1Paulus, 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.

2Ulpianus, 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.

3Gaius, 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.

4Paulus, 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.

5The Same, On Sabinus, Book XV. Because the highway or the river constitutes my boundary, rather than the land of my neighbor.

6The Same, On the Edict, Book XXIII. But if a private stream intervenes, an action for the establishment of boundaries can be brought.

7Modestinus, 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.

8Ulpianus, 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.

9Julianus, 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.

10The 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.

11Papinianus, 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.

12Paulus, 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.

13Gaius, 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.”