De operis novi nuntiatione
(Concerning the notice of a new structure.)
1 Ulpianus libro quinquagensimo secundo ad edictum. Hoc edicto promittitur, ut, sive iure sive iniuria opus fieret, per nuntiationem inhiberetur, deinde remitteretur prohibitio hactenus, quatenus prohibendi ius is qui nuntiasset non haberet. 1Hoc autem edictum remediumque operis novi nuntiationis adversus futura opera inductum est, non adversus praeterita, hoc est adversus ea quae nondum facta sunt, ne fiant: nam si quid operis fuerit factum, quod fieri non debuit, cessat edictum de operis novi nuntiatione et erit transeundum ad interdictum ‘quod vi aut clam factum erit ut restituatur’, et ‘quod in loco sacro religiosove’ et ‘quod in flumine publico ripave publica factum erit’: nam his interdictis restituetur, si quid illicite factum est. 2Nuntiatio ex hoc edicto non habet necessariam praetoris aditionem: potest enim nuntiare quis et si eum non adierit. 3Item nuntiationem et nostro et alieno nomine facere possumus. 4Item nuntiatio omnibus diebus fieri potest. 5Et adversus absentes etiam et invitos et ignorantes operis novi nuntiatio procedit. 6In operis autem novi nuntiatione possessorem adversarium facimus. 7Sed si is, cui opus novum nuntiatum est, ante remissionem aedificaverit, deinde coeperit agere ius sibi esse ita aedificatum habere, praetor actionem ei negare debet et interdictum in eum de opere restituendo reddere. 8Potest autem quis nuntiare etiam ignorans, quid opus fieret. 9Et post operis novi nuntiationem committunt se litigatores praetoriae iurisdictioni. 10Inde quaeritur apud Celsum libro duodecimo digestorum, si post opus novum nuntiatum conveniat tibi cum adversario, ut opus faceres, an danda sit conventionis exceptio? et ait Celsus dandam, nec esse periculum, ne pactio privatorum iussui praetoris anteposita videatur: quid enim aliud agebat praetor quam hoc, ut controversias eorum dirimeret? a quibus si sponte recesserunt, debebit id ratum habere. 11Opus novum facere videtur, qui aut aedificando aut detrahendo aliquid pristinam faciem operis mutat. 12Hoc autem edictum non omnia opera complectitur, sed ea sola, quae solo coniuncta sunt, quorum aedificatio vel demolitio videtur opus novum continere. idcirco placuit, si quis messem faciat, arborem succidat, vineam putet, quamquam opus faciat, tamen ad hoc edictum non pertinere, quia ad ea opera, quae in solo fiunt, pertinet hoc edictum. 13Si quis aedificium vetus fulciat, an opus novum nuntiare ei possumus, videamus. et magis est, ne possimus: hic enim non opus novum facit, sed veteri sustinendo remedium adhibet. 14Sive autem intra oppida sive extra oppida in villis vel agris opus novum fiat, nuntiatio ex hoc edicto locum habet, sive in privato sive in publico opus fiat. 15Nunc videamus, quibus ex causis fiat nuntiatio et quae personae nuntient quibusque nuntietur et in quibus locis fiat nuntiatio et quis effectus sit nuntiationis. 16Nuntiatio fit aut iuris nostri conservandi causa aut damni depellendi aut publici iuris tuendi gratia. 17Nuntiamus autem, quia ius aliquid prohibendi habemus: vel ut damni infecti caveatur nobis ab eo, qui forte in publico vel in privato quid molitur: aut si quid contra leges edictave principum, quae ad modum aedificiorum facta sunt, fiet, vel in sacro vel in loco religioso, vel in publico ripave fluminis, quibus ex causis et interdicta proponuntur. 18Quod si quis in mare vel in litore aedificet, licet in suo non aedificet, iure tamen gentium suum facit: si quis igitur velit ibi aedificantem prohibere, nullo iure prohibet, neque opus novum nuntiare nisi ex una causa potest, si forte damni infecti velit sibi caveri. 19Iuris nostri conservandi aut damni depellendi causa opus novum nuntiare potest is ad quem res pertinet. 20Usufructuarius autem opus novum nuntiare suo nomine non potest, sed procuratorio nomine nuntiare poterit, aut vindicare usum fructum ab eo qui opus novum faciat: quae vindicatio praestabit ei, quod eius interfuit opus novum factum non esse.
1 Ulpianus, On the Edict, Book LII. It is promised by this Section of the Edict that where a work is either rightfully or wrongfully undertaken, it can be prohibited by a notice; and the prohibition can be removed where the person who forbade the continuance of the work had no right to do so. 1Moreover, this Edict, and the remedy of the notice granted on account of a new structure, applies to any that may hereafter be undertaken but does not apply to such as already have been completed; that is to say it can prevent those which have not yet been begun. For where a structure which the person had no right to erect has been finished, the Edict relating to notice to stop the same has no application, and recourse for the purpose of obtaining restitution must be had to the interdict quod vi et clam; and when anything has been built in a sacred or religious place, or in a public river, or on the bank of the same, restitution can be obtained under this Edict, if it was done contrary to law. 2Notice under this Edict does not require previous application to the Prætor, for anyone can serve such a notice without appearing before him. 3We can also serve a notice of this kind in our own name, as well as in that of another. 4Such a notice can be served on any day. 5This notice operates also against persons who are absent; against such as are unwilling to accept it; and against those who are not aware that a new work has been undertaken. 6Moreover, in the service of a notice with reference to a new work, the adversary must be in possession. 7Where he upon whom the notice of a new work has been served, began to build it before permission was obtained, and he afterwards attempts to prove that he had a right to do so, the Prætor should refuse to grant him any action, and should allow an interdict against him, to compel him to restore the property fo its former condition. 8Again, anyone can serve such a notice, even though he may be ignorant of what kind of a work is to be constructed. 9After notice to suspend operations, the parties are subject to the jurisdiction of the Prætor. 10Hence it is asked by Celsus, in the Twelfth Book of the Digest, whether an exception, based upon an agreement, should be granted, if you have made a compromise with your adversary, after notice has been served to prevent the erection of the building. And Celsus says that it should be granted, for there is no reason why any contract entered into by private individuals should take precedence of an order of the Prætor; for what else is the duty of the Prætor but to do this, and dispose of such controversies? Where the parties voluntarily settle their dispute, he should ratify their action. 11He is considered to undertake a new work, who either by building or by removing anything, changes the original form of the property. 12This Edict, however, does not refer to all kinds of building operations, but only to such as are attached to the soil and whose construction or demolition is considered to include some new work. Hence it has been held that where anyone gathers a harvest, cuts down a tree, or prunes a vineyard, although he does, work, it will not come within the terms of the Edict, because it only has reference to such labor as interferes with the soil. 13If anyone props up an old building, let us see whether we can serve notice upon him to desist. The better opinion is that he cannot do so; for he is not erecting a new structure, but is merely providing a remedy by supporting an old one. 14The notice served under this Edict applies to any new structures erected within or without the walls of towns, or in the country, whether the work is performed on private or on public lands. 15Now let us see for what reasons such a notice may be served, who can serve it, upon whom it may be served, in what places this may be done, and what is the effect of the notice. 16The notice is served either for the purpose of protecting our rights to avert threatened injury, or to maintain the public welfare. 17Moreover, we serve this notice for the reason that we have a right to prevent the work either in order to protect ourselves from impending danger through the act of someone who is about to erect a structure in a public or private place, or where something has been done contrary to the laws and the Edicts of the Emperors, promulgated with reference to the manner of constructing buildings, whether this be done in a sacred, religious, or a public place, or on the bank of a stream; and in cases of this kind interdicts are also granted. 18But if anyone constructs a building in the sea or on the shore of the same, although he does not build upon his own land, he renders it his by the Law of Nations. Therefore, if anyone desires to prohibit him from constructing it in such a place, he will have no right to do so, nor can he serve notice upon him not to erect a new structure, unless he is in a position to demand that security against threatened injury be furnished him. 19The person to whom the property belongs has the right to serve the notice to suspend any undertaking, for the purpose of preserving his rights, or to avert threatened injury. 20An usufructuary, however, cannot serve such a notice in his own name, but he can do so as the agent of the owner; or he can claim his usufruct from the person who constructs the new work, and this claim will obtain for him an amount equal to his interest in not having it constructed.
2 Iulianus libro quadragensimo nono digestorum. Si autem domino praedii nuntiaverit, inutilis erit nuntiatio: neque enim sicut adversus vicinum, ita adversus dominum agere potest ius ei non esse invito se altius aedificare: sed si hoc facto usus fructus deterior fiet, petere usum fructum debebit.
2 Julianus, Digest, Book XLIX. If, however, the usufructuary should serve the notice upon the owner of the land himself, the service will be void, for he cannot bring an action against the owner, as he can against the neighbor, alleging that he has not built his house any higher against the usufructuary’s consent. But if the usufruct become diminished in value through the construction of the new building, he can claim his usufruct.
3 Ulpianus libro quinquagensimo secundo ad edictum. In provinciali etiam praedio si quid fiat, operis novi nuntiatio locum habebit. 1Si in loco communi quid fiat, nuntiatio locum habebit adversus vicinum. plane si unus nostrum in communi loco faciat, non possum ego socius opus novum ei nuntiare, sed eum prohibebo communi dividundo iudicio vel per praetorem. 2Quod si socius meus in communi insula opus novum faciat et ego propriam habeam, cui nocetur, an opus novum nuntiare ei possim? et putat Labeo non posse nuntiare, quia possum eum alia ratione prohibere aedificare, hoc est vel per praetorem vel per arbitrum communi dividundo: quae sententia vera est. 3Si ego superficiarius sim et opus novum fiat a vicino, an possim nuntiare? movet, quod quasi inquilinus sum: sed praetor mihi utilem in rem actionem dat, et ideo et servitutium causa actio mihi dabitur et operis novi nuntiatio debet mihi concedi. 4Si in publico aliquid fiat, omnes cives opus novum nuntiare possunt:
3 Ulpianus, On the Edict, Book LII. Where anything is constructed on land in a province a notice to suspend operations can be served. 1Where anything of this kind is done on land held in common, a notice can be served against a neighbor. It is clear that if one of us erects a new structure upon ground held in common, I cannot, as a joint-owner, notify the other party not to proceed with it; but I can forbid him by an action for partition of property held in common, or I can do so by applying to the Prætor. 2If a joint-owner with myself makes an addition to a house owned by us in common, and I have an adjoining house of my own, which will be injured by his doing so, can I serve notice upon him to stop the work? Labeo thinks that I cannot do so, because I can forbid him to build by other means, that is to say by applying to the Prætor, or by bringing an action for partition of property owned in common. This opinion is correct. 3If I have only a right to the surface of the land, and a new building is erected by a neighbor, can I serve notice upon him to desist? In this case, there is a difficulty; because I am, as it were, only a tenant. The Prætor, however, will grant me an action in rem, and therefore I would also be entitled to an action on the ground of a servitude; hence the right to serve the notice to suspend operations should be given me. 4Where a new work is begun in a public place, any citizen has the right to serve notice to suspend it.
4 Paulus libro quadragensimo octavo ad edictum. nam rei publicae interest quam plurimos ad defendendam suam causam admittere.
4 Paulus, On the Edict, Book XLVIII. For it is to the interest of the State that the greatest number of persons possible should be permitted to protect its property.
5 Ulpianus libro quinquagensimo secundo ad edictum. De pupillo quaesitum est: et Iulianus libro duodecimo digestorum scripsit pupillo non esse operis novi nuntiationis executionem dandam, nisi ad ipsius privatum commodum res pertineat, veluti si luminibus eius officiatur aut prospectui obsit. non aliter autem pupilli rata habebitur nuntiatio quam intercedente tutore auctore. 1Servo autem opus novum nuntiari potest, ipse vero nuntiare non potest neque nuntiatio ullum effectum habet. 2Nuntiationem autem in re praesenti faciendam meminisse oportebit, id est eo loci, ubi opus fiat, sive quis aedificet sive inchoet aedificare. 3Nuntiari autem non utique domino oportet: sufficit enim in re praesenti nuntiari ei, qui in re praesenti fuerit, usque adeo, ut etiam fabris vel opificibus, qui eo loci operantur, opus novum nuntiari possit. et generaliter ei nuntiari opus novum potest, qui in re praesenti fuit domini operisve nomine, neque refert, quis sit iste vel cuius condicionis qui in re praesenti fuit: nam et si servo nuntietur vel mulieri vel puero vel puellae, tenet nuntiatio: sufficit enim in re praesenti operis novi nuntiationem factam sic, ut domino possit renuntiari. 4Si quis forte in foro domino opus novum nuntiat, hanc nuntiationem nullius esse momenti exploratissimum est: in re enim praesenti et paene dixerim ipso opere, hoc est in re ipsa, nuntiatio facienda est: quod idcirco receptum est, ut confestim per nuntiationem ab opere discedatur. ceterum si alibi fiat nuntiatio, illud incommodi sequitur, quod, dum venitur ad opus si quid fuerit operis per ignorantiam factum, evenit, ut contra edictum praetoris sit factum. 5Si plurium res sit, in qua opus novum fiat et uni nuntietur, recte facta nuntiatio est omnibusque dominis videtur denuntiatum: sed si unus aedificaverit post operis novi nuntiationem, alii, qui non aedificaverint, non tenebuntur: neque enim debet nocere factum alterius ei qui nihil fecit. 6Si plurium dominorum rei opus noceat, utrum sufficiet unius ex sociis nuntiatio an vero omnes nuntiare debeant? et est verius unius nuntiationem omnibus non sufficere, sed esse singulis nuntiare necesse, quia et fieri potest, ut nuntiatorum alter habeat, alter non habeat ius prohibendi. 7Si quis ipsi praetori velit opus novum nuntiare, debet, ut interim testetur non posse se nuntiare: et si nuntiavit postea, et quod retro aedificatum erit destruendum erit, quasi repetito die nuntiatione facta. 8Sed et si in aedes nostras quis immittit aut in loco nostro aedificet, aequum est nos operis novi nuntiatione ius nostrum nobis conservare. 9Et belle Sextus Pedius definiit triplicem esse causam operis novi nuntiationis, aut naturalem aut publicam aut impositiciam: naturalem, cum in nostras aedes quid immittitur aut aedificatur in nostro, publicam causam, quotiens leges aut senatus consulta constitutionesque principum per operis novi nuntiationem tuemur, impositiciam, cum quis postea, quam ius suum deminuit, alterius auxit, hoc est postea, quam servitutem aedibus suis imposuit, contra servitutem fecit. 10Meminisse autem oportebit, quotiens quis in nostro aedificare vel in nostrum inmittere vel proicere vult, melius esse eum per praetorem vel per manum, id est lapilli ictum prohibere quam operis novi nuntiatione: ceterum operis novi nuntiatione possessorem eum faciemus, cui nuntiaverimus. at si in suo quid faciat, quod nobis noceat, tunc operis novi denuntiatio erit necessaria. et si forte in nostro aliquid facere quis perseverat, aequissimum erit interdicto adversus eum quod vi aut clam aut uti possidetis uti. 11Si quis rivos vel cloacas velit reficere vel purgare, operis novi nuntiatio merito prohibetur, cum publicae salutis et securitatis intersit et cloacas et rivos purgari. 12Praeterea generaliter praetor cetera quoque opera excepit, quorum mora periculum aliquod allatura est: nam in his quoque contemnendam putavit operis novi nuntiationem. quis enim dubitat multo melius esse omitti operis novi nuntiationem, quam impediri operis necessarii urguentem extructionem? totiens autem haec pars locum habet, quotiens dilatio periculum allatura est. 13Proinde si quis, cum opus hoc mora periculum allaturum esset, nuntiaverit opus novum vel si in cloacis vel ripa reficiendis aliquid fieret, dicemus apud iudicem quaeri debere, an talia opera fuerint, ut contemni nuntiatio deberet: nam si apparuerit vel in cloaca rivove eove, cuius mora periculum allatura esset, dicendum est non esse verendum, ne haec nuntiatio noceret. 14Qui opus novum nuntiat, iurare debet non calumniae causa opus novum nuntiare. hoc iusiurandum auctore praetore defertur: idcirco non exigitur, ut iuret is ante, qui iusiurandum exigat. 15Qui nuntiat, necesse habet demonstrare, in quo loco opus novum nuntiet, scituro eo cui nuntiatum est, ubi possit aedificare, ubi interim abstinendum est. totiens autem demonstratio facienda est, quotiens in partem fit nuntiatio: ceterum si in totum opus fiat, non est necesse demonstrare, sed hoc ipsum dicere. 16Si in pluribus locis opus fiat, utrum una nuntiatio sufficiat an vero plures sint necessariae? et ait Iulianus libro quadragensimo nono digestorum, quia in re praesenti fit nuntiatio, plures nuntiationes esse necessarias et consequenter plures remissiones. 17Si is, cui nuntiatum erit, ex operis novi nuntiatione satisdederit repromisseritve aut per eum non fiet, quo minus boni viri arbitratu satisdet repromittatve, perinde est, ac si operis novi nuntiatio omissa esset. habet autem hoc remedium utilitatem: nam remittit vexationem ad praetorem veniendi et desiderandi, ut missa fieret nuntiatio. 18Qui procuratorio nomine nuntiaverit, si non satisdabit eam rem dominum ratam habiturum, nuntiatio omni modo remittitur, etiamsi verus sit procurator. 19Qui remissionem absentis nomine desiderat, sive ad privatum sive ad publicum ius ea remissio pertinet, satisdare cogitur: sustinet enim partes defensoris. sed haec satisdatio non pertinet ad ratihabitionem, sed ad operis novi nuntiationem. 20Si procurator autem opus novum mihi nuntiaverit et satis acceperit, deinde interdicto adversus eum utar, ne vim mihi faciat, quo minus aedificem, ex interdicto eum oportet iudicatum solvi satisdare, quia partes sustinet defensoris:
5 Ulpianus, On the Edict, Book LII. The question was raised with reference to a ward. Julianus, in the Twelfth Book of the Digest, says that permission to serve notice to suspend the erection of a new work should not be granted to a ward, unless it interferes with his own private convenience; as, for instance, where it shuts off his light, or obstructs his view. Moreover, a notice served by a ward will not be valid unless this is done by the authority of his guardian. 1Notice to suspend operations can also be served upon a slave, but he himself cannot serve such a notice, nor, if served by him, will it have any effect. 2Again, it must be remembered that the service of a notice of this kind must be made on the property itself; that is to say, in the very place where the work is being done, whether anyone is already building, or has made preparations to build there. 3It is not necessary that notice be served upon the owner himself, as it will be sufficient for it to be served on the premises and upon anyone who happens to be present, and this can even be done upon the workmen, or artisans who are performing the labor. And, generally speaking, notice to suspend operations can be served upon all those who are present in the name of the master, or upon the workmen themselves. Nor does it make any difference who he is, or what may be the rank of the person present at the time, for if the notice is served upon a slave, upon a woman, or a boy or a girl, it will be valid; as it is sufficient that service be made of the notice upon the premises in such a way that the owner can be informed of it. 4If anyone should serve notice upon the owner of property in a public place, it is perfectly clear that such a notice will be of no force or effect, for it must be served on the land, and I should say almost in the building itself; and this has been decided in order that by means of a notice the work may immediately be suspended. If, however, the notice is served elsewhere, the result will be that the same inconvenience would result as if any structure had been erected through ignorance during the time it took to reach the place, where this was done contrary to the Edict of the Prætor. 5Where the property on which a new building is in course of construction belongs to several persons, and notice is served upon one of them, the service is properly made, and it is held that all the owners have been notified. If, however, one of them should continue to build after notice to stop has been served, those who did not continue will not be liable, for the act of another should not prejudice anyone who did nothing. 6If the new structure should injure property belonging to several owners, will a notice served by one of the joint-owners be sufficient, or must they all serve it? The better opinion is that a notice by one of them is not sufficient for all, but each of them must serve the notice individually, because it might happen that one of them had the right to serve the notice to prohibit the construction of the work, and that the others did not have such a right. 7Where anyone desires to serve notice upon the Prætor himself with reference to the erection of a new building, he should, in the meantime, show that he cannot serve the notice upon the other party; and if he should do so afterwards, whatever has been built after he notified the Prætor must be destroyed, just as if two notices had been served at different times. 8But if anyone should insert beams into my house, or build upon my land, it is only just that I should protect my rights by a notice to stop the erection of the building. 9Sextus Pedius very properly remarks that there are three reasons which give rise to a notice to prevent the erection of a new structure, namely, a natural reason, a public reason, or a reason growing out of the imposition of a servitude. A natural reason exists where someone has inserted beams into my building, or erected a structure upon my land. A public reason exists where, by the service of notice to suspend a new work, we protect the execution of the laws, the Decrees of the Senate or the Imperial Constitutions. A reason growing out of the imposition of a servitude exists where anyone, after having diminished his own right, increases that of another; that is to say, after having imposed a servitude upon his own land, he performs some act against the right of him who was entitled to the servitude. 10Moreover, it must be remembered that when anyone wishes to erect a building upon our land, to insert beams into our houses, or to project a structure over our property, it is better that he should be prevented from doing so, either by the Prætor or by one’s own hand, that is to say, by casting a stone, than by serving notice to desist from the construction of a new work; for, by serving such a notice, we constitute the person upon whom it is served the possessor of the property. If, however, he should do something upon his own land which may injure us, then the service of a notice to suspend operations will be necessary. And if anyone should continue to build upon our premises, it will be perfectly just for us to make use of the interdict Quod vi aut clam, or Uti possidetis against him. 11Where anyone desires to repair or clean out any watercourses or sewers belonging to him, a notice to suspend operations cannot be served upon him; and this is reasonable, as it is to the interest of the public health and security, that sewers and streams should be cleaned out. 12Moreover, generally speaking, the Prætor also excepts other works, when delay in their construction is attended with danger. For, with reference to them, he thinks that a notice to suspend them should not be obeyed. For who can doubt that notice to suspend a new work should not be obeyed, rather than that the construction of some necessary building should be prevented? This Section of the Edict is applicable whenever delay is liable to cause injury. 13Hence, where anyone, in a case where danger may be caused by delay, serves notice to stop some new work, for instance, where repairs are being made to the channel of a sewer, or to the walls of the same; we hold that an inquiry should be made in court whether the work is of such a character that a notice to suspend operations should be disregarded. For if it should be apparent that any danger will result from delay in repairing a sewer, or a water-course, or anything of this kind, it must be said that it should not be apprehended that the notice will cause any injury. 14He who serves notice to stop a new work must swear that he does not do so for the purpose of annoyance. This oath is tendered by the authority of the Prætor; hence it is not required that he who exacts the oath should first be sworn. 15The person who serves the notice must show in what place the new structure to which the notice has reference is situated; in order that he who is notified may know where he can build, and where he must refrain from building. This designation must be made as often as notice has been served with reference to a part of the edifice. If, however, the notice refers to the entire building, it is not necessary to show this, but merely to mention the fact. 16Where the work complained of is being done in several places, will one notice be sufficient, or are several required? Julianus, in the Forty-ninth Book of the Digest, says that, because the notice should be served on the land itself, several notices as well as several withdrawals are necessary. 17If he who was notified to suspend operations gives security or promises to indemnify the other party, or if it was not his fault that he did not give security, or promise indemnity, in accordance with the judgment of a good citizen; it is just the same as if the notice had not been served. This remedy is a convenient one, for it prevents the annoyance of appearing before the Prætor, and of making application to have notice issued. 18Where the service of notice is made by an agent, and he does not give security that his principal will ratify his act, the notice will be without effect, even though the agent was regularly appointed. 19Where anyone, in the name of an absent person, asks for a withdrawal, whether this has reference to a private or a public right, he will be compelled to furnish security, for he takes the part of a defendant. This security, however, does not refer to ratification by the principal, but merely to the notice to suspend the construction of the new work. 20Again, if an agent should notify me to stop a new work, and accepts security from me, and I afterwards make use of an interdict against him to prevent him from employing force against me to prevent me from building, he will be obliged to give me security to execute the judgment, because he takes the part of a defendant.
6 Iulianus libro quadragensimo primo digestorum. et ideo neque exceptiones procuratoriae opponi ei debent nec satisdare cogendus est ratam rem dominum habiturum.
6 Julianus, Digest, Book XLI. Therefore, exceptions based on agency should not be interposed against him, nor should he be compelled to furnish security that his principal will ratify his act.
7 Ulpianus libro quinquagensimo secundo ad edictum. Et si satisdationem non dabit, summovendus erit ab executione operis novi, et actiones, quas domini nomine intendit, debent ei denegari. 1Et tutor et curator opus novum recte nuntiant.
7 Ulpianus, On the Edict, Book LII. If he should not give security, he can be barred from the construction of the new work, and any actions which he may try to bring in the name of the principal must be refused him. 1A guardian and a curator can serve notice to arrest the construction of a new building.
8 Paulus libro quadragensimo octavo ad edictum. Non solum proximo vicino, sed etiam superiori opus facienti nuntiare opus novum potero: nam et servitutes quaedam intervenientibus mediis locis vel publicis vel privatis esse possunt. 1Qui opus novum nuntiat, si quid operis iam factum erit, in testationem referre debet, ut appareat, quid postea factum sit. 2Si, cum possem te iure prohibere, nuntiavero tibi opus novum, non alias aedificandi ius habebis, quam si satisdederis. 3Quod si nuntiavero tibi, ne quid contra leges in loco publico facias, promittere debebis, quoniam de eo opere alieno iure contendo, non meo, et tamquam alieni iuris petitor repromissione contentus esse debeo. 4Sciendum est facta operis novi nuntiatione cui nuntiatum est abstinere oportere, donec caveat vel donec remissio nuntiationis fiat: tunc enim, si ius aedificandi habet, recte aedificabit. 5Sed ut probari possit, quid postea aedificatum sit, modulos sumere debet is qui nuntiat, qui ut sumantur conferanturque, praetor decernere solet. 6Morte eius qui nuntiavit extinguitur nuntiatio, sicut alienatione, quia his modis finitur ius prohibendi. 7Quod si is cui opus novum nuntiatum erat decesserit vel aedes alienaverit, non extinguitur operis novi nuntiatio: idque ex eo apparet, quod in stipulatione, quae ex hac causa interponitur, etiam heredis mentio fit.
8 Paulus, On the Edict, Book XLVIII. I can not only serve notice upon my nearest neighbor to suspend operations, but also upon one immediately beyond him; for servitudes may exist between two tracts of land which are separated by other property either public or private. 1Anyone who serves notice to suspend operations where anything has already been done, must state this in his application, in order that what has been done afterwards may be apparent. 2If I cannot legally prevent you from doing something, and I should notify you to suspend operations on a new structure, you will not have the right to proceed with your building unless you give me security. 3If I should notify you to erect a building forbidden by the laws in a public place, you must bind yourself by a promise, because I contest your right to construct it not in my own name, but in that of another, and as I am maintaining the right of another, I should be content with a mere promise. 4It must be remembered that where notice to suspend a new work has been served, the person notified must desist until he furnishes security, or until a withdrawal of a notice is made; for then, if he has the right to build, he can properly continue to do so. 5In order to prove that any building was done after the notice was served, the party who served it must measure the building; and the Prætor ordinarily decrees that the measurement shall be taken and be produced. 6Notice is extinguished by the death of the person who served it, or by the alienation of the property; because in these ways the right of preventing the construction of the work is lost. 7Where the person on whom notice was served to discontinue a new work dies, or sells the house, the effect of the service of the notice will not be ended. The proof of this is apparent from the fact that mention is made therein of the heir, where a stipulation is entered into with reference to the matter.
9 Gaius ad edictum urbicum titulo de operis novi nuntiatione. Creditori, cui pignoris nomine praedium tenetur, permittendum est de iure, id est de servitute, opus novum nuntiare: nam ei vindicatio servitutis datur.
9 Gaius, On the Urban Edict, Under the Title, Concerning Notice to Suspend a New Work. A creditor, by whom a tract of land is held in pledge, can legally serve notice to discontinue a new work (that is to say where a servitude is involved), for the right to bring suit to recover the servitude is granted to him.
10 Ulpianus libro quadragensimo quinto ad Sabinum. Operis novi nuntiatio in rem fit, non in personam: et ideo furioso et infanti fieri potest nec tutoris auctoritas in ea nuntiatione exigitur.
10 Ulpianus, On Sabinus, Book XLV. Notice to discontinue a new work is a proceeding in rem and not in personam. Therefore, it can be served upon an insane person, or an infant, and the authority of his guardian is not required.
11 Paulus libro undecimo ad Sabinum. Cuilibet enim intellegenti, veluti fabro, nuntiatum infantem et furiosum tenet.
11 Paulus, On Sabinus, Book XI. Notice served upon anyone of ordinary intelligence, for instance upon a laborer, will bind an infant or an insane person.
12 Idem libro tertio decimo ad Sabinum. Ex operis novi nuntiatione si caveatur, tanti stipulatio committitur, quanti iudicatum sit.
12 The Same, On Sabinus, Book XIII. If security is furnished with reference to a notice to discontinue a new work, the stipulation becomes operative in accordance with the judgment rendered.
13 Iulianus libro quadragensimo primo digestorum. Cum procurator opus novum nuntiat et satisdat rem ratam dominum habiturum et remissio in domini personam confertur: 1si dominus opus novum nuntiaverit intra diem, quae stipulatione ex operis novi nuntiatione interposita comprehensa esset, committitur stipulatio: si praeterita ea die dominus nuntiaret, non committitur. nam et ipsi domino, cum semel nuntiaverit, non permittitur iterum nuntiare, quamdiu stipulatio ex operis novi nuntiatione teneret. 2Si in remissione a patre eius, qui opus novum nuntiaverat, procurator interveniat, id agere praetorem oportet, ne falsus procurator absenti noceat, cum sit indignum quolibet interveniente beneficium praetoris amitti.
13 Julianus, Digest, Book XLI. When an agent serves notice for a discontinuance of a new work, and gives security that his principal will ratify his act, withdrawal is also granted in the name of the owner. 1If the owner serves notice for the discontinuance of a new work within a certain time, which is included in the stipulation made with reference to the notice, the stipulation will become operative; if he should serve the notice after the time has expired it will not become operative. For, after the owner has served notice once, he is not permitted to do so a second time, as long as the stipulation entered into with reference to the notice to discontinue the new work holds. 2Where an agent appears with reference to withdrawal, on the part of him who served notice for the discontinuance of a new work, the Prætor should make an investigation to prevent a false agent from prejudicing the rights of the absent party, as it would be intolerable if the benefit granted by the Prætor should be lost by the intervention of anyone else whomsoever.
14 Idem libro quadragensimo nono digestorum. Qui viam habet, si opus novum nuntiaverit adversus eum, qui in via aedificat, nihil agit: sed servitutem vindicare non prohibetur.
14 The Same, Digest, Book XLIX. Where a person who is entitled to a right of way serves notice upon someone who has a built a house where he has the right to pass, his act will be void; but he will not be prevented from bringing an action to recover the servitude to which he is entitled.
15 Africanus libro nono quaestionum. Si prius, quam aedificatum esset, ageretur ius vicino non esse aedes altius tollere nec res ab eo defenderetur, partes iudicis non alias futuras fuisse ait, quam ut eum, cum quo ageretur, cavere iuberet non prius se aedificaturum, quam ultro egisset ius sibi esse altius tollere. idemque e contrario, si, cum quis agere vellet ius sibi esse invito adversario altius tollere, eo non defendente similiter, inquit, officio iudicis continebitur, ut cavere adversarium iuberet nec opus novum se nuntiaturum nec aedificanti vim facturum. eaque ratione hactenus is, qui rem non defenderet, punietur, ut de iure suo probare necesse haberet: id enim esse petitoris partes sustinere.
15 Africanus, Questions, Book XIX. Where suit is brought to prevent a house from being raised to a greater height by a neighbor, before any work has been performed, and the case is not defended by the said neighbor, it has been held to be the duty of the judge that nothing else shall be done before the party, against whom the action has been brought, shall be ordered to give security that he will not proceed with his building, before establishing his right to raise it higher. On the other hand, the same rule will apply when anyone brings an action, claiming that he has a right to build his house higher against his adversary’s consent, and, in like manner, no defence is made; for it is held to be the duty of the judge to order the adversary to give security that he will not notify him to discontinue the new work, nor employ violence against him to prevent him from building. In this case, also, he who does not defend the action is punished by requiring him to prove his right, for this is, in fact, to take the part of the plaintiff.
16 Ulpianus libro tertio decimo ad edictum. Si opus novum praetor iusserit nuntiari, deinde prohibuit, ex priore nuntiatione agi non potest, quasi adversus edictum eius factum sit.
16 Ulpianus, On the Edict, Book XIII. If the Prætor should order notice to be served to discontinue a new work, and then should forbid it; an action founded upon the first notice will not lie, as this would be contrary to the ruling of the Prætor.
17 Paulus libro quinquagensimo septimo ad edictum. Si procurator opus novum facientem prohibuerit, domino competit quod vi aut clam interdictum.
17 Paulus, On the Edict, Book LVII. If an agent prevents the construction of a new work, the owner will be entitled to the interdict Quod vi aut clam.
18 Papinianus libro tertio quaestionum. Aedibus communibus si ob opus novum nuntiatio uni fiat, si quidem ex voluntate omnium opus fiat, omnes nuntiatio tenebit, si vero quidam ignorent, in solidum obligabitur, qui contra edictum praetoris fecerit. 1Nec ad rem pertinet, cuius solum sit, in quo opus fiat, sed quis eius soli possessor inveniatur, modo si eius nomine opus fiat.
18 Papinianus, Questions, Book III. Where notice to discontinue the construction of a new building is served upon one of several joint-owners, if the work is done by the consent of all of them, the notice will bind them all. If, however, some of them are not aware of the construction of the new building, he who has acted in violation of the Prætorian Edict will be individually liable in full. 1Nor does it make any difference to whom the land upon which the work is in course of construction belongs, for he alone is considered who is in possession of the property, provided the work is done in his name.
19 Paulus libro ... quaestionum. Sciendum est denegata exsecutione operis novi nihilo minus integras legitimas actiones manere, sicut in his quoque causis manent, in quibus ab initio operis novi denuntiationem praetor denegat.
19 Paulus, Questions, Book VIII. It must be remembered that when the prosecution of a new work has been refused by the Prætor, the party interested can still have recourse to his legitimate actions, as the right to them continues to exist in all those cases in which the Prætor, in the beginning, refuses to permit service for discontinuance of the erection of a new structure.
20 Ulpianus libro septuagensimo primo ad edictum. Praetor ait: ‘Quem in locum nuntiatum est, ne quid operis novi fieret, qua de re agitur, quod in eo loco, antequam nuntiatio missa fieret aut in ea causa esset, ut remitti deberet, factum est, id restituas’. 1Interdictum hoc proponitur ex huiusmodi causis, edicto expressum est, ne post operis novi nuntiationem quicquam operis fiat, antequam vel nuntiatio missa fiat vel vice nuntiationis missae satisdatio de opere restituendo fuerit interposita. qui igitur facit, etsi ius faciendi habuit, tamen contra interdictum praetoris facere videtur et ideo hoc destruere cogitur. 2Sive autem vacuus locus sit, ubi nuntiatum est, sive aedificatus, aeque hoc interdicto locus erit. 3Ait praetor: ‘quod factum est, restituas’. quod factum est, iubet restitui, neque interest, iure factum sit an non: sive iure factum est sive non iure factum est, interdictum locum habebit. 4Quidquid autem ante remissionem fit vel illud quod loco remissionis habetur, pro eo habendum est, atque si nullo iure factum esset. 5Si quis paratus fuerit satisdare, deinde actor stipulari nolit, in ea causa est, ut remitti debeat: nam cum per actorem fiet, apparet in ea causa esse, ut remitti debeat. 6Hoc interdictum perpetuo datur et heredi ceterisque successoribus competit. 7Adversus ipsum quoque, qui opus fecit vel factum ratum habuit, interdicto locus erit. 8Plane si quaeratur, an in heredem eius, qui opus fecit, interdictum hoc competat, sciendum est Labeonem existimasse in id quod ad eum pervenit dumtaxat dari oportere vel si quid dolo malo ipsius factum sit, quo minus perveniret. nonnulli putant in factum esse dandam quam interdictum, quod verum est. 9Deinde ait praetor: ‘Quem in locum nuntiatum est, ne quid operis novi fieret, qua de re agitur, si de ea re satisdatum est, quod eius cautum sit aut per te stat, quo minus satisdetur: quo minus illi in eo loco opus facere liceat, vim fieri veto’. 10Hoc interdictum prohibitorium est, ne quis prohibeat facere volentem eum qui satisdedit: etenim pertinet ad decus urbium aedificia non derelinqui. 11Nec quicquam interest, iure quis aedificet an non iure aedificet, cum sit securus is qui opus novum nuntiavit, posteaquam ei cautum est. 12Hoc autem interdictum competit ei qui satisdedit: adicitur et illud ‘aut per te stat, quo minus satisdetur’. 13Proinde si satisdatum non est, sed repromissum, interdicto huic locus non erit: neque enim permittendum fuit in publico aedificare, priusquam appareat, quo iure quis aedificet. 14Et si satisdatum sit, cautum tamen non perseveret, interdictum cessat. 15Si aliquando stetit per nuntiatorem, quo minus satisdetur, nunc non stat, interdictum cessat. 16Hoc interdictum etiam post annum et heredi ceterisque successoribus competit.
20 Ulpianus, On the Edict, Book XVII. The Prætor says: “Where anyone has been notified on the ground to discontinue the construction of a new work, the right to proceed with which is in dispute, and he persists in doing so, in the same place, before withdrawal has been granted; or where the circumstances are such that withdrawal should be granted, he shall restore the property to its original condition.” 1An interdict is granted in the following instances. It is stated in the Edict that no work shall be done, after the service of notice, before withdrawal is granted, or, in lieu of this, security has been furnished to restore the property to its former condition. Therefore, he who proceeds with the work, even though he may have the right to do so, is, nevertheless, considered to have violated the interdict of the Prætor, and he will be compelled to demolish the structure. 2There is ground for this interdict, whether notice has been served upon land which is vacant, or which has been built upon. 3The Prætor says, “He shall restore the property to its original condition.” He orders what has been done to be restored, and it makes no difference whether it was done in accordance with law or not, hence, the interdict will be applicable whether the act was legal or illegal. 4Again, whatever was done before withdrawal upon notice, or before anything occurred which is considered to take the place of a withdrawal, is held not to have been legally done. 5If he who erected the building should be willing to give security, and the plaintiff refuses to enter into a stipulation, this should be considered as a withdrawal; for as this is the plaintiff’s fault, it is evident that the circumstances are such that withdrawal ought to be made. 6This interdict is granted perpetually, and will lie in favor of the heir and other successors. 7There will be ground for the interdict against the person himself who constructed the work, or against him who ratified it after it was finished. 8It is clear that this interdict will lie against the heir of him who constructed the work; and where this question arises, it must be noted that Labeo was of the opinion that it should only be granted against the heir where he had obtained some benefit from the structure, or where he had prevented himself, by fraudulent conduct on his part, from obtaining any benefit therefrom. Some authorities hold than an action in factum should be granted in addition to the interdict; which opinion is correct. 9The Prætor next says: “Where anyone has been notified, on the premises, not to proceed with the new work, and if security has been given, or it is your fault that it was not given, I forbid force to be employed to prevent the other party from proceeding with the work in that place.” 10This interdict is prohibitory, as it prohibits interference with anyone, who gives security, from proceeding with his work, for the ornamentation of cities is concerned in not permitting buildings to be abandoned. 11Nor does it make any difference whether the person in question is entitled by law to build, or not; as he who notified him to discontinue the new work is safe after security has been furnished him. 12This interdict will also lie in favor of the person to whom security was given. 13The Prætor adds, “Or if it is your fault that security was not given.” Hence, there will not be ground for the interdict if security is not furnished, but merely a promise for indemnity is made; for a building should not be permitted to be erected in a public place, before it is ascertained by what authority this is done. 14If security is given, but should not continue to exist, the interdict will cease to be applicable. 15Where it was the fault of the person who served the notice that security was not furnished for a certain time, but it is no longer his fault, the interdict will cease to apply. 16This interdict is also available after the lapse of a year, and will lie in favor of the heir and other successors.
21 Ulpianus libro octogensimo ad edictum. Stipulatio de operis novi nuntiatione interponi solet, quotiens vicinus dicit ius sibi esse prohibere vicinum opus novum invito se facere. 1Si quis autem vult post opus novum nuntiatum impune aedificare, offerre debet satis nuntiatori: quod si fecerit, utrique consultum est tam ei qui nuntiavit, quoniam cautum habet de opere restituendo, quam ei cui nuntiatum est, quia molitio eius non impeditur: antequam enim caveat quidquid aedificaverit, interdicto restitutorio destruere compellitur. 2Habet autem ista stipulatio condicionem, ut ita demum committatur, si iudicatum fuerit sive ante rem iudicatam causa quae acciderit neque res defendatur: et de dolo malo subicitur clausula. 3Opus autem factum accipimus non, si unum vel alterum cementum fuit impositum, sed si proponatur instar quoddam operis et quasi facies quaedam facta operis. 4Sive autem res iudicetur sive res non defendatur, stipulatio in id committitur, ut res viri boni arbitratu restituatur: quod si ita restitutum non erit, quanti ea res erit, tantam pecuniam dabit, si hoc petitori placuerit. 5Quaesitum est, si plures domini aedificent, an omnes cavere debeant. et ait Labeo unum cavere debere, quia restitutio operis fieri pro parte non possit. 6Idem ait et si plures nuntient, curandum esse, ut uni caveatur, si inter eos conveniat: plane si non conveniat, et singulis erit cavendum. 7Idem dicit adiciendum esse in stipulatione, ut tantum praestetur, quanti uniuscuiusque intersit, si hoc maluerint: ceterum si ita fuerit, inquit, cautum ‘quanti ea res erit’, dubitabitur, utrum ad totius corporis aestimationem haec verba referuntur an vero ad quod eius interest qui stipulatur. ego puto et si sic fuerit uni cautum ‘quanti ea res erit’, defendi posse stipulationem sufficere: ad operis enim quantitatem ea refertur.
21 The Same, On the Edict, Book LXXX. A stipulation is usually entered into with reference to the notice to discontinue the construction of a new work, whenever one neighbor says that he has a right to hinder another from constructing it against his consent. 1Moreover, where anyone desires to proceed with impunity, and continue to build after having been notified to stop, he should offer security to the person who served the notice upon him. If he does this, it will be to the advantage of both parties; to that of the one who served the notice, as he has security to restore the premises to their former condition; and to him upon whom the notice was served, because his building is not interfered with. For if he builds at all before furnishing security, he can, by means of a restitutory interdict, be compelled to demolish what he has erected. 2Again, this stipulation is dependent upon a condition, and only becomes operative after judgment has been rendered, unless something has happened before this was done, and the case was not defended; and the clause with reference to bad faith is also added. 3We consider a structure to have been completed, not where one or two rows of stone have been laid, but where the work has assumed some form, and has the appearance of a building. 4The stipulation becomes operative, and the property must be restored to its former condition in accordance with the judgment of a good citizen, whether a decision has been rendered in the case, or whether no defence is made. If the property is not restored to its former condition, the defendant must pay a sum of money in proportion to the damages sustained, if the plaintiff will consent to this. 5Where several joint-owners construct a building, the question arises whether all of them must furnish security. Labeo says that one should do so, because the restoration of the property cannot be partially made. 6He also says that even though several owners serve notice, care must be taken that security be given to one of them, if all agree to this; for it is evident that if one should not consent, security must be given to each of them. 7He also says that it must be added in the stipulation that an amount equal to the interest of each must be paid; if the parties desire this to be done. If, however, security is furnished to the amount of the value of the property, he says that a doubt will arise whether these words refer to the value of the entire property, or merely to that of the interest of the party who enters into the stipulation. I think that if security for the value of the property is furnished one of the parties, it can be maintained that the stipulation will be sufficient for all of them; since this has reference to the amount of the damages caused by the work.
22 Marcellus libro quinto decimo digestorum. Cui opus novum nuntiatum est, ante remissam nuntiationem opere facto decessit: debet heres eius patientiam destruendi operis adversario praestare: nam et in restituendo huiusmodi opere eius, qui contra edictum fecit, poena versatur, porro autem in poenam heres non succedit.
22 Marcellus, Digest, Book XV. The person upon whom notice was served died before obtaining the withdrawal of the notice. His heir must permit his adversary to demolish the structure, for in a restoration of this kind the penalty must be paid by him who violated the Edict; but the heir does not succeed to the penalty.
23 Iavolenus libro septimo epistularum. Is, cui opus novum nuntiatum erat, vendidit praedium: emptor aedificavit: emptorem an venditorem teneri putas, quod adversus edictum factum sit? respondit: cum operis novi nuntiatio facta est, si quid aedificatum est, emptor, id est dominus praediorum tenetur, quia nuntiatio operis non personae fit et is demum obligatus est, qui eum locum possidet, in quem opus novum nuntiatum est.
23 Javolenus, Epistles, Book VII. A certain man who had been notified to discontinue the construction of a new building sold the land, and the purchaser continued the work; do you think that either the purchaser or the vendor is liable for having violated the Edict? The answer was that if, after notice had been served, the construction of the building was continued, the purchaser, that is to say, the owner of the land, would be liable; because a notice for discontinuance is not personal, and he only is liable who is in possession of the property on which the notice to discontinue the work was served.