1Paulus, On the Edict, Book LXIV. The Prætor forbids any building to be erected in a public place, and issues an interdict to that effect.

2Ulpianus, On the Edict, Book LXVIII. The Prætor says: “Nothing shall be done in a public place, or brought there, which will cause any damage to it; except what is permitted by some law, decree of the Senate, Edict, or Rescript of the Emperors, and if anything of this kind is done, I will grant an interdict.” 1This interdict is prohibitory. 2By means of it, the public as well as the private welfare is protected. For public places are intended for the use of private persons, that is to say, as the property of the State, and not as belonging to any individual; and we have only as much right to their enjoyment as anyone of the people has to prevent their being interfered with. For which reason, if any work is done in a public place which tends to the injury of a private individual, the person responsible for it can be proceeded against under the prohibitory interdict which has been introduced for this purpose. 3Labeo defines the term, “public place,” as applying to such localities, houses, fields, highways, and roads as belong to the community at large. 4I do not think that this interdict has reference to places which belong to the Treasury, for no one can do anything in such places, nor can any private person prevent anything from being done there. Property of the Treasury, to a certain extent, belongs to the Emperor as his own. Therefore, if anyone builds anything on said property, there will be no ground for the application of this interdict. If any controversy arises on this point, the Imperial Prefects will be the judges. 5Hence, this interdict relates to places which are intended for the use of the public, and if anything is done there which may injure a private individual, the Prætor can intervene by means of this interdict. 6If anyone has an awning suspended over his portico, which shuts off the light from his neighbor, the interdict will be issued in the following terms: “Do not place anything in the public street which may interfere with the light of Gaius Seius.” 7If anyone wishes to repair anything in a public place, Aristo says that there will be ground for the application of this interdict, in order to prevent him from doing so. 8This interdict is available against anyone who builds a foundation in the sea, by a person who may be injured by it; but if no one sustains any damage, he who builds upon the shore, or constructs a foundation in the sea, should be protected. 9Where anyone is prevented from fishing in, or sailing upon the sea, he will not be entitled to this interdict, just as in the case of a person who is prevented from taking part in games in a public field, or bathing in a public bath, or being present in a theater; but in all these cases an action for reparation of injury must be employed. 10The Prætor very properly says, “where any injury is sustained by the party on this account.” For where anything is allowed to be done in a public place permission should be granted, for it to be done without causing injury to anyone, and the Emperor is accustomed to grant permission when a request is made for the construction of any new work. 11Moreover, injury is considered to be sustained when any benefit of any description whatever, which is derived from a public place, is lost. 12Hence, if the view enjoyed by anyone, or his approach to a public place is interfered with, and diminished, or restricted, this interdict should be employed. 13Labeo thinks if I erect a building in a public place, so as to prevent the water from flowing from my premises upon yours, which they formerly did without any right enjoyed by me, that I will not be liable under the interdict. 14It is clear that if the building which I erected should intercept the light of your house, this interdict will lie. 15He also says that if I erect a building in a public place, and it interferes with one which you have already erected in the same place, this interdict will not apply, as you also have built contrary to law, unless you have done so by virtue of some special privilege which has been granted to you. 16If anyone obtains from the Emperor general permission to build in a public place, it must not be believed that he can erect the building in such a way as to cause inconvenience to anyone; for such a concession is not understood to be granted unless this was expressly stated. 17If anyone constructs a house in a public place without anyone preventing it, he cannot be compelled to remove it, for fear that the city may be marred by its demolition; and because the interdict is prohibitory and not restitutory. If, however, the said building interferes with public use, it should be demolished on the application of the officer in charge of public works; but if it does not interfere with anything, a land tax can be imposed upon it, for the tax receives this name because it is paid on account of the ground. 18But if no work has yet been done, it is the duty of the judge having jurisdiction to require security that it will not be done, and the bond must be drawn up in such a way as to render the heir and other successors liable. 19The rule with reference to sacred places is different, for we not only forbid any work to be done in a sacred place, but where any has been done, we order everything to be restored to its former condition. This rule has been adopted for the sake of religion. 20The Prætor says: “I forbid anything to be built on a public highway or road, or to be placed there, by which the said highway or road is, or may be damaged.” 21By a public highway we mean one whose soil belongs to the people, for we do not understand a private road to mean the same as a public one. In the case of a private road, the soil belongs to another, and we have only the right of walking and driving over it; but the soil of a public highway is owned by the community, and has been established with reference to direction, and within certain limits, by him who had the right to render it public, in order that everyone might travel upon it, and traverse it. 22Some roads are public, some are private, and others are local, belonging to the neighborhood. We call roads public which the Greeks designated as royal, and we name prætorian or consular roads. Private roads are such as some persons style agrarian. Local, or neighborhood roads are those which are situated in villages, or lead to towns; certain authorities also call these public roads. This, however, is only true where they have not been established by the contribution of land by private persons; but it is otherwise if they are repaired at the expense of individuals, for a road is not private on this account. The repairs of the same are common, because such a road is for the common use and benefit. 23Private roads are understood to be of two kinds, some of them are through land upon which a servitude to furnish a right of way to the land of another has been imposed, others give access to certain tracts of land, and anyone can make use of them, after leaving a consular road, when a lane; a path, or a road for driving is found leading to a farm. I think that roads which lead from a consular highway to farms or villages are also public. 24This interdict only applies to roads in the country and not to those in cities, for the magistrates are charged with the care of the latter. 25If traffic is intercepted on a public highway, or it is closed, the magistrates shall intervene. 26If anyone conducts a sewer across a public highway, and, for that reason, it becomes less fit for use, Labeo says that he who placed it there will be liable. 27Hence, if anyone digs a ditch on his own land, and the water collected by it runs over the highway, he will be liable under this interdict, for he will be considered to have obstructed it. 28Labeo also says that if anyone builds a house on his own ground, and the water then collects upon the highway, he will not be liable under the interdict, because he did not cause the water to flow upon the highway, but he merely did not take care of it. Nerva, however, says, more properly, that he will be liable in both instances, as it is clear that if the land adjoins the public highway, the water flowing from it injures the latter; for if the water flows from the land of a neighbor upon yours, and you are compelled to take care of that water, there will be ground for an interdict against your neighbor. If, however, it is not necessary for you to take care of it, your neighbor will not be liable, but you will be; for he who had the use of the water is considered to have committed the act which damaged the highway. Nerva also says that if proceedings under the interdict are instituted against you, you will not be obliged to do anything more, or bring an action against your neighbor to force him to do what will satisfy the person who has sued you. If it should be decided otherwise, you will be considered responsible, even if you have brought a bona fide action against your neighbor, and it is not your fault that the person who sued you is not content with what you have done. 29Ad Dig. 43,8,2,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 20.He also says that if the place where the road is situated becomes unhealthy on account of a bad odor, an interdict cannot be employed on this account. 30This interdict also applies where animals are pastured on a public highway, or road, and injured. 31The Prætor also says, “by which the said highway or road is, or may be damaged.” Therefore this applies, whether the road is immediately damaged, or whether this takes place afterwards, for this is the meaning of the words, “is, or may be.” For there are certain things which injure a road immediately, and others which do not do so at once, but will in the future. 32Moreover, a road is understood to be damaged if it is rendered less available for travel, that is to say, for walking or driving; as, for instance, if, having been level, it becomes hilly; or, having been smooth, it becomes rough; or, having been wide, it becomes narrow; or, having been dry, it becomes muddy. 33I know that the point has been discussed whether an arch or a bridge can be constructed across a public highway. Many authorities hold that the person who does this will be liable under the interdict, because a highway must not be rendered less available for use. 34This interdict is perpetual, and popular, and judgment should be rendered to the extent of the interest of the plaintiff. 35The Prætor says: “You shall restore everything to its former condition, if you have done any work, or placed anything upon the public highway by means of which the said highway or road is, or may be damaged.” 36This interdict is founded upon the same reason as the former one, and the only difference between them is that this is restitutory, and the other prohibitory. 37He is not liable under this interdict who builds anything on the public highway, but he who is in possession of what has been built. Hence, if one person should erect something, and another should hold it, the latter will be liable; and this is more fitting, for he who has control of the obstruction can restore the highway to its original condition. 38We consider him to have possession of the building who holds or enjoys it by the right of possession, whether he himself constructed it or acquired it by purchase, lease, bequest, inheritance, or in any other way. 39Hence Ofilius thinks that if anyone abandons an obstruction which he has raised upon the highway, by which it is injured, he will not be liable under this interdict; for he does not have possession of what he constructed. But let us see whether an action can be granted against him. I think that an interdict will be available to compel him to remove whatever he built upon the public highway, and restore the latter to its former condition. 40If a tree falls from your land upon the public highway, in such a way as to obstruct it, and you consider the tree as abandoned, Labeo says that you will not be liable. He adds that if the complainant is ready to remove the tree at his own expense, he can properly proceed against you under the interdict relating to the repair of highways. If, however, you do not consider the tree as abandoned, he can properly proceed against you under this interdict. 41Labeo also says that if my neighbor obstructs the public highway by some work which he does, that is as advantageous to me as to himself, but did this only for the benefit of his own land, I can not be sued under the interdict; but if we caused this work to be performed in common, both of us will be liable. 42This interdict also applies against a person who has fraudulently avoided having possession of, or holding the structure which injures the highway; for he who is in possession of, or holds it, and he who has acted fraudulently to avoid doing so, must be subject to the same restrictions. The opinion of Labeo seems to me to be correct. 43When the Prætor says, “you shall restore it to its former condition,” he is understood to mean that it shall be placed in its original state, which is accomplished either by removing what has been built, or by replacing what has been taken away, and this sometimes at his own expense. For if the party who is sued under the interdict did the work, or someone else did it by his order, or he ratified what the latter had done, he must restore everything to its original condition at his own expense. If, however, nothing of this kind took place, but he merely holds possession of what has been constructed, we, in this instance, say that he must only suffer the work to be removed. 44It must be remembered that this interdict is not a temporary one, for it has reference to the public welfare. Judgment is rendered under it to the extent of the interest of the plaintiff in having the work which has been constructed demolished. 45The Prætor says: “I forbid violence to be employed to prevent anyone from freely passing and driving over a public highway, or road.”

3Celsus, Digest, Book XXXIX. I think that the shores of the sea over which the Roman people have control belong to them. 1The use of the sea as well as that of the air is common to all men, and the piles which are driven into it belong to the person who has placed them there; but this should not be conceded if the shore is damaged, or the future use of the sea is impaired on account of it.

4Scævola, Opinions, Book V. “It is allowed by the Law of Nations to build upon the sea-shore, unless the public use of it is interfered with by doing so.”

5Ad Dig. 43,8,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 458, Note 5.Paulus, On Sabinus, Book XVI. If a stream which conducts water through a public place injures a private person, he will be entitled to an action under the Law of the Twelve Tables to compel security to be given for any damage caused by the owner.

6Julianus, Digest, Book XLIII. He who avails himself of this interdict to prevent any work done in a public place from causing damage to a private individual can employ an attorney, although the proceeding under the interdict has reference to a public place.

7The Same, Digest, Book XLVIII. Just as a person who builds in a public place without anyone attempting to prevent him is not compelled to demolish what he has constructed in order to prevent the city from being defaced by the ruins, so anyone who builds contrary to the Prætorian Edict should remove what he has erected; otherwise, the authority of the Prætor becomes vain and illusory.