De superficiebus
(Concerning the interdict which has reference to the surface of the land.)
1 Ulpianus libro septuagensimo ad edictum. Ait praetor: ‘Uti ex lege locationis sive conductionis superficie, qua de agitur, nec vi nec clam nec precario alter ab altero fruemini, quo minus fruamini, vim fieri veto. si qua alia actio de superficie postulabitur, causa cognita dabo’. 1Qui superficiem in alieno solo habet, civili actione subnixus est: nam si conduxit superficium, ex conducto, si emit, ex empto agere cum domino soli potest. enim si ipse eum prohibeat, quod interest agendo consequetur: sin autem ab alio prohibeatur, praestare ei actiones suas debet dominus et cedere. sed longe utile visum est, quia et incertum erat, an locati existeret, et quia melius est possidere potius quam in personam experiri, hoc interdictum proponere et quasi in rem actionem polliceri. 2Proponitur autem interdictum duplex exemplo interdicti uti possidetis. tuetur itaque praetor eum, qui superficiem petit, veluti uti possidetis interdicto, neque exigit ab eo, quam causam possidendi habeat: unum tantum requirit, num forte vi clam precario ab adversario possideat. omnia quoque, quae in uti possidetis interdicto servantur, hic quoque servabuntur. 3Quod ait praetor ‘si actio de superficie postulabitur, causa cognita dabo’, sic intellegendum est, ut, si ad tempus quis superficiem conduxerit, negetur ei in rem actio. et sane causa cognita ei, qui non ad modicum tempus conduxit superficiem, in rem actio competet. 4Is autem, in cuius solo superficies est, utique non indiget utili actione, sed habet in rem, qualem habet de solo. plane si adversus superficiarium velit vindicare, dicendum est exceptione utendum in factum data: nam cui damus actionem, eidem et exceptionem competere multo magis quis dixerit. 5Si soli possessori superficies evincatur, aequissimum erit subvenire ei vel ex stipulatu de evictione vel certe ex empto actione. 6Quia autem etiam in rem actio de superficie dabitur, petitori quoque in superficiem dari et quasi usum fructum sive usum quendam eius esse et constitui posse per utiles actiones credendum est. 7Sed et tradi posse intellegendum est, ut et legari et donari possit. 8Et si duobus sit communis, etiam utile communi dividundo iudicium dabimus. 9Servitutes quoque praetorio iure constituentur et ipsae ad exemplum earum, quae ipso iure constitutae sunt, utilibus actionibus petentur: sed et interdictum de his utile competit.
1 Ulpianus, On the Edict, Book LXX. The Prætor 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.” 1Anyone 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. 2In this case a double interdict is proposed, just as in the case of the interdict Uti possidetis. Therefore the Prætor 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. 3When the Prætor 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. 4Moreover, 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. 5If 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. 6Again, 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 prætorian actions. 7It should be understood that the right to the surface of the soil can be transferred by delivery, as well as bequeathed, and donated. 8If this right is held in common by two persons, we will grant them an action in partition. 9Servitudes are also established by Prætorian 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 libro vicensimo quinto ad edictum provinciale. Superficiarias aedes appellamus, quae in conducto solo positae sunt: quarum proprietas et civili et naturali iure eius est, cuius et solum.
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.