Paulus, On the Edict, Book XXIII. The action for the establishment of boundaries is a personal one; although it is a proceeding for the recovery of property.

Paulus, On the Edict, Book XXIII. Where a controversy exists with reference to a certain piece of real-estate the land can be divided into shares by means of a decree, in accordance with what the judge finds to be the interest of the parties in said land. 1In a suit for the establishment of boundaries an account must be taken of the interest of the parties; for example, where anyone obtains some benefit from a tract of land which is ascertained to belong to a neighbor, would it be unjust that payment should be required on that account? Moreover, if a surveyor had been employed by one of the parties, the other who did not employ him would be obliged to pay his share of the compensation. 2After issue has been joined in a case, account is taken of the profits, for from that time negligence and malice must be made the subject of investigation, but whatever is collected before issue is joined will not, under any circumstances, be considered, for either the party collected it in good faith, and he should be allowed the benefit of it if he has consumed it; or, if he collected it in bad faith, an action must be brought against him for its recovery. 3Where, however, anyone refuses to obey the judge by cutting down a tree, or removing a building erected on the boundary, or on some portion of it, he will be required to make payment. 4Where landmarks are alleged to have been thrown down or dug up; the judge who has jurisdiction can hear an application to establish the boundaries also. 5Where one tract of land belongs to two persons and another to three; the court can adjudge the tract which is in dispute to one side, even though it includes several owners, since where the boundaries of land are established, this is understood to be done rather for the benefit of an estate than for that of a person; in this instance, however, since the decision was for the benefit of several parties, each one will be entitled to the same share which he has in the estate, and which will be held in common. 6Those who have shares in the common estate will not be liable to payment to one another, for no judicial controversy appears to have arisen between them. 7If you and I have an estate in common, and I alone own an adjoining tract of land, can legal proceedings be taken by us for the establishment of boundaries? Pomponius states that there cannot, because my joint-owner and myself cannot be adversaries in an. action of this kind, but we are considered to occupy the place of one person. Pomponius also says that even an equitable action cannot be granted, as the party who holds property in his own right can alienate either what he held jointly or severally, and then institute proceedings. 8An action can be brought for the establishment of boundaries not only between two estates, but even among three or more, as for instance, where one estate and several others, even as many as three or four, are contiguous. 9An action for the establishment of boundaries can be brought where lands are subject to perpetual lease; or between persons who have usufructs in the different tracts; or between an usufructuary and a mere owner of adjoining land; or between parties who have possession on account of real property given by way of pledge. 10This action is available where the boundary is between rustic estates; it does not, however, apply in the case of urban estates; for in the latter instance, the parties are not persons who have the same boundary, but they are rather said to be neighbors, and their estates are, for the most part, separated by common walls. Therefore, where buildings are adjoining, even in the country, there is no ground for this action; and, on the other hand, in a city there may be gardens which are contiguous, so that here also an action can be brought for the establishment of boundaries. 11Where a river or a highway intervenes, it is not understood to be a boundary; hence no suit can be brought for the establishment of a boundary.

The Same, On the Edict, Book XXIII. But if a private stream intervenes, an action for the establishment of boundaries can be brought.

Paulus, On the Edict, Book XXIII. This action also includes property which the heirs have acquired by usucaption, in instances where it was delivered to the deceased, and also property which was delivered to the heirs, and which the deceased had purchased.

Paulus, On the Edict, Book XXIII. The child of a female slave, if it is born after the estate has been entered upon,

Paulus, On the Edict, Book XXIII. Or where an usufruct was bequeathed to a slave belonging to the estate; as an usufruct cannot depart from the party in interest without being lost.

Paulus, On the Edict, Book XXIII. The same rule applies in the case of an action brought for the partition of property held in common.

Paulus, On the Edict, Book XXIII. On account of the hope of postliminium? Of course a bond should be given, because the party might not return; unless there was only an estimate made of an event that was uncertain.

Paulus, On the Edict, Book XXIII. The heirs of a person who died in the hands of the enemy can bring this suit. 1Where a soldier makes one person an heir to his castrensian property and another an heir to the remainder of his estate, there is no ground for an action for partition; since the property will be divided between the heirs according to the Imperial Constitution, just as a suit for the partition of an estate cannot be brought where there is no corporeal property, but the assets all consist of claims. 2With reference to the point as to whether a party is entitled to undertake the defence in an action for partition, it makes no difference whether he has possession of the estate or not. 3Where several estates are held in common by different persons under different titles, a single action in partition can be brought. 4Where the Titian estate is held in common by you and me, and that of the estate of Seius is held by you and Titius and myself, Pomponius says that one action can be brought to which all three persons will be parties. 5Moreover, where several estates are held by us in common, we can proceed by an action for partition with reference to one of them alone. 6Where a testator holds property in common with a stranger, or bequeathed to anyone a portion of his property; or his heir, before joinder of issue in an action for partition, alienated his own share; it is the duty of the judge to order that the share which was the property of the testator should be transferred to some one. 7Where a co-heir has possession of property as a purchaser, or, for instance, has received it as a gift; Pomponius denies that it can be included in an action for partition of the estate. 8He also says if you and I become the heirs of Titius, and you bring an action against Sempronius for a portion of a tract of land all of which you say is included in the estate, and you are defeated; and I then purchase the same share from Sempronius and it is transferred to me, and you bring an action for partition, this will not only not include what I am in possession of as heir, but will not even embrace what I hold as purchaser; for, as it was evident by the former decree that the entire tract of land was not included in the estate, how could it be included in a suit for the partition of the latter? 9It is doubtful whether a stipulation, the terms of which give each heir a right of action for the entire amount, is included in a suit of this kind; as for instance, where a party dies after having stipulated for a right of way, a path or a driveway, for the reason that a stipulation of this kind according to the Law of the Twelve Tables is not permitted to be divided, because this cannot be done. The better opinion, however, is that it is not included in the action, but that all the heirs have a right to bring suit for the entire amount; and if the right of way is not furnished, the decision against the defendant should be for a sum of money in proportion to the share of the plaintiff in the estate. 10On the other hand, where a person who promises a right of way dies after having appointed several heirs, the obligation is not divided; and there is no doubt that it continues to exist, since a party can promise a right of way who has no land. Therefore, since each individual heir is liable for the whole, it is the duty of the judge to require bonds to be furnished, so that if any one of the heirs should be sued and pay the damages assessed by the Court, he can recover a portion of the amount from the others. 11The same rule applies where a testator bequeaths a right of way. 12In the case of a different stipulation also, where a testator promised that nothing should be done by him or by his heir to prevent the other party from walking or driving, since, if one co-heir should prevent this a suit for the entire amount can be brought under the stipulation, the interests of the co-heir must be protected to prevent the act of one of them being prejudicial to the others. 13The same rule of law applies to a sum of money promised by a testator, if it was promised under a penalty; for although this obligation may, according to the Law of the Twelve Tables, be divided; still, for one party to pay his share will not in any way contribute to the avoidance of the penalty, yet, if the money has not been paid, or is not due, recourse must be had to a bond, so that provision may be made for the indemnity of the others by the party who is to blame for all the money not being paid; or each one must give security that he will make good a part to whoever pays the whole amount; or where one of the heirs pays the entire sum promised by the testator in order to prevent the penalty from attaching, he can recover from his co-heirs their shares of the same in an action for partition. 14The same rule is observed in the redemption of pledges, for unless a tender is made of the entire amount which is due, the creditor can legally sell the pledge. 15Where one of several co-heirs defends an hereditary slave in a noxal action, and tenders the amount of estimated damages, where this is expedient, he can by this action recover a part of what was paid. The same rule applies where one co-heir gives security with reference to legacies, to prevent the legatees from being placed in possession. And, generally speaking, where measures cannot be taken for a division, if one party should act under the force of necessity, there will be ground for an action in partition. 16A co-heir is responsible not only for malice but also for negligence committed with reference to the assets of an estate, since we do not contract with the co-heir but happen upon him accidentally; still, a co-heir is not obliged to be accountable for as much diligence as the careful head of a family would exercise, as he had good reason for acting on account of his own share; and therefore he would not be entitled to an action on the ground of business transacted, hence he must therefore employ the same diligence which he would display in his own affairs. It is the same where property is bequeathed to two legatees; for it was not their consent but the circumstances of the case which united them in ownership. 17Where a slave is bequeathed in indefinite terms and the legatee afterwards dies, and one of the heirs of said legatee, by not giving his consent, prevents the legacy from being paid, he who caused the hindrance shall be compelled, by means of this action, to pay to the others whatever the interest of each amounts to. The same rule applies where, on the other hand, one of the heirs at whose charge a slave has been bequeathed in general terms, being such a one as they themselves might select, is unwilling to consent that a slave should be delivered whom it would be beneficial to all to have thus disposed of, and, in consequence, the heirs are sued by the legatee and compelled to pay, by way of damages, a larger sum than the slave is worth. 18Moreover, a man is liable on account of negligence who, after he had entered upon an estate before others, suffered servitudes attached to lands belonging to the estate to be lost by want of use. 19Where a judgment is rendered against a son who was defending his father in a suit, and he pays the amount of the judgment either during the lifetime of his father or after his death; it can very properly be stated that he has a right to bring suit for recovery against his coheir in an action for partition. 20A judge who presides in an action for partition of an estate should leave nothing undivided. 21He must also provide that security be given to those to whom he awards the estate against recovery of the property by eviction. 22When money which is not left in the house is bequeathed to be taken before division, whether the co-heirs should pay the entire amount, or only what is in proportion to their shares in the estate; just as if the money had been left among the remaining property of the estate is a question with reference to which some doubt exists; but the better opinion is that what must be paid is the amount that would be paid if the money had been found.

Paulus, On the Edict, Book XXIII. In this action judgment must be rendered against every party, or all must be discharged from liability; hence, if the decision is omitted with reference to any one whomsoever, what the judge does with reference to the others will not be valid; because a decision cannot be valid with respect to one part of the question at issue, and void with respect to another.

Ad Dig. 10,2,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233a, Note 1; Bd. I, § 237, Note 17.Paulus, On the Edict, Book IV. Where property was given to the deceased by way of pledge, it must be said to be included in the action for partition of the estate; but he to whom it is awarded should be required to pay his co-heir for the same in proportion to his share of the estate in an action for partition; but he need not give security to his co-heir that he shall be indemnified with reference to the party who pledged the property; for the reason that the case will be the same as if an hypothecarian or Servian Action had been brought, and the estimated amount had been tendered; so that the party who made the tender may be protected by an exception against the owner bringing suit to recover the property. Again, on the other hand, if the heir to whom the pledge was adjudged desires to restore the whole, he should be heard, even though the debtor be unwilling. The same rule does not apply where the creditor purchases the other portion of the property pledged, because adjudication by the court is necessary, but the purchase is voluntary; unless the objection should be made that the creditor bid for the property too eagerly. The reason why this is taken into account is because what the creditor did must be considered as if the debtor had done it through an agent, and whatever necessary expenses the creditor incurred he has a right to recover in an action besides.

Paulus, On the Edict, Book XXIII. Profits which have been due for some time are also included not only in an action for the establishment of boundaries, but also in one for the partition of an estate.

Ad Dig. 10,3,1ROHGE, Bd. 14 (1875), Nr. 78, S. 237: Theilungsklage eines Theilhabers an einer Gelegenheitsgesellschaft.Paulus, On the Edict, Book XXIII. The action for the partition of property held in common is necessary because the action on partnership has reference rather to the personal transfers from one side to the other than to the division of common property. In short, an action for the partition of common property will not lie where the property is not held in common.

Paulus, On the Edict, Book XXIII. Even though the entire number of parties who own property in common do not desire partition but only some of them, this action can be brought among them. 1If it is uncertain whether the Lex Falcidia is available, an action for partition can be brought between the legatee and the heir, or proceedings for recovery may be instituted, for a share the value of which is not ascertained. This likewise takes place where a peculium is bequeathed, because it is uncertain to what extent an indebtedness to the owner diminishes the peculium. 2The action for the partition of common property also includes the case where anyone depreciates the value of said property; for instance, by wounding a slave, or by corrupting his morals, or by cutting down trees on the land. 3Where a joint-owner pays on behalf of a slave more by way of reparation for damage than he should have done, the slave shall be appraised and he can recover his share. 4Moreover, where one joint-owner is sued in an action De peculio for the entire amount of the obligation and judgment is rendered against him, he will be entitled to an action in partition to enable him to recover a part of the peculium.

Paulus, On the Edict, Book XXIII. Again, although the action under the Lex Aquilia cannot be brought against an heir; still, in this action the heir must pay the joint-owner for any damage which the deceased caused to the common property on account of which any right of action arises under the Lex Aquilia. 1Where we have only a right of use which can neither be sold nor leased, let us consider how a division can be made in an action for the partition of common property. If, however, the Prætor should interpose and arrange matters in such a way that the Court may adjudge the use to one of the parties; it will not be held that the other, who accepts compensation, is not making use of the property, on the ground that he who appears to enjoy it is doing more than the other; because this results from the necessity of the case. 2In an action brought for the partition of common property the judge should appraise such property at its true value, and security should also be furnished against recovery by eviction.