Quod vi aut clam
(Concerning the interdict which has reference to works undertaken by violence or clandestinely.)
1 Ulpianus libro septuagensimo primo ad edictum. Praetor ait: ‘Quod vi aut clam factum est, qua de re agitur, id cum experiendi potestas est, restituas’. 1Hoc interdictum restitutorium est et per hoc occursum est calliditati eorum, qui vi aut clam quaedam moliuntur: iubentur enim ea restituere. 2Et parvi refert, utrum ius habuerit faciendi, an non: sive enim ius habuit sive non, tamen tenetur interdicto, propter quod vi aut clam fecit: tueri enim ius suum debuit, non iniuriam comminisci. 3Denique est quaesitum, an hoc interdicto utenti exceptionem possit obicere: ‘quod non iure meo receperim’. et magis est, ne possit: nam adversus vim vel quod clam factum est nulla iusta exceptione se tueri potest. 4Hoc interdictum ad ea sola opera pertinet, quaecumque in solo vi aut clam fiunt. 5Quid sit vi factum vel clam factum, videamus. vi factum videri Quintus Mucius scripsit, si quis contra quam prohiberetur fecerit: et mihi videtur plena esse Quinti Mucii definitio. 6Sed et si quis iactu vel minimi lapilli prohibitus facere perseveravit facere, hunc quoque vi fecisse videri Pedius et Pomponius scribunt, eoque iure utimur. 7Sed et si contra testationem denuntiationemque fecerit, idem esse Cascellius et Trebatius putant: quod verum est. 8Sed et Aristo ait eum quoque vi facere, qui, cum sciret se prohibitum iri, per vim molitus est, ne prohiberi possit. 9Item Labeo dicit, si quem facientem prohibuero isque destiterit in praesentiarum rursusque postea facere coeperit, vi eum videri fecisse, nisi permissu meo facere coeperit vel qua alia iusta causa accedente. 10Si quis tamen inbecillitate impeditur vel etiam, ne offenderet vel te vel eum, qui te magni faciebat, ideo non venerit ad prohibendum, non videbitur adversarius vi fecisse: et ita Labeo scribit. 11Idem ait et si te volentem ad prohibendum venire deterruerit aliquis (armis forte) sine ullo dolo malo meo ac propter hoc non veneris, non videri me vim fecisse,
1 Vivianus, On the Edict, Book LXXI. The Prætor 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.” 1This 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. 2It 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. 3Then 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. 4This interdict only has reference to work which is done upon land, with the employment of violence or in a clandestine manner. 5Let 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. 6Pedius 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. 7Cascellius 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. 8Moreover, Aristo says that he also employs violence who, knowing that he will be opposed, uses force to avoid being prohibited. 9Likewise, 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. 10If 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. 11He 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 libro secundo interdictorum. ne in aliena potestate sit condicionem meam nihil delinquentis deteriorem facere.
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 libro septuagensimo primo ad edictum. Prohibere autem non utique per semet ipsum necesse est, sed et si quis per servum suum vel procuratorem prohibuerit, recte videtur prohibuisse. idem etiam si mercennarius meus prohibuerit. nec quem moveat, quod per liberam personam actio adquiri non solet: nam prohibitio haec demonstrat vi te facere, quid mirum, cum et si clam tu me feceris, habeam actionem? ergo facto magis tuo delinquentis quam alieno adquiritur mihi actio. 1Illud sciendum est non omnibus momentis vim esse faciendam, sed semel inter initia facta perseverat. 2Sed si permiserit, adversus eum, qui utatur interdicto, exceptio erit necessaria. 3Non tantum autem si ego permisero, sed et si procurator meus vel tutor qui tutelam administrat vel curator pupilli furiosi sive adulescentis, dicendum erit exceptioni locum fore. 4Plane si praeses vel curator rei publicae permiserit in publico facere, Nerva scribit exceptionem locum non habere, quia etsi ei locorum, inquit, publicorum procuratio data est, concessio tamen data non est. hoc ita verum est, si non lex municipalis curatori rei publicae amplius concedat. sed et si a principe vel ab eo, cui princeps hoc ius concedendi dederit idem erit probandum. 5Si quis paratus sit se iudicio defendere adversus eos, qui interdicendum putant, ne opus fiat: an videatur desinere vi facere? et magis est, ut desinat, si modo satis offerat et defendere paratus est, si quis agat: et ita Sabinus scribit. 6Sed et si quis damni infecti paratus sit cavere, cum propter hoc tantum esset prohibitus, vel quia non defendebat vel damni infecti non repromittebat, consequens est dicere desinere eum vi facere. 7Clam facere videri Cassius scribit eum, qui celavit adversarium neque ei denuntiavit, si modo timuit eius controversiam aut debuit timere. 8Idem Aristo putat eum quoque clam facere, qui celandi animo habet eum, quem prohibiturum se intellexerit et id existimat aut existimare debet se prohibitum iri.
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? 1It 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. 2If permission has been granted, an exception will be necessary to oppose him who makes use of the interdict. 3Moreover, 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. 4Nerva 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. 5If 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. 6Again, 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. 7Cassius 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. 8Aristo 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 libro secundo interdictorum. Servius etiam eum clam facere, qui existimare debeat sibi controversiam futuram, quia non opinionem cuius et resupinam existimationem esse oporteat, ne melioris condicionis sint stulti quam periti.
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 libro septuagensimo ad edictum. Aut qui aliter fecit, quam denuntiavit: vel qui decepto facit eo, ad quem pertinuit non facere: vel consulto tum denuntiat adversario, cum eum scit non posse prohibere: vel tam sero pronuntiat, ut venire prohibiturus, prius quam fiat, non possit. et haec ita Labeonem probare Aristo ait. 1Si quis se denuntiaverit opus facturum, non semper non videtur clam fecisse, si post denuntiationem fecerit: debebit enim (et ita Labeo) et diem et horam denuntiatione conplecti et ubi et quod opus futurum sit: neque perfusorie aut obscure dicere aut denuntiare: neque tam artare adversarium, ut intra diem occurrere ad prohibendum non possit. 2Et si forte non sit, cui denuntietur, neque dolo malo factum sit ne sit, amicis denique aut procuratori aut ad domum denuntiandum est. 3Sed et Servius recte ait sufficere feminae viro notum facere opus se facturum: vel denique sciente eo facere: quamquam etiam illud sufficiat celandi animum non habere. 4Item ait, si quis in publico municipii velit facere, sufficere ei, si curatori rei publicae denuntiet. 5Si quis, dum putat locum tuum esse, qui est meus, celandi tui, non mei causa fecerit, mihi interdictum competere. 6Idem dicit et si servi mei vel procuratoris celandi causa factum sit, mihi interdictum competere. 7Si quis, cum non denuntiasset opus se facturum eique denuntiatum esset ne faceret, fecerit, utilius puto probandum vi eum fecisse. 8Haec verba ‘quod vi aut clam factum est’ ait Mucius ita esse ‘quod tu aut tuorum quis aut tuo iussu factum est’. 9Labeo autem ait plures personas contineri his verbis. nam ecce primum heredes eorum, quos enumerat Mucius, contineri putat. 10Idem ait et adversus procuratorem tutorem curatorem municipumve syndicum alieno nomine interdici posse. 11Si quid servus meus fecit, non ob id mecum actio est, sed si id meo nomine aut suo fecit: nam si tuum servum mercennarium habuero, quidquid ab eo factum fuerit meo nomine, ob id non tecum, sed mecum, cuius iussu aut nomine id opus a servo tuo factum fuerit, agendum erit hoc interdicto. 12Similiter quod iussu cuius factum erit, ob id non cum eo, sed cuius nomine iusserit, haec actio est. nam si procurator tutor curator duumvir municipii, quod eius nomine ageret, cuius negotium procuraret, fieri iusserit, ob id agendum erit cum eo, cuius nomine factum quid erit, non cum eo, qui ita iusserit. et si tibi mandavero, ut opus fieri iuberes et in ea re mihi parueris, mecum, inquit, non tecum erit actio. 13Et cum interdictum sic sit scriptum ‘quod vi aut clam factum est’, non ita ‘quod vi aut clam fecisti’, latius porrigi quam ad has personas, quas supra numeravimus, Labeo putat. 14Et hoc iure utimur, ut, sive ego fecissem sive fieri iussi, interdicto quod vi aut clam tenear.
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. 1When 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. 2If 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. 3Servius, 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. 4He 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. 5If 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. 6He 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. 7If 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. 8These 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. 9Labeo, 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. 10He also says that this interdict is available against an agent, a guardian, a curator, and a municipality or syndic, as representing other parties. 11If 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. 12In 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. 13As 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. 14Our 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 libro sexagensimo septimo ad edictum. Si ego tibi mandavero opus novum facere, tu alii, non potest videri meo iussu factum: teneberis ergo tu et ille: an et ego tenear, videamus. et magis est et me, qui initium rei praestiterim, teneri: sed uno ex his satisfaciente ceteri liberantur.
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 libro septuagensimo primo ad edictum. Si alius fecerit me invito, tenebor ad hoc, ut patientiam praestem. 1Neratius quoque scribit eum, cuius servus vi aut clam fecit, aut sua impensa ex interdicto opus restituere debere aut patientiam restituendi praestare et servum noxae dedere: plane si mortuo alienatove servo interdiceretur, patientiam dumtaxat praestare debere ait, ita ut et emptor eo interdicto possit conveniri, ut impensam praestet aut noxam det: dominoque operis sua impensa restituente aut damnato, quia non restitueret, emptorem liberari. eadem et si contra dominus servi vel opus restituisset vel litis aestimatione damnatus esset: quod si tantum noxae dedisset, adversus dominum operis utiliter interdici. 2Ait Iulianus: qui ante remissionem nuntiationis, contra quam prohibitus fuerit, opus fecerit, duobus interdictis tenebitur, uno, quod ex operis novi nuntiatione competit, altero quod vi aut clam. remissione autem facta intellegendus non erit vi aut clam facere, quamvis prohibeatur: licere enim debet aedificare ei, qui satisdederit, cum possessor hoc ipso constituatur: clamque facere nec ante remissionem nec postea existimandus est, cum is, qui opus novum nuntiat, non possit videri celatus et praeoccupatus, antequam controversiam faceret. 3Bellissime apud Iulianum quaeritur, an haec exceptio noceat in hoc interdicto ‘quod non tu vi aut clam feceris?’ ut puta utor adversus te interdicto quod vi aut clam, an possis obicere mihi eandem exceptionem: ‘quod non tu vi aut clam fecisti?’ et ait Iulianus aequissimum esse hanc exceptionem dare: nam si tu, inquit, aedificaveris vi aut clam, ego idem demolitus fuero vi aut clam et utaris adversus me interdicto, hanc exceptionem profuturam. quod non aliter procedere debet, nisi ex magna et satis necessaria causa: alioquin haec omnia officio iudicis celebrari oportet. 4Est et alia exceptio, de qua Celsus dubitat, an sit obicienda: ut puta si incendii arcendi causa vicini aedes intercidi et quod vi aut clam mecum agatur aut damni iniuria. Gallus enim dubitat, an excipi oporteret: ‘quod incendii defendendi causa factum non sit?’ Servius autem ait, si id magistratus fecisset, dandam esse, privato non esse idem concedendum: si tamen quid vi aut clam factum sit neque ignis usque eo pervenisset, simpli litem aestimandam: si pervenisset, absolvi eum oportere. idem ait esse, si damni iniuria actum foret, quoniam nullam iniuriam aut damnum dare videtur aeque perituris aedibus. quod si nullo incendio id feceris, deinde postea incendium ortum fuerit, non idem erit dicendum, quia non ex post facto, sed ex praesenti statu, damnum factum sit nec ne, aestimari oportere Labeo ait. 5Notavimus supra, quod, quamvis verba interdicti late pateant, tamen ad ea sola opera pertinere interdictum placere, quaecumque fiant in solo. eum enim, qui fructum tangit, non teneri interdicto quod vi aut clam: nullum enim opus in solo facit. at qui arbores succidit, utique tenebitur, et qui harundinem et qui salictum: terrae enim et quodammodo solo ipsi corrumpendo manus infert. idem et in vineis succisis. ceterum qui fructum aufert, furti debet conveniri. itaque si quid operis in solo fiat, interdictum locum habet. in solo fieri accipimus et si quid circa arbores fiat, non si quid circa fructum arborum. 6Si quis acervum stercoris circa agrum pinguem disiecerit, cum eo ‘quod vi aut clam factum est’ agi potest: et hoc verum est, quia solo vitium adhibitum sit. 7Plane si quid agri colendi causa factum sit, interdictum quod vi aut clam locum non habet, si melior causa facta sit agri, quamvis prohibitus quis vi vel clam fecerit. 8Praeterea si fossam feceris in silva publica et bos meus in eam inciderit, agere possum hoc interdicto, quia in publico factum est. 9Si quis aedificium demolitus fuerit, quamvis non usque ad solum, quin interdicto teneatur, dubitari desiit. 10Proinde et si tegulas de aedificio sustulerit, magis est, ut interdicto teneatur,
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. 1Neratius 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. 2Julianus 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. 3It 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. 4Gallus 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. 5We 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. 6If 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. 7It 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. 8Again, 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. 9If 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. 10Hence, if he removes the tiles from a building, the better opinion is that he will be liable to the interdict.
8 Venuleius libro secundo interdictorum. nam origo huius rei a solo proficiscitur. ceterum per se tegulae non possidentur, sed cum universitate aedificii, nec ad rem pertinet, adfixae sunt an tantum positae.
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 libro septuagensimo primo ad edictum. Nam et si ramos quis de arboribus abstulerit, adhuc interdictum hoc admittimus. haec ita, si de aedificio tegulas sustulerit: ceterum si non de aedificio, sed seorsum positas, cessat hoc interdictum. 1Si tamen sera vel clavis vel cancellus vel specularium sit ablatum, quod vi aut clam agi non poterit. 2Sed si quis aliquid aedibus adfixum evellerit, statuam forte vel quid aliud, quod vi aut clam interdicto tenebitur. 3Si quis clam aut vi agrum intraverit vel fossam fecerit, hoc interdicto tenebitur. et si acervum succenderit vel disperserit sic, ut non ad usum agri convertat, interdicto locus non erit,
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. 1If, however, a lock, a key, a bench, or a wardrobe is carried away, proceedings cannot be instituted under the interdict Quod vi aut clam. 2But 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. 3If 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 libro secundo interdictorum. quia acervus solo non cohaeret, sed terra sustinetur, aedificia autem solo cohaerent.
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 libro septuagensimo primo ad edictum. Is qui in puteum vicini aliquid effuderit, ut hoc facto aquam corrumperet, ait Labeo interdicto quod vi aut clam eum teneri: portio enim agri videtur aqua viva, quemadmodum si quid operis in aqua fecisset. 1Quaesitum est, si statuam in municipio ex loco publico quis sustulerit vel vi vel clam, an hoc interdicto teneatur. et exstat Cassii sententia eum, cuius statua in loco publico in municipio posita sit, quod vi aut clam agere posse, quia interfuerit eius eam non tolli: municipes autem etiam furti acturos, quia res eorum sit quasi publicata: si tamen deciderit, ipsi eam detrahunt: et haec sententia vera est. 2Si quis de monumento statuam sustulerit, an ei, ad quem ius sepulchri pertineret, agere permittitur? et placet et in his interdicto locum esse. et sane dicendum est, si qua sepulchri ornandi causa adposita sint, sepulchri esse videri. idem est et si ostium avellat vel effringat. 3Si quis in vineas meas venerit et inde ridicas abstulerit, hoc interdicto tenebitur. 4Quod ait praetor: ‘quod vi aut clam factum est’, ad quod tempus referatur, videamus, utrum ad praeteritum an ad praesens. quae species apud Iulianum exposita est: ait enim in hoc interdicto praesentis temporis significationem accipi debere. si tamen, inquit, ex opere damnum datum fuerit aut dominus aut is, cuius fundo nocitum erit, sua impensa id sustulerit, utilius probari, quod Iulianus temptat, ut et damnum sarciatur et impendia restituantur. 5Interdictum complectitur id, quodcumque aut vi aut clam factum est. sed interdum evenit, ut quid et vi et clam fiat, partim et partim, in eodem opere. ut puta cum prohiberem, fundamenta posuisti: postea cum convenissem, ne reliquum opus fieret, absente et ignorante me reliquum opus perfecisti: vel contra fundamenta clam iecisti, deinde cetera prohibente me aedificasti. hoc iure utimur, ut et si vi et clam factum sit, interdictum hoc sufficiat. 6Si tutoris iussu aut curatoris factum sit, cum placeat, quod Cassius probat, ex dolo tutoris vel curatoris pupillum vel furiosum non teneri, eveniet, ut in ipsum tutorem curatoremque aut utilis actio competat aut etiam utile interdictum. certe ad patientiam tollendi operis utique tenebuntur pupillus et furiosus et ad noxam. 7An ignoscitur servo, qui obtemperavit tutori aut curatori? nam ad quaedam, quae non habent atrocitatem facinoris vel sceleris, ignoscitur servis, si vel dominis vel his, qui vice dominorum sunt, obtemperaverint. quod et in hoc casu admittendum est. 8Si postea, quam vi aut clam factum est, venierit fundus, an venditor nihilo minus hoc interdicto experiri possit, videamus. et extat sententia existimantium nihilo minus competere ei interdictum nec finiri venditione: sed nec ex empto actione quicquam ei praestandum emptori ex eo opere, quod ante venditionem factum est: satis enim esse, quod utique propter hoc opus viliori praedium distraxerit. certe etsi non viliori vendidit, idem erit probandum. 9Plane si post venditionem fundi opus factum est, etsi ipse experiatur venditor, quia nondum traditio facta est, tamen ex empto actione emptori tenebitur: omne enim et commodum et incommodum ad emptorem pertinere debet. 10Si fundus in diem addictus sit, cui competat interdictum? et ait Iulianus interdictum quod vi aut clam ei competere, cuius interfuit opus non fieri: fundo enim in diem addicto et commodum et incommodum omne ad emptorem, inquit, pertinet, antequam venditio transferatur, et ideo, si quid tunc vi aut clam factum est, quamvis melior condicio allata fuerit, ipse utile interdictum habebit: sed eam actionem sicut fructus medio tempore perceptos venditi iudicio praestare cogendum ait. 11Aristo autem scribit non possessori esse denuntiandum: nam si quis, inquit, fundum mihi vendiderit et necdum tradiderit et vicinus, cum opus facere vellet et sciret me emisse et in fundo morari, mihi denuntiaverit, esse eum tutum futurum, quod ad suspicionem clam facti operis pertineret: quod sane verum est. 12Ego, si post in diem addictionem factam fundus precario traditus sit, putem emptorem interdictum quod vi aut clam habere. si vero aut nondum traditio facta est aut etiam facta est precarii rogatio, non puto dubitandum, quin venditor interdictum habeat: ei enim competere debet, etsi res ipsius periculo non sit, nec multum facit, quod res emptoris periculo est: nam et statim post venditionem contractam periculum ad emptorem spectat et tamen antequam ulla traditio fiat, nemo dixit interdictum ei competere. si tamen precario sit in possessione, videamus, ne, quia interest ipsius, qualiter qualiter possidet, iam interdicto uti possit. ergo et si conduxit, multo magis: nam et colonum posse interdicto experiri in dubium non venit. plane si postea, quam melior condicio allata est, aliquid operis vi aut clam factum sit, nec Iulianus dubitaret interdictum venditori competere: nam inter Cassium et Iulianum de illo, quod medio tempore accidit, quaestio est, non de eo opere, quod postea contigit. 13Si ita praedium venierit, ut, si displicuisset, inemptum esset, facilius admittimus interdictum emptorem habere, si modo est in possessione: et si rescissio emptionis in alterius arbitrium conferatur, idem erit probandum: idemque et si ita venisset, ut, si aliquid evenisset, inemptum esset praedium: et si forte commissoria venierit, idem dicendum est. 14Idem Iulianus scribit interdictum hoc non solum domino praedii, sed etiam his, quorum interest opus factum non esse, competere.
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. 1If 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. 2If 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. 3If anyone should come into my vineyard, and remove the supports of my vines, he will be liable under this interdict. 4Where the Prætor 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. 5This 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. 6If 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. 7Should 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. 8If 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. 9It 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. 10If 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. 11Aristo, 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. 12In 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. 13If 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. 14Julianus 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 libro secundo interdictorum. Quamquam autem colonus et fructuarius fructuum nomine in hoc interdictum admittantur, tamen et domino id competet, si quid praeterea eius intersit.
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 libro septuagensimo primo ad edictum. Denique si arbores in fundo, cuius usus fructus ad Titium pertinet, ab extraneo vel a proprietario succisae fuerint, Titius et lege Aquilia et interdicto quod vi aut clam cum utroque eorum recte experietur. 1Labeo scribit, si filio prohibente opus factum sit, et te habere interdictum, ac si te prohibente opus factum est, et filium tuum nihilo minus. 2Idem ait adversus filium familias in re peculiari neminem clam videri fecisse: namque, si scit eum filium familias esse, non videtur eius celandi gratia fecisse, quem certus est nullam secum actionem habere. 3Si ex sociis communis fundi unus arbores succiderit, socius cum eo hoc interdicto experiri potest, cum ei competat, cuius interest. 4Unde apud Servium amplius relatum est, si mihi concesseris, ut ex fundo tuo arbores caedam, deinde eas alius vi aut clam ceciderit, mihi hoc interdictum competere, quia ego sim cuius interest: quod facilius erit admittendum, si a te emi vel ex aliquo contractu hoc consecutus sim, ut mihi caedere liceat. 5Quaesitum est, si, cum praedium interim nullius esset, aliquid vi aut clam factum sit, an postea dominio ad aliquem devoluto interdicto locus sit: ut puta hereditas iacebat, postea adiit hereditatem Titius, an ei interdictum competat? et est apud Vivianum saepissime relatum heredi competere hoc interdictum eius, quod ante aditam hereditatem factum sit, nec referre Labeo ait, quod non scierit, qui heredes futuri essent: hoc enim posse quem causari etiam post aditam hereditatem. ne illud quidem obstare Labeo ait, quod eo tempore nemo dominus fuerit: nam et sepulchri nemo dominus fuit et tamen, si quid in eo fiat, experiri possum quod vi aut clam. accedit his, quod hereditas dominae locum optinet. et recte dicetur heredi quoque competere et ceteris successoribus, sive ante, quam successerit, sive postea aliquid sit vi aut clam admissum. 6Si colonus meus opus fecerit, si quidem me volente vel ratum habente, perinde est atque si procurator meus fecisset, in quo placet, sive ex voluntate mea fecerit, teneri me, sive ratum habuero, quod procurator fecit. 7Iulianus ait: si colonus arborem, de qua controversia erat, succiderat vel quid aliud opus fecerit, si quidem iussu domini id factum sit, ambo tenebuntur, non ut patientiam praestent, sed ut impensam quoque ad restituendum praebeant: si autem dominus non iusserit, colonus quidem tenebitur, ut patientiam et impensam praestet, dominus vero nihil amplius quam patientiam praestare cogendus erit.
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. 1Labeo 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. 2He 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. 3If 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. 4It 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. 5If 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. 6If 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. 7Julianus 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 Iulianus libro sexagensimo octavo digestorum. Nam et si servus meus ignorante me opus fecerit eumque vendidero vel manumisero, mecum in hoc solum agi poterit, ut patiar opus tolli, cum emptore autem servi, ut aut noxae dedat aut impensam, quae in restitutione facta fuerit, praestet: sed et cum ipso manumisso recte agi poterit.
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 libro septuagensimo primo ad edictum. Semper adversus possessorem operis hoc interdictum competit, idcircoque, si quilibet inscio vel etiam invito me opus in fundo meo fecerit, interdicto locus erit. 1Is, cui fundum pastinandum locaveras, lapides sustulit et in vicini proiecit praedium. ait Labeo te vi aut clam non teneri, nisi iussu tuo id factum sit: ego puto conductorem teneri, locatorem autem non alias, nisi aut patientiam praestare possit aut aliquam actionem habeat, quam praestet: ceterum teneri non oportere. 2Si in sepulchro alieno terra congesta fuerit iussu meo, agendum esse quod vi aut clam mecum Labeo scribit. et si communi consilio plurium id factum sit, licere vel cum uno vel cum singulis experiri: opus enim, quod a pluribus pro indiviso factum est, singulos in solidum obligare. si tamen proprio quis eorum consilio hoc fecerit, cum omnibus esse agendum, scilicet in solidum: itaque alter conventus alterum non liberabit, quin immo perceptio ab altero: superiore etenim casu alterius conventio alterum liberat. praeterea sepulchri quoque violati agi potest. 3Hoc interdictum in heredem ceterosque successores datur in id quod ad eos pervenit. 4Et post annum non competit. annus autem cedere incipit, ex quo id opus factum perfectum est aut fieri desiit, licet perfectum non sit: alioquin si a principio operis coepti annum quis numeret, necesse est cum his, qui opus tardissime facerent, saepius agi. 5Sed si is sit locus, in quo opus factum est, qui facile non adiretur, ut puta in sepulchro vi aut clam factum est vel in abdito alio loco, sed et si sub terra fieret opus vel sub aqua, vel cloaca aliquid factum sit, etiam post annum causa cognita competit interdictum de eo quod factum est: nam causa cognita annuam exceptionem remittendam, hoc est magna et iusta causa ignorantiae interveniente. 6Si quis rei publicae causa afuisset, deinde reversus interdicto quod vi aut clam uti vellet, verius est non excludi anno eum, sed reversum annum habere. nam et si minor viginti quinque annis rei publicae causa abesse coepisset, deinde maior effectus sit, dum abest rei publicae causa, futurum, ut ex quo redit annus ei computetur, non ex quo implevit vicensimum quintum annum: et ita divus Pius et deinceps omnes principes rescripserunt. 7Hoc interdicto tanti lis aestimatur, quanti actoris interest id opus factum esse. officio autem iudicis ita oportere fieri restitutionem iudicandum est, ut in omni causa eadem condicio sit actoris, quae futura esset, si id opus, de quo actum est, neque vi neque clam factum esset. 8Ergo nonnumquam etiam dominii ratio habenda est, ut puta si propter hoc opus, quod factum est, servitutes amittantur aut usus fructus intereat. quod non tantum tunc eveniet, cum quis opus aedificaverit, verum etiam si diruisse opus proponatur et deteriorem condicionem fecisse vel servitutium vel usus fructus vel ipsius proprietatis. 9Sed quod interfuit, aut per iusiurandum, quod in litem actor iuraverit, aut, si iurare non possit, iudicis officio aestimandum est. 10Eum autem, qui dolo malo fecerit, quo minus possit restituere, perinde habendum, ac si posset. 11Culpam quoque in hoc interdicto venire erit probandum: quae tamen arbitrio iudicis aestimanda erit. 12Quia autem hoc interdictum id quod interest continet, si quis alia actione fuerit consecutus id quod interfuit opus non esse factum, consequens erit dicere ex interdicto nihil eum consequi oportere.
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. 1If 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. 2Labeo 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. 3This 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. 4The 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. 5If, 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. 6If 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. 7In 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. 8Therefore, 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. 9The 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. 10Where 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. 11In 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. 12For 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 libro sexagensimo septimo ad edictum. Competit hoc interdictum etiam his qui non possident, si modo eorum interest. 1Si quis vi aut clam arbores non frugiferas ceciderit, veluti cupressos, domino dumtaxat competit interdictum. sed si amoenitas quaedam ex huiusmodi arboribus praestetur, potest dici et fructuarii interesse propter voluptatem et gestationem et esse huic interdicto locum. 2In summa qui vi aut clam fecit, si possidet, patientiam et impensam tollendi operis: qui fecit nec possidet, impensam: qui possidet nec fecit, patientiam tantum debet.
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. 1Where 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. 2In 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 Idem libro sexagensimo nono ad edictum. Interdictum quod vi aut clam per quemvis domino adquiritur, licet per inquilinum.
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 libro vicensimo quinto digestorum. Si inmaturam silvam caeduam cecidit quis, interdicto quod vi aut clam tenetur: si maturam similiter caeduam neque damno dominus adfectus est, nihil praestabit. 1Non absurde responsum est: si magistratum rogasses, ut adversarium tuum adesse ad iudicium iuberet, ne opus novum tibi nuntiaret, clam videris opus fecisse, quod interim feceris.
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. 1It 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 libro quinquagensimo septimo ad edictum. Interdictum quod vi aut clam competere filio familias colono arboribus succisis Sabinus ait.
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 libro tertio decimo ad Sabinum. Vi facit tam is qui prohibitus fecit quam is qui, quo minus prohibeatur, consecutus est periculo puta adversario denuntiato aut ianua puta praeclusa. 1Prohibitus autem intellegitur quolibet prohibentis actu, id est vel dicentis se prohibere vel manum opponentis lapillumve iactantis prohibendi gratia. 2Tamdiu autem vi facit prohibitus, quamdiu res in eodem statu permanebit: nam si postea convenerit cum adversario, desinit vi facere. 3Item si prohibiti heres vel is, qui ab eo emerit, ignorans causam praecedentem fecerit, dicendum esse Pomponius ait non incidere eum in interdictum. 4Quod in nave fit vel in alia qualibet re vel amplissima, mobili tamen, non continetur hoc interdicto. 5Sive in privato sive in publico opus fiat sive in loco sacro sive in religioso, interdictum competit.
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. 1A 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. 2Moreover, 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. 3Likewise, 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. 4Any 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. 5Whether 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 libro vicensimo nono ad Sabinum. Si opus, quod quis iussus est a iudice, qui ex hoc interdicto sumptus esset, restituere, alius quis vi aut clam sustulisset, nihilo minus idem ille omnimodo iubetur opus restituere. 1Si iussero servum meum opus facere, cum, quantum ad me pertinet, in clandestini suspicionem non veniret, servus autem meus putaverit, si rescisset adversarius, prohibiturum eum, an tenear? et non puto, cum mea persona sit intuenda. 2In opere novo tam soli quam Caeli mensura facienda est. 3Si quis propter opus factum ius aliquod praedii amisit, id restitui ex hoc interdicto debet.
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. 1If 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. 2In the construction of a new work, the land as well as the air which may be affected must be taken into account. 3If 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 libro secundo interdictorum. Si vitem meam ex fundo meo in fundum tuum deprehenderis eaque in fundo tuo coaluerit, utile est interdictum quod vi aut clam intra annum: sed si annus praeterierit, nullam remanere actionem radices, quae in fundo meo sint, tuas fieri, quia his accessiones sint. 1Si quis vi aut clam araverit, puto eum teneri hoc interdicto perinde atque si fossam fecisset: non enim ex qualitate operis huic interdicto locus est, sed ex opere facto, quod cohaeret solo. 2Si ad ianuam meam tabulas fixeris et ego eas, priusquam tibi denuntiarem, refixero, deinde invicem interdicto quod vi aut clam egerimus: nisi remittas mihi, ut absolvar, condemnandum te, quasi rem non restituas, quanti mea intersit, aut certe exceptionem mihi profuturam ‘si non vi nec clam nec precario feceris’. 3Si stercus per fundum meum tuleris, cum id te facere vetuissem, quamquam nihil damni feceris mihi nec fundi mei mutaveris, tamen teneri te quod vi aut clam Trebatius ait. Labeo contra, ne etiam is, qui dumtaxat iter per fundum meum fecerit aut avem egerit venatusve fuerit sine ullo opere, hoc interdicto teneatur. 4Si quis proiectum aut stillicidium in sepulchrum immiserit, etiamsi ipsum monumentum non tangeret, recte cum eo agi, quod in sepulchro vi aut clam factum sit, quia sepulchri sit non solum is locus, qui recipiat humationem, sed omne etiam supra id caelum: eoque nomine etiam sepulchri violati agi posse. 5Si is, qui denuntiaverit se opus facturum, confestim opus fecerit, clam fecisse non intellegitur: nam si post tempus, videbitur clam fecisse.
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. 1If 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. 2If 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. 3If 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. 4If 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. 5If 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.