The Same, On the Edict, Book XLVIII. Where the heir is charged by the will not to obstruct the lights of a neighbor but to grant him a servitude, and he demolishes the building; a prætorian action should be granted the legatee by which the heir can be prevented from proceeding, if he afterwards attempts to raise the building above its former height.

Paulus, On the Edict, Book XLVIII. It is not foreign to the purpose, when we wish to enter into a stipulation for the prevention of threatened injury, for the party to be interrogated in court as to whether his house or the place from which it is feared damage may result is his, and what interest he has in the same; so that if he denies that the property is his, and refuses to give security against the threatened injury, he may be compelled either to yield, or if he prefers to resist, to surrender the property as having acted fraudulently.

Paulus, On the Edict, Book XLVIII. If anyone should bequeath the Cornelian Estate, with the exception of the vineyards which were there at the time of his death, and there are no vineyards there, nothing will be deducted from the legacy.

Paulus, On the Edict, Book XLVIII. If we take security from only one heir for the payment to us of a legacy which all the heirs are charged with, and the share of the said co-heir accrues to the promisor, the securities will be liable in full, if the heir should owe the entire legacy.

Paulus, On the Edict, Book XLVIII. For it is to the interest of the State that the greatest number of persons possible should be permitted to protect its property.

Paulus, On the Edict, Book XLVIII. I can not only serve notice upon my nearest neighbor to suspend operations, but also upon one immediately beyond him; for servitudes may exist between two tracts of land which are separated by other property either public or private. 1Anyone who serves notice to suspend operations where anything has already been done, must state this in his application, in order that what has been done afterwards may be apparent. 2If I cannot legally prevent you from doing something, and I should notify you to suspend operations on a new structure, you will not have the right to proceed with your building unless you give me security. 3If I should notify you to erect a building forbidden by the laws in a public place, you must bind yourself by a promise, because I contest your right to construct it not in my own name, but in that of another, and as I am maintaining the right of another, I should be content with a mere promise. 4It must be remembered that where notice to suspend a new work has been served, the person notified must desist until he furnishes security, or until a withdrawal of a notice is made; for then, if he has the right to build, he can properly continue to do so. 5In order to prove that any building was done after the notice was served, the party who served it must measure the building; and the Prætor ordinarily decrees that the measurement shall be taken and be produced. 6Notice is extinguished by the death of the person who served it, or by the alienation of the property; because in these ways the right of preventing the construction of the work is lost. 7Where the person on whom notice was served to discontinue a new work dies, or sells the house, the effect of the service of the notice will not be ended. The proof of this is apparent from the fact that mention is made therein of the heir, where a stipulation is entered into with reference to the matter.

Paulus, On the Edict, Book XLVIII. Cassius says that even if the usufruct is separated from the property, the owner must promise indemnity for future-injury. Unless the owner promises indemnity in full, or the usufructuary furnishes security, the person to whom security is not given must be placed in possession of the property; but if the usufructuary does not give security to the owner, who was promised indemnity, Julianus says that he will not be entitled to an action to recover his usufruct. If, however, the usufructuary should pay anything on account of some defect of the land, the right of ownership should be transferred to him.

Paulus, On the Edict, Book XLVIII. The condition of a person to whom security against threatened injury has not been furnished is preferable to that of creditors who have accepted property in pledge, if he should be permitted to take possession of it and acquire it by usucaption, after the lapse of a long period of time.

Paulus, On the Edict, Book XIV. In investigating the circumstances of the case, the distance separating the two pieces of property, and the dimensions of the structure should be considered,

Paulus, On the Edict, Book LX. Before the damage is done the act of him who refused to promise indemnity, or to permit the plaintiff to take possession, will remain unpunished, provided that, before the damage was committed, he either gave security, or relinquished possession of the property.

Paulus, On the Edict, Book XLVIII. The stipulation with reference to threatened injury can be given not only to the person who owns the property, but also to him who is responsible for the same. 1Where, however, the promisor has, by doing some work, obtained ownership of the property by usucaption, Pomponius says that he will not be liable on this ground, for the reason that he did not acquire the property through any defect of the land or on account of the work, but by the operation of public law. 2It is not necessary for security to be given to the person who has an usufruct in a house which is in bad repair, even though he may be the owner of other adjoining buildings, because he can make repairs; for he who should use property as becomes the careful head of a household has also the power to repair it. Therefore the owner of the house should not be heard if he desires security to be given him by the usufructuary for the protection of other houses which are near the one subject to the usufruct, since he has a right of action against the usufructuary to compel him to enjoy the property as a good citizen should do. 3I must, however, give security against threatened injury to my tenant, if he has houses near the one which he occupies, and which is in bad condition. 4The owner of the ground is not compelled to furnish security with reference to any injury which may be caused by the condition of the ground to a man who has erected a house on the said land, after having leased it; and, on the other hand, the latter is not obliged to give security to the owner, because each of them is entitled to actions under the lease, and in these proceedings nothing but negligence is considered. More, however, is included in a stipulation having reference to threatened injury, because, in this case, the bad repair of the property is said to be involved. 5If a person who has a house should enter into a stipulation, and then should purchase another neighboring house, the question arises whether the promisor will be bound with reference to the house which he purchased after the stipulation was entered into. Julianus says that it should be considered whether he who gave security is only liable for the condition of the house with reference to which the contract was entered into between him and the promisor, in the first place. The result of this would seem to be that where two joint-owners enter into a stipulation concerning a house held in common, security should only be given against any injury which might be sustained by either of the said joint-owners, with reference to his share in the building. Therefore, whether one of them purchased the share of the other, or the house was adjudged to him by the court, the obligation of the promise is not increased. Pomponius, in reporting this opinion of Julianus, says that he approves it. 6If, however, the stipulator brought any personal property into the house after the stipulation was concluded, and the said personal property was destroyed by the ruin of the neighboring building, he can bring an action under the stipulation, even though at the time when it was entered into the said property was not in the house. 7If the purchaser of a tract of land entered into a stipulation before delivery, he will be secured against any damage which may take place after the property has been transferred. 8The vendor of a house must, however, stipulate before he gives possession, because he gives security for any damage to the property through negligence. 9But what must be done, where the vendor was unable to stipulate for security, through no fault of his, and the purchaser himself has stipulated for it? Must not the purchaser suffer the damage? As this damage has happened to property belonging to another, would it riot fall upon the purchaser, because he has no right of action based on the sale? A stipulation of this kind is of no benefit whatever, unless the damage occurred after the transfer of the property; because, as long as the vendor is charged with its custody, he should stipulate that he will be responsible to the purchaser for the exercise of the greatest diligence; and whatever the purchaser can obtain by means of another action should not, under any circumstances, be included in the stipulation providing against threatened injury. 10If the vendor should make the stipulation, any damage which may happen after delivery of the property to the purchaser will be included therein. Aristo says that this is extremely unjust, since, if the purchaser had himself stipulated with reference to threatened injury, the promisor would be liable to two persons on the same ground, unless, perhaps, the contrary might occur; because, in this instance, the stipulation was made with reference to the interest of the stipulator, so that it might be held that the vendor had no longer any interest, after the stipulation with reference to threatened injury had been entered into. 11The opinion of Sabinus is correct, who held that if, while I was building a house, a neighboring building should, within the time fixed by the stipulation, fall upon my wall, and damage it, and even though it should fall after the time fixed by the stipulation has passed, I can still bring an action, because I sustained the damage at the time when the wall was in bad condition; nor is there anything to prevent the bringing of an action even before it falls; and if it is so shaken that it cannot be repaired, and therefore must be taken down, the estimate of the damage made in court should not be less than if the wall had fallen. 12If you and I have adjoining houses, and we desire security against threatened injury to be reciprocally furnished, there is no reason why I should not be placed in possession of your house, and you be placed in possession of mine. 13If a ward prevents anyone from taking possession on account of threatened injury, it is held that an action in factum can immediately be brought against him. 14If another person, acting under my direction, prevents a person from taking possession, this action can be brought against me. 15The Prætor not only punishes the person who was in possession at the time when the first decree was issued, but also him who will not permit possession to be obtained under the second decree; as otherwise, he who has begun to obtain possession under the second decree, and to acquire ownership by means of his possession, is either not permitted to enter upon the premises, or is ejected, he will be entitled to an interdict on the ground of violence, or to the Publician Action. If, however, he should bring an action in factum, he cannot avail himself of the other, as the Prætor permits this in order to prevent the plaintiff from causing any injury by which he may profit. 16Where my agent enters into a stipulation with reference to threatened injury, I will be entitled to an action based on the stipulation, where proper cause is shown.

Ad Dig. 46,5,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 330, Note 12.The Same, Qn the Edict, Book XLVIII. In all prætorian stipulations, it should be noted that if my agent stipulates for my benefit, an action will lie in my favor by virtue of the stipulation, if proper cause is shown. The same thing happens where a factor is in such a position that, through his personal interposition, the principal will lose his. merchandise; for example, where his property is to be sold, for the Prætor should come to the relief of the principal.

Paulus, On the Edict, Book XLVIII. He who defends the case of another is never considered solvent.