Si servitus vindicetur vel ad alium pertinere negetur
(Where an action is brought to recover a servitude, or the right of another to it is denied.)
1 Ulpianus libro quarto decimo ad edictum. Actiones de servitutibus rusticis sive urbanis eorum sunt, quorum praedia sunt: sepulchra autem nostri dominii non sunt: adquin viam ad sepulchrum possumus vindicare.
1 Ulpianus, On the Edict, Book IV. Rights of action with reference to servitudes, whether they are rustic or urban, belong to those who own the land; but our burial-places are not the subject of our ownership, although we can claim a right of way to a tomb.
2 Idem libro septimo decimo ad edictum. De servitutibus in rem actiones competunt nobis ad exemplum earum quae ad usum fructum pertinent, tam confessoria quam negatoria, confessoria ei qui servitutes sibi competere contendit, negatoria domino qui negat. 1Haec autem in rem actio confessoria nulli alii quam domino fundi competit: servitutem enim nemo vindicare potest quam is qui dominium in fundo vicino habet, cui servitutem dicit deberi. 2Recte Neratius scribit, si medii loci usus fructus legetur, iter quoque sequi (per ea scilicet loca fundi, per quae qui usum fructum cessit constitueret) quatenus est ad fruendum necessarium: namque sciendum est iter, quod fruendi gratia fructuario praestatur, non esse servitutem, neque enim potest soli fructuario servitus deberi: sed si fundo debeatur, et ipse fructuarius ea utetur. 3Pomponius dicit fructuarium interdicto de itinere uti posse, si hoc anno usus est: alibi enim de iure, id est in confessoria actione, alibi de facto, ut in hoc interdicto, quaeritur: quod et Iulianus libro quadragensimo octavo digestorum scribit. pro sententia Iuliani facit, quod Labeo scribit, etiam si testator usus sit qui legavit usum fructum, debere utile interdictum fructuario dari, quemadmodum heredi vel emptori competunt haec interdicta.
2 The Same, On the Edict, Book XVII. We are entitled to actions in rem for servitudes, (just as we are in the case of those relating to an usufruct), whether such actions are confessory or negatory; a confessory one being that employed by a party who claims he is entitled to a servitude, and a negatory one being that which can be brought by an owner who denies that one exists. 1This confessory action in rem lies in favor of no one else but the owner of the land; for no one can bring an action to recover a servitude except a party who has the ownership of adjacent land, and alleges that the servitude is attached to it. 2Neratius very properly states that if the usufruct of land situated in the middle of a tract is bequeathed, a right of way must also accompany it; that is to say, through such portions of said tract over which he who granted the usufruct would establish the right of way so far as is necessary for the enjoyment of the usufruct; for it must be borne in mind that where a right of way is granted an usufructuary for the purpose of enjoyment it is not a servitude, nor can a servitude exist for the benefit of a party entitled to the usufruct of the soil; but if one is attached to the land, the usufructuary can use it. 3Pomponius says that an usufructuary can apply for an interdict for a right of way, if he has availed himself of it within the year; for there are two kinds of judicial inquiries, one, relating to a question of law, that is to say in a confessory action; another relating to a question of fact, as in this interdict: as Julianus also stated in the Forty-eighth Book of the Digest. Labeo says in support of the opinion of Julianus, that even if the testator who bequeathed the usufruct himself made use of the right of way, an interdict could justly be granted the usufructuary; just as an heir or purchaser is entitled to such an interdict.
3 Idem libro septuagensimo ad edictum. Sed et si partem fundi quis emerit, idem dicendum est.
3 The Same, On the Edict, Book LXX. It may also be stated that the same rule is applicable where anyone purchases part of an estate.
4 Idem libro septimo decimo ad edictum. Loci corpus non est dominii ipsius, cui servitus debetur, sed ius eundi habet. 1Qui iter sine actu vel actum sine itinere habet, actione de servitute utetur. 2In confessoria actione, quae de servitute movetur, fructus etiam veniunt. sed videamus, qui esse fructus servitutis possunt: et est verius id demum fructuum nomine computandum, si quid sit quod intersit agentis servitute non prohiberi. sed et in negatoria actione, ut Labeo ait, fructus computantur, quanti interest petitoris non uti fundi sui itinere adversarium: et hanc sententiam et Pomponius probat. 3Si fundus, cui iter debetur, plurium sit, unicuique in solidum competit actio, et ita et Pomponius libro quadragensimo primo scribit: sed in aestimationem id quod interest veniet, scilicet quod eius interest, qui experietur. itaque de iure quidem ipso singuli experientur et victoria et aliis proderit, aestimatio autem ad quod eius interest revocabitur, quamvis per unum adquiri servitus non possit. 4Sed et si duorum fundus sit qui servit, adversus unumquemque poterit ita agi et, ut Pomponius libro eodem scribit, quisquis defendit, solidum debet restituere, quia divisionem haec res non recipit. 5Si quis mihi itineris vel actus vel viae controversiam non faciat, sed reficere sternere non patiatur, Pomponius libro eodem scribit confessoria actione mihi utendum: nam et si arborem impendentem habeat vicinus, qua viam vel iter invium vel inhabile facit, Marcellus quoque apud Iulianum notat iter petendum vel viam vindicandam. sed de refectione viae et interdicto uti possumus, quod de itinere actuque reficiendo competit: non tamen si silice quis sternere velit, nisi nominatim id convenit. 6Sed et de haustu, quia servitus est, competunt nobis in rem actiones. 7Competit autem de servitute actio domino aedificii neganti servitutem se vicino debere, cuius aedes non in totum liberae sunt, sed ei cum quo agitur servitutem non debent. verbi gratia habeo aedes, quibus sunt vicinae Seianae et Sempronianae, Sempronianis servitutem debeo, adversus dominum Seianarum volo experiri altius me tollere prohibentem: in rem actione experiar: licet enim serviant aedes meae, ei tamen cum quo agitur non serviunt: hoc igitur intendo habere me ius altius tollendi invito eo cum quo ago: quantum enim ad eum pertinet, liberas aedes habeo. 8Si cui omnino altius tollere non liceat, adversus eum recte agetur ius ei non esse tollere. haec servitus et ei, qui ulteriores aedes habet, deberi poterit.
4 The Same, On the Edict, Book XVII. The actual locality is not a part of the ownership of the person to whom its servitude is due; but he is entitled to the right of way. 1A party who has a right to pass on foot without the right to drive, or has the right to drive without the right to pass on foot, can make use of an action for a servitude. 2In a confessory action which is brought with reference to a servitude, the profits can also be included. Let us consider, however, what the profits of a servitude are; and with reference to this, the better opinion is that the only thing which can come under the denomination of profits is the interest, (if any), which the plaintiff has in not being excluded from the enjoyment of the servitude. But in a negatory action, (as Labeo says), the profits are computed with reference to the interest of the plaintiff in not having his adversary use a right of way over his premises; and Pomponius concurs in this opinion. 3Where the land to which the right of way is attached belongs to several persons, each one is entitled to an action for the whole; and this Pomponius lays down in the Forty-first Book. In the appraisement of the damages, however, the amount of the interest will be taken into consideration, that is, the interest of the party who institutes the proceedings. Therefore, where only the right is concerned, any one of the parties can proceed separately, and if he gains his case, the others will profit by it; but the estimate will be limited to the amount of his interest; although the servitude cannot be acquired through one joint-owner alone. 4Where the land subject to the servitude belongs to two parties, suit can be brought for this purpose against either of them (as Pomponius says in the same Book), and whichever one defends the case must restore the whole, because this is something which is not capable of division. 5Where anyone does not question my right to walk, or drive, or use a right of way, but does not permit me to make repairs, or to cover the road with stone, Pomponius in the same Book says that I am entitled to a confessory action; for if a neighbor has a tree which hangs over in such a way as to make the road or path impassable or useless; Marcellus, in a note on Julianus, states, that an action can be brought for the right of passage or to recover the right of way. With reference to the repairs of roads, we can also make use of an interdict, that is the one which is available for the repair of a pathway, or a driveway, but this proceeding cannot be instituted where the party wishes to cover the road with stone, unless this was expressly agreed upon. 6We are also entitled to actions in rem with reference to a right to draw water, for the reason that this is a servitude. 7The owner of a building is also entitled to an action relating to a servitude where he denies that he is subject to a servitude in favor of his neighbor, when his house is not entirely free, but is not subject to a servitude for the benefit of the party against whom the suit is brought. For example, I have a house adjacent to the Seian and Sempronian houses, and I owe a servitude to the Sempronian house, but I wish to institute proceedings against the owner of the Seian house, because he prevents me from raising the height of mine. I must bring an action in rem against him, for although my house is subject to a servitude, still, it is not subject to one in favor of the parties sued; and therefore I claim that I have the right to raise my house still higher, even against his consent, for my house is free, so far as he is concerned. 8Where a man is not permitted to raise his house any higher, an action can very properly be brought against him, alleging that he has no right to raise it. This servitude may even exist in favor of a party who owns a house some distance away:
5 Paulus libro vicensimo primo ad edictum. Et ideo si inter meas et Titii aedes tuae aedes intercedant, possum Titii aedibus servitutem imponere, ne liceat ei altius tollere, licet tuis non imponatur: quia donec tu non extollis, est utilitas servitutis.
5 Paulus, On the Edict, Book XXI. And, therefore, if you have a house between mine and that of Titius, I can impose a servitude on the house of Titius to prevent him from raising his any higher, although a servitude of this kind can not be imposed on yours; because so long as you do not raise yours, the benefit of the servitude remains.
6 Ulpianus libro septimo decimo ad edictum. Et si forte qui medius est, quia servitutem non debebat, altius extulerit aedificia sua, ut iam ego non videar luminibus tuis obstaturus, si aedificavero, frustra intendes ius mihi non esse ita aedificatum habere invito te: sed si intra tempus statutum rursus deposuerit aedificium suum vicinus, renasceretur tibi vindicatio. 1Sciendum tamen in his servitutibus possessorem esse eum iuris et petitorem. et si forte non habeam aedificatum altius in meo, adversarius meus possessor est: nam cum nihil sit innovatum, ille possidet et aedificantem me prohibere potest et civili actione et interdicto quod vi aut clam: idem et si lapilli iactu impedierit. sed et si patiente eo aedificavero, ego possessor ero effectus. 2Etiam de servitute, quae oneris ferendi causa imposita erit, actio nobis competit, ut et onera ferat et aedificia reficiat ad eum modum, qui servitute imposita comprehensus est. et Gallus putat non posse ita servitutem imponi, ut quis facere aliquid cogeretur, sed ne me facere prohiberet: nam in omnibus servitutibus refectio ad eum pertinet, qui sibi servitutem adserit, non ad eum, cuius res servit. sed evaluit servi sententia, in proposita specie ut possit quis defendere ius sibi esse cogere adversarium reficere parietem ad onera sua sustinenda. Labeo autem hanc servitutem non hominem debere, sed rem, denique licere domino rem derelinquere scribit. 3Haec autem actio in rem magis est quam in personam et non alii competit quam domino aedium et adversus dominum, sicuti ceterarum servitutium intentio. 4Si aedes plurium dominorum sint, an in solidum agatur, Papinianus libro tertio quaestionum tractat: et ait singulos dominos in solidum agere, sicuti de ceteris servitutibus excepto usu fructu. sed non idem respondendum inquit, si communes aedes essent, quae onera vicini sustinerent. 5Modus autem refectionis in hac actione ad eum modum pertinet, qui in servitute imposita continetur: forte ut reficiat lapide quadrato vel lapide structili vel quovis alio opere, quod in servitute dictum est. 6Veniunt et fructus in hac actione, id est commodum quod haberet, si onera aedium eius vicinus sustineret. 7Parietem autem meliorem quidem, quam in servitute impositum est, facere licet: deteriorem si facit, aut per hanc actionem aut per operis novi nuntiationem prohibetur.
6 Ulpianus, On the Edict, Book XVII. And if it should happen that the person who owns the intervening building, as he is not subject to a servitude, raises his house still higher, so that now I cannot be held to obstruct your lights if I should build; you will allege in vain that I have no right to build in this way without your consent; but if, within the time prescribed by law, the neighbor should demolish his building, your right of action will be revived. 1It should be borne in mind, however, that with reference to these servitudes, the possessor of the right may be also the plaintiff; and if perchance, I have not raised the height of my building; then my adversary is the possessor of the right, for, since nothing new has been done, he is in possession and can prevent me from building, by means of a civil action, or by an interdict Quod vi aut clam. The result will be the same if he hinders me by casting a pebble. But if I build without his objecting, I myself will then become the possessor. 2Moreover, we are entitled to an action with reference to a servitude which was imposed for the support of a burden, for the purpose of compelling the servient owner to maintain the support, and repair his building in the way which was provided when the servitude was imposed. Gallus thinks that a servitude cannot be imposed in such a way that a man shall be compelled to do something, but that he shall not prevent me from performing some act; for in every servitude the duty of making repairs belongs to the party who claims the right, not to him whose property is subject to the same. The opinion of Servius, however, has prevailed so that, in the case stated, anyone can claim the right to compel his adversary to repair his wall, in order to support the burden. Labeo says, however, that this servitude is not attached to the person but to the property, hence the owner is at liberty to abandon the property. 3This action indeed is rather a real than a personal one, and will lie in favor of no one else but the owner of dominant tenement; and it can be brought against the owner of the servient tenement, just as in the case of other servitudes. 4Papinianus, in the Third Book of Questions, discusses the point whether, where a house belongs to several joint-owners, suit can be brought with reference to the entire servitude? He says that the owners can bring suit separately for the whole, just as can be done in the case of other servitudes with the exception of usufruct. This answer should not be given, he adds, where the house which sustains the burden of a neighbor is owned in common. 5The nature of the repairs which can be the subject of this action is dependent upon what was stated when the servitude was imposed; it might have been agreed that the party should repair with dressed stone, or ordinary building stone, or any other kind of material which was mentioned when the servitude was created. 6Profits are taken into consideration in this action, that is to say, the benefit which the party would have obtained if his neighbor had supported the weight of his house. 7The servient owner has a right to make the wall better than was agreed upon, when the servitude was imposed; but if he attempts to make it worse, he can be prevented from doing so either by this action, or by notice of a new structure.
7 Paulus libro vicensimo primo ad edictum. Harum actionum eventus hic est, ut victori officio iudicis aut res praestetur aut cautio. res ipsa haec est, ut iubeat adversarium iudex emendare vitium parietis et idoneum praestare. cautio haec est, ut eum iubeat de reficiendo pariete cavere neque se neque successores suos prohibituros altius tollere sublatumque habere: et si caverit, absolvetur. si vero neque rem praestat neque cautionem, tanti condemnet, quanti actor in litem iuraverit.
7 Paulus, On the Edict, Book XXI. The result of these actions is that the plaintiff, if he gains the case, by application to the judge will either have relief granted or security furnished. The relief which should be granted is that the judge must order the defendant to repair the defect of the wall and place it in a proper condition. The security is, that the judge shall order him to give a bond for the repair of the wall, and to provide therein that neither he nor his successors will prevent the plaintiff from raising it higher, and will maintain the edifice after it is built; and if he gives this security he shall be discharged from liability. But if he does not either allow the relief to be granted, or furnish security, he shall be ordered to pay damages to the amount to which the plaintiff will make oath in court.
8 Ulpianus libro septimo decimo ad edictum. Sicut autem refectio parietis ad vicinum pertinet, ita fultura aedificiorum vicini cui servitus debetur, quamdiu paries reficitur, ad inferiorem vicinum non debet pertinere: nam si non vult superior fulcire, deponat, et restituet, cum paries fuerit restitutus. et hic quoque sicut in ceteris servitutibus actio contraria dabitur, hoc est ius tibi non esse me cogere. 1Competit mihi actio adversus eum, qui cessit mihi talem servitutem, ut in parietem eius tigna inmittere mihi liceat supraque ea tigna verbi gratia porticum ambulatoriam facere superque eum parietem columnas structiles imponere, quae tectum porticus ambulatoriae sustineant. 2Distant autem hae actiones inter se, quod superior quidem locum habet etiam ad compellendum vicinum reficere parietem meum, haec vero locum habet ad hoc solum, ut tigna suscipiat, quod non est contra genera servitutium. 3Sed si quaeritur, quis possessoris, quis petitoris partes sustineat, sciendum est possessoris partes sustinere, si quidem tigna immissa sint, eum, qui servitutem sibi deberi ait, si vero non sunt immissa, eum qui negat. 4Et si quidem is optinuerit, qui servitutem sibi defendit, non debet ei servitus cedi, sive recte pronuntiatum est, quia habet, sive perperam, quia per sententiam non debet servitus constitui, sed quae est declarari. plane si non utendo amisit dolo malo domini aedium post litem contestatam, restitui ei oportet, quemadmodum placet in domino aedium. 5Aristo Cerellio Vitali respondit non putare se ex taberna casiaria fumum in superiora aedificia iure immitti posse, nisi ei rei servitutem talem admittit. idemque ait: et ex superiore in inferiora non aquam, non quid aliud immitti licet: in suo enim alii hactenus facere licet, quatenus nihil in alienum immittat, fumi autem sicut aquae esse immissionem: posse igitur superiorem cum inferiore agere ius illi non esse id ita facere. Alfenum denique scribere ait posse ita agi ius illi non esse in suo lapidem caedere, ut in meum fundum fragmenta cadant. dicit igitur Aristo eum, qui tabernam casiariam a Minturnensibus conduxit, a superiore prohiberi posse fumum immittere, sed Minturnenses ei ex conducto teneri: agique sic posse dicit cum eo, qui eum fumum immittat, ius ei non esse fumum immittere. ergo per contrarium agi poterit ius esse fumum immittere: quod et ipsum videtur Aristo probare. sed et interdictum uti possidetis poterit locum habere, si quis prohibeatur, qualiter velit, suo uti. 6Apud Pomponium dubitatur libro quadragensimo primo lectionum, an quis possit ita agere licere fumum non gravem, puta ex foco, in suo facere aut non licere. et ait magis non posse agi, sicut agi non potest ius esse in suo ignem facere aut sedere aut lavare. 7Idem in diversum probat: nam et in balineis, inquit, vaporibus cum Quintilla cuniculum pergentem in Ursi Iuli instruxisset, placuit potuisse tales servitutes imponi.
8 Ulpianus, On the Edict, Book XVII. It being thus the duty of one neighbor to repair the wall, the support of the building of the other neighbor who is entitled to the servitude, while the repairs are going on, is not a part of the duty of the owner of the lower building; for if the owner of the upper one does not wish to prop up the building himself, he can demolish and rebuild it when the wall is rebuilt. In this instance also, as in that of other servitudes, a counter action will be granted; that is to say, one in which it is set forth that you have no right to use compulsion against me. 1An action will lie in my favor against him who grants me a servitude such as the following, namely: that I shall have the right to insert timbers into his wall, and upon said timbers (for example), to build a gallery in which to promenade, and to place columns on the top of the wall, for the purpose of supporting the roof of said gallery. 2These actions differ from one another in that the first may be employed to compel the adjoining neighbor to repair my wall; but the second is only available to compel him to receive my timbers; for this is not contrary to the ordinary nature of servitudes. 3If, however, it should be asked which party should sustain the position of possessor and which one that of plaintiff; it must be remembered that if the timbers are already inserted, the party who alleges that he is entitled to the servitude is in the position of possessor; but if they are not inserted, he who denies this right is the possessor. 4And if he who claims the servitude for himself should be successful, the servitude should not be granted to him, because he has it already, if the decision was rendered in accordance with law; nor should it be if it was wrongfully rendered, for the reason that, by the decree, the servitude was not to be established, but to be declared to exist. It is clear that if, after issue had been joined, the plaintiff lost the servitude by not making use of it through the malicious fraud of the owner of the building, it must be restored to him; just as has been decided in the case of the owner of the building. 5Aristo, in an opinion given to Cerellius Vitalis states, that he does not think that smoke can lawfully be discharged from a cheese-factory upon buildings situated above it, unless a servitude of this kind is imposed upon said buildings; and this is admitted. He also says that it is not legal to discharge water or anything else from an upper on to a lower building, as the party has only the right to perform such acts on his own premises as will not discharge anything upon those of another, and there can be a discharge of smoke as well as of water; hence the owner of the higher building can bring suit against the owner of the lower and allege that the latter had no right to do this. He says, in conclusion, that Alfenus holds that an action can be brought in which it is alleged that a party has no right to cut stone on his own ground in such a way as to allow the pieces to fall on my premises. Hence Aristo says that a man who rented a cheese-factory from the people of Mintern? could be prevented by the owner of a house above it from discharging smoke, but the people of Mintern? would be liable on the lease; and he also says that the allegation which he can make in his suit against the party who discharges the smoke is that he has no right to do so. Therefore, on the other hand, an action will lie in which it may be alleged that he has the right to discharge smoke, and this also Aristo approves. Moreover, the interdict Uti possidetis is applicable where a party is prevented from making use of his own property in any way that he pleases. 6A doubt is raised by Pomponius in the Forty-first Book of Passages, as to whether anyone can allege in an action that he has a right, or that another has no right to make a light smoke; as for example, one from a hearth on his own premises. He holds that such an action cannot be brought, just as one cannot be brought alleging that a party has no right to make a fire, or to sit down, or to wash on his own premises. 7He also approves of an opposite decision, for he says that, in the case of a bath, where a certain Quintilla had built an underground passage for vapors which were discharged upon the property of Ursus Julius, it was established that such a servitude could be imposed.
9 Paulus libro vicensimo primo ad edictum. Si eo loco, per quem mihi iter debetur, tu aedificaveris, possum intendere ius mihi esse ire agere: quod si probavero, inhibebo opus tuum. item Iulianus scripsit, si vicinus in suo aedificando effecerit, ne stillicidium meum reciperet, posse me agere de iure meo, id est ius esse immittendi stillicidium, sicut in via diximus. sed si quidem nondum aedificavit, sive usum fructum sive viam habet, ius sibi esse ire agere vel frui intendere potest: quod si iam aedificavit dominus, is qui iter et actum habet adhuc potest intendere ius sibi esse, fructuarius autem non potest, quia amisit usum fructum: et ideo de dolo actionem dandam hoc casu Iulianus ait. contra si in itinere, quod per fundum tibi debeo, aedifices, recte intendam ius tibi non esse aedificare vel aedificatum habere, quemadmodum si in area mea quid aedifices. 1Qui latiore via vel angustiore usus est, retinet servitutem, sicuti qui aqua, ex qua ius habet utendi, alia mixta usus est, retinet ius suum.
9 Paulus, On the Edict, Book XXI. If you build on a place through which I have a right of passage, I can allege in a suit that I have a right to walk and drive there; and if I prove this, I can prevent you from working. Julianus also says that if a neighbor of mine, by building upon his land, avoids receiving the drip from my roof, I can bring an action based on my right; that is to say, the right to discharge the water of my roof on his premises; just as we have stated with respect to the right of way. But where he has not yet built, the other party, whether he has the usufruct or the right of way, can set forth that he has a right to walk or drive, and the right of enjoyment; but if the owner has already built, he who is entitled to the right of way can still allege that the right belongs to him, but the usufructuary cannot do so, because he has lost the usufruct; and therefore Julianus says that an action on the ground of fraud should in this case be granted. On the other hand, if you build across a right of way to which my estate is subject for your benefit, I can properly allege that you have no right to build, or to have a building there; just as I could do if you built anything on unoccupied land which belongs to me. 1Where a man has been accustomed to use a broader or a narrower road than he was entitled to, he will retain the servitude; just as a party who has a right to use water and uses it mixed with other water retains his right.
10 Ulpianus libro quinquagensimo tertio ad edictum. Si quis diuturno usu et longa quasi possessione ius aquae ducendae nactus sit, non est ei necesse docere de iure, quo aqua constituta est, veluti ex legato vel alio modo, sed utilem habet actionem, ut ostendat per annos forte tot usum se non vi non clam non precario possedisse. 1Agi autem hac actione poterit non tantum cum eo, in cuius agro aqua oritur vel per cuius fundum ducitur, verum etiam cum omnibus agi poterit, quicumque aquam non ducere impediunt, exemplo ceterarum servitutium. et generaliter quicumque aquam ducere impediat, hac actione cum eo experiri potero.
10 Ulpianus, On the Edict, Book LIII. Where anyone has obtained the right of conducting water by long use, and, as it were, by long possession, it is not necessary for him to establish by law the right which he has to the use of the water; for instance, to show that it was derived from a legacy or in any other way; but he is entitled to an equitable action to prove that he has had the use of said water for a certain number of years, and that this was not obtained by force, or by stealth, or by sufferance. 1This action can be brought not only against the party on whose land the source of the water is situated, or through whose premises it is conducted, but also against all persons who try to prevent me from conducting the water; just as in the case of other servitudes. Generally speaking, I can institute proceedings by means of this action against anyone whomsoever that attempts to prevent me from conducting the water.
11 Marcellus libro sexto digestorum. An unus ex sociis in communi loco invitis ceteris iure aedificare possit, id est an, si prohibeatur a sociis, possit cum his ita experiri ius sibi esse aedificare, et an socii cum eo ita agere possint ius sibi prohibendi esse vel illi ius aedificandi non esse: et si aedificatum iam sit, non possit cum eo ita experiri ius tibi non esse ita aedificatum habere, quaeritur. et magis dici potest prohibendi potius quam faciendi esse ius socio, quia magis ille, qui facere conatur ut dixi, quodammodo sibi alienum quoque ius praeripit, si quasi solus dominus ad suum arbitrium uti iure communi velit.
11 Marcellus, Digest, Book VI. The inquiry was made can one of a number of joint-owners legally build on land held in common by them without the consent of the others; that is to say, if he is forbidden to do so by the said joint-owners, can he institute proceedings against them and allege that he has a right to build; or can the other joint-owners bring an action against him, and assert they have a right to prevent him, or that he has no right to build; and if the building is already constructed, can they not bring suit against him on the ground that he has no right to have a building there under the circumstances? This can be best answered by saying that a joint-owner has a better right to prevent building, than to build; because he who is attempting to perform an act of this kind (as I have already stated), if he wishes to use the common property, according to his own pleasure, as if he were the sole owner of the same, is appropriating to his own individual use a right which belongs to others.
12 Iavolenus libro secundo epistularum. Egi ius illi non esse tigna in parietem meum immissa habere: an et de futuris non immittendis cavendum est? respondi: iudicis officio contineri puto, ut de futuro quoque opere caveri debeat.
12 Javolenus, Epistles, Book III. I alleged in an action that the defendant had no right to have his timbers inserted into my wall; must he also give security that he will not insert any into it hereafter? I answered that I think it is part of the fluty of the judge to compel him to give security with reference to future work as well.
13 Proculus libro quinto epistularum. Fistulas, quibus aquam duco, in via publica habeo et hae ruptae inundant parietem tuum: puto posse te mecum recte agere ius mihi non esse flumina ex meo in tuum parietem fluere.
13 Proculus, Epistles, Book V. I have pipes by which I conduct water on the public highway, and these, having burst, flooded your wall; I think that you are entitled to an action against me, in which you can allege that I have no right to allow water to flow from my premises against your wall.
14 Pomponius libro trigensimo tertio ad Sabinum. Si, cum meus proprius esset paries, passus sim te immittere tigna quae antea habueris: si nova velis immittere, prohiberi a me potes: immo etiam agere tecum potero, ut ea, quae nova immiseris, tollas. 1Si paries communis opere abs te facto in aedes meas se inclinaverit, potero tecum agere ius tibi non esse parietem illum ita habere.
14 Pomponius, On Sabinus, Book XXXIII. If a wall belongs to me, and I permit you to insert into it timbers which you had there formerly, and you then wish to insert others, you can be prevented from doing so by me; and, indeed, I have a right of action to compel you to remove any timbers which you have recently inserted therein. 1If a party-wall which you and I own, should, on account of any work which you have done, incline towards my house, I can bring an action against you and allege that you have no right to have a wall in that condition.
15 Ulpianus libro sexto opinionum. Altius aedes suas extollendo, ut luminibus domus minoris annis viginti quinque vel impuberis, cuius curator vel tutor erat, officiatur, efficit: quamvis hoc quoque nomine actione ipse heredesque teneantur, quia quod alium facientem prohibere ex officio necesse habuit, id ipse committere non debuit, tamen et adversus possidentem easdem aedes danda est impuberi vel minori actio, ut quod non iure factum est tollatur.
15 Ulpianus, Opinions, Book VI. By raising his house a person caused it to obstruct the lights of a building belonging to a minor under twenty-five years of age, or under the age of puberty, of whom he was the curator or guardian; and although, in this instance, he himself and his heirs would be liable to be sued, for the reason that he had no right to commit an act which, on account of his office, he was required to prevent anyone else from doing; still, an action should be granted to the boy, or to the minor, against anyone who is in possession of the said house, to compel him to remove what was not lawfully constructed.
16 Iulianus libro septimo digestorum. Si a te emero, ut mihi liceat ex aedibus meis in aedes tuas stillicidium immittere et postea te sciente ex causa emptionis immissum habeam, quaero, an ex hac causa actione quadam vel exceptione tuendus sim. respondi utroque auxilio me usurum.
16 Julianus, Digest, Book XVII. If I purchase from you permission to let rain-water drip from my house on to yours, and afterwards, with your knowledge, on account of the purchase, I allow it to do so; I ask, whether I can on this ground be protected by any action or exception? I answered that I can avail myself of either resource.
17 Alfenus libro secundo digestorum. Si quando inter aedes binas paries esset, qui ita ventrem faceret, ut in vicini domum semipedem aut amplius procumberet, agi oportet ius non esse illum parietem ita proiectum in suum esse invito se. 1Cum in domo Gaii Sei locus quidam aedibus anni ita serviret, ut in eo loco positum habere ius Seio non esset, et Seius in eo silvam sevisset, in qua labra et tenes cucumellas positas haberet, annio consilium omnes iuris periti dederunt, ut cum eo ageret ius ei non esse in eo loco ea posita habere invito se. 2Secundum cuius parietem vicinus sterculinum fecerat, ex quo paries madescebat, consulebatur, quemadmodum posset vicinum cogere, ut sterculinum tolleret. respondi, si in loco publico id fecisset, per interdictum cogi posse, sed si in privato, de servitute agere oportere: si damni infecti stipulatus esset, possit per eam stipulationem, si quid ex ea re sibi damni datum esset, servare.
17 Alfenus, Digest, Book II. If there should be a wall between two houses, which projects a half a foot or more towards the adjacent building, proceedings must be instituted alleging that the defendant ought not to permit the wall to project in this manner over the premises of the plaintiff without his permission. 1A certain part of the premises of Gaius Seius was subject to a servitude for the benefit of the house of Annius, which provided that Seius should have no right to put anything in that place; but Seius planted trees there, and under them kept basins and other vessels. All persons learned in the law advised Annius to bring suit against Seius on the ground that he had no right to have those things in that place without his consent. 2A neighbor placed a dunghill against the wall of another party from which the wall became damp; and advice was asked in what way he could compel his neighbor to remove the dunghill. I answered, that if he had done this in a public place he could be compelled to remove it by means of an interdict; but if it was done in a private place, it would be necessary to bring an action with reference to a servitude; and if there had been any stipulation for the prevention of threatened injury, the party could avail himself of the stipulation if he had sustained any damage on account of what had been done.
18 Iulianus libro sexto ex Minicio. Is, cuius familia vicinum prohibebat aquam ducere, sui potestatem non faciebat, ne secum agi posset: quaerit actor, quid sibi faciendum esset. respondi oportere praetorem causa cognita iubere bona adversarii possideri et non ante inde discedere, quam is actori ius aquae ducendae constituisset et si quid, quia aquam ducere prohibitus esset, siccitatibus detrimenti cepisset, veluti si prata arboresve exaruisset.
18 Julianus, On Minicius, Book VI. The slaves of a certain man had prevented a neighbor from conducting water, and the responsible party having concealed himself to avoid suit being brought against him, the complainant asked what he can do? I answered that the Prætor, after having heard the case, must order the property of the defendant to be taken into possession and not surrendered until he had established a right of conducting water for the benefit of the plaintiff, if he had suffered any damage from drought, because he had been prevented from conducting water; as for instance, if his meadows or his trees had been dried up.
19 Marcianus libro quinto regularum. Si de communi servitute quis bene quidem deberi intendit, sed aliquo modo litem perdidit culpa sua, non est aequum hoc ceteris damno esse: sed si per collusionem cessit lite adversario, ceteris dandam esse actionem de dolo Celsus scripsit, idque ait Sabino placuisse.
19 Marcianus, Rules, Book V. Where anyone makes proper allegations in a suit with reference to a servitude which he enjoys in common with others, and loses the case in some way through his own negligence, it is not just that this should cause any damage to the other joint-owners; but if, through collusion, he abandons the suit to his adversary, an action on the ground of fraud should be granted to the others; as Celsus says, and he adds that this was also held by Sabinus.
20 Scaevola libro quarto digestorum. Testatrix fundo, quem legaverat, casas iunctas habuit: quaesitum est, si hae fundo legato non cederent eumque legatarius vindicasset, an iste fundus aliquam servitutem casis deberet aut, si ex fideicommissi causa cum sibi dari legatarius desideraret, heredes servitutem aliquam casis excipere deberent. respondit deberi. 1Plures ex municipibus, qui diversa praedia possidebant, saltum communem, ut ius compascendi haberent, mercati sunt idque etiam a successoribus eorum est observatum: sed nonnulli ex his, qui hoc ius habebant, praedia sua illa propria venum dederunt. quaero, an in venditione etiam ius illud secutum sit praedia, cum eius voluntatis venditores fuerint, ut et hoc alienarent. respondit id observandum, quod actum inter contrahentes esset: sed si voluntas contrahentium manifesta non sit, et hoc ius ad emptores transire. item quaero, an, cum pars illorum propriorum fundorum legato ad aliquem transmissa sit, aliquid iuris secum huius compascui traxerit. respondit, cum id quoque ius fundi, qui legatus esset, videretur, id quoque cessurum legatario.
20 Scævola, Digest, Book IV. A testatrix owned some houses adjoining a tract of land which she bequeathed; the question arose, whether, if these were not included with the land and the legatee should bring suit to recover it, the said land would be subject to any servitude for the benefit of the houses; or if the legatee claimed that the land should be conveyed to him in compliance with the terms of a trust, whether the heirs ought to reserve a servitude in favor of the houses? The answer was that they should do so. 1Several citizens of a town, who owned different estates, purchased a tract of woodland, to be held in common for the enjoyment of the right of pasturage, and this arrangement was carried out by their successors; but some of those who had this right subsequently sold the separate estate above mentioned. I ask whether, after the sale, the right follows the said estates, since it was the intention of the vendors to also dispose of this right? The answer was that what had been understood between the contracting parties must be observed; but if their intention was not evident, that this right would also pass to the purchasers. I also ask, if when a portion of the said individual estates has been conveyed by the legatees to anyone else, whether it would carry with it any part of the right of pasturage? The answer was, that as this, right must be considered to be attached to the estate which was bequeathed, it would also go to the legatee.
21 Labeo libro primo pithanon a Paulo epitomatorum. Si qua aqua nondum apparet, eius iter ductus constitui non potest. Paulus: immo puto idcirco id falsum esse, quia cedi potest, ut aquam quaereres et inventam ducere liceret.
21 Labeo, Epitomes of Probabilities by Paulus. Where no water has yet appeared, no right of way to it, nor any canal for the conduct of the same can be established. Paulus says, I think, that this is not true, by any means; because a grant can be made permitting you to look for water, and, if it should be found to convey it.