Ulpianus, On the Edict, Book XVII. Julianus says in the Eighth Book of the Digest, that if I build on the land of another of which I am the bona fide purchaser, but do so at a time when I knew that the land belonged to another, we should see whether I am not entitled to an exception; unless someone may say that I am entitled to an exception on the ground that I anticipated a loss. I think, however, that such a party has no right to an exception; for, as soon as he was certain that the land belonged to another he should not have erected the building; but permission should be granted him to remove the building which he erected, if he does so without loss to the owner of the land.

Ulpianus, On the Edict, Book XVII. Contractors who build with their own materials immediately transfer the ownership of the same to those who own the land on which they erect the building. 1Julianus very properly says in the Twelfth Book of the Digest, that a woman who gives land in pledge as security for the debt of another, can recover the same by an action in rem, even though the land has been sold by the creditor:

Ulpianus, On the Edict, Book XVII. Where anyone buys property under the condition that if some other party offers more, he will relinquish the purchase, as soon as the condition is fulfilled he can no longer avail himself of an action in rem; but where land has been transferred to a party under such a condition, he can make use of an action in rem to recover it before an increased price is offered, but he cannot do so afterwards. 1Where a slave or the son of a family sells and delivers a tract of land to me, I am entitled to an action in rem to recover the same, if he had the free administration of his peculium. The same rule applies where a slave delivers the property of his master with the consent of the latter; just as where an agent makes a sale of, or delivers, property with the consent of his principal, I will be entitled to an action in rem.

The Same, On the Edict, Book XVII. In an action brought to recover some specific property the possessor is not compelled to state what share of it belongs to him, for this is the duty of the plaintiff, and not of the possessor. The same rule is observed in the Publician Action. 1To a superficiary,

Ulpianus, On the Edict, Book XVII. A certain woman gave a tract of land by a letter to a man who was not her husband, and then rented the same land from him. It might be maintained that he had a right to an action in rem, since he had acquired possession through her, just as through a tenant. It was stated that he had indeed been on the land which was donated to him when the letter was sent; and this was sufficient to constitute delivery of possession, even though the renting of the ground had not taken place.

Ad Dig. 7,2,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 645, Note 4.Ulpianus, On the Edict, Book XVII. Sometimes a share of the usufruct is obtained through accrual by a party who has no share of his own, but has lost it; for if an usufruct is bequeathed to two persons, and one of them, after issue is joined, loses his usufruct, and soon after his co-legatee who did not join issue loses his also; then the one who joined issue against the party who offered himself to defend the suit, will obtain from the possessor only the half which he lost; for the share of his co-legatee will belong to him by accrual, but not to the owner of the property; for the usufruct accrues to the person, even though it may have been lost.

Ulpianus, On the Edict, Book XVII. He alone can claim the right to use and enjoy property who has the usufruct of the same; the owner of the land cannot do so, because he who holds the property has not a separate right to use and enjoy it, as his own property cannot be subject to servitudes for his own benefit; and it is necessary for a party to bring suit in his own right and not in the right of another. For although a prohibitive right of action will lie in favor of an owner against an usufructuary, he is considered still more to sue in his own right, rather than in that of another, when he denies that the usufructuary has the privilege of use against his will, or alleges that he has a right to prohibit him. But if it should happen that the party who brings the action is not the owner of the property, even though the usufructuary has not the right to use it, he will still prevail, on the principle that the condition of possessors is preferable, even though they may have no legal right. 1The question arises, whether the usufructuary has a right of action in rem only against the mere owner, or also against some possessor? Julianus states in the Seventh Book of the Digest, that he is entitled to this action against any possessor whomsoever; for where a servitude is attached to land which is subject to usufruct, the usufructuary should bring suit against the owner of the adjoining land, not for the recovery of the servitude, but for the recovery of the usufruct. 2Where an usufruct is created in part of an estate an action in rem can be brought with reference to it, if someone claims an usufruct in the same, or denies that another is entitled to it. 3In all those actions which are brought with reference to usufruct, it is perfectly evident that the crops are involved. 4If, after issue has been joined in a case of usufruct, the usufruct is terminated, can any crops be claimed subsequently? I thing that they cannot, for Pomponius states in the Fortieth Book, that if the usufructuary should die, his heir would be entitled to an action only for crops which were due before his decease. 4aEverything must be restored to the usufructuary who gains his case, and therefore where the usufruct of a slave is bequeathed, the possessor must surrender everything which he obtained by means of the property of the usufructuary, or from the labor of the slave. 5But if the usufruct should, perchance, be lost by lapse of time, one party being in possession, and another volunteering to defend the suit; it is not sufficient for the latter to renew the usufruct, but he must give security against its recovery by eviction. What if the party in possession had pledged a slave or the land for a debt, and the claimant should be forbidden by the person who received the pledge from making use of his right? Hence, he also will be entitled to security. 6Just as where the crops must be delivered to the usufructuary who brings an action in rem for his usufruct, they must likewise be delivered to the mere owner of the property, if he brings a prohibitory action. But, in any event, this is the case only where the party who brings suit is not the possessor; for the possessor is entitled to certain actions; but where either party is in possession he will obtain nothing by way of crops. Therefore, is it the duty of the judge to allow the usufructuary to have the privilege of enjoying the crops in security, and prevent the owner of the property from being disturbed?

Ulpianus, On the Edict, Book XVII. The services of a slave which have been bequeathed are not lost by the forfeiture of civil rights.

Ulpianus, On the Edict, Book XVII. One of the owners of a house held in common cannot impose a servitude upon it.

Ulpianus, On the Edict, Book XVII. We must understand the unwillingness of anyone in matters relating to servitudes to mean, not that he objects in so many words, but that he does not consent. Therefore, Pomponius states in the Fortieth Book, that even an infant and an insane person may be properly said to be unwilling; for these terms do not relate to the act, but to the right to impose servitudes.

Ulpianus, On Sabinus, Book XVII. Moreover, servitudes may be created in such a way that oxen by means of which the land is cultivated may be pastured in neighboring fields; and Neratius, in the Second Book of Parchments, holds that such a servitude can be imposed. 1Neratius also says that a servitude can be created so that crops may be collected in the farm-house of a neighbor and kept there; and that the supports for vines may be taken from the land of a neighbor. 2In the same Book he says that where stone quarries belonging to a neighbor adjoin your land, you can grant him the right to throw dirt, rubbish, and rocks thereon, and to leave them there, or to let stones roll upon your land, to be left there until they are removed by you. 3Where anyone has the right to draw water, he is considered also to have the right of passage for the purpose of doing so; and, as Neratius says in the Third Book of Parchments, if the right to draw the water and the right of access for that purpose are both granted him, he will be entitled to both; but where only the right of drawing water is granted, the right of access is also included; or where only access to the spring is granted, the right to draw water is included. This has reference to water drawn from a private spring. In the case of a public stream, Neratius states in the same Book, that the right of passage to it must be granted, but the right to draw the water is not necessary, and where anyone grants only the right to draw water, the grant will be void.

Ulpianus, On the Edict, Book XVII. Therefore, according to him, the servitude can be recovered by an action. 1Neratius, in his work on Plautius, says that the right of drawing water for cattle or of driving cattle to water, or of digging chalk or of burning lime, on the ground of another, cannot exist unless the party has adjoining land; and he states that Proculus and Atilicinus hold the same opinion. But he also says that, although there is no question that a servitude for burning lime and digging chalk can be established, still this cannot be done for a greater amount than the requirements of the dominant estate demand.

The Same, On the Edict, Book XVII. With reference to the removal or drawing of water from the river by means of which, or where some one establishes a servitude over a reservoir, certain authorities have doubted whether these servitudes actually existed; but it was stated in a Rescript of the Emperor Antoninus to Tullianus that, although a servitude might not be valid in law, nevertheless, if the person in question acquired it under an agreement of this kind, or by any other legitimate means, he who was in possession of such a right should be protected.

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.

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. 3Ad Dig. 8,5,4,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 132, Note 4.Where 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. 4Ad Dig. 8,5,4,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 132, Note 5.Where 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:

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. 1Ad Dig. 8,5,6,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 4; Bd. II, § 465, Note 18.It 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.

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. 3Ad Dig. 8,5,8,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 16.If, 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 Minternæ could be prevented by the owner of a house above it from discharging smoke, but the people of Minternæ 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. 6Ad Dig. 8,5,8,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 8.A 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.

Ulpianus, On the Edict, Book XVII. Julianus and Marcellus are of the opinion that a son under paternal control can properly bring an action on deposit.

Ulpianus, On the Edict, Book XVII. Marcellus states in the Seventeenth Book of the Digest that the husband can even remove his property without injury to his wife, and without fear of the Decree of the Senate, where the transaction which has taken place between them is illegal.

Ulpianus, On the Edict, Book XVII. Where property is donated mortis causa, and the donor recovers his health, let us see whether he will be entitled to an action in rem. If anyone should make a donation under the condition that, in case of death, the property should belong to the person to whom it was given, there is no doub that the donor can recover it, and if he should die, he to whom it was given can do so. If the condition was that the donee should immediately have the property as his own, but should return it if the donor recovered his health, or returned after a battle or a long journey, it can be maintained that the donor will be entitled to an action in rem, if any of these events take place; but, in the meantime, the property will belong to the person to whom it was donated. If, however, he to whom the donation was made, should predecease the donor, it may be held that the latter will be entitled to an action in rem.

Ulpianus, On the Edict, Book XVII. The privilege of collecting money loaned for the repair of buildings is granted to a creditor.

Ad Dig. 44,7,60Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 326, Note 9.Ulpianus, On the Edict, Book XVII. Where penal actions relating to the same sum of money are concurrent, one of them never annuls the other.

The Same, On the Edict, Book XVII. A field is land on which there is no building. 1The term “stipend” is derived from stips, that is to say, a copper coin of little value. Pomponius says that the word “tribute” is also derived from the same source; and, in fact, tribute comes from intributio; or because it is paid to soldiers.