De remissionibus
(Concerning the withdrawal of opposition.)
1 Ulpianus libro septuagensimo primo ad edictum. Ait praetor: ‘Quod ius sit illi prohibere, ne se invito fiat, in eo nuntiatio teneat: ceterum nuntiationem missam facio’. 1Sub hoc titulo remissiones proponuntur. 2Et verba praetoris ostendunt remissionem ibi demum factam, ubi nuntiatio non tenet, et nuntiationem ibi demum voluisse praetorem tenere, ubi ius est nuntianti prohibere, ne se invito fiat. ceterum sive satisdatio interveniat sive non, remissio facta hoc tantum remittit, in quo non tenuit nuntiatio. plane si satisdatum est, exinde remissio facta est, non est necessaria remissio. 3Ius habet opus novum nuntiandi, qui aut dominium aut servitutem habet. 4Item Iuliano placet fructuario vindicandarum servitutium ius esse: secundum quod opus novum nuntiare poterit vicino et remissio utilis erit. ipsi autem domino praedii si nuntiaverit, remissio inutilis erit: neque sicut adversus vicinum, ita adversus dominum agere potest ius ei non esse invito se altius aedificare. sed si hoc facto usus fructus deterior fiat, petere usum fructum debebit. idem Iulianus dicit de ceteris, quibus aliqua servitus a vicino debetur. 5Ei quoque, qui pignori fundum acceperit, scribit Iulianus non esse iniquum detentionem servitutis dari.
1 Ulpianus, On the Edict, Book LXI. The Prætor says: “The notice will hold, if the complainant has a right to prevent the construction of a new work against his consent; otherwise, I will grant a withdrawal of the prohibition.” 1Withdrawals of opposition are discussed under this Title. 2The words of the Prætor indicate that a withdrawal of this kind only should be made where the notice does not hold, and that he intends that it only should hold where the person serving it has a right to forbid a new work being constructed without his consent. Moreover, whether security is given or not, the withdrawal granted is only applicable to property with reference to which the notice is not valid. It is clear that if security has been furnished, and withdrawal is granted afterwards, the withdrawal is not necessary. 3He only is entitled to serve notice not to construct a new work in whom the right of ownership or the servitude is vested. 4It was also held by Julianus that the usufructuary had the right to recover the servitude; and, according to this, he can serve notice upon a neighbor not to construct a new work, and the withdrawal of opposition will also be valid. If, however, he should serve notice upon the owner of the land himself, the withdrawal of opposition would be of no effect, nor would the usufructuary have any right of action against the owner, since he has one against the neighbor; as, for instance, to prevent him from raising his house to a greater height. But if his usufruct should be impaired by this act, he ought to bring an action to recover it. Julianus says the same thing with reference to others to whom servitudes are due from their neighbors. 5Julianus also says that it is not inequitable to allow a person, who has received land in pledge, the retention of a servitude imposed upon said land.