1Ulpianus, On the Edict, Book I. Where the imminence of threatened injury demands celerity, and delay seems to the Prætor to be dangerous, and, on this account, he reserves jurisdiction for himself, he will act very properly if he delegates his authority to the municipal magistrates of the district.

2Gaius, On the Provincial Edict, Book XXVIII. Threatened injury is such as has not yet taken place, but which we fear may be caused in the future.

3Paulus, On the Edict, Book XLVII. The terms damnum and damnatio have reference to the taking away, and, so to speak, the diminution of an estate.

4Ulpianus, On the Edict, Book I. If the time for furnishing security has elapsed, it is the duty of the Prætor or the Governor, after a hearing, either to hold the party liable, or release him; and, if the latter requires a local investigation, to send the case to the municipal magistrates for a decision. 1If security is not furnished within the time fixed by the Prætor, the complainant should be placed in possession of the property, and by the term “property” is understood either all of it, or a portion of the same. 2If the other party is unwilling to permit his neighbor to obtain possession, can he be compelled by the magistrate to furnish pledges? I do not think that he can; but he will be liable to an action in factum, for if he is not permitted to take possession after having been sent by the Prætor, he should have recourse to the above-named action. 3Therefore, the Prætor or the Governor directs municipal magistrates to do two things; namely, to require security, and to grant possession; the other matters he reserves for his own jurisdiction. 4If there is a delay in giving security, not the duumviri but the Prætor or the Governor should grant permission to take possession (which is usually done where proper cause is shown), and the same rule also applies where, after proper cause has been shown, possession is relinquished. 5The Prætor says, “Where the party upon whom notice must be served is absent, I order that the notice shall be left at his residence.” He is considered to be absent who does not appear in court; which opinion Pomponius approves. Moreover, the Prætor directs that the notice shall be served without rudeness, and not that the defendant shall be forcibly removed from his house. However, by the words, “The notice must be left at the house where he resides,” we must understand that it must be served upon him there, even if he lives in a house belonging to another. When he has no domicile, the notice must be served on the premises, either upon his agent or the tenant. 6Whenever the Prætor requires notice to be served, this means if there is anyone upon whom service can be made. If, however, no such person can be found, for example, because the house belongs to an estate which has not yet been entered upon, or if there is no heir, and the house is not inhabited, this Section of the Edict will not apply. The safer plan, however, is to attach a written notice to the house itself, for it may happen that in this way someone, having been notified, may appear for the defence. 7If the judge should neglect any of the matters mentioned above, judgment will be granted against him for the amount of damages sustained through not requiring security to be furnished against threatened injury. This does not have reference to the amount that might have been recovered, but only for the interest that the plaintiff had in obtaining security, and is imposed for the benefit of the latter, and not as a penalty. 8Again, this action is dependent upon a certain condition, that is if application was made to the judge, but where this was not done, suit cannot be brought against him. We say that the demand for security is properly made when application is made in court, and not elsewhere. 9Where the town in which application is to be made is so near the City of Rome that if the magistrate does not intervene, the Prætor or the Governor can be applied to, it may be said that this action will not lie against the magistrate, for it is just as if the complainant had no interest, since it was in his power to ask to be placed in possession by either the Prætor or Governor. 10Moreover, this Section, which has for its object the pursuit of the property, is granted both in favor of and against an heir, and is a perpetual one.

5Paulus, On the Edict, Book I. It is the duty of the Prætor, where the plaintiff is placed in possession, to enable him to acquire ownership of the property, after he has held it for a long period of time. 1Where there are several joint-owners who should furnish security, and one of them does not do so, the plaintiff shall be placed in possession of his share. And, on the other hand, where there are several persons who desire security to be furnished them, and some have houses more valuable than the others, or where they are all owners of unequal shares of the same house, all, nevertheless, will be placed in possession on an equal footing, and not with reference to the extent of their respective ownership. 2If both the owner of the property and the usufructuary demand security against threatened injury, both of them should be heard; for the promisor does not suffer any wrong, because he will only be obliged to pay each one in proportion to the amount of his interest.

6Gaius, On the Provincial Edict, Book I. It sometimes happens that, where injury has been sustained, we will not be entitled to any action, if security had not previously been given; for instance, when the house of my neighbor, which is in a ruinous condition, falls upon my building. This rule is applicable to such an extent that it has been held by many authorities that he who is to blame can not even be compelled to remove the rubbish, provided he intends to abandon everything upon the ground.

7Ulpianus, On the Edict, Book LIII. The Prætor says, “In the case of threatened injury, I order every one who appears in his own behalf to promise indemnity, and all others to give security to the other party, who is willing to swear that neither he nor the person for whom he acts makes the demand for the purpose of causing annoyance; and that application may be made until the day which I shall fix for having the case. If it is disputed whether the party who is to give security is the owner of the property, or not, I direct that security shall be given provisionally. Where any structure is erected in a public stream, or on the bank of the same, I shall order security to be furnished for ten years. Moreover, I shall order the party to whom security is furnished to take possession of the property, in the name of him who makes the demand for security; and, if just cause is shown, I shall order him to obtain actual possession of the same. I will grant an action against him who refuses to give security, or who does not permit the other party to remain in possession, or to acquire it; in order that he may pay as much as he would have been required to pay if security had been furnished with reference to said property, in accordance with my decree, or with that of a judge having jurisdiction over said property, which is also in my jurisdiction. If he to whom I have granted possession in the name of another does not give security against threatened injury, I shall order him to whom security has not been furnished to be placed immediately in actual possession of the said property.” 1This Edict has reference to injury which has not yet been committed, while other actions which relate to injuries have reference to reparation, as that of the Aquilian Law, and others. Under this Edict nothing is provided with reference to injury already committed, for when animals have caused damage it is not customary to render us liable, except to compel us to surrender them by way of reparation; and there is much more reason for the same rule to be applicable where property destitute of life is considered, as we should not be liable to a greater amount; especially where the animals which committed the damage are still in existence; but the house that caused ruin by falling has ceased to exist. 2Therefore, if the house should fall before security has been given, and the owner is not willing to remove the rubbish, and abandons it, the question arises whether an action can be brought against him. Julianus, in a case where a ruinous house had fallen, before a stipulation with reference to threatened injury had been entered into, having been consulted as to what he upon whose premises the rubbish had fallen should do in order to obtain damages, answered that if the owner of the house which had fallen wished to remove the rubbish, he should not be permitted to do so, unless he removed everything; that is to say, even what was worthless, and should also give security, not only with reference to future injury but also with reference to that which had already been sustained. If the owner of the house which has toppled over does not do anything; an interdict should be granted him upon whose premises the rubbish had fallen by which his neighbor may be compelled either to remove the rubbish, or to abandon the entire house which had been destroyed.

8Gaius, On the Edict of the Urban Prætor: Title, Concerning Threatened Injury. It may then very properly be said that these proceedings should not be taken where the owner of the ruined house failed to furnish security, not through negligence on his part, but on account of some obstacle which prevented him from doing so.

9Ulpianus, On the Edict, Book LIII. Julianus further says, it may be held that, in this case, the owner of the house can be compelled to give security for the damage which has already taken place; for, as protection can be provided while the building is still intact, it is not inequitable for it to be furnished after it has fallen into ruin. However, while it was intact, anyone can be compelled either to give security against threatened injury, or to abandon the house which he is unwilling to repair. Finally, he says that if anyone, on account of the shortness of the time required, or because of his absence on business for the State, cannot enter into a stipulation against threatened injury, it is not unjust for the Prætor to provide that the owner of the ruinous house should either repair the damage, or abandon it. Reason approves the opinion of Julianus. 1The question arises whether an interdict can be granted with reference to things which have been transported by the current of a river. Trebatius says that when the Tiber becomes swollen, and carries the property of some persons upon the premises of others, an interdict is granted by the Prætor to prevent violence from being employed against the owners of said property to prevent them from removing what belongs to them; provided they promise indemnity against threatened injury. 2Alfenus says that if a portion of your land falls upon mine, and you claim it, an action will be granted against you for injury already committed. This opinion is approved by Labeo; for the injury which I already have sustained cannot be left to the decision of the judge before whom the recovery of the earth which has fallen is demanded; nor should an action be granted unless everything which has fallen is removed. Alfenus also says that the earth which has fallen can only be claimed where it has not become united with, and constitutes a part of my land. Nor can a tree, which, having been carried into my field and has taken root in my soil, be claimed by you. Nor can I bring an action against you on the ground that you had no right to your part of the land deposited on mine, if it was already united with mine, for the reason that it then becomes my property. 3Neratius, however, says that if your boat is carried upon my land by the force of the stream, you cannot remove it unless you furnish me with security for any injury which I may have sustained. 4The question arose, when the land belongs to one person, and the surface of it to another, whether the latter should promise indemnity for threatened injury, or should give security. Julianus says that whenever a house which stands on the land of another is ruinous, the owner must promise indemnity, not only with reference to the defective condition of the land but also with reference to that of the building; or that he to whom the surface belongs must furnish security both with respect to the land and to the house; and if either one of them fails to do so, the neighbor should be placed in possession of the property. 5Celsus very properly holds that if the usufruct of your house belongs to Titia, you, as the owner, must promise indemnity against threatened injury, or Titia must give security. If he to whom security against threatened injury should be furnished is placed in possession of the property, he will prevent the use and enjoyment of the same by Titia. He also says than an usufructuary, who does not repair the property, should be prevented by the owner from enjoying it; and therefore, if the usufructuary does not give security against threatened injury, and the owner is compelled to promise indemnity, the usufructuary should be prevented from enjoying the property.

10Paulus, 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.

11Ad Dig. 39,2,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 3.Ulpianus, On the Edict, Book LIII. What shall we say with reference to a creditor who has received a house by way of pledge? Must he promise indemnity against threatened injury, in order that his rights may be protected; or must he give security because he is not the owner of the property? This point is treated in an opposite sense by Marcellus; for he asks whether security against threatened injury should be given to a creditor who holds a house by way of pledge. Marcellus says that it is not necessary for him to give security, and adds that the same rule will apply to a person who did not purchase the house from the owner, for the stipulation would have no force, so far as the latter is concerned. I think, however, that it would be perfectly just that the interest of the creditor should be taken into account; that is to say, that he should be secured by means of a stipulation.

12Paulus, 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.

13Ulpianus, On the Edict, Book LIII. Let us see whether a purchaser in good faith, who obtained property from one who was not its owner, should promise indemnity against threatened injury, or should give security. The latter opinion is adopted by certain authorities; it, however, is reasonable that the purchaser should rather promise indemnity than give security, since he does so in his own name. 1Where a question arises whether the owner of the land or one who has a right in it (as, for instance, a servitude), should furnish security against threatened injury, I think that he should promise indemnity, and not give security, because he acts in his own name and not in that of another. 2Where another house, which is in good repair, stands between mine and yours which is ruinous, let us see whether you alone should give security to me, or whether he, whose house is in good condition, should alone obtain security; or whether I can require it of both of you. The better opinion is that both should furnish security; because it is possible that the ruinous house might injure mine by falling upon the one which is in good condition, although it may be said that this did not take place through any defect in the building, which was in good repair, if the other, by falling upon it, causes me damage. But, as the owner of the intervening house could have protected himself by obtaining security against threatened injury, it is but reasonable that he should be liable to an action. 3Where anyone demands that security against threatened injury be given him, he must, in the first place, swear that this is not done for the purpose of annoyance. Therefore, anyone who is willing to take an oath to this effect shall be permitted to enter into a stipulation, and no inquiry will be made whether he has any interest in the property, or whether he has an adjoining house, or not; for the entire matter must be submitted to the decision of the Prætor, who shall determine to whom security must be given, and who is not entitled to it. 4But security should not be given to anyone who has a right to cross my land, or to wash thereon, or to lodge in my house. 5Ad Dig. 39,2,13,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 6.Labeo says that it is clear that security should be given by the owner of a building, which is not in good repair, not only to the neighbors, their tenants and their wives, but also to those who reside with them. 6The question arises whether the owner of the house should give security to his tenants. Sabinus says that security should not be given to the tenants, for they either rented the house which was ruinous in the beginning, and it is their own fault that they did so; or the house has subsequently become ruinous and they can bring an action under the lease. This opinion is the more correct one. 7Where anyone builds a house near a monument, or suffers a monument to be erected near his house, security against threatened injury should not be given to him afterwards, because he allowed an unlawful act to be committed. In other cases, however, where a building injures a monument, and the person to whom the right to the monument belongs is not to blame, security must be furnished the latter. 8It is now settled that persons who have the right to the surface and the usufruct of land can enter into a stipulation providing against threatened injury. 9Ad Dig. 39,2,13,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 3.Marcellus, however, says that he who, in good faith, purchases property from someone who is not the owner of the same, cannot enter into a stipulation with reference to threatened injury. 10Where anyone serves notice for the discontinuance of a new work, Julianus discusses the question as to whether security against threatened injury should, nevertheless, be furnished him; and he is inclined to the belief that this ought to be done. Julianus also says that security should be given to a person entitled to the interdict Quod vi et clam against his adversary; because the security has no reference to any defects in a building or to any injury which may result from the work. 11Where anyone is placed in possession of a house for the reason that security was not given him, and afterwards the person to whom the house belonged, who has other buildings adjoining the former, demands that security against threatened injury on account of the ruinous house should be furnished him by the complainant who has been placed in possession of the same; let us see whether the latter should be compelled to furnish security, or whether the other party should be heard. Julianus holds that the person who has surrendered the ruinous house and retained those which were in good condition acts very dishonorably in demanding security from him who has just taken possession of the one in bad repair, when he himself lost possession of it because he refused to furnish security against threatened injury. And, indeed, he can with little propriety demand security to protect himself on account of a building for which he neglected to furnish security. This opinion is correct. 12Where anyone, about to enter into a stipulation, was sworn, but failed to conclude the agreement, let us see if he should again be sworn if he afterwards desires to enter into it. I think that he should be sworn a second time, for the reason that it is possible that either at first, or at present, he may have intended to cause annoyance. 13If I demand that security be furnished me against threatened injury, in the name of another, I must swear that he in whose name I demand security does not do so for the purpose of causing annoyance. 14If, however, I make the demand in the name of a person who, if he did so in his own proper person, would not be compelled to be sworn, as for instance, a patron, or a parent, it must be held that there is no ground for an oath; as in a case where the principal need not be sworn, he who acts for him should “not make oath in a stipulation of this kind. 15In this stipulation a certain term should be prescribed, within which the bond will become operative if any injury is sustained, for the person giving security should not perpetually be liable under the stipulation. Therefore, the Prætor himself prescribes the term for the stipulation, the circumstances of the case being taken into account, as well as the nature of the injury which it is apprehended may result.

14Paulus, 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,

15Ulpianus, On the Edict, Book LIII. If the time prescribed by the bond has passed, new security can be furnished by a decree of the Prætor. 1When a stipulation is entered into without fixing any time, or where, by an agreement of the parties, the stipulation was to become operative when the injury was done; or if the omission was made through mistake, and the time has expired which it is customary to prescribe in such cases; the party who furnished the security can apply to the Prætor to be released. 2The Prætor next says, “With reference to any structure erected in a public stream, or on the bank of the same, I shall order security to be given for ten years.” A bond is necessary in this instance, and a time must be prescribed for the expiration of the stipulation; and this is done because the structure is erected in a public place. Moreover, where this is done upon the property of another, the Prætor requires a bond to be furnished. 3It must be remembered that security is given not only on account of defects in the soil, but also with reference to the structure itself; and, even though the latter is erected upon private ground, the security applies both to the soil and to the building itself. Where, however, the land is public property, it is not necessary for security against threatened injury to be furnished with reference to anything but defects in the construction of the building. 4Any damage which may occur within ten years is therefore included in this stipulation. 5Where the Prætor says, “With reference to any work,” we must understand this to refer to any damage resulting from a structure erected on public land. 6Where anything is built on a public highway, security must be given for the reason that it is erected on the land of another. 7The Prætor, however, after investigation, will fix the time in accordance with the nature of the work. 8Where anyone performs labor to protect a highway, or does any other work with reference to the same, security should be furnished to prevent damage being sustained by private persons. 9Nothing is expressly provided with reference to other public places, but, on account of the general clause referring to structures erected upon the premises of others, security against threatened injury should be furnished. 10Where a public place is repaired by public labor; Labeo very properly holds that the rule that security against threatened injury shall not be given applies, where any injury may result from either a defect in the land or the work; but the work should be performed in such a way that no injury or damage may be sustained by the neighbors. 11Under the terms of this Edict, if security is not furnished, the plaintiff is placed by the Prætor in possession of that part of the building which seems to be in a ruinous condition. 12Let us see whether he should be placed in possession of the whole house. An opinion of Sabinus is extant which says that he should be placed in complete possession; otherwise, he says if damage is apprehended only on account of the building, the Edict cannot be carried into effect, nor will it benefit him to be placed in possession which he cannot legally hold, or which will be of no advantage to him. This opinion of Sabinus is the better one. 13Where a building is divided into several parts, let us see whether the plaintiff should be placed in possession of a portion of the same, or of all of it. If it is so large that spaces exist between the part which is ruinous and that which is in good repair, it must be said that the plaintiff should be placed in possession of the ruinous portion alone; but if the entire building is closely united, he should be placed in complete possession of it. Therefore, in houses of great extent, the better opinion is that the plaintiff should be placed in possession of the part which is contiguous to that which is in a ruinous condition. If, however, but a very small portion of a house of great extent is in a ruinous state, how can it be held that the person to whom security against threatened injury has not been given should be directed to take possession of the entire building, when it is of such vast dimensions. 14Again, what shall we say if an addition to the house is in a ruinous condition? Shall the plaintiff be placed in possession of the addition, or of the entire building? The better opinion is that he should not be placed in possession of the entire building, but only in possession of the addition to the same. 15Where several persons demand that security shall be given to them, it is customary for all of them to be placed in possession. Labeo adopts this opinion, where one has already been placed in possession, and another desires this to be done; for we shall not consider the order in which they appear, but both of them will be entitled to possession. Where, however, one has already been directed to take possession, and another demands that security against threatened injury be furnished; then, unless this is done, the second one shall be placed in possession. 16Julianus says that where anyone is placed in possession on account of threatened injury, he cannot acquire the title to the property by lapse of time, unless he is made the owner by a second decree of the Prætor. 17If another has also been placed in possession before this decree was issued, both of the parties will become joint-owners of the house; that is to say, if they were ordered to take possession of the same. If, however, the one who is first placed in possession has become the owner, and Titius should demand that security against threatened injury be given him, and the first should refuse to furnish it, Titius alone will remain in possession. 18Where several persons are placed in possession, they are all on the same footing, and the amount of damage which may affect each one is not considered; and this is reasonable, for when one person is placed in possession this is not done with reference to the proportion of damage which he may apprehend, but it is done for the benefit of all. Hence, where several are placed in possession, all of them equally obtain complete possession, and their shares are regulated by contribution. 19If, however, anyone who is placed in possession should incur expense, and should afterwards be ordered to take possession by a second decree, can he recover the expense, and if he can, by what proceeding? It is established that he can recover the expense he has incurred by an action in partition. 20Where, however, a person is placed in possession, but has not yet been ordered to take complete possession by a second decree, let us see whether the owner of the property is obliged to relinquish possession. Labeo says that he is obliged to do so, as is the case where neither creditors nor legatees are placed in possession. This opinion is correct. 21When the Prætor places anyone in possession of property, he does not grant them complete possession at once, but only after proper cause is shown. Therefore, a certain interval of time should elapse, in order to show that the owner, by a long silence, considers the house as abandoned, or where a person has been placed in possession, and, after he has remained there for some time, no one furnishes security. 22If the owner should happen to be absent on business for the State, or for any other good reason, or if he should be of an age which entitles him to relief, the rule should be adopted that the Prætor ought not to use undue haste in promulgating the decree to place the party in complete possession of the property. And even if he should issue such a decree, there is no doubt that complete restitution will be granted the party interested. 23Where anyone is ordered to take complete possession, the owner should be compelled to relinquish it. 24Where any rights are due to the parties who have been able to give security against threatened injury, the assertion of those rights cannot be made against the person who has been placed in possession. Labeo approves this opinion. 25In the case of a creditor who holds a ruinous house in pledge, the question arises whether he can assert his rights to the pledge against anyone who has been ordered to take complete possession by virtue of the second decree of the Prætor. The better opinion is that he will be refused the right to claim his pledge, if the debtor should not promise indemnity, or the creditor furnish security. Celsus very properly holds that this rule also applies to the case of an usufructuary. 26Ad Dig. 39,2,15,26Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 27.Where a house is held under a perpetual lease, we are of the opinion that a person can be placed in possession, but cannot be authorized to obtain complete possession by a second decree of the Prætor; for the ownership of the property can never be acquired by possession. A decree should, however, be issued to the effect that the tenant will be in the same position as he who refused to give security, after which decree he can avail himself of the proper action for this purpose under his lease. 27With reference to land leased by a municipality, however, if the authorities do not give security, it must be said that ownership can be acquired by lapse of time. 28If the damage apprehended should occur whiie the Prætor is deliberating as to whether the stipulation should be granted or not, the following nice question has arisen; namely, whether the plaintiff can be indemnified. And, indeed, the placing in possession will not become operative. The Prætor should, nevertheless, decree that any damage which may have occurred shall also be included in that covered by the bond; or if he thinks that it would be proper for him to grant an action, he can issue a decree to that effect. 29Where a ward has no guardian by whose authority he can promise indemnity for threatened injury, the plaintiff can be placed in possession, just as in the case where no defence was made. 30Where anyone is placed in possession on account of threatened injury, some authorities hold that he should prop up and repair the building in question, and that he is responsible for negligence, as in the case of a person who receives a pledge. We, however, make use of another rule; for as he is only placed in possession instead of receiving security, he will not be to blame if he does not make repairs. 31If security is offered him after he has been placed in possession, let us see whether he should be obliged to vacate the premises, unless security is also furnished him for any damage which may have been committed after he was placed in possession. This opinion, indeed, is the better one. Therefore, the time prescribed should be stated twice in the promise for indemnity; and, moreover, security must be furnished him for any expense which he may have incurred. 32The question arises from what date the account of the damage must be estimated, whether from the time when the plaintiff obtained possession, or from the time when the Prætor decreed that he should enter into possession. Labeo says that it should be from the time that the decree was issued; and Sabinus holds that it should date from the time when the plaintiff obtained possession. I think that the adoption of one or the other of these opinions depends upon the circumstances of the case; for it is customary to come to the relief of one who has been directed to take possession, and for some reason did not do so, or who obtained possession too late. 33However, after anyone has been ordered by the Prætor to take complete possession by the right of ownership, there is no ground for the tender of security. Labeo adopts this opinion, for he says that, otherwise, the case would never be terminated. This is perfectly correct, except where the parties are entitled to relief, either on account of their age, or for some other good reason. 34Where a house has already fallen down, let us see whether the person to whom security has not been given should still be placed in possession of the ruins, or of the land. The better opinion is that this should be done. Labeo concurs in this, but he adds that it should be adopted only where the house had fallen after the Prætor had issued a decree placing the plaintiff in possession. I think that the opinion of Labeo is correct. Hence, if the plaintiff makes any repairs, it should be held that he is not compelled to depart before he has been paid for them, and security has been furnished for damage previously sustained. He can, however, recover what he has expended by an action in factum, but he cannot recover more than ought to have been expended in accordance with the judgment of a good citizen. The same rule applies where someone else has incurred expense by my order or request, without fraudulent intent; and a decision has been rendered against me on this account, or I have paid the amount in good faith. 35Where anyone relinquishes possession of a house through fear that it will fall, and he does so when he cannot prevent it, Labeo says that his right will remain unimpaired, just as if he had continued in possession; because, if he preferred to abandon the house when its condition could be remedied, he will lose the benefit of the decision of the Prætor, and he should not be heard if he afterwards applies for relief. Cassius, however, says that if he withdrew through fear that the house would fall, and not with the intention of abandoning it, he should be restored to possession. He also says that where the person placed in possession does not appear, and the building collapses, he will lose the benefit of the decree of the Prætor. This should be understood to mean if he neglected to take possession, and not where the house fell after he had come with the intention of taking possession of it. 36Where anyone has been sent by the Prætor to take possession under this Edict, and is not permitted to do so, he can avail himself of an action in factum, and ask that as much shall be paid to him as would have been required to be paid if security with reference to the property had been furnished. This action extends to the time when the damage was committed.

16Paulus, 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.

17Ulpianus, On the Edict, Book LIII. Where anyone, who is under the control of another, refuses to admit the person who was placed in possession, many authorities hold that a noxal action on this ground will lie. 1What course must be pursued if an agent should prevent him from taking possession? Shall we grant an action against him, or against his principal? The better opinion is that the action should be granted against the agent. 2The same rule will apply to the agent of a municipality, a guardian, and those who appear for others. 3This action, which is in factum, is granted perpetually, and passes to and against the heir, as well as to and against other persons. 4The judge who has jurisdiction in a case of threatened injury, and also where a tract of land has been alienated by the party against whom suit was brought, ordinarily makes an estimate of all the damage which has been sustained before judgment is rendered.

18Paulus, 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.

19Gams, On the Edict of the Urban Prætor: Title, Concerning Threatened Injury. In a stipulation for indemnity against threatened injury, the rights of those who are absent in good faith are not prejudiced; if, after their return, power is granted them to give security which is only just, whether they are the owners of the property, or have any rights therein, either as creditors, usufructuaries, or ground lessees. 1If any damage is apprehended through the bad condition of a house, or any other structure, which may happen with reference to a building situated either in the city or in the country, or in a private or a public place, the Prætor must see that security is furnished to the person who fears that such damage will occur.

20The Same, On the Provincial Edict, Book XIX. Security against threatened injury takes place between the usufructuary and the owner of the property when the usufructuary demands that it be given him on account of bad condition of the ground, and the owner of the property on account of some defect of the work, when the usufructuary is constructing something, for neither of them can demand security from the other on account of a house which was in danger of falling; the usufructuary, because he is not responsible for the repair of the house, and the owner, for the reason that a stipulation is usually entered into by them, under which the usufructuary gives security to repair the property, a provision which applies to this case.

21Paulus, On Plautius, Book VIII. Where a son under paternal control is a tenant, let us see whether he can be placed in possession of a neighboring house on account of threatened injury; for the question arises whether a son under paternal control is not considered to sustain damage, when his property consists of his peculium, and his father can enter into a stipulation to provide against any damage which he may suffer. It is established that both of them should be placed in possession, unless the son, when he rented the house, agreed that it should be at his risk; for then, as he alone is liable under the lease, it is very properly held that he himself should be placed in possession, if security is not given him.

22The Same, On Plautius, Book X. If the owner of the property promises indemnity against threatened injury, or has paid something on this account; or, on the other hand, the usufructuary has paid something, it is only just that one of them should enjoy the use of the house, or that the other should retain the ownership of the same without any risk. If the owner has paid anything on this account, the usufructuary should not be permitted to use the property unless he contributes his proportion. This also applies to the usufructuary, and the owner of the property will be compelled to contribute his share. Hence if the house should fall, the usufructuary can hold the ground until he is reimbursed for the damage, so that what the neighbor would have been entitled to, if he had been placed in possession, the usufructuary, who reimbursed him for the damage, should have. The same rule applies where even a very small amount is paid for damage sustained. 1Plautius: I demand security from a person whom I deny to be the owner of certain property, under the exception, “If he should not be the owner,” and I say that another, whom I consider to be the owner, must simply promise me indemnity. It has been settled that I cannot obtain both of these demands, but that I must choose which one of the parties I prefer to furnish me security.

23Ulpianus, On the Edict, Book LXIII. In a stipulation relating to security against threatened injury, which is entered into on account of a house, the plaintiff shall be placed in possession, unless the bond covers everything.

24The 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.

25Paulus, On the Edict, Book LXXVIII. Trebatius says that he also sustains damage who has the lights of his house cut off.

26Ulpianus, 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.

27Paulus, On the Edict, Book LXXVIII. Joint-owners of the same house should each one stipulate for indemnity, without mentioning his individual share in the property, for the reason that each one stipulates with reference to the injury which he himself may sustain. Moreover, if mention is made of each share, it would be just as if each stipulated only for the half. On the other hand, where there are several owners of a house which is in bad condition, each one must promise indemnity with reference to his own share of the same, in order to prevent each from being individually liable for the entire amount.

28Ulpianus, 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.

29Gaius, On the Provincial Edict, Book XXVIII. The same rule applies where no one is willing to rent the house on account of it being out of repair.

30Ulpianus, 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.

31Paulus, On the Edict, Book LXXVIII. Those who repair public highways should do so without causing any damage to their neighbors. 1If a dispute should arise whether the person from whom security is required is, or is not, the owner of the property, he must furnish security with the reservation of his rights.

32Gaius, On the Provincial Edict, Book XXVIII. If a house which belongs to yourself and me in common adjoins another, which is my property, the question arises whether, if the house owned in common threatens to cause me any damage, you should furnish me security against the injury which may be sustained by my own building; that is to say, for that portion of the said house of which you are the owner. This opinion is adopted by several authorities. I, however, perceive a difficulty because I myself can repair my own house, and I can recover, in an action of partnership or one in partition, any expenses incurred for a portion of the same. For if I have a building in common with you, which is in bad condition, and you are in default in repairing the same, our instructors deny that you should be compelled to give security, because I myself can make the repairs and will be entitled to recover by an action on partnership, or in partition a proportionate share of the expenses which I have incurred; and therefore the giving of a bond would be of no use, because I can be reimbursed for any loss in another way. It is clear that the opinion of our instructors was, that we should consider a stipulation provided for indemnity in the case of threatened injury to be useless, where one can be indemnified for his loss by another action; which rule is understood to be applicable to the case above mentioned.

33Ulpianus, On Sabinus, Book XLII. An action under a bond of indemnity for threatened injury is not granted to a tenant, because he can proceed under his lease, if the owner of the property should prevent him from leaving;

34Paulus, On Sabinus, Book X. Provided always, that he is ready to give security for any rent which may have accrued; otherwise, the owner could justly retain his property by way of pledge. But even if he should retain it by way of pledge, and it should be destroyed by the fall of a neighboring house, it may be said that the owner would be liable to the tenant in an action on pledge, if he could have deposited the property in a safer place.

35Ulpianus, On Sabinus, Book XLII. In case of the demolition of a party-wall, inquiry must be made whether or not it was fitted to support the weight placed upon it.

36Paulus, On Sabinus, Book X. Several authorities hold that a party-wall, to be suitable, must be able to support the weights of both the houses which may legally be placed thereon.

37Ulpianus, On Sabinus, Book XLII. For, if it was not capable of sustaining these weights, it should be demolished. He who demolishes it should not be liable, if any damage results for this reason, unless he builds a new wall which is either too expensive, or not good enough for the purpose. If the wall which was demolished was a suitable one, the plaintiff will be entitled to an action under the stipulation for indemnity, to the amount of his interest in having the wall remain. This is reasonable, for if it ought not to have been demolished, he shall rebuild it at his own expense. Moreover, Sabinus says that if anyone lost any income on account of the demolition of the wall, it should be repaid to him. If the tenants leave the house, or cannot be so conveniently lodged, the builder of the new wall shall be responsible.

38Paulus, On Sabinus, Book X. The purchaser of a house cannot properly stipulate for indemnity before possession has been delivered to him; for the reason that the vendor is bound to exercise strict diligence with reference to the property, so far as the rights of the purchaser are concerned. It is certain that such a stipulation can be made, where the vendor is in no way to blame; for instance, if he permitted the purchaser to remain in the house under a precarious title, and when about to depart, he gave him the custody of the same. 1If security is not furnished with reference to a field, the plaintiff should be placed in possession of that part of it where some damage is apprehended. The reason for this is, that in the case of buildings, the portions which are in good repair may be pulled down by those which are ruinous, and this is not true of vacant land. It must, however, be said that, with reference to very large houses, the Prætor should sometimes determine, after investigation, in which part of the building the person, to whom security has not been given, should be placed in possession. 2Where a new wall is erected, the expense should be calculated after having deducted the cost of the old one to ascertain whether there is any excess; or if any of the old wall was used in the construction of the new one the value of it should be deducted in making the estimate.

39Pomponius, On Sabinus, Book XXI. Where there is a party-wall between two houses, it is customary to stipulate against threatened injury with reference to the house belonging to each individual owner; but security is not necessary, except where one of them alone builds, and damage is feared on account of the work, or where one of them has a more valuable house than the other, and will sustain greater damage if the wall should fall. Otherwise, where the risk is equal on both sides, the same amount of security given by one of them to his neighbor should also be exacted from the former. 1Where the title to a building is in dispute, the burden of furnishing security against threatened injury rests upon the party in possession, as he can recover from the owner of the land whatever he may be compelled to pay out for this purpose. If, however, he should not furnish security, possession shall be given to the plaintiff, who demanded security against threatened injury; for it would be unjust for the stipulator to be compelled to abandon the land, which he fears may be damaged, in order to search for the owner. 2The stipulation with reference to threatened injury has a very broad application. Hence this stipulation is advantageous to one whose house, built upon the land of another, is damaged. It is also advantageous to the owner of the land, in case the latter is injured in such a way that the entire surface is removed, for he will then lose the income which he would otherwise have received. 3It is lawful to stipulate in the name of another that any damage which may be sustained by the owner shall be included. He, however, who stipulates should give security that the owner will ratify the transaction, and the exception referring to the agent should be inserted in the stipulation, as in the case of those relating to legacies. If security is not furnished him, the agent should, by all means, be placed in possession, so that the exception relative to his agency may not prejudice him. 4In making the estimate for the new wall, an account must be taken of the expense, which should not exceed a reasonable sum; and the ornamentation of the old wall ought to be considered, provided the expense is not increased too much by doing so.

40Ulpianus, On Sabinus, Book XLIII. In entering into a stipulation for indemnity against threatened injury, an indefinite or extravagant valuation should not be made, as, for example, for stucco-work, or mural paintings; for even though great expense may have been incurred for these things, still, a moderate estimate should be made in the stipulation providing against threatened injury, because a just medium should be observed, and the extravagant luxury of anyone should not be encouraged. 1Whenever injury results from a defect in a party-wall, one of the joint-owners will not be liable for any damage sustained by the other, for the reason that it was caused by defective property owned in common. If, however, the damage resulted from one of them placing too great a weight against it, or upon it, it must be said that he alone will be responsible for the damage which was caused by an attempt to benefit himself. If the wall should collapse on account of too great a burden having been imposed upon it by both parties, Sabinus very properly says that both of them will be liable. But if one of them loses more property, or property of greater value than the other, it is best to hold that neither of them will be entitled to an action against the other, because both placed the same burden on the party-wall. 2Whenever several persons bring an action on a bond given to provide against threatened injury, for the reason that they have sustained damage with reference to the same property, for instance, a house, each of them should not sue for the entire amount, but in proportion to his share, because the damage which all are entitled to recover has not been sustained by each one in full, but merely for a part; hence Julianus says that an action only for a part will be in favor of each one of them. 3Likewise, if a house which is in bad condition, and threatens to fall, belongs to several persons, can an action be brought against each of them for the entire amount, or only for a part? Julianus says, and Sabinus approves his opinion, that they should be sued for the interest which each one has in the property. 4Where several owners of a house demand security against threatened injury and no one furnishes it, all of them should be placed in possession on the same footing; although they may have different shares in the ownership of the property. This is also stated by Pomponius.

41Pomponius, On Sabinus, Book XXI. Where a party-wall is to be repaired, that owner should have the opportunity to do the work who can perform it in the most suitable manner. It must also be said that this rule will apply where the same road or water-course is to be repaired by two or more persons.

42Julianus, Digest, Book LVIII. If a slave owned in common enters into a stipulation providing against threatened injury, it is considered the same as if his master had stipulated orally with reference to their respective shares.

43Alfenus Varus, Digest, Book II. A certain man promised indemnity against threatened injury to his neighbor. Tiles from his building were thrown by the wind upon those of his neighbor and broke them. The question arose whether any damages were to be paid. The answer was that this should be done if the accident resulted from any defect or weakness of the building, but if the force of the wind was such that it could even have demolished buildings that were strongly constructed, no damages could be collected. And even though it were provided in the stipulation that damages would be payable even if anything should fall, nothing would be considered to have fallen, where anything was thrown down either by the violence of the wind, or by any other external force, but only what fell of itself. 1A man who desired to rebuild a party-wall which he owned in common with his neighbor, before he demolished it, gave him security against threatened injury, and obtained the same from him. After the wall was removed, the lodgers in the rooms of the neighbor left, and the latter attempted to recover from the other joint-owner of the wall the rent which the lodgers had not paid. The question arose whether he could lawfully make such a demand. The answer was that, as the party-wall was being rebuilt, it was not necessary for the joint-owners of the same to give security to one another, nor could either of them, under any circumstances, be compelled to do so by the other; but if they did give security, they still could not give it for more than the half owned by each, for neither of them should give security, even to a stranger, for any more than this, when he intended to rebuild the party-wall. As, however, both had given security for the entire amount, the one who built the wall must be responsible for any damage sustained by his neighbor on account of the loss of his rent. 2The same neighbor applied for advice as to whether he could not recover what he had paid on this account, for the reason that it had been agreed by his neighbor that he would reimburse him for any loss which he might have incurred on account of what he had built, and he had lost the money which he had paid on account of the work which he had done. The answer was that he could not do so, because the loss which he had sustained was not due to any defect of construction, but by virtue of the stipulation.

44Africanus, Questions, Book IX. I demanded that you give me a bond of indemnity against threatened injury and you refused to do so. Before I applied to the Prætor, your building fell down and caused me damage. It. was held that the Prætor should not render any decision in this case, and that I suffered the damage through my own Tault, because I began to institute proceedings too late. If, however, the Prætor decided that you should furnish me security, and you did not do so, and he then ordered me to take possession, and your building should collapse before I arrived, it was held that the same rule should be observed as if the injury had been sustained after I had come into possession of the property. 1Having been placed in possession of property on the ground of threatened injury, I obtained the ownership of the same through possession under the second decree of the Prætor. A creditor afterwards desired to prosecute his claim to the house which was hypothecated to him. It was held, and not without reason, that if I had incurred some expense in repairing the house, and the creditor was not willing to reimburse me for the same, he would not be permitted to bring suit against me. Why then should not this right also be conceded to a purchaser, if he had bought a house which had been hypothecated? These two cases cannot justly be compared with one another, since he who purchased the house entered into the transaction voluntarily, and therefore he could and should have been more diligent, and should have compelled the vendor to furnish him with security; but this cannot be said of him who failed to furnish indemnity against threatened injury.

45Ad Dig. 39,2,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 198, Note 16.Scævola, Questions, Book XII. You built a house, and I bring an action against you on the ground that you have no title to the same. You do not set up any defence. Possession should be granted me, but not in order that the house may be immediately demolished, for it would be unjust for this to take place at once, but it should be done within a certain time, unless you prove that you had the right to build it.

46Paulus, Sentences, Book I. It is the duty of the agent of a municipality to see that houses which have fallen into ruin are rebuilt by the owners. 1Where a house has been rebuilt at the public expense, and the owner of the same refuses to pay the money disbursed for that purpose, with interest to a certain date, the town can legally sell the house.

47Neratius, Parchments, Book VI. If the owner of two houses restricts the use of a passage which had been common to both of them, to one alone, it will only belong to the house to whose use it has been restricted, not only where the timbers by which it is supported form part of it, but even where they all rest upon the walls of another building. Moreover, Labeo, in his Last Works, says, where the owner of two houses built a portico attached to both of them, and made an opening to one of the houses from said portico, and then sold the other house, after imposing upon it the servitude of supporting the portico, that the entire portico will belong to the house which the vendor retained; even though it may extend the entire length of both houses, and is crossed by timbers supported on both sides by the walls of the house which was sold. He, however, says that this rule will not apply when the upper part of the building, which is not joined to the portico, and has no other entrance, belongs to another house than the one by which the portico is supported.

48Marcianus, On Informers. Where anyone is proved to have sold a house or a part of the same for the purpose of demolishing it and selling the materials, it has been decided that the purchaser and the vendor should each be liable for the amount for which the house was sold. If, however, he should dispose of the marbles or columns of his house to be used in some public work, he can legally do so.