The Same, On Sabinus, Book XVIII. Where the usufruct in any property has been bequeathed, the owner can demand security for the property, and this can be done by order of court, for just as the usufructuary has a right to use and enjoyment, so also the mere owner has a right to be secure with reference to his property. This also applies to every usufruct, as Julianus states in the Thirty-eighth Book of the Digest. Where an usufruct has been bequeathed, an action for its recovery should not be granted to the usufructuary unless he gives security that he will make use of and enjoy it as would meet with the approval of a good citizen; and where there are several heirs who are charged with said usufruct, security must be given to every one of them individually. 1Therefore, when an action is brought with reference to an usufruct, not only what has been done will be decided, but also it will be determined how the usufruct should be enjoyed in the future. 2Ad Dig. 7,1,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 455, Noten 8, 9.The usufructuary is liable under the Lex Aquilia, for damage already committed, and can be held under the interdict Quod vi aut clam, as Julianus says; and it is certain that the usufructuary is also liable to the above-mentioned actions and to those of theft as well, just like any other party who has been guilty of an offence of this kind with reference to the property of another. Hence, having been asked what is the benefit of the Prætor promising an action, when one already existed under the Lex Aquilia; Julianus answered that because there were instances in which the Aquilian Action could not be brought, and therefore a judge was appointed in order that the party might comply with his decision; for where anyone does not break up a field, or does not plant vines, or allows aqueducts to be ruined he is not liable under the Lex Aquilia. The same principles are applicable where a party only has the use of property. 3When a controversy arises between two usufructuaries, Julianus says in the Thirty-eighth Book of the Digest, that it is perfectly just for an action like that in partition to be granted them; or that, by means of a stipulation, they should secure one another as to how they will make use of their usufructs; for why, Julianus asks, should the Prætor suffer them to proceed to the employment of armed force, when he is able to restrain them by means of his judicial authority? Celsus also approves this opinion in the Twentieth Book of the Digest, and I think that it is correct. 4An usufructuary cannot make the condition of the property worse, but he can improve it. If the usufruct of land was bequeathed, the usufructuary should not cut down fruit trees, or demolish buildings, or do anything else to the injury of the property. And if the estate should happen to be one used for enjoyment, and possesses pleasure gardens, lanes, or shady and pleasant walks laid out under trees which do not bear fruit, he should not cut them down for the purpose of making kitchen-gardens, or anything else designed to produce an income. 5Hence the question arose, whether the usufructuary himself can open stone quarries, or chalk, or sand-pits? I think that he can do so, if he does not use for that purpose any portion of the land required for something else. Therefore he can look for places for quarries and excavations of this kind, and he can work any mines of gold, silver, sulphur, copper, iron, or other minerals which the original proprietor opened; or he himself can open them, if this does not interfere with the cultivation of the soil. And if he should happen to obtain more income by doing this than he derives from the vineyards, plantations, or olive orchards, which are already there, he can, perhaps, cut these down since he is allowed to improve the property. 6Where, however, the operations begun by the usufructuary pollute the air of the land, or necessitate a great array of workmen, or gardeners, which is more than the mere owner can endure; he will not be considered as exercising his usufruct as a careful person should do. Nor can he erect a building on the land, except one which is necessary for the harvesting of crops. 7Where, however, the usufruct of a house was bequeathed, Nerva, the son, says that he can put in windows, and can also paint the walls, and add pictures, marbles, statuettes, and anything else which adorns a house; but he will not be permitted to change the rooms, throw them together, or separate them, or reverse the front and back entrances, or open places which are retired, or change the hall, or alter the pleasure gardens in any way; for he must take care of everything as he found it, without changing the arrangement of the building. Moreover, Nerva says that a party to whom the usufruct of a house has been bequeathed, cannot raise the height of the latter, even if no lights should be obscured by doing so, because the roof would be more likely to be disturbed; and this Labeo also holds with reference to the mere owner. Labeo also states that the usufructuary cannot obstruct the lights. 8Again, where the usufruct of a house is bequeathed, the usufructuary cannot rent rooms in it, nor can he divide it up into apartments, but there is no doubt that he can rent it, but he must do so as one residence; nor can he open a public bath there. When it is said that “He cannot rent rooms in it”; this must be understood to mean what are commonly designated lodgings for travellers, or shops for fullers. I am, however, of the opinion that where there is a bath in the house for the use of the household, and it is situated in some retired place, and among pleasant rooms, the usufructuary would not act properly, or in accordance with the judgment of a careful man, if he rented it as a public bath; any more than if he should rent the house as a place in which to keep beasts of burden, or where the house had a building which could be used as a stable and coach-house, he should rent it as a bakery.

Ulpianus, On Sabinus, Book XVIII. If, however, he should make any addition to the house, he cannot afterwards remove, or separate it; although it is clear that he can recover, as the owner, anything which has been detached. 1Where the usufruct which is bequeathed consists of slaves, he must not abuse them, but must employ them in accordance with their condition. For if he sends a copyist to the country, and compels him to carry a basket of lime, and makes an actor perform the duties of an attendant of a bath, or a singer act as a porter, or takes a slave from a wrestling arena, and employs him to clean out the vaults of water-closets, he will be considered to be making an improper use of the property. 2He must also furnish the slaves with sufficient food and clothing, in accordance with their rank and standing. 3Labeo states as a rule of general application that, in the case of movable property of every description, the usufructuary must observe a certain degree of moderation, so as not to spoil it by rough handling or violence, otherwise an action can be brought against him under the Lex Aquilia. 4Ad Dig. 7,1,15,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 206, Note 6.Where the usufruct of clothing is bequeathed, the right not having reference to quantity; it must be said that he ought to make use of it so that it may not be worn out, but he cannot hire it as a good citizen would not employ it in that manner. 5Hence, if the usufruct of theatrical costumes, or curtains, or some other similar articles is bequeathed, he must not use them anywhere but on the stage. It should be considered whether he can hire them, or not; and I think that this can be done, even though the testator was accustomed to lend these articles and not to hire them. Still, I am of the opinion that the usufructuary can hire theatrical costumes as well as such as are used at funerals. 6The mere owner of the property must not interfere with the usufructuary, so long as he does not use the article in such a way as to render its condition worse. With reference to some articles, a doubt arises where he forbids him to use them whether he can legally do so; as for instance, in the case of casks, where the usufruct of land has been bequeathed. Certain authorities hold that where the casks are buried in the ground their use may be prohibited; and they say the same of vats, barrels, jars, and bottles, and also of window panes, if the usufruct of a house is bequeathed. I am of the opinion, however, that everything belonging to the land and the house is included, where a contrary intention does not exist. 7The owner of the property cannot subject it to a servitude, nor can he permit one to be lost, but it is evident that he can acquire a servitude, even if the usufructuary is unwilling, as Julianus says. Consequently, according to the same rule, the usufructuary cannot acquire a servitude in the land, but he can preserve one, and if there is one, and it should be lost by the usufructuary not using it, he will be liable on this account. The owner cannot impose a servitude on the land even if the usufructuary consents,

Ulpianus, On Sabinus, Book III. He can make a place religious with the consent of the usufructuary, and this is permitted in favor of religion. Sometimes, however, the owner of the property alone can make the place religious; for suppose he buries the testator therein, when there is no other place so convenient for his burial. 1On the principle that the proprietor must not place the usufructuary in a worse condition, the question is frequently asked whether the owner of a slave can punish him? Aristo states in a note to Cassius, that he has a perfect right to punish him, provided he does so without malice; although the usufructuary cannot, by means of improper or unusual tasks, or by disfiguring him with scars, treat the slave so as to diminish the value of his services. 2The proprietor can also surrender the slave by way of reparation for damage committed by him, if he does so without malicious intent; since, a surrender of this kind does not legally terminate the usufruct, any more than usucaption of property which took place after the usufruct has been created. It is clear that an action for the recovery of the usufruct must be refused unless the amount appraised as damages is tendered by the usufructuary to the party who received the slave by way of reparation. 3If anyone should kill the slave, I have never had any doubt that the usufructuary will be entitled to a prætorian action in the same manner as under the Lex Aquilia.

Ulpianus, On Sabinus, Book XVIII. Where anyone makes a bequest in the following terms: “I give and bequeath the annual crops of the Cornelian Estate to Gaius Mævius”; this clause should be understood to mean the same as if the usufruct of the estate had been bequeathed.

The Same, On Sabinus, Book XVIII. Moreover, when anything is given to a slave in whom someone else has the usufruct, the question arises what must be done in this instance? In all such cases, where anything is left or given to a slave to the advantage of the usufructuary, the slave acquires it for him, but where it is given for the benefit of the owner, he acquires it for the latter, and if it was given for the benefit of the slave himself, it is acquired by the owner; for we do not take into consideration where he who made the gift or left the legacy came to know the slave, or what service the slave performed to deserve it. But where a slave, in whom there is an usufruct, acquires something on account of complying with a condition, and it is established that the condition was inserted for the benefit of the usufructuary, it must be held that the latter is entitled to it; as the same rule applies in the case of a donatio mortis causa.

Ulpianus, On Sabinus, Book XVIII. Where, however, a person stipulates for anything for himself or Stichus, a slave subject to an usufruct, with the intention that it shall, for the purpose of making him a gift, go to the usufructuary; it must be stated that if money is paid to the slave it will be acquired for the usufructuary. 1Sometimes, however, the question for whom this slave, subject to an usufruct, will acquire it, remains in abeyance; as, for instance, where the slave purchases another slave and receives him by delivery, and does not yet pay the purchase-money, but only furnishes security for it; in the meantime, the question arises to whom does the slave belong? Julianus states in the Thirty-fifth Book of the Digest, that the ownership of the slave is in abeyance, and the payment of the price will decide to whom he belongs; for if it is paid out of money of the usufructuary, the slave will belong to the latter by retroactive effect. The same rule applies where, for instance, the slave makes a stipulation for the payment of money; for the payment itself will determine for whose benefit the stipulation was entered into. Hence we see that the ownership is in abeyance until the price is paid. What then would be the case if the price is paid after the usufruct has terminated? Julianus says in the Thirty-fifth Book of the Digest, that it must still be considered from whence the price is to come; but Marcellus and Mauricianus think that where the usufruct is lost, the ownership will be acquired by the person to whom the property belongs. The opinion of Julian is, however, the more equitable one. If, however, the price should be paid out of property belonging to both parties, Julianus says that the ownership will belong to both; of course, in proportion to the amount paid by each. Suppose, however, the slave pays out of the property of both at the same time; as for instance, if he owed ten thousand sesterces as the price, and he paid ten thousand out of the funds of each; for which one does the slave actually acquire the property? If he pays by counting out the money, the important point is who was the owner of the sum which is first paid, for the other party can bring an action to recover that which was paid subsequently; or if the money was already expended by the individual who received it, a personal action can be brought for its recovery. But where the slave paid the entire amount in a sack, he who received it does not acquire the property, and therefore the ownership is not held to be acquired by anyone, because where the slave pays more than the price he does not transfer the money to the receiver. 2Where such a slave leases his own services and stipulates for a certain sum to be paid every year, this stipulation, during the time which the usufruct continues, will enure to the benefit of the usufructuary, but the benefit of the stipulation will enure to the owner during the ensuing year, although in the beginning it was for the benefit of the usufructuary; notwithstanding it is not customary for a stipulation when once obtained for the benefit of anyone, to pass to another, unless to his heir or to a party by whom he is arrogated. Hence, where an usufruct is bequeathed for a number of years, and the slave leases his services and stipulates, as is above stated, as often as the usufruct is lost by the change of condition of the usufructuary, and is subsequently restored, the stipulation will pass from one to the other, and after having gone to the heir, it will return to the usufructuary. 3It may be questioned whether what cannot be acquired by the usufructuary can be acquired by the owner? Julianus, in the Thirty-fifth Book of the Digest, states that what cannot be acquired by the usufructuary belongs to the owner. He also states that where a slave stipulates with reference to the property of the usufructuary for the proprietor, expressly, or by his order, he acquires for the latter; but, on the other hand, if he stipulates for the usufructuary, not on account of the property of the latter, nor in consideration of his own labor, the stipulation is void. 4Where a slave subject to an usufruct stipulates for a transfer of said usufruct, either without mentioning anyone or expressly for his owner, he makes the acquisition for the latter; just as in the case of a slave held in common by two parties, who, in a stipulation contracts for one of his owners for property which already belongs to him, the stipulation is not valid; because where any party stipulates for what belongs to him the stipulation is void, but where the slave stipulates for the other owner, he acquires all of said property for him. 5Julianus also states in the same Book, that where an usufructuary leases the services of a slave to the latter, the contract is inoperative for he says if anyone stipulates with me for my own property, the stipulation is void; for this is no more operative than where a slave belonging to another, who is serving me in good faith, does the same thing, he will acquire the property for his owner. In like manner, he says, if he rents my property from me, the usufructuary, this will not render me liable. The general principle he establishes is, that where anyone making a stipulation with another would acquire property for me, if he makes a stipulation with me his act is void; unless, indeed, Julianus adds, he stipulates with me or leases from me especially for the benefit of his owner. 6If you suppose the case of two usufructuaries, and the slave makes a stipulation with reference to the property of one of them, the question arises whether he is entitled to all of it or only the share which he has in the usufruct? This case is the same which is treated of by Scævola in the Second Book of Questions, with respect to two bona fide possessors; and he says that it is generally held and is consonant with reason, that where a stipulation was made with reference to the property of one of them, then part of it is only obtained for him, and part for the owner. But where the stipulation is expressly made, there should be no doubt, if the name of the party is mentioned, that he will obtain the whole of it. He says that the rule is the same where the slave stipulates by order of the party, as an order is understood to take the place of a name. The same rule also applies to the case of usufructuaries; so that wherever an usufructuary does not acquire the whole of the property, it will be acquired by the mere proprietor, for we have already shown that he can obtain it by a title having reference to the property of the usufructuary. 7As we have previously stated that the usufructuary can acquire property through what he owns, or by the labors of the slave; it should be taken into consideration whether this is applicable merely where the usufruct is created by means of a bequest, or where it is obtained by delivery, stipulation, or in any other way. The opinion of Pegasus is the correct one, which Julianus has followed in the Sixteenth Book, namely: that it is in every instance acquired by the usufructuary.

Ulpianus, On Sabinus, Book XVIII. Where a testator leaves fruit, which was already ripe, hanging upon a tree, the usufructuary will be entitled to it if he takes it from the tree upon the day when his legacy vests; for even standing crops belong to the usufructuary. 1Where the owner was accustomed to use shops for the sale of his merchandise or for conducting his business, then the usufructuary will be allowed to lease them even for a sale of different merchandise; and this precaution alone shall be observed, namely, that the usufructuary must not make an unusual use of the property, or employ the usufruct in a way which will insult or injure the owner. 2When the usufruct of a slave is bequeathed, and the testator was accustomed to employ him in different ways, and the usufructuary educates him or teaches him some trade; he can avail himself of the trade or skill obtained in this manner. 3Where anything is due as taxes for constructing a sewer, or must be paid for the channel of a water-course which traverses the land, the burden of the same shall be assumed by the usufructuary; and where anything is to be paid for the maintenance of a highway, I think that this expense also must be borne by the usufructuary. Therefore, where any contribution of crops is levied on account of the passage of an army, or due to a municipality, since possessors of property are accustomed to deliver to the municipal authorities a certain portion of their crops at a low price, and also to pay taxes to the Treasury, all the aforesaid burdens must be assumed by the usufructuary. 4Where any kind of servitude is imposed upon land, the usufructuary will be compelled to tolerate it, and therefore, if a servitude is owing as the result of a stipulation, I think that the same rule will apply. 5Where, however, a slave has been sold, and the purchaser is forbidden under a penalty from employing him for certain purposes, if the usufruct in the slave is bequeathed, must the usufructuary comply with these conditions? I think that he must comply with them; otherwise, he will not use and enjoy his right in a way that would be approved by a good citizen.

Ulpianus, On Sabinus, Book XVIII. Celsus in the Thirty-second Book, and Julianus in the Sixty-first Book of the Digest, state that the usufruct in an entire estate can be bequeathed, provided it does not exceed three-fourths of the appraised value; and this is the better opinion.

Ulpianus, On Sabinus, Book XVIII. Sometimes the mere owner can grant freedom to a slave, for example, where the usufruct was bequeathed until the slave should be manumitted; for the usufruct is extinguished whenever the owner begins the manumission.

Ulpianus, On Sabinus, Book XVIII. The Senate decreed that, “the usufruct of all property which it is established could belong to the patrimony of any individual, can be bequeathed”; and, as the result of this Decree of the Senate, it is held that the usufruct of those things which are destroyed or diminished by use can be bequeathed.

Ulpianus, On Sabinus, Book XVIII. After this the usufruct of anything can be bequeathed. But does this apply to an obligation? Nerva says that it does not; but the better opinion is the one entertained by Cassius and Proculus, namely, that it can be bequeathed. Nerva, moreover, says that the usufruct can be bequeathed to the debtor himself, and if this is done he must be released from paying interest.

Ulpianus, On Sabinus, Book XVIII. This Decree of the Senate not only has reference to a party who bequeaths the usufruct of money or other things which he has, but also where they belong to others. 1Where the usufruct of money is bequeathed, or that of anything else which consists in the consumption of the same, and security is not given; it must be considered when the usufruct is terminated, whether the money, or the other articles which are used by consumption can be recovered by a personal action? But so long as the usufruct exists, if anyone wishes to bring suit to compel the execution of a bond, it may be stated that an action can be brought for an uncertain sum on account of the omitted bond; but after the usufruct is terminated, Sabinus thinks that proceedings can be instituted for the recovery of the entire amount. This opinion Celsus adopts in the Eighteenth Book of the Digest, and it does not seem to me devoid of ingenuity. 2What we have stated with reference to the usufruct of money or of other articles which are made use of by consumption, also applies to the use of the same; for both Julianus and Pomponius state in the Eighth Book of Stipulations, that the use and usufruct of money are identical.

The Same, On Sabinus, Book XVIII. Where the usufruct of wool, perfumes, or spices is bequeathed, it is held that no usufruct is legally created in these substances, but recourse must be had to the Decree of the Senate which provides for security with reference to them.

Ulpianus, On Sabinus, Book XVIII. Where a servitude is attached to land subject to an usufruct, Marcellus, in the Eighth Book quoted by Julianus, approves the opinion of Labeo and Nerva, namely, that the usufructuary cannot bring an action for the recovery of the servitude, but can bring one for the recovery of the usufruct; and, according to this, if the neighbor does not suffer him to walk or drive across the land, the latter is liable because he did not permit him to enjoy the usufruct. 1An usufruct requires those adjuncts to be bequeathed without which a party cannot enjoy it; and therefore where one is bequeathed, it is also necessary for access to be joined with it; to such an extent is this true, that where a person leaves the usufruct of a certain place in such language that the heir shall not be compelled to permit a road, this addition is considered void; and also where an usufruct is bequeathed and a right of way is withheld, the reservation is void, because a right of access always accompanies the usufruct. 2Where, however, an usufruct is bequeathed, and there is no right of access to the land which is subject to it and is part of the estate; the usufructuary can bring suit under the will to obtain the usufruct together with access to the same. 3Pomponius, in the Fifth Book, is in doubt as to whether, where an usufruct is bequeathed, the usufructuary has only a right of access, or has the right to a path or roadway as well? He very properly thinks that he ought to be granted means by which he may enjoy his usufruct. 4Will the heir be required to provide him with other benefits and servitudes also; as, for instance, those of light and water, or not? I am of the opinion that he can only be compelled to provide him with those alone without which he cannot use the property at all; but if he can use it, even with some inconvenience, the said benefits need not be furnished.

Ulpianus, On Sabinus, Book XVIII. Where the usufruct of certain vessels is left, the security provided by the Decree of the Senate will not be necessary; but only that which states that “the party will use and enjoy as a good citizen should do”. Therefore, where the vessels were delivered for the purpose of being enjoyed, no one doubts that the ownership of the same is not transferred to the party who received them, for they are not delivered for this purpose; but that the legatee might use and enjoy them. Hence, as the said vessels do not become the property of the usufructuary, they can be recovered by the owner of the same, if security is not given. It should be considered whether a personal action will lie under such circumstances? It has been decided that no one can bring an action of this kind to recover his own property, except from a thief.

Ulpianus, On Sabinus, Book XVIII. Sabinus always approved of the opinion of the ancient authorities, namely, that where anything is in the hands of a party illegally, it can be recovered by a personal action; and Celsus also concurs in this opinion.

Ad Dig. 13,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 453, Note 8.Ulpianus, On Sabinus, Book XVIII. Where property is stolen, suit for its recovery can be brought by the owner alone.

The Same, On Sabinus, Book XVIII. Sabinus states that where anyone has forcibly ejected another from his land, he can be sued for its recovery; and Celsus also holds the same opinion, but this rule applies only where the party who was ejected and brings the suit is the owner; but if he is not, Celsus states he can still bring an action for possession.

Ulpianus, On Sabinus, Book XVIII. Where the ownership of land is left absolutely, it will pass to the legatee, even though the usufructuary may be appointed heir.

Ulpianus, On Sabinus, Book XVIII. The advantage derived from the Mucian bond is apparent in conditions where something is not to be done; as, for instance, “If he should not ascend to the Capitol,” “If he should not manumit Stichus,” and in other cases of the same kind. This opinion was held by Aristo, Neratius, and Julianus, and is also confirmed by a Constitution of the Divine Pius. The above-mentioned remedy was held not only to apply to legacies but also to inheritances. 1Ad Dig. 35,1,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 8.Where a wife appoints her husband, to whom she had promised her dowry, heir to a share of her estate, “If he should not demand, or exact the dowry which I have promised him,” the husband must notify his co-heir that he is ready to give a receipt for the dowry, or to furnish security that he will not claim it, and he can then enter upon the estate. If, however, the husband should be appointed heir to the entire estate, under the same condition, and there should not be anyone to whom he can furnish such security, he will not be prevented from entering upon the estate on this account. For the condition will be considered to have been fulfilled by operation of law, because after he has once entered upon the estate, there is no one against whom he can bring an action to recover the dowry.

Ulpianus, On Sabinus, Book XVIII. Where a minor of twenty years of age is the usufructuary of a slave, can he consent to his obtaining his freedom? I think that the slave can obtain it, if he gives his consent.

Ulpianus, On Sabinus, Book XVIII. If the master of a slave appoints as his heir the usufructuary of said slave, and freedom is granted to the latter conditionally, as the slave in the meantime belongs to the heir, the usufruct will become extinguished on account of the merger which results, and if the condition should be fulfilled, the slave will obtain his freedom absolutely.