before the property has been delivered
to the purchaser, because no one has the intention of losing possession
in favor of a purchaser, before the latter himself has obtained it.
The purchaser, also, who afterwards employed force, would himself
be liable to the interdict in favor of the tenant; for it was not
from him, but from the vendor, who had himself been deprived of it,
that forcible possession of the land had been acquired. The question
arose whether relief should be granted to the purchaser, if he had
afterwards forcibly expelled the tenant, with the consent of the vendor.
I gave it as my opinion that he was not entitled to relief, because
he had undertaken the execution by an unlawful mandate.
(1) Where anyone brings suit
to recover land against a person who is liable under the interdict
Unde vi, it has been decided that, while the case is pending,
proceedings based upon the interdict can be legally conducted.
19. Tryphoninus, Disputations,
Book XV.
Julianus very properly held
that if you forcibly dispossess me of land, on which there is movable
property, you will be obliged, under the interdict Unde vi, to
restore to me not only the possession of the land, but also that of
the movable property which was there at the time; even though I may
have been in default in proceeding against you under the interdict;
so that if some of the slaves or cattle have died, or any other property
has been destroyed by accident, you will, nevertheless, be obliged
to make restitution, because you are in default more than a debtor
is considered to be.
20. Labeo, Epitomes of Probabilities
by Paulus, Book III.
If your tenant has been forcibly
ejected, you can proceed under the interdict Unde vi. The same
rule should be adopted if the lessee of your house is forcibly ejected.
Paulus: This also applies to a sub-tenant, or a sub-lessee.
Tit. 17.
Concerning the interdict uti possidetis.
1. Ulpianus, On the Edict,
Book LXIX.
The Praetor says: "I forbid
force to be employed to prevent one of you from retaining possession
of the houses in question against the other, if you did not acquire
possession of them either by violence, clandestinely, or under a precarious
title. I will not grant this interdict in cases relating to sewers,
or for more than the property is worth; and I will permit proceedings
to be instituted within a year from the day on which the party was
entitled to do so."
(1) This interdict is framed
for the benefit of the possessor of land whom the Praetor admits to
such possession, and it is prohibitory, so far as the retaining of
possession is concerned.
(2) The reason for the introduction
of this interdict is because the possession of property should be
distinct from its ownership. For it may happen that someone may be
the possessor, but not the owner of the property in dispute, and one
may be the owner but not the possessor; and the same person may be
both the possessor and the owner.
(3) Therefore, whenever a controversy
with reference to property arises between litigants, or they agree
that one of them shall be the possessor and the other the claimant,
or no such agreement is made; the result will be as follows. If they
come to terms, the matter is at once disposed of, and the one who
it is agreed shall hold possession will enjoy the advantages of a
possessor, and the other will sustain the burdens of a claimant. If
there is any dispute between them as to which one is in possession,
because each of them declares that he has the best right to it, then,
if the object of the dispute is real property, they must have recourse
to this interdict.
(4) This interdict, commonly
called Uti possidetis, is for the purpose of retaining possession;
for it is granted to prevent any violence being employed against the
party in possession, and hence it is introduced after the interdict
Unde vi, for the latter restores possession after it has been
lost, and this interdict provides against it being lost. Finally,
the Praetor forbids force to be employed against the possessor; hence
the former interdict opposes him while the latter one protects him.
And, as Pedius says, every controversy having reference to possession
either involves the restitution of property to us, of which we are
not in possession, or permits us to hold any which we already possess.
Proceedings for the recovery of possession are instituted either by
means of an interdict, or by another action. Therefore, there are
two ways of obtaining possession, that is, by an exception or an interdict.
An exception is granted to the party in possession for several reasons.
(5) The following words are
always inserted in this interdict: "If you do not deprive the
other party of possession either by violence, clandestinely, or under
a precarious title."
(6) The interdict called Uti
possidetis also protects the possessor of land, for no action
is granted him, as it was sufficient for him to be in possession.
(7) This interdict can also
be employed whether anyone alleges that he is in possession of the
entire tract of land or only of a certain part of the same, or an
undivided portion.
(8) This interdict is undoubtedly
applicable to all cases involving the possession of real property,
provided it can be possessed.
(9) When the Praetor says in
the interdict, "where one of you has not deprived the other of
possession, either by violence, or clandestinely, or under a precarious
title," this means that if anyone has acquired possession by
force, or clandestinely, or under a precarious title from someone
else than his adversary, it will be an advantage to him. If, however,
he has deprived his adversary of possession, he should not gain his
case, for the reason that he has illegally dispossessed him; for it
is clear that possession of this kind should not be advantageous.
2. Paulus, On the Edict,
Book LXV.
In the consideration of this
interdict, it makes no difference whether the possession is just or
unjust, so far as other parties are concerned; for he who is in possession,
through this very fact, has a better right than he who does not occupy
the property.
3. Ulpianus, On the Edict,
Book LXIX.
Where two parties are in possession
of the entire property, let us see what opinion must be rendered.
Let us examine how this can occur. If anyone should suggest a case
where one of them holds possession justly, and the other unjustly;
for instance, if I possess the property by a legal title, and you
have obtained it by violence, or clandestinely, and you have deprived
me of possession, I shall have the preference for the interdict; but
if you have not obtained possession from me, neither of us will have
the advantage, for both you and I are in possession.
(1) This interdict is twofold,
and lies in favor of both plaintiffs and defendants.
(2) This interdict is sufficient
for a person who is prevented from building on his own land, for you
are held to interfere with my possession, if you prevent me from using
it.
(3) If a tenant prevents an
owner from repairing his house, it has been decided that the interdict
Uti possidetis will lie where the owner states, in the presence
of witnesses, that he does not intend to hinder the tenant from living
in the house, but he does not wish him to be considered in possession
of it.
(4) Moreover, let us see what
the law is, if the agent of your neighbor transplants vines from your
land to his own. Pomponius says that you can serve notice upon him,
and cut the vines, and Labeo says the same thing. He also says that
you can make use of the interdict Uti possidetis with reference
to the place where the vines have taken root, since if he should employ
violence to hinder you from cutting or removing the vines, he will
be considered to have forcibly prevented you from taking possession;
for Pomponius holds that anyone who prevents another from cultivating
his own land prevents him from retaining possession of the same.
(5) Again, where something is
projected by one neighbor over the land of another, and this is alleged
to have been done without any right, let us see whether the interdict
Uti possidetis will be available for one of them against the
other. It is stated by Cassius that neither of them can employ it,
because one of them possesses the land, and the other the surface
with the building upon it.
(6) Labeo also says: "Part
of my house projects over yours. Can you make use of the interdict
against me if we both possess the place which is covered by the projection?
Or can I employ the interdict against you, in order the more readily
to obtain possession of the projection, as you now are in possession
of the house, a part of which constitutes the said projection?"
(7) But if, above the house
of which I am in possession, there is an apartment in which another
person resides as the owner, Labeo says that I, and not he who resides
in the said apartment, can make use of the interdict Uti possidetis,
for the reason that whatever is built upon the soil always forms
a portion of it. Labeo says that it is clear that if the apartment
has a public entrance, the owner of the lower portion of the house
is not in possession of it, but it will be possessed by him who has
the entrance from the street. This is true with reference to an apartment
with a public entrance. But parties in possession of buildings upon
land are entitled to the special interdict and actions granted by
the Praetor. The owner of the ground, however, is preferred in the
case of an interdict Uti possidetis, not only against the person
who has the building, but also against everyone else. Still, the Praetor
will, in accordance with the terms of the lease, protect him who has
a right to the building. Pomponius also adopts this opinion.
(8) Creditors who have been
placed in possession for the preservation of property cannot avail
themselves of the interdict Uti possidetis; and this is reasonable,
because they are not actually in possession. It must be said that
the same rule applies to all others who have been given possession
as custodians of the property.
(9) If my neighbor causes his
roof to project over my house, I can avail myself of the interdict
Uti possidetis to compel him to remove it.
(10) I am not considered to
hold possession by violence if I have obtained a tract of land from
a person who acquired the same by taking forcible possession of it.
(11) In this interdict, a judgment
is rendered for a sum equal to the appraised value of the property.
We must understand the words, "to the amount that the property
is worth," to mean the interest which the party had in retaining
possession. It is, however, the opinion of Servius, that the value
of the possession should be estimated to be as much as that of the
property; but this ought, by no means, to be conceded, for the value
of the property is one thing, and that of possession is another.
4. The Same, On the Edict,
Book LXX.
In conclusion, I think that
it must be said that this interdict ought to be granted among usufructuaries,
even if one of them claims the usufruct, and the other the possession.
The same rule should be adopted where anyone alleges that he is in
possession of the usufruct. This is also held by Pomponius. Hence
this interdict should also be granted where one person claims the
use and another the usufruct of the same property.
Tit. 18.
Concerning the interdict which has reference to the surface of the
land.
1. Ulpianus, On the Edict,
Book LXX.
The Praetor says: "I forbid
you to prevent the enjoyment of the surface of the land in question,
in accordance with the terms of the lease or the contract, either
by the employment of force, or clandestinely, or under a precarious
title. If any other action having reference to the surface of the
land is applied for, I will grant it where proper cause is shown."
(1) Anyone who has a right to
use the surface of land belonging to another is protected by a civil
action. For if he has leased it, he can bring suit under the lease;
if he has purchased it, he can bring an action on purchase against
the owner of the land, and if the latter interferes with him, he can
be sued for the amount of the plaintiff's interest. When his rights
are interfered with by another, the owner will be obliged to indemnify
him, and assign him his rights of action. It was, however, considered
much more advisable to employ this interdict and to promise a kind
of real action, because it was uncertain whether the action under
the lease could be brought, as it is always better to have possession
than to bring a personal action.
(2) In this case a double interdict
is proposed, just as in the case of the interdict Uti possidetis.
Therefore the Praetor protects him who claims the right to the
surface of the land by an interdict resembling that of Uti possidetis,
and he does not require anything else of him, except that he must
have a title to possession. He only asks one thing, namely, whether
he has obtained possession from his adversary by force, clandestinely,
or under a precarious title. All the formalities are observed under
this interdict which are applicable to the interdict Uti possidetis.
(3) When the Praetor says, "If
any other action having reference to the surface of the land is applied
for, I will grant it, where proper cause is shown," this must
be understood to mean that if anyone has leased the surface of the
land for a short time, a real action will be refused him. This action
in rem, however, will lie in favor of him who has leased the
surface of the land for a long time, after proper cause has been shown.
(4) Moreover, he on whose land
a building has been erected does not need an equitable action, but
he has a real one which is the same as that to which he is entitled
for the purpose of recovering the soil. It is clear, if he wishes
to bring suit against the person having the right to the building,
that he can make use of an exception in factum, for when we
grant an action to anyone, it must be said that he is, with much more
reason, entitled to an exception.
(5) If the surface of the soil
is evicted from the possessor, it will be perfectly just to come to
his relief under a stipulation having reference to eviction, or at
any rate, by an action on purchase.
(6) Again, for the reason that
an action in rem is granted to anyone having a right to the
surface of the soil, it is also granted against him; and it must be
maintained that he is entitled to a sort of usufruct or use, and that
his right can be established by means of praetorian actions.
(7) It should be understood
that the right to the surface of the soil can be transferred by delivery,
as well as bequeathed, and donated.
(8) If this right is held in
common by two persons, we will grant them an action in partition.
(9) Servitudes are also established
by Praetorian Law, and proceedings to recover them can be instituted
by means of equitable actions, just like those which are established
by the Civil Law. An interdict having reference to them will also
lie.
2. Gaius, On the Provincial
Edict, Book XXV.
We say that houses form part
of the surface of land where they have been erected under the terms
of a lease; and the ownership of them, in accordance with both civil
and natural law, is vested in the proprietor of the soil.
Tit. 19.
Concerning the interdict which has reference to private rights of
way.
1. Ulpianus, On the Edict,
Book LXX.
The Praetor says: "I forbid
you to prevent the enjoyment of the private road or way in question,
as you have done during the past year; unless you have obtained the
use of the same from your adversary, either by violence, clandestinely,
or under a precarious title."
(1) This interdict is prohibitory,
and only has in view the preservation of rustic servitudes.
(2) In granting this interdict,
the Praetor does not inquire whether the applicant has a servitude
imposed by law or not, but only whether he has used the right of way
for the present year, without employing violence, or secretly, or
under a precarious title, and he protects him, although he may not
be using the right of way at the time when the interdict is granted.
Therefore, whether he is entitled to the right of way, or whether
he is not, he is in a position to claim the protection of the Praetor,
provided he has made use of his right during a year, or for a reasonable
period, that is to say, for not less than thirty days. This enjoyment
has no reference to the present time, for, in most instances, we do
not use a road constantly, but only when necessity demands it. Hence
the Praetor restricted its use to the term of a year.
(3) We should compute the year
back from the date of the interdict.
(4) If anyone makes use of this
interdict, it will be sufficient to prove one of two things, namely,
that he has used the road either to walk upon, or to drive over.
(5) Julianus says that the interdict
will lie in favor of the plaintiff until he has entered upon the road,
which is true.
(6) Vivianus very properly says
that where anyone, on account of the inconvenience caused by a stream,
or because the public highway has been obstructed, makes a new road
through the field of a neighbor, he is, by no means, understood to
acquire the use of it, even if he does this frequently; hence the
interdict cannot be employed by him, not for the reason that he has
used the road by a precarious title, but because he has not used it
at all. According to this, he is not considered to have used either
road, since he has still less used the old one over which he did not
travel, on account of the inconvenience caused by the stream, or because
it was obstructed. The same rule must also be said to apply where
it was not a public highway, but a private road which was obstructed,
for, in this instance, the question is the same.
(7) If a tenant, a guest, or
anyone else makes a road through the land of another, the proprietor
will be considered to have used it, and therefore he will be entitled
to the interdict; and this was also mentioned by Pedius, who added
that, if he did not know through whose land he had passed, he would
retain the servitude.
(8) If, however, I should make
a road through land which a friend of mine thinks belongs to him,
he will be understood to be entitled to the interdict for his own
benefit, and not for mine.
(9) If anyone has not used a
right of way for the past year, on account of an inundation, but did
use it the year before, he can avail himself of this interdict by
changing the date, and will be entitled to complete restitution under
the clause of the interdict, "if there seems to me to be any
good reason."
If, however, he has been prevented by violence from using the right
of way, Marcellus thinks that he must be granted complete restitution.
Moreover, the interdict with the changed date can be employed in other
cases, in which a party is ordinarily entitled to demand complete
restitution.
(10) It must also be noted that,
where delay is granted to my adversary, and my case under the interdict
will be prejudiced thereby, it is only just that the date of the interdict
should be changed.
(11) If I have conveyed to you
under a precarious title a tract of land to which a right of way is
due, and you apply to the owner of the adjacent premises held under
a precarious title, to permit you to use the said right of way, will
you be barred by an exception, if you wish to employ the interdict
against him to whom you have applied for permission to use the right
of way under a precarious title? The better opinion is that you will
be barred; and this can be gathered from what Julianus said in a case
of the same kind. For he asks, if I should convey to you a tract of
land by a precarious title, to which a right of way is due, and you
obtain the right to use the road by a precarious title, I can still
avail myself of the interdict, because, as the precarious title does
not bind me, so I am not considered to be in possession by anything
which you may have done under such a title. For whenever my tenant,
or the person to whom I conveyed the land by a precarious title, uses
the road, I am understood to use it; for which reason I very properly
say that I am enjoying the use of it. Hence he says the result will
be that, if I have obtained the right of way by a precarious title,
and I afterwards convey the land to you under the same title, and
although you travelled upon the road with the belief that the right
was due to my land, the interdict cannot be employed by me, and I
will, not without reason, be held to have used the road by a precarious
title, for not your opinion but mine should be considered. I think,
however, that you can avail yourself of the interdict, although Julianus
says nothing on this point.
(12) If anyone has used the
right of way for the above-mentioned term of a year, without employing
violence, or acting clandestinely, or relying on a precarious title,
but has not used it since, or has done so clandestinely, or under
a precarious title, let us see whether this will prejudice his rights.
The better opinion is that it will not prejudice them in any way,
so far as the interdict is concerned.
2. Paulus, On the Edict,
Book LXVI.
Any right which has been properly
acquired cannot be extinguished or changed by any defect which may
supervene.
3. Ulpianus, On the Edict,
Book LXX.
Labeo refers to the following
case, namely: "If you are using a right of way which you have
legally obtained from me, and I sell the land on which the right is
imposed, and the purchaser afterwards prevents you from using it,
although you may be considered to be using it clandestinely, so far
as he is concerned (for anyone who makes use of a right, after having
been forbidden to do so, uses it clandestinely) ; still, the interdict
will lie in your favor for a year, because, during this year, there
was a time when you made use of the right without the employment of
violence, or without doing so clandestinely, or under a precarious
title."
(1) It must be noted that a
person is considered to make use of a right of way clandestinely,
not only after he has been forbidden to do so, but also when he uses
it after he from whom he acquired the right has been prohibited. It
is clear that, if I was not aware that he had been forbidden to use
it, and continue to do so, it must be said that I will not be injured.
(2) Where anyone has obtained
the use of a right of way through my agent by having employed violence,
or has acted clandestinely, or holds it by a precarious title, he
can be prevented by me from using it, and he cannot avail himself
of the interdict, because he who possesses by a defective title obtained
through my agent is considered to have possession from me by violence,
clandestinely, or under a precarious title.
Pedius says that, if anyone, in either of these ways, has acquired
possession from a person whom he succeeded by inheritance, by purchase,
or by any other title, the same rule will apply. For where we succeed
to the rights of others, it is not just that we should be injured
by something which did not injure him whom we succeed.
(3) In this interdict, the value
of the interest which the party had in not having been prevented from
using the right of way is taken into account.
(4) We are considered to enjoy
servitudes through our slaves, our tenants, our friends, or our guests,
and by almost all those who hold the servitudes in our name. Julianus,
however, says that a servitude is not retained for the owner of the
property by an usufructuary, and that this interdict will not lie
in favor of the owner through the usufructuary.
(5) Julianus also says that
if I have an usufruct in your land whose ownership is actually vested
in you, and both of us pass through the land of a neighbor, we can
both avail ourselves of this interdict.
If the usufructuary should be prevented from enjoying his right by
a stranger, or by the owner, or the latter is interrupted by the usufructuary,
the interdict will apply; for it can be employed against anyone whomsoever
that interferes with the right of way.
(6) This interdict will also
lie in favor of one who obtains possession of a tract of land by reason
of a donation.
(7) Where anyone purchases land
by my order, it is perfectly just that this interdict should be granted
me, in order that he who bought the property under my direction should
enjoy his right.
(8) If, however, anyone purchases
the usufruct or use of land, or it is bequeathed or transferred to
him, he will be entitled to this interdict.
(9) Further, anyone to whom
land has been transferred by way of dowry can institute proceedings
under this interdict.
(10) And, generally speaking,
it must be said that there will be ground for this interdict in all
cases where a right of way had been obtained by sale, or by any other
contract.
(11) The Praetor says: "I
forbid anyone to forcibly prevent you from repairing a road or path,
and restoring it to the same condition in which it was when you enjoyed
it during the last year, if you have not used it by employing violence,
acting clandestinely, or by virtue of a precarious title. Anyone who
wishes to avail himself of this interdict must furnish security to
his adversary for any damage which may result from any fault of his."
(12) The public welfare also
caused the introduction of this interdict, for it was only proper
that an interdict should be promulgated for the benefit of him who
enjoys a right of way in order to enable him to repair the road. For
how can anyone conveniently use a road or path unless he repairs it?
For as soon as the road becomes damaged, he who is entitled to the
right of way can use and enjoy it to less advantage.
(13) This interdict differs
from the previous one, because all can have recourse to the latter
who have used the road for a year; but only those can avail themselves
of this interdict who have used the road for a year, and have, in
addition, the right to repair it. This right, however, is held to
be vested in him to whom the servitude is due. Therefore, anyone who
makes use of this interdict must prove two things: first, that he
has used the road for a year; and second, that he is entitled to the
servitude, for if he fails to establish either of them, the interdict
will not apply. Nor is this unreasonable, for if he who wishes to
enjoy the right of way until his claim to the servitude is established
does not produce the proof of it, what has he lost who suffers him
to do what he has already done for a year? But he who desires to repair
the road undertakes something new, and ought not to be permitted to
attempt this on the land of another, unless he shows that he is actually
entitled to the servitude.
(14) Moreover, it may happen
that someone has the right to pass and drive over the premises of
another, but does not have the right to repair the road, because,
in granting the servitude, it may have been expressly provided that
the right to repair the road was not included; or it may have been
done in such a way that if the beneficiary should wish to repair it,
he would be allowed to do so only in a certain way. Hence the Praetor
very properly says, with reference to repairs, "I forbid anyone
to prevent you from repairing the road, as you have a right to do,"
that is to say, to the extent that you are permitted in accordance
with the terms of the servitude imposed.
(15) We understand by the term
"repair," to restore the road to its former condition, that
is to say, that it shall not be widened, or lengthened, lowered, or
raised, for it is one thing to repair a road and a very different
thing to build it.
(16) The question is asked by
Labeo, if anyone desires to construct a new bridge for the purpose
of repairing a road, whether he should be permitted to do so. He says
that he should be permitted to do so, because a structure of this
kind forms part of the repair of a road. I think that the opinion
of Labeo is correct; provided that, if this was not done, one could
not travel conveniently back and forth upon the road.
4. Venuleius, Interdicts,
Book I.
The ancients expressly added
that violence should not be employed to prevent anyone from bringing
materials suitable for repairing a road. This provision is superfluous,
as anyone who does not permit materials to be brought without which
a road cannot be repaired is considered to use violence to prevent
the repairs from being made.
(1) If, however, anyone who
can bring the materials necessary for the repairs by a shorter route
prefers to bring them by a longer one, in order to subject him who
owes the servitude to annoyance, force can be used against him with
impunity, because it is he himself who interferes with the repair
of the road.
5. Ulpianus, On the Edict,
Book XX.
It is apparent that if anyone
prevents the materials from being piled up, he employs force to prevent
the repairs from being made.
(1) If anyone, being able to
transport the materials through another part of a field without causing
any inconvenience to the owner of the land, transports them through
some other part, it has been very properly decided that force can
be employed to prevent him from doing so.
(2) There is no doubt that this
interdict can not only be granted to the person himself who has been
interfered with, but also to his successors. It will also be granted
for and against a purchaser.
(3) If anyone has a servitude
that was not legally imposed, but of which he has had the enjoyment
for a long time, the fact that he has used it for an extended period
will entitle him to employ this interdict.
(4) He who wishes to avail himself
of this interdict should furnish security to his adversary against
any injury which may be caused by his acts.
6. Paulus, On the Edict,
Book LXVI.
As anyone who has enjoyed a
servitude without a defective title suffers no prejudice to his rights,
even though, during the past year, he has made use of it under a defective
title, so in like manner a purchaser or an heir will not be injured
if he has enjoyed a servitude under a defective title, if the vendor
or the testator enjoyed it under a good one.
7. Celsus, Digest, Book XXV.
If anyone has passed to and
fro through your land without the employment of violence, or without
acting clandestinely, or under a precarious title, and still did so
without any right, but with the intention of not traversing the land,
if he had been forbidden; this interdict will not lie under these
circumstances, for, to enable it to do so, the person referred to
must possess some right in the land.
Tit. 20.
Concerning the edict which has reference to water used every day and to such as is only used during the summer.
1. Ulpianus, On the Edict,
Book LXX.
The Praetor says: "I forbid
force be used against you to prevent you from conducting the water
in question the same way in which you have conducted it during the
past year, provided you have not done so, either by violence, or clandestinely,
or under a precarious title."
(1) This interdict is prohibitory,
and is sometimes restitutory, and has reference to water in daily
use.
(2) Water in daily use is not
such as is made use of constantly, but is that which anyone can use
every day if he so desires; although sometimes, while it may not be
convenient to conduct it during the winter, one, nevertheless, has
the right to do so.
(3) There are two kinds of servitudes
relating to water, one of them for its daily use, and the other for
its use in the summer. That which can be used every day differs from
that which is used in the summer, for the former is such as is conducted
constantly both in summer and in winter, although sometimes it is
not made use of. That which is called water for daily use has its
servitude divided by intervals of time. That which is for use during
the summer is such as is only convenient to use during that season,
as we are accustomed to speak of summer clothing, summer resorts,
and summer camps, which we make use of occasionally during the winter,
but for the most part during the summer. I think water that is used
in the summer, and that which is for daily use, should be distinguished
by considering the intention of the parties, and the nature of the
places where it is used; for if it is such that it can always be conducted,
but I only use it in summer, it must be said that this is summer water.
Moreover, if it can only be conducted during the summer, it is also
summer water. If the places are such that, by their nature, the water
can only be introduced during the summer, it must be held that it
will properly be called summer water.
(4) When it is stated in the
interdict, "as you have conducted the water during the past year,"
this means not every day, but even only one day or night during the
entire year. Therefore, daily water is such as can be conducted every
day during the winter or summer, although there may be times when
it is not conducted. Summer water is such as can be conducted every
day, but is used only in summer, and not in winter; not because this
cannot be done during the winter, but because it is not usually the
case.
(5) Again, the Praetor, in this
interdict, only refers to water which runs continuously, for water
cannot be conducted unless its flow is constant.
(6) Although we stated that
this interdict only has reference to water which flows continuously,
it also relates to such as can be conducted. For there is certain
water which, though its flow is continuous, still cannot be conducted;
as, for instance, well water, and such as is so deep underground that
it cannot be raised to the surface so as to be of use. A servitude
for drawing water of this kind, which cannot be conducted, may be
imposed.
(7) These interdicts with reference
to water and springs are considered only to apply to water which is
drawn from its source, and not from anywhere else, for a servitude
can be imposed upon water of this kind under the Civil Law.
(8) The source of water is the
place where it originates, and is the spring itself, if it proceeds
from a spring. If, however, it is derived from a river or a lake,
the first parts of the trench by which it is conducted from the said
river or lake into the canal is considered to be its source. If water,
oozing through the ground, first appears in some place or other, it
is clear that we must call the place where it first emerges from the
earth its source.
(9) And, no matter in what way
the right to water may be established, it must be held that this interdict
will apply.
(10) If, however, the right
to the water does not legally belong to anyone, but he thinks that
he has the legal right to conduct it, and does so, as, in this instance,
the error is not in law, but in fact, it must be held, and it is also
our practice, that he is entitled to avail himself of this interdict;
for it is sufficient if he thought that he had the legal right to
conduct the water, and did not do so either by violence, or clandestinely,
or under a precarious title.
(11) The question is asked whether
these interdicts only have reference to water which is used for irrigating
land, or whether they apply to all water, even such as is employed
for our use and convenience. It is our practice to consider that they
have reference to all kinds of water. Hence this interdict will be
applicable, even where anyone desires to bring water into his houses
in the city.
(12) Moreover, Labeo says that
even where there are certain aqueducts which do not belong to the
land, because they can be used by anyone, the interdict still will
apply.
(13) Labeo also says that even
if the Praetor, in this interdict, meant to refer to cold water, the
interdicts should, nevertheless, not be refused where warm water is
concerned, as the use of water of this kind is necessary, for sometimes
it is employed instead of cold water in irrigating fields. In addition
to this, in some places warm water is indispensable for the purpose
of irrigation, as, for example, at Hieropolis, since it is a fact
that the Hieropolitans irrigate their lands in Asia with warm water.
And although water of this kind may not be absolutely necessary for
irrigation purposes, still no one doubts that these interdicts will
apply under such circumstances.
(14) There will be ground for
this interdict whether the water is in a town or out of it.
(15) It, however, must be understood
that the Praetor orders the water to be conducted in the same way
as it was conducted during the past year, hence this cannot be done
in a larger quantity, or in a different place. Therefore, if the water
which anyone wishes to conduct is different from that which he conducted
during the past year, or if it was the same and he desires to conduct
it through a different part of his premises, force may be used to
prevent him from doing so.
(16) Labeo says that every portion
of the land through which the water is conducted is entitled to the
benefit of the servitude. Hence, if the plaintiff has purchased an
adjoining field, and wishes to conduct the water which he has used
during the past year into the field which he has recently purchased,
he can legally avail himself of this interdict, as is the case of
rights of way; so that, once having entered upon his own land, he
can enter upon the other wherever he pleases, unless he is prevented
by the person from whom the servitude of the water was obtained.
(17) The question is also asked
where anyone mixes other water with that which he has used during
the preceding year, whether he can be prevented from doing so with
impunity. An opinion of Ofilius is extant, who thinks that he can
legally be prevented from doing so, but only in the place where he
first allows the water to run into his canal. Ofilius says that he
can legally be prevented with reference to his entire right to the
water. I concur in the opinion of Ofilius that the right cannot be
divided, because violence cannot be employed with reference to a portion
of the water, where this is not applicable to all of it.
(18) Trebatius holds that if
a larger number of cattle are driven to a watering-place than the
owner has a right to take there, all of them can be prevented from
coming, because those which have been added to the cattle which had
the right to drink will annul the right of all of them to make use
of the privilege.
Marcellus, however, says that if he who has the right to conduct a
certain number of cattle to a watering-place conducts more than that
number, he should not be prevented from bringing all of them. This
is true, because cattle can be separated.
(19) Aristo holds that he alone
is entitled to employ this interdict who thinks that he has a right
to do so; and not he who, well knowing that he has no such right,
makes use of it.
(20) He also says that he who,
during the past year, conducted water without violence, or clandestinely,
or under a precarious title, but whose enjoyment during part of the
same year was subject to one or the other of these defects, can still
properly make use of this interdict for the time when he did so, and
no such defect existed, should be taken into consideration; as it
is true that there was a period during the past year when he enjoyed
the servitude without employing violence, or acting clandestinely,
or relying on precarious title.
(21) The question arose, where
anyone has conducted water for a longer period than a year, and during
the following time, that is, within the year, the water flowed of
itself, without his conducting it, whether there would be ground for
this interdict. Severus Valerius says that the interdict will lie
in his favor, as he is considered to have conducted the water, although,
strictly speaking, he may not be held actually to have done so.
(22) The question was also asked,
if anyone thought that he had the right to conduct water every other
day, and conducted it only one day, whether he could be held to have
done so properly, and without deceiving the possessor of the land
where the water originated, so that he would be entitled to make use
of this interdict. For the Praetor says, "as you have conducted
the water during the past year," that is, on alternate days,
it makes no difference whether the water was due every fifth day,
or every other day, or daily, so far as he who desires to avail himself
of the interdict is concerned; for as it is sufficient to have conducted
the water only one day during the past year it is of no consequence
what right to conduct it the person has, since if anyone who has the
right to conduct it every fifth day wishes to avail himself of the
interdict, alleging that he has the right to conduct the water every
other day, he will be held to have no right to do so.
(23) Moreover, it must be noted
that if, when you are conducting water, your adversary prohibits you
from doing so, and then in the meantime, you lose your right to conduct
it, you can, by means of this interdict, obtain restitution by recovering
what you have lost. I think that this opinion is correct.
(24) If you should sell and
deliver the land upon which you are accustomed to conduct water, you
can still avail yourself of the interdict.
(25) This interdict will lie
against anyone who prevents me from conducting the water, and it makes
no difference whether he has the ownership of the land or not, as
he will still be liable under the interdict, for, after the servitude
has once become operative, it can be claimed against anyone whomsoever.
(26) If a dispute arises between
two rivals (that is to say, between two persons who conduct water
through the same canal), with reference to the water, and each one
of them claims to have the exclusive right, a double interdict will
lie in their favor.
(27) Labeo thinks that, under
this interdict, a man will be prevented from building anything on
the land through which the water is conducted, or from digging or
sowing there, or from cutting down any trees, or from erecting any
building by means of which the water which he conducted during the
past year under a good title through your land may be polluted, vitiated,
spoiled, or deteriorated. He says that, in like manner, the interdict
can be employed in the case of summer water.
(28) If anyone relinquishes
the right to draw water, the abandonment will be valid.
(29) The Praetor further says,
"I forbid violence to be employed to prevent you from drawing
water, as you have done during the past summer, without the exertion
of force, or clandestinely, or under a precarious title. I will grant
this interdict to heirs, purchasers, and praetorian possessors of
property."
(30) This interdict has reference
to summer water.
(31) As we have stated that
a difference exists between water used only during the summer and
that which may be used daily, it must also be noted that a difference
exists between the interdicts; for the one which has reference to
water used daily contains the following clause, "As you have
conducted the water during the past year," and that which relates
to water used only during the summer contains the following clause,
"As you have conducted it during the past summer." This
is not unreasonable, for as the individual in question did not use
the water during the winter, he should refer, not to the present summer,
but to the previous one.
(32) Learned men have decided
that summer begins from the vernal equinox, and terminates at the
autumnal equinox. Hence summer and winter are divided by the period
of six months.
(33) Last summer is calculated
from the comparison of two summer seasons.
(34) On this account, if an
interdict is issued during the summer, sometimes the period includes
a year and six months. This happens where water is conducted at the
beginning of the vernal equinox, and the interdict is issued during
the next summer, on the day before the autumnal equinox. Hence, if
it is issued in the winter, the period will include two years.
(35) If anyone has been accustomed
to conduct the water only during the winter, and not during the summer,
he can avail himself of the interdict.
(36) Anyone is entitled to an
available interdict who has conducted the water during this summer
and not during the previous one.
(37) The Praetor says: "I
will grant an interdict to heirs, purchasers, and praetorian possessors
of property." It should be observed that these words not only
have reference to water used during the summer, but also to that used
every day, for, as interdicts are granted to successors with reference
to rights of way, so the Praetor thought that these also should be
granted.
(38) The Praetor says: "I
forbid violence to be employed to prevent anyone from conducting water
from a reservoir on his premises to whom the right to do so has been
conceded. Whenever an interdict with reference to the construction
of some work should be issued I will order security against threatened
injury to be furnished."
(39) It was necessary to propose
this interdict, for, as the preceding ones have reference to persons
who conduct water from its source on account of a servitude having
been imposed, or because they think that this has been done, it seemed
to be just that an interdict should be granted to one who conducted
water from a reservoir, that is to say, from the receptacle which
contains water for the use of the public and which is designated a
reservoir.
(40) If permission is given
to conduct water from a reservoir, an interdict should be granted.
(41) Moreover, permission will
be given to conduct water from a reservoir, a stream, or from any
other public place.
(42) This permission is granted
by the Emperor, and no one else has a right to give it.
(43) This right is sometimes
granted to land, and sometimes to persons. When it is granted to land,
it is not extinguished with the death of the party interested; but
when it is granted to persons, it is lost by their death, and therefore
does not pass to any other owner of the land, or to heirs or other
successors.
(44) It is clear that the right
can be claimed by him to whom the ownership of the land is transmitted.
For if he proves that the water is due to his land, and has flowed
in the name of him by whom the ownership has been transmitted to himself,
he can undoubtedly obtain the right to conduct it; for this is not
a favor, but it will be an injustice if it should not be obtained.
(45) We should also remember
that, in this interdict, the entire question of the assignment of
the right to the water is determined. For this interdict is not merely
preliminary, as those formerly described are, nor does it only relate
to temporary possession, but the party interested either has had the
right assigned to himself, or he has not, and the interdict effectually
disposes of the whole matter.
2. Pomponius, On Sabinus,
Book XXXII.
If I have the right to conduct
the water during the day or the night, I cannot do so at different
hours than those during which I am entitled to conduct it.
.3. The Same, On Sabinus,
Book XXXIV.
We have adopted the rule that
water can be conducted, not only for irrigating purposes, but also
for the use of cattle, and even for pleasure.
(1) Several persons can conduct
water from a river, provided they do not cause any damage to their
neighbors, or even those who are on the opposite bank, if the stream
narrows.
(2) If you have conducted water
from a public river, and it leaves its bed, you cannot follow it up,
even though the place where it now runs belongs to me, because the
servitude was not imposed upon that land. You can, however, follow
it up, if the river should gradually accrue to your land by alluvial
deposit, because the entire locality is subject to the servitude of
conducting the water of the river. But if the river, having changed
its bed, begins to surround it, you cannot then follow it up, because
the abandoned bed is not subject to the servitude which, in consequence,
is interrupted.
(3) The water which originates
in a brook is tacitly considered to b$ for the benefit of him who
conducts it from thence.
(4) An aqueduct, whose origin
is beyond the memory of man, is considered to have been lawfully established
in the place through which it passes.
(5) He who is entitled to conduct
water for daily use can place pipes in a stream, or do anything else;
provided he causes no damage to the land of his neighbor, or interferes
with the right of others to use water from the same source.
(6) Anyone who has a right to
conduct water can also legally conduct other water above it by means
of an aqueduct constructed upon the shore, provided no injury is done
to the conduit below.
4. Julianus, Digest, Book
XLI.
I granted to Lucius Titius the
privilege of conducting water from my spring. The question arose whether
I could grant to Maevius the right to conduct water by the same aqueduct.
If you think that this action can be granted to two persons to conduct
it by the same aqueduct, how ought they to avail themselves of the
right? The answer was that as a right of way can be granted to several
persons conjointly, or separately; so, in like manner, the right to
conduct water can legally be granted to them. If the parties do not
agree among themselves, in what way shall they make use of it? It
will not be inequitable to grant them a praetorian action, just as
many authorities have decided that a suit of this kind can be granted
in partition to several persons who are entitled to the enjoyment
of an usufruct.
5. The Same, On Minicius,
Book IV.
It is established that the use
of water can be divided not only by seasons, but also by measurement.
One person can have the right to conduct it for daily use, and another
to do so during the summer; so that the water will be divided between
them during the summer, and, during the winter, he alone can conduct
it who has the right to its daily use.
(1) It was agreed between two
persons who were entitled to the privilege of conducting water by
the same aqueduct, at different hours, that the hours for its use
should be changed. If they had conducted it for a longer period than
was necessary, as prescribed by the servitude, so that neither of
them used it during the specified time for which it had been granted
him, I ask whether they had lost the right to its use. It was denied
that they had lost it.
6. Neratius, Parchments,
Book III.
While we are examining the interdicts
which have reference to water used during the summer, we think that
we should first determine what summer water is, concerning which an
interdict is usually granted relating to the preceding season; that
is to say, whether summer water should be decided to be such as one
only has a right to use during the summer, whether the intention of
him who has the right to conduct it during that season ought to be
taken into account; whether this designation depends upon the nature
of the water itself, which can only be conducted during the summer;
or whether the advantage to the places to which it is conducted should
be considered. Hence it was held that the water was properly so called
on account of two things; namely, its nature, and the benefit of the
land upon which it is conveyed; so that if its nature is such that
it can only be conducted during the summer, even though it is also
desired to do this during the winter; or if its nature permits it
to be conducted during any season of the year, and the benefit to
the places where it is taken only requires its use during the summer
by the persons entitled to it, it is very properly called summer water.
7. Paulus, Decisions, Book
V.
If proceedings are instituted
with reference to a right of way, or the right to conduct water, security
must be furnished that, as long as the plaintiff attempts to prove
his right to the servitude, no obstacle will be offered to his conducting
the water, or using the right of way. If, however, he denies that
his adversary has any right to use the right of way, or to conduct
the water, he should, without any apprehension of losing the servitude,
furnish security that he will not make use of it until the case has
been disposed of.
8. Scaevola, Observations.
He who is entitled to a right
of way through land for the purpose of conducting water is permitted
to construct a canal through any part thereof that he wishes, provided
he does not interfere with some other aqueduct.
Tit. 21.
Concerning the interdict having reference to conduits.
1. Ulpianus, On the Edict,
Book LXX.
The Praetor says: "I forbid
force to be employed against anyone to prevent him from repairing
or cleaning any aqueduct, canal, or reservoir, which he has a right
to use for the purpose of conducting water, provided he does not conduct
it otherwise than he has done during the preceding summer, without
the employment of violence, or clandestinely or under a precarious
title."
(1) This interdict is extremely
useful, for unless anyone is permitted to repair a conduit, he will
be inconvenienced in his use of the same.
(2) Therefore, the Praetor says,
"An aqueduct and a canal." A canal is a place excavated
throughout its length, and derives its name from a Greek word meaning
to flow.
(3) A reservoir is a place from
which one looks down, and from it public exhibitions are named.
(4) Conduits are opposed to
ditches, and are for the purpose of conducting and forcing water from
a stream, whether they are of wood, stone, or any other material whatsoever.
They were invented for the purpose of containing and conveying water.
(5) A ditch is a place excavated
at the side of a stream, and is derived from the word incision, because
it is made by cutting; for the stone or the earth is first cut, in
order to permit the water to be brought from the river. Pits and wells
are also included in this interdict.
(6) The Praetor next says, "to
repair and clean." To repair is to restore anything which is
injured to its former condition. In the term "repair" are
included to cover, or support from below, to strengthen, to build,
and also to haul and transport everything necessary for that purpose.
(7) Several authorities hold
that the term "clean" only has reference to a canal which
is in good condition, but it is evident that it also applies to one
which needs repair, for frequently a canal needs both repairing and
cleaning.
(8) The Praetor says, "for
the purpose of conducting the water." This is added for a good
reason, as he only is permitted to repair and clean a water-course
who made it in order to conduct water.
(9) This interdict will also
lie in favor of one who has not the right to conduct water, provided
he did conduct it either during the previous summer, or during that
year; as it is sufficient that he did not do so by the employment
of violence, or clandestinely, or under a precarious title.
(10) If anyone desires to make
a conduit of stone, which was previously merely dug through the earth,
it is held that he cannot legally avail himself of this interdict,
for he who does this does not merely repair the water-course.
This opinion was adopted by Ofilius.
(11) Hence, even if a person
wishes to dig a canal through a different place, he can be prevented
from doing so with impunity. This rule also applies whether he lowers,
raises, widens, extends, covers, or uncovers the conduit. I, however,
think that he can be prevented from changing it in other respects,
but so far as covering and uncovering it is concerned, I do not believe
that he can be interfered with, unless his adversary proves that it
is for his advantage that this should not be done.
2. Paulus, On the Edict,
Book LXVI.
Labeo asserts that a conduit
which has been open cannot be changed to a subterranean one, because,
by doing so, the owner of the land will be deprived of the privilege
of watering his cattle, or of drawing water from the said conduit.
Pomponius says that he does not concur
in this opinion, because the owner enjoys this privilege rather from
accident than from any right which he possesses, unless this was the
intention in the beginning when the servitude was imposed.
3. Ulpianus, On the Edict,
Book LXX.
Servius, however, holds that
water which formerly flowed through an open channel is conducted in
a different way, if it is subsequently conveyed through one that is
covered; for if anyone constructs a work by means of which the water
is better preserved or contained, he cannot be prevented from doing
so with impunity. I think the
contrary applies with reference to a pipe, unless greater benefit
is derived by the adversary.
(1) Servius and Labeo say that
if a person wishes to make the conduit of stone which, in the first
place, was dug through the earth, and therefore did not retain the
water, he should be heard. If, on the other hand, he should change
the conduit which was formerly built of stone into merely a ditch
through the earth, either wholly or in part, he cannot be prevented
from doing so. It seems to me that any urgent and necessary repairs
should be permitted.
(2) If anyone desires to connect
a new channel or new pipes with the water-course, which were never
there before, Labeo says that this interdict will be applicable. We,
however, are of the opinion that, in a case of this kind, the benefit
of him who conducts the water without causing any inconvenience to
the owner of the land should be considered.
(3) If water is conducted into
a lake, and from the latter by means of several aqueducts, this interdict
will lie for the benefit of anyone desiring to repair the lake itself.
(4) This interdict has reference
to all conduits, whether they are situated in public or in private
places.
(5) Even if the pipe is for
the purpose of conducting warm water, this interdict will also be
available, where any repairs of the same should be made.
(6) Aristo thinks that a praetorian
action will lie where a subterranean pipe through which vapor is conveyed
into hot baths requires repairs; and it must be said that an interdict
can also be employed in a case of this kind.
(7) This interdict is also granted
to the same persons, in the cases above enumerated, in which interdicts
with reference to water are granted.
(8) Where notice to desist from
the construction of a new work is served upon anyone who is repairing
a conduit, it has been very properly held that he need not pay any
attention to it, for as the Praetor forbids violence to be employed
against him under such circumstances, it is absurd that he should
be interfered with by the service of notice to stop the construction
of a new work. It must be said
that an action in rem can undoubtedly be brought against the
party in question, on the ground that he had no right to make the
repairs.
(9) There is no question whatever,
that he who makes the repairs should give security against threatened
injury.
(10) Ofilius thinks that this
interdict will lie in favor of anyone who is prevented from bringing
or transporting any materials required for repairs. This is true.
4. Venuleius, Interdicts,
Book I.
The interdict is also granted
where aqueducts ought to be repaired, and no inquiry is made whether
a right to conduct the water exists or not. For the repair of roads
is not as necessary as that of aqueducts, for if the latter are not
repaired, the entire use of the water will be stopped, and persons
will be exposed to death by thirst. It is evident that water cannot
be obtained without repairing aqueducts; but if a road is not repaired,
passage to and fro will only be rendered difficult, and this is less
during the summer time.
Tit. 22.
Concerning the interdict which has reference to springs.
1. Ulpianus, On the Edict,
Book LXX.
The Praetor says: "I forbid
force to be employed to prevent you from making use of the spring
in question, the water of which you have
used during the past year, without employing force, or clandestinely,
or under a precarious title. I will also grant an interdict of the
same kind with reference to lakes, wells, and fish-ponds."
(1) This interdict was introduced
for the benefit of him who is prevented from using the water of a
spring. For servitudes are usually granted not only for the purpose
of conducting water, but also for drawing it; and as those relating
to the conducting of water and the drawing of the same are distinct,
so, also, the interdicts relating to them are separately granted.
(2) Moreover, this interdict
will apply if anyone is prevented from using water; that is to say,
if he is either hindered from drawing it, or driving his cattle to
it.
(3) The same rule which we have
mentioned as governing previous interdicts must also be said to apply
to those which have reference to persons.
(4) This interdict will not
lie in the case of cisterns, for a cistern has not perpetual, or running
water. From this it is evident that, in all these instances, it is
required that the water be running. Cisterns, however, are filled
by rains. In conclusion, it is established that the interdict will
not apply if the lake, fish-pond, or well, does not contain running
water.
(5) It is clear that the interdict
will also be sufficient, where anyone is prevented from using a road
giving access to the water to be drawn.
(6) The Praetor next says: "I
forbid force to be employed to prevent you from repairing and cleaning
the spring in question, in order that you may retain the water; provided
you do not make use of it in a different way than you have done during
the past year, without the employment of force, or clandestinely,
or under a precarious title."
(7) This interdict is as advantageous
as the one which has reference to the repair of conduits; for if it
is not permitted to clean and repair a spring, it will be of no use.
(8) A spring should be cleaned
and repaired for the purpose of retaining the water, so that anyone
may use it in the same way in which this was done during the past
year.
(9) To retain water is to confine
it in such a way that it will not overflow, or be lost; provided anyone
is not permitted to seek for and open new springs, for this is an
innovation upon what has been done during the preceding year.
(10) An interdict can also be
employed where a lake, a well, or a fish-pond is to be repaired or
cleaned.
(11) This interdict is granted
to all persons who are allowed to make use of the one having reference
to summer water.
Tit. 23.
Concerning the interdict which has reference to sewers.
1. Ulpianus, On the Edict,
Book LXXI.
The Praetor says: "I forbid
force to be employed by you against anyone who has the right to repair
and clean the sewer in question, which is common to his house and
yours. I will order security to be furnished for the reparation of
any damage which may result from the work."
(1) The Praetor placed two interdicts
under this title, one of which is prohibitory, and the other restitutory,
and he first discusses the one which is prohibitory.
(2) By means of these interdicts,
the Praetor provides that sewers shall be cleaned and repaired, and
both of them have reference to the health and protection of cities;
for the filth of the sewers threatens to render the atmosphere pestilential
and ruin buildings. The same rule
applies even when the sewers are not repaired.
(3) This interdict applies to
private sewers, for those which are public demand the care of officials.
(4) A sewer is an excavation
by means of which filth is carried away.
(5) The interdict first mentioned
is prohibitory, and by it a neighbor is prevented from using violence
to prevent a sewer from being cleaned and repaired.
(6) In the term "sewer"
are included both the ditch and the pipe.
(7) For the reason that the
repairing and cleaning of sewers is considered to have reference to
the public welfare, it was decided that the clause, "if you have
not made use of it by violence, or clandestinely, or under a precarious
title," should not be added; so that, even if anyone had used
it under such circumstances, he still would not be prevented from
repairing or cleaning the sewer, if he desired to do so.
(8) The Praetor next says, "which
is common to his house and yours." In this instance, the term
"house" must be understood to signify every kind of building,
just as if it had been said "to his building and yours."
Labeo goes even farther, for he thinks
that there will be ground for this interdict, if there is a vacant
space between the two edifices, and if, as he suggests, the sewer
leads from a house in the city to adjoining land.
(9) Labeo also holds that anyone
who desires to connect his private sewer with a public one ought to
be protected against being prevented by violence. Pomponius says that
if anyone desires to construct a drain which will flow into a public
sewer, he should not be hindered from doing so.
(10) Where the Praetor says,
"is common to his house and yours," he means is directed
towards, extends to, or comes as far as your house.
(11) This interdict also has
reference to a next neighbor, as well as against others farther away,
through whose houses the sewer in question runs.
(12) For which reason Favius
Mela says that this interdict will lie to authorize anyone to enter
the house of a neighbor, and take up his pavement for the purpose
of cleaning the sewer. Pomponius,
however, says that, in this instance, the penalty of a stipulation
for the reparation of damage may be incurred; but this will not be
the case if the person above mentioned is ready to replace what he
was obliged to take up for the purpose of repairing the sewer.
(13) If anyone serves notice
of a new work upon me when I am cleaning or repairing my sewer, it
is very properly held that I may pay no attention to the notice, and
can continue to repair what I have begun.
(14) The Praetor, however, promises
that security shall be given against any injury which may result from
defective work; for, just as permission is given to repair and clean
sewers, so it must be said that no damage should be caused to the
houses of others.
(15) The Praetor next says:
"You shall restore all to its former condition, where anything
has been done to a public sewer or placed in it by which its use may
be interfered with. Likewise, I forbid anything to be done to the
sewer, or to be thrown into it."
(16) This interdict has reference
to public sewers, and prohibits anything being thrown into them, or
deposited in them by which their use may be injuriously affected.
2. Venuleius, Interdicts,
Book I.
Although the repair of existing
sewers, and not the construction of new ones, is included in this
interdict, Labeo says that an interdict should, nevertheless, be granted
to prevent anyone from employing violence against another who builds
a sewer, because the same question of public welfare is involved;
as the Praetor has, by an interdict, forbidden force to be used to
hinder anyone from constructing a sewer in a public place. This opinion
is also adopted by Ofilius and Trebatius. Labeo also says that anyone
ought, without interference, to be permitted by the interdict to clean
and repair a sewer already constructed; but that the officer in charge
of the public highways should grant permission to build a new one.
Tit. 24.
Concerning the interdict which has reference to works undertaken by violence or clandestinely.
1. Vivianus, On the Edict,
Book LXXI.
The Praetor says: "I order
you to restore to its former condition everything which you have done
to the property in question by the employment of violence or clandestinely,
as soon as proceedings are instituted against you for that purpose."
(1) This interdict is restitutory,
and, by means of it, the deceit of those who have undertaken to do
anything with violence, or clandestinely, is obviated; and they are
ordered to restore fhe property to its former condition.
(2) It makes very little difference
whether the party in question has the right to do the work or not;
for, even if Be has, he will, nevertheless, be liable under the interdict,
because he employed violence or acted clandestinely; since he should
protect his rights, and not contrive to injure hers.
(3) Then the question is asked
whether anyone can oppose to this interdict the exception that the
defendant did not do anything which he had not acquired a right to
do. The better opinion is that he will not be allowed to avail himself
of such an exception, for he cannot protect himself legally by an
exception, where he has employed violence or acted clandestinely.
(4) This interdict only has
reference to work which is done upon land, with the employment of
violence or in a clandestine manner.
(5) Let us see what is meant
by the employment of violence, or a clandestine act. Quintus Mucius
says that anything is considered to have been done with the employment
of violence where a person does it after he has been forbidden. The
definition of Quintus Mucius appears to me to be complete.
(6) Pedius and Pomponius assert
that if anyone is forbidden to proceed with a work by the casting
of even a small stone upon it, he will be held to have used violence;
and this is our practice.
(7) Cascellius and Trebatius
think that the same rule will apply, if he proceeds with the work
after notice has been served upon him in the presence of witnesses,
which is true.
(8) Moreover, Aristo says that
he also employs violence who, knowing that he will be opposed, uses
force to avoid being prohibited.
(9) Likewise, Labeo says that
if I forbid anyone to proceed, and he desists while in my presence,
but afterwards resumes the work, he will be considered to have employed
violence, unless he has obtained my consent, or has some other good
reason for doing so.
(10) If anyone is prevented
by weakness, or is restrained by the fear of offending you, or someone
whose power is exerted in your favor, and, for either of these reasons,
does not forbid you to proceed, you will not be considered to have
employed violence. This was also stated by Labeo.
(11) He also says that if anyone
should deter you when you desire to prevent me from doing the work,
for instance, by arms, without any fraudulent act on my part, and,
on this account, you do not come to prevent me, I will not be considered
to have employed violence.
2. Venuleius, Interdicts,
Book II.
So that it may not be within
the power of another to render my condition worse, without my being
guilty of any offence.
3. Ulpianus, On the Edict,
Book LXXI.
In order to prevent anyone from
proceeding, it is not necessary that the person himself should act,
for anyone is legally considered to have hindered another, either
by his slave or by his agent. The same rule will apply if a day laborer
employed by me should attempt to prevent him. Nor can the objection
be urged that action is not ordinarily acquired through the agency
of one who is free; for the hindrance proves that you effected this
by the employment of violence. And why should this be remarkable,
when I will be entitled to bring suit, even if you have done the work
clandestinely, and therefore, the right of action will be acquired
by me, rather through the illegal act which you have committed, than
through that of another?
(1) It should be noted that
it is not necessary for the violence to be exerted continuously; for
after it has once been committed in the beginning, it is considered
to endure.
(2) If permission has been granted,
an exception will be necessary to oppose him who makes use of the
interdict.
(3) Moreover, if not only I
should grant permission, but if my agent, or a guardian who is administering
a guardianship, or the curator of a ward, an insane person, or a minor,
should also grant it, it must be said that there will be ground for
an exception.
(4) Nerva asserts that it is
clear there will be no ground for an exception if the Governor, or
some official having charge of the business of a city, permits work
to be done in a public place; for he says that although the care of
public places may have been entrusted to him, still the right to transfer
them was not granted. This is only true where municipal law does not
confer greater authority upon the public official having charge of
the affairs of a city. The same
rule should be adopted if the right was granted by the Emperor himself,
or by someone upon whom he has bestowed the power to do so.
(5) If anyone is ready to defend
himself in court against certain persons who think that he should
be forbidden to construct a work, let us see whether he will be held
to have desisted through the employment of violence. The better opinion
is that he should be considered to have done so, if he offers to give
security, and is ready to defend his right. This was also stated by
Sabinus.
(6) Again, if anyone is prepared
to furnish security against any damage which may result, when he has
only been forbidden to proceed on this account, or because he did
not defend himself, or for the reason that he did not furnish security
against threatened injury, it must be said, in consequence, that he
has ceased to proceed with the work through the employment of violence.
(7) Cassius says that he is
held to have acted clandestinely who conceals what he is doing from
his adversary, and fails to notify him, provided he feared, or thought
that he had good reason to fear, opposition.
(8) Aristo also thinks that
he acts clandestinely when, with the intention of concealing what
he is doing, he keeps with him the person whom
he thinks will oppose him, and believes, or has reason to believe,
that he will oppose what he expects to d.o.
4. Venuleius, Interdicts,
Book II.
Servius says that he is held
to have acted clandestinely, even if he thinks that no controversy
will arise with reference to what he does; for it is not necessary
to pay attention to every one's inconsiderate opinion and judgment,
otherwise, fools would be in a better condition than wise men.
5. Ulpianus, On the Edict,
Book LXX.
He who does work in a different
way than that in which he gave notice that it would be done, or deceives
the person who had an interest in not having it performed, or intentionally
serves notice upon his adversary, when he knows that he cannot hinder
him, or notifies him so late that he cannot leave his house in order
to interfere with the work, is held to have acted clandestinely. Aristo
says that Labeo adopted this opinion.
(1) When anyone gives notice
that a new structure is about to be erected, he is not always considered
to have acted clandestinely, if he does the work after the notice
has been given; for (according to Labeo), both the day and the hour
should be included in the notice, as well as the place where the work
is to be done, and the nature of it. A notice should not be either
vague nor obscure, nor should it so restrict the adversary that he
cannot appear within the time designated, in order to prevent the
work from being performed.
(2) If there is no one upon
whom the notice can be served, and no fraud has been committed by
the person intending to do the work, notice should be served upon
the friends or agent of the party interested, or at his house.
(3) Servius, however, very properly
states that it will be sufficient to notify the husband of a woman,
who is interested, that the work is about to be done, or to do it
with his knowledge; although it will also be sufficient not to have
the intention of concealing it from him.
(4) He also says, that if anyone
desires to construct a new work in a public place belonging to a municipality,
it will be sufficient if notice is served upon the official having
charge of the affairs of the city.
(5) If anyone, thinking that
certain land belongs to you, while in fact it is mine, undertakes
a new work with the intention of concealing it from you, but not from
me, the interdict will lie in my favor.
(6) He also says that, if someone
undertakes a new work with the intention of concealing it from my
servant, or my agent, I will be entitled to an interdict.
(7) If anyone who did not serve
notice that he was about to begin a new work, but was himself notified
not to undertake it, and, nevertheless, does so, I think that the
better opinion will be that he employed violence.
(8) These words, "what
has been done by violence or clandestinely," Mucius says should
be understood to mean what you yourself, or anyone of your people,
have done, or what has been done by your command.
(9) Labeo, however, thinks that
a larger number of persons are included in these words; for, in the
first place, it includes the heirs of the persons enumerated by Mucius.
(10) He also says that this
interdict is available against an agent, a guardian, a curator, and
a municipality or syndic, as representing other parties.
(11) If my slave undertakes
a new work, an action cannot be brought against me on this account,
but it will be necessary for him to do it either in my name, or in
his own; for if I have your slave employed by the day, and he begins
any work in my name, proceedings can be instituted under this interdict
on this ground, not against you, but against me, by whose order, or
in whose name the work was performed by your slave.
(12) In like manner, where such
work is performed by the order of anyone, this action will lie not
against him, but against the person in whose name the order was given.
For if an agent, a guardian, a curator, or the duumvir of a municipality,
acting in the name of him or those whose business he transacts, should
order the work to be performed, proceedings must be instituted against
him in whose name this was done, and not against him who ordered it
to be done. If I direct you to order work to be performed, and you
obey me, the action should be brought against you, and not against
me.
(13) As the interdict is expressed
in the following terms, "what has been done by violence, or clandestinely,"
and not "what you have done by violence, or clandestinely,"
Labeo thinks that it extends to other persons than to those whom we
have mentioned above.
(14) Our practice renders me
liable under the interdict Quod m aut clam, whether I have
done any new work or ordered it to be done.
6. Paulus, On the Edict,
Book LXXVII.
If I direct you to construct
a new work, and you order another to do it, it cannot be considered
that it has been done by my command; therefore, you as well as the
other party, will be liable. Let us see whether I, also, will be liable.
The better opinion is that I will be, as I directed another to begin
it. But if any one of these three should make reparation, the other
two will be released.
7. Ulpianus, On the Edict,
Book LXXI.
If another person should construct
the new work without my permission, I will only be liable to the extent
of allowing it to be demolished.
(1) Neratius also says that
where the slave of any person constructs a new work, by the employment
of violence, or clandestinely, he will be required, under the interdict
to restore everything to its former condition, at his own expense,
or permit this to be done, and surrender the slave by way of reparation. He asserts that
it is evident that if the interdict is employed after the slave has
died, or been alienated, his master will only be compelled to permit
the work to be demolished, so that the purchaser can be sued under
the interdict for payment of the expenses, or the surrender of the
slave by way of reparation; but he will be released from liability,
if the owner of the new work restores everything at his own expense,
or has judgment rendered against him because he did not do so.
If, on the other hand, the master of
the slave either restores everything to its former condition, or has
judgment rendered against him for the amount of damage sustained,
the same rule will apply. But if he has only abandoned the slave by
way of reparation, the interdict can be properly employed against
the owner of the new work.
(2) Julianus says that anyone
who constructs a new work before the withdrawal of the notice, and
in violation of what he was forbidden to do, will be liable under
two interdicts, one of them being based upon the notice which has
been served with reference to a new work, and the other upon the employment
of violence, or clandestine action. Where the withdrawal of the notice
has been made, the defendant is not considered to have acted with
violence or clandestinely, even though the prohibition remains; for
a person who has given security ought to be permitted to build, because,
by doing so, he becomes the possessor, and he should not be held to
have acted clandestinely either before or after the withdrawal of
the notice, since he who serves notice of a new work cannot be considered
to have concealed himself, or to have been warned before he caused
any controversy.
(3) It is very properly asked
by Julianus whether this interdict may not be opposed by the exception:
"Have you not done this work by the employment of violence, or
clandestinely?" For instance, I use the interdict Quod vi
aut clam against you; can you oppose me with the exception, "Have
you not done the work by violence, or clandestinely?"
Julianus says that it is perfectly just
for this exception to be granted; for he states that if you build
anything by violence or clandestinely, and I demolish it by violence,
or clandestinely, and you employ this interdict against me, I will
be entitled to the benefit of this exception. This procedure, however,
should not be resorted to unless good and sufficient cause exists;
otherwise, everything ought to be referred to the wisdom of the judge.
(4) Gallus doubts whether still
another exception may not be interposed; for example, where for the
purpose of preventing a fire from spreading I demolish the house of
my neighbor, and proceedings are instituted against me either under
the interdict Quod vi aut clam, or for the reparation of wrongful
damage. Gallus is uncertain whether the exception, "if you have
not done this to prevent the spread of the fire," ought to be
employed. Servius says that if
a magistrate directed this to be done, the exception ought to be granted,
but a private individual should not be permitted to demolish the house.
If, however, any act was committed by violence, or clandestinely, and the fire did not extend
to that point, the amount of simple damages should be estimated, but
if it did reach that point, the party in question should be released
from liability. He states that
the conclusion would be the same if the act had been committed for
the prevention of future injury, as, both houses having been destroyed,
it would appear that no injury or damage had been caused. But if you
should do this when there was no fire, and fire should afterwards
break out, the same rule will not apply; because, as Labeo says, the
appraisement of damages should be made, not with reference to the
former event, but according to the present condition of the property.
(5) We have noted above that,
although the terms of the interdict have a broad application, still,
the proceeding is held to apply only to work which is performed upon
land. Hence, he who takes the crops is not liable under the interdict
Quod vi aut clam, for he does not perform any new work upon
the land. He, however, who fells trees, or cuts reeds or willows,
will be liable; for, to a certain extent, he lays hands upon the earth,
and injures the soil. The same rule applies to the cutting of vines.
He, however, who removes the crops, should be sued by an action on
theft. Therefore, where anyone constructs a new work upon the soil,
there will be ground for the interdict. Anything which is done to
trees we understand to apply to the soil, but not anything which is
done with reference to the fruits of trees.
(6) If anyone spreads a heap
of manure over a field whose soil is already rich, proceedings can
be instituted against him under the interdict Quod vi aut clam.
This is proper, because the soil is deteriorated.
(7) It is clear that if anything
new is built for the purpose of cultivating land, the interdict Quod
vi aut clam will not apply, if the condition of the land is improved,
even though it may have been constructed by violence or clandestinely,
after notice has been served prohibiting it.
(8) Again, if you dig a ditch
in a public wood, and my ox falls into it, I can proceed against you
under this interdict, because this has been done in a public place.
(9) If anyone should demolish
a house, there is no doubt that he will be liable under the interdict,
even though he did not level it with the ground.
(10) Hence, if he removes the
tiles from a building, the better opinion is that he will be liable
to the interdict.
8. Venuleius, Interdicts,
Book II.
For the origin of things of
this kind is derived from the soil. Moreover, tiles are not of themselves
possessed, but only with the entire edifice, nor does it make any
difference whether they are attached to it, or only placed upon it.
9. Ulpianus, On the Edict,
Book LXXI.
If anyone removes branches from
trees, we still allow this interdict to be employed. With reference
to what we have stated as to the removal of tiles from a building,
if they are not placed upon the building, but are separate from it,
this interdict will not apply.
(1) If, however, a lock, a key,
a bench, or a wardrobe is carried away, proceedings cannot be instituted
under the interdict Quod vi aut clam.
(2) But if anyone tears away
something which is attached to a house, for instance, a statue, or
anything else, he will be liable under the interdict Quod vi aut
clam.
(3) If anyone cultivates land
with violence, or clandestinely, or excavates a ditch therein, he
will be liable under this interdict. If he burns a heap of straw,
or scatters it in such a way that it cannot be used for the benefit
of the land, there will not be ground for the interdict.
10. Venuleius, Interdicts,
Book II.
This is because the pile of
straw is not attached to the soil, but is supported by it, but buildings
are attached to the soil.
11. Ulpianus, On the Edict,
Book LXXI.
Labeo says that anyone who pours
something into the well of his neighbor, in order to spoil the water
by doing so, will be liable under the interdict Quod vi aut clam,
because living water is considered to constitute part of the land,
and this is just as if he had constructed a new work in the water.
(1) If anyone should remove,
either by violence or clandestinely, a statue erected in a city in
a public place, the question arose whether he would be liable under
this interdict. An opinion of Cassius is extant to the effect that
he whose statue has been erected in a public place in a city can avail
himself of this interdict, because it is to his interest that the
statue should not be removed. Moreover, the municipal authorities
can also bring an action of theft, on the ground that the property,
having become public, is theirs. If, however, the statue should fall,
they themselves can remove it. This opinion is correct.
(2) If anyone removes a statue
from a monument, will the person to whom the right of sepulture therein
belongs be permitted to institute proceedings under the interdict?
It is established that, in cases of this kind, there will be ground
for the interdict, and, indeed, it must be said that where anything
has been placed on a tomb for the purpose of ornamenting it, it is
considered to form part of the same. This
rule is also applicable if the party tears away or breaks down a door.
(3) If anyone should come into
my vineyard, and remove the supports of my vines, he will be liable
under this interdict.
(4) Where the Praetor says,
"what is done by violence, or clandestinely," let us see
what time should be considered, and whether the past or the present
is referred to. This point is explained by Julianus, for he says that,
in this interdict, we must understand the present time to be meant.
If, however, any damage has resulted, and the master, or he whose
land was injured, removes the cause of the damage at
his own expense, it is better to adopt the opinion which Julianus
holds, namely, that the damage should be repaired, and the expenses
be reimbursed.
(5) This interdict includes
everything whatsoever which has been done with violence or clandestinely.
But it sometimes happens that the same work has been partly accomplished
by violence, and partly clandestinely; as, for instance, although
I forbade you to proceed, you laid the foundation of a building, and
afterwards, we having agreed that you should not finish it, you, nevertheless,
did so, during my absence and without my knowledge; or, on the other
hand, you, having laid the foundation clandestinely, completed the
building in spite of my opposition. This
is our practice; for the interdict is sufficient when the work has
been done with violence and clandestinely.
(6) If the new work was constructed
by the order of a guardian or a curator, as it is established (and
as Cassius holds), that a ward or an insane person is not liable on
account of the fraud of his guardian or curator, the result will be
that an equitable action or an available interdict will lie against
the guardian or curator himself. It is clear, however, that the ward
and the insane person will be liable to the extent of permitting the
demolition of the work, as well as to a noxal action.
(7) Should a slave be excused
who has constructed a new work in obedience to the orders of a guardian
or a curator? For slaves are usually pardoned when they obey their
masters or those who occupy their places, in the performance of acts
which have not the atrocious character of crimes, or serious offences.
In this case this should be admitted.
(8) If the land should be sold
after a new work has been constructed with violence or clandestinely,
let us see whether the vendor can, nevertheless, avail himself of
this interdict. The opinion of certain authorities is extant to the
effect that the interdict will lie in favor of the vendor, even if
the sale has not been concluded, and nothing had been paid to the
purchaser in an action on sale for the work which was constructed
before the transaction took place; for it is sufficient if, on this
account, the vendor sold the land at a lower price. The same rule
should be adopted where he did not sell it at a lower price.
(9) It is, however, clear that
if the new work was constructed after the sale of the land, even if
the vendor himself has proceedings under the interdict instituted
against him, for the reason that delivery has not yet been made, he
will still be liable to the purchaser in an action on purchase; for
all benefits and inconveniences should be for the advantage or disadvantage
of the latter.
(10) If land has been sold under
the condition of being returned if a higher price can be obtained,
who will be entitled to the interdict? Julianus says that the interdict
Quod vi aut clam will lie in favor of the person to whose interest
it was that the work should not be constructed. For when land is sold
under this condition, all the advantage and disadvantage will be enjoyed
or endured by the purchaser; and this applies to whatever was done
before the property was transferred under the terms of the sale. Therefore,
if any new work has been constructed with violence, or clandestinely,
although the condition of the vendor may be improved, the purchaser
will be entitled to an available interdict, but he will be compelled
to assign the right of action acquired under the action of sale, as
well as any other profits which may have been obtained in the meantime.
(11) Aristo, however, says that
notice must even be served upon him who is not in possession, for
he states that if anyone should sell me a tract of land which he has
not yet delivered, and a neighbor, desiring to construct a new work,
knowing that I have bought the land, and am living upon it, should
notify me, he will hereafter be secure so far as any suspicion relating
to the clandestine construction of a new work is concerned; which
in fact is true.
(12) In case a sale is made
of land under the condition that it will be of no effect, if a better
price can be obtained within a certain time, and the land is delivered
to the purchaser under a precarious title, I think that he can make
use of the interdict Quod vi aut clam. If, however, delivery
has not yet been made, or if it has been made under a precarious title,
I do not believe there can be any doubt that the vendor will have
a right to the interdict, for it will lie in his favor even though
the property may not be at his risk. Nor
does it make much difference if it is at the risk of the purchaser,
for immediately after the sale has been contracted, the property is
at the risk of the purchaser and, nevertheless, before delivery has
been made, no one will maintain that he is entitled to the interdict.
Still, if he is in possession precariously, let us see whether he
can avail himself of the interdict, because he has the interest, no
matter by what title he holds possession. Therefore, even if he has
leased the property, there is much more reason that he should be entitled
to it; for, beyond all doubt, a tenant can institute proceedings by
means of the interdict. If the
condition of the vendor should become better before the work has been
constructed with violence, or clandestinely, Julianus entertains no
doubt that the interdict will lie in favor of the vendor, for the
disagreement between Cassius and Julianus relates to a new work which
has been begun in the meantime, and has no reference to one which
has subsequently been undertaken.
(13) If a tract of land has
been sold under the condition that if the purchaser is not pleased
with it, the sale will be void, it is more easy for us to determine
that the purchaser will be entitled to the interdict, provided he
is in possession. If the question of the annulment of the sale is
referred to a third party for arbitration, the same rule should be
adopted. This is also the case if it is sold under the condition that
if some event transpires, the land shall be considered as not sold.
The same rule must be said to apply,
if the sale was contracted with the understanding that it would be
void if the terms were not complied with within a specified time.
(14) Julianus also says that
this interdict not only lies in favor of the owner of the land, but
also in favor of those whose interest it is not to have the new work
constructed.
12. Venuleius, Interdicts,
Book II.
Although a tenant and an usufructuary
are entitled to the benefit of this interdict with reference to the
crops, still, the owner will also be entitled to it if he has any
additional interest.
13. Ulpianus, On the Edict,
Book LXXI.
Finally, if there are trees
on the land, the usufruct of which belongs to Titius, and they are
cut down by a stranger, or by the owner, Titius can institute proceedings
against both of them, under the Aquilian Law, and the interdict Quod
vi aut clam.
(1) Labeo says that if the new
work is constructed against the opposition of your son, you will be
entitled to the interdict, just as if the opposition had been made
by yourself; and your son will also be entitled to it, nevertheless.
(2) He also says that no one
is considered to have constructed a work clandestinely against a son
under paternal control, where the land forms a part of his peculium;
for if he was aware that he was under paternal control, he will
not be considered to have done the work with the intention of concealing
it from him, as he knows that he cannot bring suit against him.
(3) If one of two joint-owners
of a tract of land cuts down any trees, the other can institute proceedings
against him under this interdict, as it lies in favor of any person
having an interest in the property.
(4) It is stated still more
broadly by Servius, that if you grant me permission to cut down trees
on your land, and then someone else cuts them down with violence,
or clandestinely, I will be entitled to this interdict, because I
am the party interested. It is still more easy to admit this, if I
have purchased from you, or have obtained from you by some other contract,
permission to cut the trees.
(5) If a new work was constructed
with violence, or clandestinely, upon land which at the time did not
belong to anyone, and the ownership of it afterwards vested in some
person, the question arises whether there would be ground for the
interdict; as, for instance, where a succession was vacant, and Titius
afterwards entered upon the estate, would he be entitled to the interdict?
It was frequently stated by Vivianus that this interdict will lie
in favor of the heir, because the work had been performed before his
acceptance of the estate. Labeo
says that it makes no difference if the party in question did not
know who would be the heir, for he can readily make use of this pretext,
even after the estate has been accepted. He also says that no objection
can be raised because, at that time, there was no owner of the land,
for a burial-place has no owner, and if any new work is" constructed
upon it, I can institute proceedings by means of the interdict Quod
m aut clam. It should also
be added to what has previously been stated that inheritance takes
the place of ownership. It can very properly be held that the interdict
will lie in favor of the heir and other successors, if the work was
constructed with violence, or clandestinely, before or after they
succeeded to the estate.
(6) If my tenant constructs
a new work with my consent, or I afterwards ratify his act, it is
just the same as if my agent had constructed it. In this instance
it is established that I will be liable, whether he acted with my
consent, or whether I ratified what he had done.
(7) Julianus says that if a
tenant cuts down a tree, the ownership of which was in dispute, or
does anything else, and it was done by order of the owner, both parties
will be liable, not only for permitting the tree to be cut down, but
also for the payment of all expenses of restoring the property to
its former condition. If, however, the owner did not order the work
to be done, the tenant will be liable for permitting the tree to be
felled, and for the payment of the expenses; and the owner will be
compelled to do nothing more than to allow the removal of the tree.
14. Julianus, Digest, Book
LXVIII.
For if my slave constructs a
new work without my knowledge, and I afterwards sell or manumit him,
proceedings can only be instituted against me to compel me to allow
the work to be demolished. The plaintiff, however, can proceed against
the purchaser of the slave, and force him to surrender him by way
of reparation, or pay the expense incurred in restoring the property
to its original condition. This
action can also be brought against the slave himself, after he has
been manumitted.
15. Ulpianus, On the Edict,
Book LXXI.
This interdict can always be
employed against him who is in possession of a new work. Therefore,
if anyone has constructed a new work upon my land without my knowledge
or consent, there will be ground for the interdict.
(1) If you have leased your
land for excavation, and the lessee throws the stones which he takes
out upon the field of a neighbor, Labeo says that you will not be
liable under the interdict Quod vi aut clam, unless this was
done by your direction. I, however, think that the lessee will be
liable, but not the lessor, unless to the extent of being compelled
to permit the removal of the stones, and to assign any right of action
which he may have; otherwise, he cannot be held responsible.
(2) Labeo says that if earth
is piled up by my order upon a burial-place belonging to another,
proceedings can be instituted against me under the interdict Quod
vi aut clam; and if this was done with the common consent of several
persons, proceedings can be instituted against any one of them, or
against each one individually; for an undertaking in which several
persons are concerned renders each of them individually liable in
full. If, however, some of them
acted on their own responsibility, suit should be brought against
all, that is to say, for the entire amount. Hence, if one of them
is sued, this will not release the others, and even if a judgment
is rendered against only one, the result will be the same; while,
in the former instance, if one is sued, the others will be released.
In addition to this, the action based oh the violation of a sepulchre
can be brought.
(3) This interdict is granted
against the heir and other successors, for the amount which has come
into their hands, but it will not be after a year has elapsed.
(4) The year begins to run from
the time when the work has been completed, or labor upon it has ceased,
even though it may not be finished. Otherwise, if the year was computed
from the day when the work was begun, it would be necessary to bring
several suits against those who delayed its completion.
(5) If, however, the place in
which the work was performed was not easy of access (as, for example,
if it was done with violence, or clandestinely in a burial-place,
or in some other retired locality, or under ground, or under water,
or in a sewer), the interdict will lie with reference to the new work,
even after the lapse of a year, if proper cause be shown. For if proper
cause is shown, the exception based on the fact that a year has elapsed
cannot be pleaded, that is to say, where good and sufficient cause
for ignorance is established.
(6) If anyone who "is absent
on business for the State, when he returns, desires to make use of
the interdict Quod vi aut clam, the better opinion is that
he should not be excluded from doing so on the ground of a year having
elapsed, but that he will be entitled to a year after his return.
For if a minor under twenty-five years of age should be away on public
business, and, during his absence, attains his majority, the year
will be reckoned from the date of his return, and not from the day
when he completed his twenty-fifth year. This
was stated in a Rescript by the Divine Pius, and confirmed by all
the other Emperors who succeeded him.
(7) In the proceedings under
this interdict, the amount of the judgment is based upon the interest
of the plaintiff in not having the new work constructed. It is the
duty of the judge to decide that the property shall be restored in
such a way that the condition of the plaintiff will be the same as
it would have been if the new work, on account of which the action
was brought, had not been undertaken either by violence, or clandestinely.
(8) Therefore, sometimes the
right of ownership must be taken into consideration, as, for example,
where servitudes are lost, or usufructs extinguished because of the
new work which was undertaken, which may not only happen while it
was in progress of construction, but also at the time of its demolition,
when the condition of the servitudes, of the usufruct, or of the property
itself becomes impaired.
(9) The interest of the plaintiff,
however, must be established by his oath in court, or, if this cannot
be done, it must be determined by the judge.
(10) Where anyone has been guilty
of fraud to avoid restoring the property to its former condition,
he must be considered as having the power to do so.
(11) In this interdict, the
negligence of the defendant must also be taken into consideration,
and this must be estimated in accordance with the wisdom of the judge.
(12) For the reason that this
interdict has reference to the interest of the plaintiff in not having
a new work constructed, if he has obtained the value of his interest
by means of some other action, the result will be that he can obtain
nothing else by the employment of this interdict.
16. Paulus, On the Edict,
Book LXVII.
This interdict will lie in favor
of those who are not in possession of the property, provided they
have an interest therein.
(1) Where anyone, with violence,
or clandestinely, cuts down trees which do not bear fruit, as, for
instance, cypresses, the interdict will only lie in favor of the owner.
If, however, any pleasure is afforded by trees of this kind, it may
be said that the usufructuary also has an interest on this account,
and that he will be entitled to the interdict.
(2) In short, if anyone has
constructed a work with violence, or clandestinely, and is in possession,
he must permit the removal of what has been built, and pay the expenses
of doing so; but if he who did the work is not in possession, he must
pay the expense of removal; if he is in possession, but did not construct
the work, he must only permit it to be removed.
17. The Same, On the Edict,
Book LXIX.
The interdict Quod vi aut
clam is acquired for the owner by almost any person, and even
by a tenant.
18. Celsus, Digest, Book
XXV.
If anyone cuts down any timber
before it is mature, he will be liable under the interdict Quod
vi aut clam. In like manner, if he cuts it down after it has matured,
and the owner sustains no damage, he will not be liable for anything.
(1) It has been very properly
stated that if you should petition a magistrate to order your adversary
to appear in court, in order to prevent him from serving notice upon
you not to construct a new work, you will be held to have acted clandestinely,
if, in the meantime, you proceed with the work.
19. Ulpianus, On the Edict,
Book LVII.
Sabinus says that a son under
paternal control, who is a tenant, is entitled to the interdict Quod
vi aut clam against anyone who sets fire to trees.
20. Paulus, On Sabinus, Book
XIII.
He is considered to have acted
with violence who continues the construction of a new work after having
been forbidden to do so; for instance,
by deterring his adversary from notifying him, or by closing a door
against him.
(1) A man is also understood
to be prevented by any kind of an act whatsoever; that is to say,
by the opposition of someone speaking to him, or raising his hand
against him, or throwing a stone upon the structure with the intention
of forbidding him to proceed.
(2) Moreover, he who has been
forbidden to proceed acts with violence as long as matters remain
in the same condition; for if he afterwards makes an agreement with
his adversary, he ceases to use violence.
(3) Likewise, if the work which
has been prohibited is carried on by the heir, or by someone who purchased
the property from him, without having knowledge of the facts, Pomponius
says that it should be held that he will not be liable to the interdict.
(4) Any new work which is done
in a ship, or with reference to any other movable property, even if
it will increase its dimensions, is not included in this interdict.
(5) Whether the work is constructed
in a private or a public place, or in one which is sacred or religious,
the interdict will lie.
21. Pomponius, On Sabinus,
Book XXIX.
Where a new work is ordered
to be removed by a judge who has been applied to under this interdict,
and anyone else removes it with violence, or clandestinely, the party
against whom judgment has been rendered will, nevertheless, be ordered,
under all circumstances, to restore the property to its former condition.
(1) If I order my slave to construct
a new work, and no suspicion of clandestine action attaches to me,
but my slave thinks that my adversary will oppose him if he should
hear of it; will I be liable? I do not think that you will be, because
I, personally, should only be considered.
(2) In the construction of a
new work, the land as well as the air which may be affected must be
taken into account.
(3) If anyone, on account of
the construction of a new work, loses any right attaching to his land,
this should be remedied by the interdict.
22. Venuleius, Interdicts,
Book II.
If you have drawn over, and
planted a sprout of one of my vines on your land, and it takes root,
I will be entitled to the interdict Quod vi aut clam for the
term of a year. If, however, the year should elapse, I shall no longer
have a right of action; for even the roots which remain on my land
become yours, because they are accessory.
(1) If anyone cultivates land
with violence, or clandestinely, I think that he will be liable under
this interdict, just as if he had dug a ditch; for the application
of this interdict is not based upon the kind of work, but upon every
description of labor which is performed upon the soil.
(2) If you attach a tablet to
my door, and before serving notice upon you I remove it, and we then
institute proceedings against one another under the interdict Quod
vi aut clam, and you do not desist to enable me to be released,
you should have judgment rendered against you for not restoring the
property to its former condition, to the extent of my interest; or
I can plead an exception based upon the fact that you have acted with
violence, or clandestinely, or under a precarious title.
(3) If you throw manure upon
my premises, after I have forbidden you to do so, Trebatius says that
you will be liable under the interdict Quod vi aut clam, even
though you cause me no damage, and do not change the appearance of
my land. Labeo is of the opposite
opinion, for he holds that anyone will not be liable under this interdict
who merely makes a road through my land, or releases a bird of prey
there, or hunts upon it, without constructing any new work.
(4) If anyone extends his roof
or gutter above a tomb, even if it does not touch the monument itself,
proceedings can, nevertheless, lawfully be instituted against him
by means of the interdict Quod vi aut clam, because a sepulchre
is not only a place intended for interment, but is entitled to all
the air above it, and, on this account, the action for violation of
a tomb can be brought.
(5) If he who served notice
that he was about to undertake a new work should begin it immediately,
he will not be understood to have done so clandestinely; but he will
be considered to have acted clandestinely if he undertakes it after
the designated time has expired.
Tit. 25.
Concerning the withdrawal of opposition.
1. Ulpianus, On the Edict,
Book LXI.
The Praetor says: "The
notice will hold, if the complainant has a right to prevent the construction
of a new work against his consent; otherwise, I will grant a withdrawal
of the prohibition."
(1) Withdrawals of opposition
are discussed under this Title.
(2) The words of the Praetor
indicate that a withdrawal of this kind only should be made where
the notice does not hold, and that he intends that it only should
hold where the person serving it has a right to forbid a new work
being constructed without his consent. Moreover, whether security
is given or not, the withdrawal granted is only applicable to property
with reference to which the notice is not valid. It is clear that
if security has been furnished, and withdrawal is granted afterwards,
the withdrawal is not necessary.
(3) He only is entitled to serve
notice not to construct a new work in whom the right of ownership
or the servitude is vested.
(4) It was also held by Julianus
that the usufructuary had the right to recover the servitude; and,
according to this, he can serve notice
upon a neighbor not to construct a new work, and the withdrawal of
opposition will also be valid. If,
however, he should serve notice upon the owner of the land himself,
the withdrawal of opposition would be of no effect, nor would the
usufructuary have any right of action against the owner, since he
has one against the neighbor; as, for instance, to prevent him from
raising his house to a greater height. But if his usufruct should
be impaired by this act, he ought to bring an action to recover it.
Julianus says the same thing with reference
to others to whom servitudes are due from their neighbors.
(5) Julianus also says that
it is not inequitable to allow a person, who has received land in
pledge, the retention of a servitude imposed upon said land.
Tit. 26.
Concerning precarious tenures.
1. Ulpianus, Institutes,
Book I.
A precarious tenure is
one by which a party petitioning for it is permitted to enjoy the
use of property as long as he who grants him permission suffers him
to do so.
(1) This species of generosity
is derived from the Law of Nations.
(2) It differs from a donation,
in that he who makes a donation has no intention of receiving the
property again; but he who grants anything by a precarious tenure
does so with the expectation of resuming control of the property when
he chooses to release it from the tenure.
(3) It also resembles a loan
for use, for he who lends property in this manner does so in such
a way as not to render the article loaned the property of the person
who receives it, but he only permits him to make use of it.
2. The Same, On the Edict,
Book LXIII.
The Praetor says: "You
must return the property in question to him from whom you hold it
by a precarious tenure, or which you have ceased to possess through
some fraudulent act."
(1) This interdict is restitutory.
It is based upon natural equity, and lies in favor of anyone who desires
to revoke the precarious tenure.
(2) For it is naturally just
that you should only enjoy my liberality as long as I desire you to
do so, and that I can revoke it whenever I change my mind. Therefore,
where anything is granted under a precarious tenure, we can not only
make use of the interdict, but also of the Actio praescriptis verbis,
which is based upon good faith.
(3) He is considered to hold
property by a precarious title who has possession of the same either
in fact or in law, for the sole reason that he has asked for, and
obtained the right to possess, or to use it.
3. Gaius, On the Provincial
Edict, Book XXV.
For example, where you have
requested me to give you a right of way over your land, or to permit
you to allow your gutter to project over my roof, or your beams to
rest upon my wall.
4. Ulpianus, On the Edict,
Book XVII.
A precarious title also exists
with reference to movable property.
(1) Moreover, we must also remember
that he who holds property by a precarious tenure is also in possession
of the same.
(2) It is not he who has asked
for the property under a precarious tenure, but he who holds it under
such a tenure, that is liable under this interdict. For it may happen
that he who did not ask for it may, nevertheless, hold it by a precarious
tenure; as, for instance, if my servant should apply for it, or anyone
else who is under my control should do so, he will acquire it for
me under this tenure.
(3) Likewise, if I should ask
for property under a precarious tenure, which already belongs to me,
although I have made this request, I will not hold the property under
this tenure, for the reason that it is established that no one can
hold his own property by a precarious title.
(4) Likewise, he who requests
property to be given him under a precarious tenure, for a certain
period of time, will still be considered to possess it under this
tenure after the time has elapsed, even though he may not have asked
to hold it longer; as the owner of property is understood to renew
the precarious tenure when he permits the person who asked for it
under such a title to continue to hold possession of the same.
5. Pomponius, On Sabinus,
Book XXIX.
If while the precarious tenure
is still existing, you request that it be continued for a long time,
it will be extended; for the title to possession is not changed and
a precarious title is not created in this way, but is merely prolonged.
If, however, you request it after the time has elapsed, the better
opinion is that a precarious title having once been extinguished is
not renewed, but a new one is established.
6. Ulpianus, On the Edict,
Book LXXI.
If, in the meantime, the owner
of the property should become insane, or die, Marcellus says that
it is not possible for the precarious tenure to be renewed. This is
true.
(1) If my agent, under my direction,
asks for property under a precarious tenure, or if I ratify his act,
I will properly be said to hold it under such a tenure.
(2) He who has asked permission
to reside upon land under a precarious tenure is not in possession
of the land, but its possession remains with the person who granted
him permission. For jurists hold that an usufructuary, a tenant, and
a lessee, all live on the land, and still they are not in possession
of it.
(3) Julianus says that where
anyone who has forcibly ejected another afterwards obtains from him
the same land by a precarious tenure, he ceases to possess it by force,
and begins to hold it by a precarious title; and he does not think
that he has changed his title to the property, as he commences to
possess it under a precarious tenure with the consent of him who ejected
him. For if he had bought the same property for him, he would begin
to acquire the ownership of the same as the purchaser.
(4) The question arose, if anyone
should give his property to me in pledge, and then ask to hold it
by a precarious tenure, whether there would be ground for this interdict.
The point in this case is whether a precarious title to one's own
property can exist. The better opinion seems to me to be that the
precarious tenure relates to the pledge, as it is the possession,
and not the ownership, which is granted. This opinion is extremely
useful, for, every day, creditors are requested by those who have
given their property in pledge, to permit them to hold it by a precarious
tenure. A precarious tenure of this kind should be valid.
7. Venuleius, Interdicts,
Book III.
But if I am entitled to retain
possession of property by means of the interdict Uti possidetis,
although the question relating to the ownership of the same may
not have been decided, and I grant you possession of it under a precarious
tenure, you will be liable under this interdict.
8. Ulpianus, On the Edict,
Book LXXI.
The question arose, if Titius
should request me to allow him to use something belonging to Sempronius,
and I afterwards ask Sempronius to grant permission for this to be
done and he, desiring to favor me, gives permission, Titius will hold
the property from me by a precarious title, and I can sue him under
the interdict. Sempronius, however, cannot proceed against him, because
the following words, "which.you hold of him by a precarious title,"
show that the interdict can be employed by the person who asked for
the precarious tenure, and not by him to whom the property belongs.
But will Sempronius be entitled to sue
me under the interdict, on account of my having requested him to permit
the property to be held under a precarious tenure? The better opinion
is, that he will not be entitled to the interdict, because I do not
hold the property by a precarious title, as I did not obtain it for
myself, but for another. He will, nevertheless, be entitled to an
action on mandate against me, because he granted it to you under my
direction. Or, if anyone should say that this was done, not by my
direction, but rather in order to render me his debtor, it must be
held that an action in factum should also be granted against
me.
(1) When anyone has obtained
property from Titius under a precarious tenure, it is also considered
to be held from his heir in the same manner, as is stated by Sabinus
and Celsus; and this is our practice. Therefore, a man is considered
to hold property under this tenure from all other successors; which
opinion is approved by Labeo. He adds that, even if he did not know
that there was an heir, fie would still hold the property from him
under a precarious tenure.
(2) Let us see what the rule
will be, if you request me to grant you property under a precarious
tenure, and I alienate it; will the tenure continue to exist, after
the transfer of the property to another? The better opinion is that
he can make use of the interdict, if he has not revoked the precarious
tenure; just as if you held the property in this way from him, and
not from me, and if you permit him to hold it by this tenure for some
time, he can properly employ the interdict just as if you held it
from him.
(3) The Praetor wished that
he also should be liable under this proceeding, who committed a fraudulent
act in order to avoid retaining possession. It must be noted that
anyone who retains possession by a precarious tenure is not liable
for negligence, but only for fraud; although he who has borrowed an
article is responsible for negligence, as well as for fraud. And it
is not without reason that he who obtains property by a precarious
title is only liable for fraud, for all this only arises from the
generosity of him who granted the property under such a tenure; and
it is sufficient if he is only liable for fraud. It may, however,
be said that he will also be liable for gross negligence which resembles
fraud.
(4) Under this interdict the
property should be restored to its original condition, and if this
is not done, judgment must be rendered for the amount of the interest
of the plaintiff in having the property restored to its former condition,
from the time when the interdict was issued. Therefore, an estimate
of the crops should also be made, and paid for from the same date.
(5) If he who obtained the property
under a precarious tenure does not make use of a servitude, and, on
this account, it is extinguished, let us see whether he will be liable
to the interdict. I think that he will not be liable, unless he was
guilty of fraud.
(6) Generally speaking, it must
be held that in making restitution, both fraud and gross negligence
should be taken into account, but nothing else. It is evident that
after the issue of the interdict, fraud, and both gross and ordinary negligence should be
considered, for where anyone who holds property under a precarious
tenure is in default, he should be responsible for everything.
(7) Labeo says that this interdict
can be employed after the lapse of a year, and this is our practice;
for, as property is sometimes granted under a precarious tenure for
a considerable time, it would be absurd to hold that there will be
no ground for the interdict after a year.
(8) The heir of him who asks
that he be granted the property under a precarious tenure will be
liable under this interdict, just as he himself would be, if he had
possession of the property, or was guilty of fraud to avoid having
it, or to prevent it from coming into his hands; but he will only
be liable for the amount of the profit which he obtained, where any
fraud was committed by the deceased.
9. Gaius, On the Provincial
Edict, Book XXVI.
Precarious possession can be
established between parties who are either present, or absent; for
instance, by means of a letter, or a messenger.
10. Pomponius, On Plautius,
Book V.
Although anyone may have only
asked for a female slave under a precarious tenure, it is held that
it was intended that he should be entitled to any offspring of the
said female slave.
11. Celsus, Digest, Book
VII.
If a debtor who has asked that
property pledged be given him under a precarious tenure should discharge
the debt, the said tenure comes to an end; as it was the intention
of the parties that it should only continue to exist until the time
when the debt was paid.
12. The Same, Digest, Book
XXV.
When anything is granted under
a precarious tenure, and it is agreed that the grantee shall hold
possession under it until the Kalends of July, will he who
received it be entitled to an exception to prevent him from being
deprived of possession of the property before that time? An agreement
of this kind is of no force or effect, for it is not lawful for property
belonging to another to be held in possession against the consent
of the owner.
(1) Property held by a precarious
tenure passes to the heir of him who granted it, but it does not pass
to the heir of him who received it, because possession was given only
to himself, and not to his heir.
13. Paulus, On Quintus Mucius,
Book XXXIII.
If your slave should request
that property be granted him under a precarious tenure, and this is
done by your order, or you ratify his request in your own name, you
will be liable as holding the property in this manner. If, however,
your slave or your son should make a request in his own responsibility, without your knowledge,
you will not be considered to hold the property under a precarious
tenure, but the person who granted it will be entitled to proceed
against you by the action De peculia, or by that for property
employed for the benefit of another.
14. Paulus, On Sabinus, Book
XIII.
The interdict having reference
to property held by a precarious tenure was introduced with good reason,
because there was no action available for this purpose under the Civil
Law. For occupancy by a precarious tenure relates to donations and
benefactions, rather than to contracts made in the ordinary course
of business.
15. Pomponius, On Sabinus,
Book XX.
It is based upon absolute justice,
as it prescribes that a person shall only make use of our property
to the extent that we are willing to grant him permission to do so.
(1) Guests, and others who are
entitled to free lodgings, are not understood to hold under a precarious
tenure.
(2) We can hold under a precarious
tenure property which consists of a right, as thai which permits the
insertion of beams into a building, or allows structures to project
over land.
(3) Anyone who has obtained
security for the restitution of his property is not entitled to the
benefit of the interdict relating to a precarious tenure.
(4) There is no question that
anyone who has obtained possession under a precarious tenure does
not actually acquire it. But is there any doubt that he who has requested
to grant it, will continue to retain possession? Where possession
under a precarious tenure has been granted to a slave, it is established
that it is held by both parties; by him who made the request, because
he holds possession in fact, arid by the owner of the property, because
he did not have the intention of relinquishing it.
(5) It makes no difference,
so far as this interdict is concerned, in what place anyone holds
possession, or began to hold it under a precarious tenure.
16. The Same, On Sabinus,
Book XXII.
If I adopt a person to whom
property has been granted under a precarious tenure, I will also hold
possession of it under the same tenure.
17. The Same, On Sabinus,
Book XXIII.
When anyone possesses land under
a precarious tenure, he can make use of the interdict Uti possidetis
against all other persons, except him from whom he obtained the
land.
18. Julianus, Digest, Book
XIII.
Anyone can give his own property
under a precarious tenure to the. party in possession, even though
he himself does not possess it.
19. The Same, Digest, Book
XLIX.
Two persons cannot hold the
same property by a precarious title, any more than two can hold possession
of the same thing through violence, or clandestinely; for two just
or unjust possessions of it cannot exist at one and the same time.
(1) Anyone who requests that
my slave be transferred to him under a precarious title is considered
to hold him from me under such a title, if I grant his request; and
hence he will be liable to me under the interdict in question.
(2) Where anything is requested
to be granted under a precarious tenure, we cannot only make use of
this interdict, but also of the proceeding for the recovery of property
whose amount is undetermined; that is to say, the Actio Praescriptis
Verbis.
20. Ulpianus, Opinions, Book
II.
The vendor can follow up any
property which has been sold, and which is to remain in the hands
of the purchaser under a precarious title, until the entire price
has been paid, if it was the purchaser's fault that payment has not
been made.
21. Venuleius, Actions, Book
IV.
When anyone obtains permission
to reside upon land under a precarious tenure, it is superfluous for
the words, "For him and his household" to be added; for
it is understood that permission is granted through him for his family
to make use of the property.
22. The Same, Interdicts,
Book III.
If anyone who is in possession
merely as possessor should request the owner of the property to grant
him permission to retain it under a precarious tenure, or if he who
purchased property belonging to another should make this request to
the owner of the same, it is evident that they will hold possession
under a precarious tenure; and they should not be considered to have
themselves changed their title to possession, as possession under
a precarious tenure has been granted them by the owner of the land.
For if you should ask another for property in your possession to be
granted you under a precarious tenure, you will be considered to have
ceased to possess it under the first title, and to begin to hold it
under a precarious one. On the
other hand, if a person who has the right to take the property away
from the possessor should ask him to grant it to him by a precarious
tenure, he will be liable under the interdict in.question; as an advantage
has been obtained by this request, that is to say, the possession
which belongs to another.
(1) If a ward, without the authority
of his guardian, should ask that property be granted him under a precarious
tenure, Labeo says that he will hold precarious possession of it,
and will be liable under this interdict; for where anyone has possession
naturally, there is no ground for the exertion of the authority of
a guardian. The words, "which
you hold under a precarious tenure," are perfectly applicable,
because what he possesses he holds by the title under which he asked
for the grant of the property. There is nothing new to be determined
by the Praetor in this case; for if the ward holds the property, he
will be required by the judge to surrender it, and if he does not
hold it, he will not be liable.
Tit. 27.
Concerning the interdict which has reference to the cutting of trees.
1. Ulpianus, On the Edict,
Book LXXI.
The Praetor says: "If a
tree projects from your premises over those of your neighbor, and
you are to blame for not removing it, I forbid force to be employed
to prevent him from doing so and keeping it as his own."
(1) This interdict is prohibitory.
(2) Where a tree projects over
the house of a neighbor, the question arises whether the Praetor can
order the entire tree to be removed, or only that portion of it which
projects above the building? Rutilius says that it should be taken
out by the roots, and this is held to be correct by many authorities.
Labeo asserts that if the owner does not remove the tree, he who is
injured by it can, if he wishes to do so, cut it down and carry away
the wood.
(3) Vines are also included
under the term trees.
(4) This interdict lies not
only in favor of the owner of the house, but also in favor of the
usufructuary of the same, for the reason that it is to his interest,
also, that the tree should not project above the building.
(5) Moreover, the opinion should
be adopted, that if a tree projects over a house owned in common by
several persons, each of the joint-owners will be entitled to the
benefit of the interdict, and indeed, for the entire amount, because
each one of them has a right to bring an action to recover servitudes.
(6) The Praetor says: "If
you are to blame for not removing it, I forbid force to be employed
to prevent him from doing so." Therefore, authority to remove
the tree is first granted to you, and if you fail to do so, then the
Praetor forbids you to employ violence in order to prevent your neighbor
from removing it.
(7) The Praetor also says: "Where
a tree on your premises projects over those of your neighbor, and
you are to blame for not trimming it up to a height of fifteen feet
from the ground, I forbid force to be employed to prevent your neighbor
from trimming it up to the height aforesaid, and removing the wood
for his own use."
(8) What the Praetor says, the
Law of the Twelve Tables intended to establish; namely, that the branches
of trees should be cut off within fifteen feet of the ground, in order
that the shade of the tree may not injure the land of a neighbor.
(9) There is a difference between
the two Sections of the interdict, for if the tree projects over a
neighboring house, it must be entirely cut down; but if it projects
over land, it need only be trimmed to the height of fifteen feet from
the ground.
2. Pomponius, On Sabinus,
Book XXXIV.
If a tree on the premises of
a neighbor is made to project over your land by the force of the wind,
according to the Law of the Twelve Tables, you can bring an action
against your neighbor to compel him to remove it, on the ground that
he has no right to have a tree in that condition.
Tit. 28.
Concerning the interdict having reference to the gathering of fruit which has fallen from the premises of one person upon those of another.
1. Ulpianus, On the Edict,
Book LXXI.
The Praetor says: "Where
any nuts fall from the premises of your neighbor upon yours, I forbid
force to be employed to prevent him from gathering them, and carrying
them away within the space of three days."
(1) All kinds of fruits are
included under this term.
Tit. 29.
Concerning the interdict which has reference to the production of
a person who is free.
1. Ulpianus, On the Edict,
Book LXXI.
The Praetor says: "You
shall produce any person who is free, the possession of whom you fraudulently
hold."
(1) This interdict has been
framed for the purpose of maintaining freedom; that is to say, to
prevent any persons who are free from being restrained of their liberty
by anyone.
2. Venuleius, Interdicts,
Book IV.
For there is not much difference
between slaves and persons who have not the power to depart at their
pleasure.
3. Ulpianus, On the Edict,
Book LXXI.
The Lex Fabia also had
reference to this, and the interdict does not prevent recourse to
the Fabian Law, for a person can institute proceedings under the interdict,
and an accusation can still be brought under the Lex Fabia; and
vice versa, anyone who institutes proceedings under this law
can, nevertheless, avail himself of the benefit of the interdict,
especially as one party can employ the interdict, and the other make
use of the action authorized by the Fabian Law.
(1) These words, "any person
who is free," have reference to every one who is free whether
he has reached the age of puberty or not; whether the individual is
male or female; whether there is one, or there are several; and whether
the party in question is his own master, or under the control of another;
for we only consider whether he is free.
(2) He, however, who has another
under his control, will not be liable under this interdict, as he
is not considered to hold anyone fraudulently who avails himself of
a right to which he is legally entitled.
(3) If anyone restrains of his
liberty a person whom he has ransomed from the enemy, he will not
be liable under the interdict, because he does not do so fraudulently.
It is clear that if he tenders the amount of the ransom the interdict
will apply. But, if he releases him without having received the money,
it must be said that there will be ground for the interdict, if once
having given him his liberty, he afterwards desires to hold him.
(4) If anyone retains his son,
who is not under his control, he is usually considered to do so without
being guilty of fraud; for genuine affection causes his retention
to be made, without the presumption of fraud, unless the existence
of bad faith is evident. Hence, the same rule will apply if a patron
subjects to his authority his freedmen, his foster-child, or a slave
still under the age of puberty, who has been surrendered by way of
reparation for damage which he has caused. And, generally speaking,
anyone who has a good reason for retaining control of a freeman is
not considered to act in bad faith.
(5) If anyone continues to hold
a free person with his own consent, he is not considered to do so
in bad faith; but what if he holds him with his consent, but, after
having deceived, seduced, or solicited him, without having good and
sufficient reasons for doing so? He is very properly held to retain
him fraudulently.
(6) A man who does not know
that a freeman is one of his family is not guilty of bad faith; but
when he is aware of it, and still holds him, he is not free from fraud.
(7) It is clear that if he who
holds possession of the freeman is in doubt as to whether he is free
or a slave, or institutes proceedings to ascertain his condition,
this interdict must not be employed, but proceedings to establish
freedom should be instituted, for it has very properly been held that
there will only be ground for this interdict where there is no doubt
that the man is free. If, however, a question is raised as to his
condition, the right to bring another action ought not to be prejudiced.
(8) The Praetor says, "You
shall produce the person." To produce hin is to bring him to
public notice, and afford an opportunity of seeing and touching him.
The term "to produce" literally means not to keep him in
secrecy.
(9) This interdict will lie
in favor of every individual, for no one is forbidden to favor freedom.
(10) It is clear that all those
who are liable to suspicion should be excluded from the use of this
interdict, if the character of the person is
such that he is presumably acting in collusion, or for the purpose
of annoyance.
(11) If, however, a woman or
a minor desires to make use of this interdict for the benefit of a
blood-relative, a parent, or a connection, it must be said that the
interdict should be granted; for they can prosecute others in criminal
cases when they do so for injuries committed against themselves.
(12) But where there are several
persons who wish to avail themselves of this interdict, the one who
has the greatest interest in the matter, or who is best fitted for
the purpose, should be selected by the Praetor; and this choice should
depend upon the relationship, the trustworthiness, or the rank of
the individual selected.
(13) If, however, when proceedings
have been instituted under this interdict, another person desires
to proceed under it, it is evident that permission to make use of
it cannot afterwards readily be granted to another, unless something
can be proved with reference to the perfidy of the original prosecutor.
Therefore, where proper cause is shown, this interdict can be employed
more than once. For one person cannot be prosecuted more than once
in criminal cases, unless the first accuser is convicted of prevarication.
But the defendant, having been convicted, prefers to pay the damages
assessed in court rather than produce the man, it will not be unjust
to grant the same interdict against him repeatedly, or grant it to
the same party who cannot be barred by an exception, or to someone
else.
(14) Labeo says that this interdict
may be granted against a person who is absent, and if no defence is
made by him, his property can be taken in execution.
(15) This interdict is perpetual.
4. Venuleius, Interdicts,
Book IV.
If anyone restrains of his liberty
a freeman who is not aware of his own condition, he will still be
required to reproduce him, if he fraudulently retains him under his
control.
(1) Trebatius, also, says that
anyone who in good faith purchases a freeman as a slave, and retains
him under his control, is not liable.
(2) A man who is free should,
at no time, be fraudulently restrained of his liberty, and this is
so far true that some authorities hold that not even the least delay
should be allowed the person required to produce him, as he is liable
to the penalty for an act which has been committed.
(3) This interdict
does not lie in favor of a creditor, for the purpose of producing
his debtor in court; for no one is obliged to produce a debtor who
conceals himself, but under the Edict of the Praetor his property
may be taken in execution.
Tit. 30.
Concerning the interdict which has reference to the production of
children and their recovery.
1. Ulpianus, On the Edict,
Book LXXI.
The Praetor says: "You
shall produce any male or female child who is subject to the authority
of Lucius Titius, and who is in your hands, or whose possession you
have fraudulently relinquished."
(1) This interdict is intended
to be employed against one whom a parent desires shall produce a child
that he alleges is subject to his authority. It is evident from the
words of the Edict that it will lie in favor of the person entitled
to the control of the child.
(2) In this interdict, the Praetor
does not consider the reason why the child is in the possession of
him who is required to produce it, as is the case in a former interdict;
but holds that it should by all means be restored, if it is subject
to the authority of the plaintiff.
(3) If, however, it is the mother
of the child who retains it in her possession, and it appears to be
better that it should remain under her care than to be placed under
that of its father, that is to say, if the reason is perfectly just,
the Divine Pius decided, and it was stated in a Rescript by Marcus
Severus, that relief should be granted to the mother by means of an
exception.
(4) In like manner, if it should
be ascertained that the child was under no one's control, although
this decision may be unjust, if anyone should attempt to proceed under
this interdict, he can be barred by the exception of res judicata;
so that the question is no longer whether the child is under the
control of the plaintiff, but whether there has been a decision on
this point.
(5) If a father wishes to take
his daughter away, or to have her produced after she is married to
me, cannot an exception be granted me against the interdict, if he,
having, in the first place, agreed to the marriage, should afterwards
desire to dissolve it, even if children have been born? Where a marriage
has been properly solemnized, it certainly ought not, under our practice,
to be interfered with on account of paternal control. Still, an attempt
should be made to persuade the father not to exert his right of paternal
authority with too much severity.
2. Hermogenianus, Epitomes
of Law, Book VI.
On the other hand, the father
can, with much more propriety, be compelled by the husband of his
daughter to produce her, and permit him to recover her, even if she
is under paternal control.
3. Ulpianus, On the Edict,
Book LXXI.
The Praetor next says: "If
Lucius Titius is under the control of Lucius Titius, I forbid force
to be employed to prevent the latter from taking Lucius Titius with
him."
(1) The interdicts previously
mentioned are exhibitory, that is. to say, they have reference to
the production of children and others of whom
we have spoken. This interdict also relates to the removal of such
persons, and anyone who has the right to do so can take them away
from him. Therefore, the first interdict, which relates to the production
of children, is preparatory to this one, by which the plaintiff can
remove the person who was produced.
(2) This interdict should be
granted for the same reason for which we have stated children should
be produced in court. Hence, whatever we have previously stated should
also be understood to be applicable here.
(3) Moreover, this interdict
is not granted against the child itself whom the plaintiff desires
to take away, but someone must appear to defend it against the interdict.
The interdict, however, will not lie, and the Praetor himself can
at once proceed, and render a decision, if any controversy arises
before him as to whether the child is, or is not, under paternal control.
(4) Julianus says that whenever
an interdict is employed, or an investigation is instituted with reference
to the removal of a child, and the latter is under the age of puberty,
in some instances the inquiry should be deferred until the child reaches
that age, and in others, it ought to be decided without delay. This
is a matter which must be determined in accordance with the rank of
the persons between whom the controversy has arisen, and the nature
of the case. If the party who alleges that he is the father is one
whose social position, wisdom, and integrity are established, he will
be entitled to keep the minor in his care until the case has been
disposed of; but if he who instituted proceedings is of inferior rank,
a malicious person, or one of bad reputation, the investigation should
take place at once. Likewise,
if he who denies that the minor is under the control of another is
honorable in every respect, and is either a testamentary guardian,
or one appointed by the Praetor, and has care of the ward, and charge
of him during the trial of the case; and on the other hand, he who
alleges that he is his father is a malicious person, the investigation
should not be postponed. Where,
however, both parties are liable to suspicion, either on account of
inferior rank, or bad character, Julianus says it will not be improper
to appoint someone else by whom the child can be brought up in the
meantime, and postpone the determination of the case until it reaches
the age of puberty; in order that, through the collusion or ignorance
of one or the other of the contending parties, a child who is independent
may not be decided to be under the control of another, or one who
is subject to the authority of another may be held to occupy the place
of the head of a household.
(5) Even if it should be conclusively
proved by the father that the child is under his control, still, if
after investigation it is ascertained that the mother should have
the preference, and retain possession of the child, she can do so;
for it was established by several decrees of the Divine Pius that
the mother can obtain permission for the child to remain with her
on account of the bad character of the father, without any diminution
of paternal authority.
(6) In this interdict, the Praetor
orders that a girl or a boy seventeen years of age, or one who is
near that age, shall, pending the hearing of the case, be left in
the care of the mother of the family. We say that a child is near
the age of seventeen, immediately after he has reached that of puberty.
The mother of a family is understood to be a woman of acknowledged
good repute.
4. Africanus, Questions,
Book IV.
If I say that anyone who alleges
that he is the head of a household is my son, and under my control,
and that, by my order, he has entered upon an estate, I ought to assert
my claim to it, and have recourse to the interdict under which I can
take my son away with me.
5. Venuleius, Interdicts,
Book IV.
If a son is in the possession
of another with his own consent, this interdict cannot be employed,
because he is rather in his own possession than in that of him against
whom proceedings may be instituted under the interdict, as he has
free power to depart or remain; unless there is a dispute between
two persons, each of whom alleges that he is his father, and one of
whom demands that the child shall be produced by the other.
Tit. 31.
Concerning the interdict utrubi.
1. Ulpianus, On the Edict,
Book LXXII.
The Praetor says: "I forbid
force to be employed to prevent anyone from removing a slave from
the place where he is at present, if he has remained there the greater
part of the year."
(1) This interdict has reference
to the possession of movables; it, however, obtains its validity in
the same way as the interdict Uti possidetis, which only applies
to real property; so that he also will succeed under this interdict
who has obtained possession of the slave without the employment of
force, or clandestinely, or by a precarious title, if an adversary
attempts to interfere with his possession.
Tit. 32.
Concerning the interdict having reference to the removal of tenants.
1. Ulpianus, On the Edict,
Book LXXIII.
The Praetor says: "I forbid
force to be employed to prevent your tenant from leaving, and taking
with him the slave in question, if the latter does not constitute
a part of the property which, in accordance with the agreement between
yourself and the plaintiff, should be held by way of pledge to secure
the rent; whether the said property has been taken or brought inta
your house, born there, or made there; but if he forms part
of the same, I forbid you to prevent your tenant from
taking him away with him, when he departs; provided he has paid you
the rent out of said property, or has furnished you security for it,
or you are to blame for its not having been paid."
(1) This interdict was introduced
for the benefit of a lessee who wishes to depart after having paid
his rent. It does not lie in favor of a tenant on a farm.
(2) Relief can also be given
to a lessee by extraordinary proceedings, and therefore this interdict
is not frequently employed.
(3) Still, it will lie in favor
of one who has a gratuitous lodging.
(4) If the rent is not yet due,
Labeo says that this interdict cannot be employed, unless the tenant
is ready to pay it. Hence, if he has paid it for half the year, and
owes it for the other half, he cannot have recourse to the interdict
unless he pays the rent for the remaining six months. This, however,
is only the case where a special agreement was made when the house
was rented, providing that the lessee should not be permitted to leave
before the end of the year, or before a specified time has elapsed.
The same rule applies where anyone rents
a house for several years, and the term has not yet expired; for where
property is pledged for the entire amount of the rent, the result
will be that the interdict will not be available, unless the articles
pledged have been released.
(5) It must, however, be noted
that the Praetor does not require the property to belong to the lessee,
nor that it should have been expressly pledged, but that it must be
brought into the house as pledged. Hence this interdict will apply,
even if the property belongs to another, if it has been brought into
the house for the purpose of being pledged, and is such as cannot
be given in pledge. If it has not been brought in for that purpose
it cannot be retained by the lessor.
(6) This interdict is perpetual,
and is granted for and against heirs.
2. Gaius, On the Provincial
Edict, Book XXVI.
There is no doubt that this
interdict will lie in favor of a lessee, even with reference to property
which does not belong to him, but which has been lent to, hired by,
or deposited with him.
Tit. 33.
Concerning the Salvian interdict.
1. Julianus, Digest, Book
XLIX.
If a tenant on a farm brings
a female slave on the land, for the purpose of pledging her, and afterwards
sells her, an interdict should be granted in order to obtain possession
of a child born to the said female slave while she was in the hands
of the purchaser.
(1) If a tenant brings property
on a farm, which is owned by two persons, for the purpose of pledging
the same, with the understanding that it shall be jointly encumbered
to both of them, each one can properly make use of the Salvian Interdict
against a third party; but if this interdict is granted with reference to them alone,
the position of the possessor will be preferable. If,
however, it was agreed that the property should be equally encumbered
to each of the joint-owners of the land, a praetorian action should
be granted between them, and against other parties, by means of which
each of the said joint-owners can obtain possession of half
the property.
(2) It is proper that the same
rule should be observed where a tenant brings property held in common
with another upon the land, for the purpose of pledging the same,
so that pursuit of the pledge may only be made for half of the value
of the property in question.
2. Ulpianus, On the Edict,
Book LXX.
In the Salvian Interdict, if
the property to be pledged is brought upon land belonging to two joint-owners,
the party in possession will be preferred, and they must have recourse
to the Servian Action.