1Ulpianus, On the Edict, Book LXX. The Prætor says: “I forbid you to prevent the enjoyment of the private road or way in question, as you have done during the past year; unless you have obtained the use of the same from your adversary, either by violence, clandestinely, or under a precarious title.” 1This interdict is prohibitory, and only has in view the preservation of rustic servitudes. 2In granting this interdict, the Prætor does not inquire whether the applicant has a servitude imposed by law or not, but only whether he has used the right of way for the present year, without employing violence, or secretly, or under a precarious title, and he protects him, although he may not be using the right of way at the time when the interdict is granted. Therefore, whether he is entitled to the right of way, or whether he is not, he is in a position to claim the protection of the Prætor, provided he has made use of his right during a year, or for a reasonable period, that is to say, for not less than thirty days. This enjoyment has no reference to the present time, for, in most instances, we do not use a road constantly, but only when necessity demands it. Hence the Prætor restricted its use to the term of a year. 3We should compute the year back from the date of the interdict. 4If anyone makes use of this interdict, it will be sufficient to prove one of two things, namely, that he has used the road either to walk upon, or to drive over. 5Julianus says that the interdict will lie in favor of the plaintiff until he has entered upon the road, which is true. 6Vivianus very properly says that where anyone, on account of the inconvenience caused by a stream, or because the public highway has been obstructed, makes a new road through the field of a neighbor, he is, by no means, understood to acquire the use of it, even if he does this frequently; hence the interdict cannot be employed by him, not for the reason that he has used the road by a precarious title, but because he has not used it at all. According to this, he is not considered to have used either road, since he has still less used the old one over which he did not travel, on account of the inconvenience caused by the stream, or because it was obstructed. The same rule must also be said to apply where it was not a public highway, but a private road which was obstructed, for, in this instance, the question is the same. 7If a tenant, a guest, or anyone else makes a road through the land of another, the proprietor will be considered to have used it, and therefore he will be entitled to the interdict; and this was also mentioned by Pedius, who added that, if he did not know through whose land he had passed, he would retain the servitude. 8If, however, I should make a road through land which a friend of mine thinks belongs to him, he will be understood to be entitled to the interdict for his own benefit, and not for mine. 9If anyone has not used a right of way for the past year, on account of an inundation, but did use it the year before, he can avail himself of this interdict by changing the date, and will be entitled to complete restitution under the clause of the interdict, “if there seems to me to be any good reason.” If, however, he has been prevented by violence from using the right of way, Marcellus thinks that he must be granted complete restitution. Moreover, the interdict with the changed date can be employed in other cases, in which a party is ordinarily entitled to demand complete restitution. 10It must also be noted that, where delay is granted to my adversary, and my case under the interdict will be prejudiced thereby, it is only just that the date of the interdict should be changed. 11Ad Dig. 43,19,1,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 8.If I have conveyed to you under a precarious title a tract of land to which a right of way is due, and you apply to the owner of the adjacent premises held under a precarious title, to permit you to use the said right of way, will you be barred by an exception, if you wish to employ the interdict against him to whom you have applied for permission to use the right of way under a precarious title? The better opinion is that you will be barred; and this can be gathered from what Julianus said in a case of the same kind. For he asks, if I should convey to you a tract of land by a precarious title, to which a right of way is due, and you obtain the right to use the road by a precarious title, I can still avail myself of the interdict, because, as the precarious title does not bind me, so I am not considered to be in possession by anything which you may have done under such a title. For whenever my tenant, or the person to whom I conveyed the land by a precarious title, uses the road, I am understood to use it; for which reason I very properly say that I am enjoying the use of it. Hence he says the result will be that, if I have obtained the right of way by a precarious title, and I afterwards convey the land to you under the same title, and although you travelled upon the road with the belief that the right was due to my land, the interdict cannot be employed by me, and I will, not without reason, be held to have used the road by a precarious title, for not your opinion but mine should be considered. I think, however, that you can avail yourself of the interdict, although Julianus says nothing on this point. 12If anyone has used the right of way for the above-mentioned term of a year, without employing violence, or acting clandestinely, or relying on a precarious title, but has not used it since, or has done so clandestinely, or under a precarious title, let us see whether this will prejudice his rights. The better opinion is that it will not prejudice them in any way, so far as the interdict is concerned.

2Paulus, On the Edict, Book LXVI. Any right which has been properly acquired cannot be extinguished or changed by any defect which may supervene.

3Ulpianus, On the Edict, Book LXX. Labeo refers to the following case, namely: “If you are using a right of way which you have legally obtained from me, and I sell the land on which the right is imposed, and the purchaser afterwards prevents you from using it, although you may be considered to be using it clandestinely, so far as he is concerned (for anyone who makes use of a right, after having been forbidden to do so, uses it clandestinely); still, the interdict will lie in your favor for a year, because, during this year, there was a time when you made use of the right without the employment of violence, or without doing so clandestinely, or under a precarious title.” 1It must be noted that a person is considered to make use of a right of way clandestinely, not only after he has been forbidden to do so, but also when he uses it after he from whom he acquired the right has been prohibited. It is clear that, if I was not aware that he had been forbidden to use it, and continue to do so, it must be said that I will not be injured. 2Where anyone has obtained the use of a right of way through my agent by having employed violence, or has acted clandestinely, or holds it by a precarious title, he can be prevented by me from using it, and he cannot avail himself of the interdict, because he who possesses by a defective title obtained through my agent is considered to have possession from me by violence, clandestinely, or under a precarious title. Pedius says that, if anyone, in either of these ways, has acquired possession from a person whom he succeeded by inheritance, by purchase, or by any other title, the same rule will apply. For where we succeed to the rights of others, it is not just that we should be injured by something which did not injure him whom we succeed. 3In this interdict, the value of the interest which the party had in not having been prevented from using the right of way is taken into account. 4Ad Dig. 43,19,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 9.We are considered to enjoy servitudes through our slaves, our tenants, our friends, or our guests, and by almost all those who hold the servitudes in our name. Julianus, however, says that a servitude is not retained for the owner of the property by an usufructuary, and that this interdict will not lie in favor of the owner through the usufructuary. 5Julianus also says that if I have an usufruct in your land whose ownership is actually vested in you, and both of us pass through the land of a neighbor, we can both avail ourselves of this interdict. If the usufructuary should be prevented from enjoying his right by a stranger, or by the owner, or the latter is interrupted by the usufructuary, the interdict will apply; for it can be employed against anyone whomsoever that interferes with the right of way. 6This interdict will also lie in favor of one who obtains possession of a tract of land by reason of a donation. 7Where anyone purchases land by my order, it is perfectly just that this interdict should be granted me, in order that he who bought the property under my direction should enjoy his right. 8If, however, anyone purchases the usufruct or use of land, or it is bequeathed or transferred to him, he will be entitled to this interdict. 9Further, anyone to whom land has been transferred by way of dowry can institute proceedings under this interdict. 10And, generally speaking, it must be said that there will be ground for this interdict in all cases where a right of way had been obtained by sale, or by any other contract. 11The Prætor says: “I forbid anyone to forcibly prevent you from repairing a road or path, and restoring it to the same condition in which it was when you enjoyed it during the last year, if you have not used it by employing violence, acting clandestinely, or by virtue of a precarious title. Anyone who wishes to avail himself of this interdict must furnish security to his adversary for any damage which may result from any fault of his.” 12The public welfare also caused the introduction of this interdict, for it was only proper that an interdict should be promulgated for the benefit of him who enjoys a right of way in order to enable him to repair the road. For how can anyone conveniently use a road or path unless he repairs it? For as soon as the road becomes damaged, he who is entitled to the right of way can use and enjoy it to less advantage. 13This interdict differs from the previous one, because all can have recourse to the latter who have used the road for a year; but only those can avail themselves of this interdict who have used the road for a year, and have, in addition, the right to repair it. This right, however, is held to be vested in him to whom the servitude is due. Therefore, anyone who makes use of this interdict must prove two things: first, that he has used the road for a year; and second, that he is entitled to the servitude, for if he fails to establish either of them, the interdict will not apply. Nor is this unreasonable, for if he who wishes to enjoy the right of way until his claim to the servitude is established does not produce the proof of it, what has he lost who suffers him to do what he has already done for a year? But he who desires to repair the road undertakes something new, and ought not to be permitted to attempt this on the land of another, unless he shows that he is actually entitled to the servitude. 14Moreover, it may happen that someone has the right to pass and drive over the premises of another, but does not have the right to repair the road, because, in granting the servitude, it may have been expressly provided that the right to repair the road was not included; or it may have been done in such a way that if the beneficiary should wish to repair it, he would be allowed to do so only in a certain way. Hence the Prætor very properly says, with reference to repairs, “I forbid anyone to prevent you from repairing the road, as you have a right to do,” that is to say, to the extent that you are permitted in accordance with the terms of the servitude imposed. 15We understand by the term “repair,” to restore the road to its former condition, that is to say, that it shall not be widened, or lengthened, lowered, or raised, for it is one thing to repair a road and a very different thing to build it. 16The question is asked by Labeo, if anyone desires to construct a new bridge for the purpose of repairing a road, whether he should be permitted to do so. He says that he should be permitted to do so, because a structure of this kind forms part of the repair of a road. I think that the opinion of Labeo is correct; provided that, if this was not done, one could not travel conveniently back and forth upon the road.

4Venuleius, Interdicts, Book I. The ancients expressly added that violence should not be employed to prevent anyone from bringing materials suitable for repairing a road. This provision is superfluous, as anyone who does not permit materials to be brought without which a road cannot be repaired is considered to use violence to prevent the repairs from being made. 1If, however, anyone who can bring the materials necessary for the repairs by a shorter route prefers to bring them by a longer one, in order to subject him who owes the servitude to annoyance, force can be used against him with impunity, because it is he himself who interferes with the repair of the road.

5Ulpianus, On the Edict, Book XX. It is apparent that if anyone prevents the materials from being piled up, he employs force to prevent the repairs from being made. 1If anyone, being able to transport the materials through another part of a field without causing any inconvenience to the owner of the land, transports them through some other part, it has been very properly decided that force can be employed to prevent him from doing so. 2There is no doubt that this interdict can not only be granted to the person himself who has been interfered with, but also to his successors. It will also be granted for and against a purchaser. 3If anyone has a servitude that was not legally imposed, but of which he has had the enjoyment for a long time, the fact that he has used it for an extended period will entitle him to employ this interdict. 4He who wishes to avail himself of this interdict should furnish security to his adversary against any injury which may be caused by his acts.

6Paulus, On the Edict, Book LXVI. As anyone who has enjoyed a servitude without a defective title suffers no prejudice to his rights, even though, during the past year, he has made use of it under a defective title, so in like manner a purchaser or an heir will not be injured if he has enjoyed a servitude under a defective title, if the vendor or the testator enjoyed it under a good one.

7Ad Dig. 43,19,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 6.Celsus, Digest, Book XXV. If anyone has passed to and fro through your land without the employment of violence, or without acting clandestinely, or under a precarious title, and still did so without any right, but with the intention of not traversing the land, if he had been forbidden; this interdict will not lie under these circumstances, for, to enable it to do so, the person referred to must possess some right in the land.