Finium regundorum
(Concerning the establishment of boundaries.)
1 Paulus libro vicensimo tertio ad edictum. Finium regundorum actio in personam est, licet pro vindicatione rei est.
1 Paulus, On the Edict, Book XXIII. The action for the establishment of boundaries is a personal one; although it is a proceeding for the recovery of property.
2 Ulpianus libro nono decimo ad edictum. Haec actio pertinet ad praedia rustica, quamvis aedificia interveniant: neque enim multum interest, arbores quis in confinio an aedificium ponat. 1Iudici finium regundorum permittitur, ut, ubi non possit dirimere fines, adiudicatione controversiam dirimat: et si forte amovendae veteris obscuritatis gratia per aliam regionem fines dirigere iudex velit, potest hoc facere per adiudicationem et condemnationem.
2 Ulpianus, On the Edict, Book XIX. This action has reference to rustic estates, even though buildings are situated between them; for it does not make much difference whether a party plants trees, or erects a building on the boundary line. 1A judge is permitted in the case of establishment of boundaries to decide the controversy as seems to him best where he cannot fix the boundaries; and if the judge, for the purpose of removing a doubt of ancient origin chooses to direct the boundaries to be established in a new direction, he can do so in this way, and order a sum of money to be paid by way of compensation.
3 Gaius libro septimo ad edictum provinciale. Quo casu opus est, ut ex alterutrius praedio alii adiudicandum sit, quo nomine is cui adiudicatur in vicem pro eo quod ei adiudicatur certa pecunia condemnandus est.
3 Gaius, On the Provincial Edict, Book VII. In any case in which it is necessary that a decision should be made giving the land of one of the parties to the other, the one in whose favor the decision is rendered shall be required to pay to the other a certain sum of money by way of compensation.
4 Paulus libro vicensimo tertio ad edictum. Sed et loci unius controversia in partes res scindi adiudicationibus potest, prout cuiusque dominium in eo loco iudex compererit. 1In iudicio finium regundorum etiam eius ratio fit quod interest. quid enim si quis aliquam utilitatem ex eo loco percepit, quem vicini esse appareat? non inique damnatio eo nomine fiet. sed et si mensor ab altero solo conductus sit, condemnatio erit facienda eius, qui non conduxit, in partem mercedis. 2Post litem autem contestatam etiam fructus venient in hoc iudicio: nam et culpa et dolus exinde praestantur: sed ante iudicium percepti non omnimodo hoc in iudicium venient: aut enim bona fide percepit, et lucrari eum oportet, si eos consumpsit, aut mala fide, et condici oportet. 3Sed et si quis iudici non pareat in succidenda arbore vel aedificio in fine posito deponendo parteve eius, condemnabitur. 4Si dicantur termini deiecti vel exarati, iudex, qui de crimine cognoscit, etiam de finibus cognoscere potest. 5Si alter fundus duorum, alter trium sit, potest iudex uni parti adiudicare locum de quo quaeritur, licet plures dominos habeat, quoniam magis fundo quam personis adiudicari fines intelleguntur: hic autem cum fit adiudicatio pluribus, unusquisque portionem habebit, 6quam in fundo habet, et pro indiviso qui communem fundum habent, inter se non condemnantur: neque enim inter ipsos accipi videtur iudicium. 7Si communem fundum ego et tu habemus et vicinum fundum ego solus, an finium regundorum iudicium accipere possumus? et scribit Pomponius non posse nos accipere, quia ego et socius meus in hac actione adversarii esse non possumus, sed unius loco habemur. idem Pomponius ne utile quidem iudicium dandum dicit, cum possit, qui proprium habeat, vel communem vel proprium fundum alienare et sic experiri. 8Non solum autem inter duos fundos, verum etiam inter tres pluresve fundos accipi iudicium finium regundorum potest: ut puta singuli plurium fundorum confines sunt, trium forte vel quattuor. 9Finium regundorum actio et in agris vectigalibus et inter eos qui usum fructum habent vel fructuarium et dominum proprietatis vicini fundi et inter eos qui iure pignoris possident competere potest. 10Hoc iudicium locum habet in confinio praediorum rusticorum: nam in confinio praediorum urbanorum displicuit, neque enim confines hi, sed magis vicini dicuntur et ea communibus parietibus plerumque disterminantur. et ideo et si in agris aedificia iuncta sint, locus huic actioni non erit: et in urbe hortorum latitudo contingere potest, ut etiam finium regundorum agi possit. 11Sive flumen sive via publica intervenit, confinium non intellegitur, et ideo finium regundorum agi non potest,
4 Paulus, On the Edict, Book XXIII. Where a controversy exists with reference to a certain piece of real-estate the land can be divided into shares by means of a decree, in accordance with what the judge finds to be the interest of the parties in said land. 1In a suit for the establishment of boundaries an account must be taken of the interest of the parties; for example, where anyone obtains some benefit from a tract of land which is ascertained to belong to a neighbor, would it be unjust that payment should be required on that account? Moreover, if a surveyor had been employed by one of the parties, the other who did not employ him would be obliged to pay his share of the compensation. 2After issue has been joined in a case, account is taken of the profits, for from that time negligence and malice must be made the subject of investigation, but whatever is collected before issue is joined will not, under any circumstances, be considered, for either the party collected it in good faith, and he should be allowed the benefit of it if he has consumed it; or, if he collected it in bad faith, an action must be brought against him for its recovery. 3Where, however, anyone refuses to obey the judge by cutting down a tree, or removing a building erected on the boundary, or on some portion of it, he will be required to make payment. 4Where landmarks are alleged to have been thrown down or dug up; the judge who has jurisdiction can hear an application to establish the boundaries also. 5Where one tract of land belongs to two persons and another to three; the court can adjudge the tract which is in dispute to one side, even though it includes several owners, since where the boundaries of land are established, this is understood to be done rather for the benefit of an estate than for that of a person; in this instance, however, since the decision was for the benefit of several parties, each one will be entitled to the same share which he has in the estate, and which will be held in common. 6Those who have shares in the common estate will not be liable to payment to one another, for no judicial controversy appears to have arisen between them. 7If you and I have an estate in common, and I alone own an adjoining tract of land, can legal proceedings be taken by us for the establishment of boundaries? Pomponius states that there cannot, because my joint-owner and myself cannot be adversaries in an. action of this kind, but we are considered to occupy the place of one person. Pomponius also says that even an equitable action cannot be granted, as the party who holds property in his own right can alienate either what he held jointly or severally, and then institute proceedings. 8An action can be brought for the establishment of boundaries not only between two estates, but even among three or more, as for instance, where one estate and several others, even as many as three or four, are contiguous. 9An action for the establishment of boundaries can be brought where lands are subject to perpetual lease; or between persons who have usufructs in the different tracts; or between an usufructuary and a mere owner of adjoining land; or between parties who have possession on account of real property given by way of pledge. 10This action is available where the boundary is between rustic estates; it does not, however, apply in the case of urban estates; for in the latter instance, the parties are not persons who have the same boundary, but they are rather said to be neighbors, and their estates are, for the most part, separated by common walls. Therefore, where buildings are adjoining, even in the country, there is no ground for this action; and, on the other hand, in a city there may be gardens which are contiguous, so that here also an action can be brought for the establishment of boundaries. 11Where a river or a highway intervenes, it is not understood to be a boundary; hence no suit can be brought for the establishment of a boundary.
5 Idem libro quinto decimo ad Sabinum. quia magis in confinio meo via publica vel flumen sit quam ager vicini.
5 The Same, On Sabinus, Book XV. Because the highway or the river constitutes my boundary, rather than the land of my neighbor.
6 Idem libro vicensimo tertio ad edictum. Sed si rivus privatus intervenit, finium regundorum agi potest.
6 The Same, On the Edict, Book XXIII. But if a private stream intervenes, an action for the establishment of boundaries can be brought.
7 Modestinus libro undecimo pandectarum. De modo agrorum arbitri dantur et is, qui maiorem locum in territorio habere dicitur, ceteris, qui minorem locum possident, integrum locum adsignare compellitur: idque ita rescriptum est.
7 Modestinus, Pandects, Book X. Arbiters are appointed to determine the dimensions of land; and he who is stated to have a larger part of the entire tract will be compelled to transfer a certain portion to the others who have smaller ones; and this is stated in a rescript.
8 Ulpianus libro sexto opinionum. Si irruptione fluminis fines agri confudit inundatio ideoque usurpandi quibusdam loca, in quibus ius non habent, occasionem praestat, praeses provinciae alieno eos abstinere et domino suum restitui terminosque per mensorem declarari iubet. 1Ad officium de finibus cognoscentis pertinet mensores mittere et per eos dirimere ipsam finium quaestionem, ut aequum est, si ita res exigit, oculisque suis subiectis locis.
8 Ulpianus, Opinions, Book VI. Where an inundation destroys the boundaries of a field by the overflow of the water, so as to afford an opportunity to any person to seize places over which they have no right; the Governor of the province must order that they shall not interfere with the property of others, and that the land of the owner shall be restored to him, and the boundaries be fixed by a surveyor. 1It is part of the duty of the magistrate in a case involving the boundaries of land to send surveyors, and by means of them dispose of the question of boundaries in accordance with justice, and by examination with his own eyes, if occasion demands It.
9 Iulianus libro octavo digestorum. Iudicium finium regundorum manet, quamvis socii communi dividundo egerint vel alienaverint fundum.
9 Julianus, Digest, Book VIII. The case for the establishment of boundaries remains for hearing, even though the common owners may have brought an action for partition, or have sold the land.
10 Idem libro quinquagensimo primo digestorum. Iudicium communi dividundo, familiae erciscundae, finium regundorum tale est, ut in eo singulae personae duplex ius habeant agentis et eius quocum agitur.
10 The Same, Digest, Book LI. An action for partition among joint-owners or heirs, or one for the establishment of boundaries is of such a nature that each individual party has the double right of both plaintiff and defendant in the action.
11 Papinianus libro secundo responsorum. In finalibus quaestionibus vetera monumenta census auctoritas ante litem inchoatam ordinati sequenda est, modo si non varietate successionum et arbitrio possessorum fines additis vel detractis agris postea permutatos probetur.
11 Papinianus, Opinions, Book II. With reference to inquiries as to boundaries, the ancient memorials, and the authority of the census which had been taken before the suit was brought, must be followed; provided it is proved that no changes have resulted through a number of successions, and by the arbitrary acts of possessors tracts of land have been either added or taken away, and the boundaries subsequently altered.
12 Paulus libro tertio responsorum. Eos terminos, quantum ad dominii quaestionem pertinet, observari oportere fundorum, quos demonstravit is, qui utriusque praedii dominus fuit, cum alterum eorum venderet: non enim termini, qui singulos fundos separabant, observari debent, sed demonstratio adfinium novos fines inter fundos constituere.
12 Paulus, Opinions, Book III. In a question relating to ownership, attention must be paid to those boundaries which a person who was the owner of both tracts designated when he sold one of them; for it is not necessary that the boundaries which formerly separated the two different tracts should be observed, but the descriptions of the adjoining owners must be used to establish the new boundaries between the said tracts of land.
13 Gaius libro quarto ad legem duodecim tabularum. Sciendum est in actione finium regundorum illud observandum esse, quod ad exemplum quodammodo eius legis scriptum est, quam Athenis Solonem dicitur tulisse: nam illic ita est: ἐάν τις αἱμασιὰν παρ’ ἀλλοτρίῳ χωρίῳ ὀρυγῇ, τὸν ὅρον μὴ παραβαίνειν· ἐὰν τειχίον, πόδα ἀπολείπειν· ἐὰν δὲ οἴκημα, δύο πόδας. ἐὰν δὲ τάφον ἢ βόθρον ὀρύττῃ, ὅσον τὸ βάθος ᾖ, τοσοῦτον ἀπολείπειν· ἐὰν δὲ φρέαρ, ὀργυιάν. ἐλαίαν δὲ καὶ συκῆν ἐννέα πόδας ἀπὸ τοῦ ἀλλοτρίου φυτεύειν, τὰ δὲ ἄλλα δένδρα πέντε πόδας.
13 Gaius, On the Law of the Twelve Tables, Book IV. It should be remembered that in the action for the establishment of boundaries the rule must be observed which, to a certain extent, coincides with the plan of the one which Solon is said to have passed at Athens, which is as follows: “Where a party builds a wall adjoining the land of another, he must not go beyond the boundary; if it is a wall built of masonry, he must leave a foot; if it is a house, two feet. If he digs a grave or a ditch, he must leave an open space equal in width to the depth of the same; if a well, the width of a pace. If he plants an olive or a fig-tree, he must place it nine feet from the adjoining land, and in the case of other trees he must leave five feet.”