The Same, On the Edict, Book LXXXI. It must be remembered that where a stipulation for double damages has been entered into, it makes no difference whether it can become operative on account of the sale, or because of any other transaction.

The Same, On the Edict, Book LXXXI. The use of public streams is common, as well as that of public highways, and the sea-shore; therefore anyone whosoever can build in such places, and tear down what he has constructed, provided this can be done without causing others inconvenience. For this reason a bond with sureties is only given with reference to the structure itself, and no provision is made for the bad condition of the ground; that is to say, the rule only applies to the work which anyone performs. If, however, there is any apprehension of threatened injury on account of the bad condition of the ground, it can, by nd means, be said that it is necessary to enter into a stipulation with reference to threatened injury, for who can doubt that there is no one from whom the stipulation can be obtained; since, if no one should build anything, suppose the public place aforesaid causes some damage on account of its nature. 1Ad Dig. 39,2,24,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 21.Therefore, the stipulation only has reference to such structures as are built by private individuals. What rule, then, will apply, if a public work is built, and what conclusion shall we come to with reference to any defect in its construction? It is clear that recourse must be had to the Emperor; or, if the structure was erected in the province, to the Governor of the latter. However, what has been said with reference to defects in the erection of a building must be understood to relate not only to the time when the work was done, but also to a case where any damage results subsequently; for what if the house should fall because it had been improperly constructed? 1aThe names of the heirs or successors, and of all other persons who have an interest in the property, are included in this stipulation; and the term “successors” not only has reference to those who succeed to all of it, but also to such as only succeed to a certain portion of the same. 2Any damage which may result to the house, the ground, or the work, on account of its bad condition, or its defective construction, is provided for by a stipulation without security, and this refers not only to the entire house, but also to a portion of the same. Labeo says that the bad condition of the house or the ground includes anything which, arising from an external source, renders either less durable. No one, however, can say that a stipulation will become operative on the assumption that the ground is in bad condition, where it is either marshy or sandy; because these are natural defects, and therefore the stipulation does not apply to such a case, and, even if it has been entered into, it will not become operative on this account. 3The question arises whether this stipulation only refers to damage resulting from injury, or whether it also includes all damage arising from an outside source. Labeo says that proceedings cannot be instituted where damage has been sustained, if it occurred through an earthquake, an inundation, or any other fortuitous event. 4Servius, also, says that where tiles, blown off by the wind, have fallen from the house of the promisor upon that of his neighbor, the former will only be liable if this occurred through some defect in his building, and was not caused merely by the violence of the storm, or by any other catastrophe due to Divine agency. Labeo gives as a reason for this that injustice would be done if this rule were not adopted; for where could a house be found strong enough to sustain the force of a river, or of the sea, or of a tempest, or of ruin, or of fire, or of an earthquake? 5Servius also thinks that if the violence of a stream should overwhelm an island, and the buildings of the stipulator should fall, he can recover nothing under the stipulation, because the occurrence cannot be attributed to any defect of the buildings, or to the bad condition of the ground. If, however, the water should undermine the foundation of a building, and it should be ruined in consequence, he says that the stipulation would become operative; for it makes a great deal of difference where a structure which is substantially built is instantly overthrown by the force of the stream, and where it has previously become decayed, and afterwards falls. Labeo, also, approves this opinion, for this case by no means resembles that provided for by the Aquilian Law, where anyone kills a slave who is sound, or one who has become infirm. 6Moreover, although the stipulation becomes operative when damage results through some defect of construction, still, if the work had been done by someone whom the promisor could not interfere with, the stipulation will not become operative. It is clear that it will become operative, if he could have prevented him from building. Where, however, anyone constructs the edifice in the name of the promisor, or in the name of him for whose benefit indemnity has been promised, or of anyone else who can be prevented from doing the work, this stipulation will become effective. 7If security should have been furnished to provide against injury resulting from the construction of an oven, and the damage should result from the negligence of the person having charge of the same, it is held by many authorities that this case will not come within the terms of this stipulation. 8Cassius, also, says that where damage resulted from some cause against which there was no means of making provision, the stipulation will not apply. 9The following case is mentioned by Vivianus. If the trees standing on the land of my neighbor are broken by the force of a storm, and fall in my field, and my vines or crops are injured thereby, or they demolish my buildings, a stipulation which contained the clause, “If any damage should result from trees being in bad condition,” will have no effect; because the damage did not result from any defect of the trees, but was caused by the force of the wind. It is clear that if the damage resulted from the age of the trees, we can say that the accident occurred through their defect. 10He also says that if I should promise you indemnity on account of threatened injury caused by my house, and it should be thrown upon your building by the force of a storm, and destroy it, nothing will be payable under the stipulation; because you sustained no damage through any defect in my house, unless it was so badly out of repair that it would have fallen under the force of even the smallest storm. All of which is true. 11What Labeo thinks is also true, for it makes a difference whether a building is overthrown by the rising of a river, or whether it falls after having gradually been weakened. 12Now let us see when the damage should be held to be sustained; for the stipulation refers to damage caused by defects in the building, the land, or the construction. For instance, I dig a well in my premises, and, by doing so, I intercept the sources of your well; will I be liable? Trebatius says that I will not be liable on the ground of threatened injury, for there was no reason to believe that I caused you damage through any defect of my work, where I was only making use of a right tp which I was entitled. If, however, I should make an excavation on my land so deep that your wall cannot stand, the stipulation of indemnity against threatened injury will become operative.

Ulpianus, On the Edict, Book LXXXI. Proculus says that when anyone erects a building On his own land, which he has a right to erect there, even though he has promised indemnity for threatened injury to his neighbor, he will still not be liable under this stipulation; for example, if you have a building adjoining mine, and you raise it higher than you have a right to do; or if you turn my water-course into your field by means of a canal or a ditch. For although, in this instance, you divert my water and, in the former one, you intercept my light, I will, nevertheless, not be able to sue you under the stipulation, because he should not be considered to have committed an injury who prevents another from enjoying some benefit, which, up to that time, he had been accustomed to enjoy; and it makes a great deal of difference whether anyone causes damage, or whether he prevents another from enjoying a benefit which he had hitherto been accustomed to enjoy. The opinion of Proculus appears to me to be correct.

Ulpianus, On the Edict, Book LXXXI. The amount of the interest of the person demanding it is included in this stipulation. Hence Cassius says that if he who stipulated for indemnity against threatened injury should prop up the building on account of which he obtained security because he feared that it would fall, he can recover the expenses of doing so under the stipulation. The same rule of law applies where anyone who has obtained security for threatened injury on account of the defects of a party-wall props up his own building for the purpose of diminishing the burden sustained by the wall. The damage suffered because of the removal of tenants influenced by fear of accident is included in the same category. Aristo, moreover, very properly adds (as Cassius requires in this instance), that, if there was good ground for the fear which caused the tenants to depart, Cassius should also have added with reference to the person who propped up the building, that he was compelled to do so through a reasonable fear that it would collapse.

Ulpianus, On the Edict, Book LXXXI. The stipulation for indemnity against threatened injury is also applicable, where I sustain any damage through a defect in the work done by my neighbor on my land for the purpose of conducting water on his own premises. For it is usual for work to be performed by anyone upon the land of another, when it is done under the right of a servitude in his favor with which the land of the latter is charged. 1In a case of this kind, let us see whether a person should merely promise indemnity, or should give security. A difficulty arises because he does the work on the premises of another, and anyone who gives security for work performed under such circumstances must furnish sureties; but where he does the work on his own land, he merely promises indemnity. Wherefore Labeo thinks that he who does any work on the land of his neighbor, which has reference to water-courses, or canals, must furnish security, because the work is performed on the premises of another. Where, however, a stipulation is required with reference to something which is already constructed, the result is that a promise of indemnity will be sufficient; for, in this instance, the person, to a certain extent, gives security with reference to his own property. 2What has been said with reference to conducting water has only been stated by way of example, but this stipulation is applicable to all kinds of labor.

Ulpianus, On the Edict, Book LXXXI. If a ward is present, but has no guardian, he should be considered as being absent.