Ulpianus, On the Edict, Book LXIX. Where anyone leases property for a coin of trifling value the lease is void, for this resembles a donation.

Ulpianus, On the Edict, Book LXIX. Where anyone leases property, and afterwards claims it by a precarious title, he is considered to have abandoned his lease. If he claims it at first by a precarious title, and afterwards leases it, he is considered to hold possession under the lease; for whatever is done last should rather be taken into consideration. Pomponius, also, is of this opinion. 1Pomponius discusses a very nice question; namely, whether a man who leases land, but claims it by a precarious title, does so, not for the purpose of possessing it, but merely to remain in possession; for there is a great difference, as it is one thing to possess, but quite another to be in possession. Persons placed in possession for the purpose of preserving the property, as legatees or neighbors, on account of threatened injury, do not possess the property but are in possession of the same for the purpose of caring for it. When this is done both of the above ways are merged into one. 2Where anyone leases land, and asks to be placed in possession by a precarious title, if he leased it for one sesterce there is no doubt that he holds it at will, as a lease for only that sum is void. If, however, he leases it for a fair rent, it must then be ascertained what was done first.

Ulpianus, On the Edict, Book LXIX. In interdicts issued to compel the return of crops, the date when they were issued is taken into consideration, and not any previous time.

The Same, On the Edict, Book LXIX. The Prætor, by means of this Edict, conies to the relief of a person who has been placed in possession by him for the prevention of threatened injury, in order to prevent violence being employed against him. 1Moreover, the penalty imposed upon him who does not promise security or furnish it is that his adversary shall be placed in possession. Therefore, if he promises to give security, or if he was not required to do so, the interdict will not apply, and the plaintiff can be barred by an exception. 2The Prætor promises an action against a party who neither gave security, nor suffered him who had been placed in possession to enter upon the premises, for the amount which he must have paid if he had furnished security. 3The Prætor introduced this action for another reason, namely, so that, if when a person desired to be placed in possession he was unable to appear in court, and in the meantime while his inability continued, he sustained any injury he might be entitled to bring the action. 4It was also added that if anyone who was placed in possession was alleged to have been prevented for some other reason, he would have a right to an action in factum.

Ulpianus, On the Edict, Book LXIX. The Prætor says: “If you or your slaves have forcibly deprived anyone of property which he had at that time, I will grant an action, only for a year; but after the year has elapsed, I will grant one with reference to what has come into the hands of him who dispossessed the complainant by force.” 1This interdict was established for the benefit of a person who has been ejected by force; as it is perfectly just to come to his relief under such circumstances. This interdict was devised to enable him to recover possession. 2It is provided by the different Leges Julia, having reference to public and private causes, as well as by various Imperial Constitutions, that force shall not be employed. 3This interdict does not have reference to all kinds of violence, but only to such as is used against persons who are deprived of possession. It only relates to atrocious violence, and where the parties are deprived of the possession of the soil; as, for instance, to a tract of land, or a building, but to nothing else. If anyone is deprived of the possession of land upon which no buildings are situated, there will undoubtedly be ground for the interdict. 4Generally speaking, this interdict has reference to anyone who is dispossessed of property attached to the soil, and no matter what the place may be from which he was forcibly ejected, the interdict will apply. 5Hence, if he was ejected from a house, and has no interest in the ground on which it stands, it is evident that there will be ground for the interdict. 6Nor does any doubt exist that this interdict has no reference to chattels; for in a case of theft, or where anything is taken by violence, another action will lie. The injured party can also bring suit for the production of the property. There is no doubt whatever that, if there is any personal property on the land, or in the house from which he was ejected, the interdict will also lie with reference to said property. 7This interdict is not applicable where anyone is forcibly deprived of the possession of a ship, the proof of which is, that where anyone is deprived of a vehicle in this manner, no one will say that he can avail himself of this proceeding. 8No one entertains any doubt that this interdict can be employed if a man is dispossessed of a house built of wood; because no matter what the nature of the property which is attached to the soil may be, the interdict will lie if he is forcibly ejected from the house. 9He who possesses the property is said to be forcibly ejected whether he held the same under Civil or Natural Law, as natural possession affords ground for this interdict. 10Finally, if a wife is ejected from property which her husband has given her, she can avail herself of the interdict; but a tenant cannot do so if he is dispossessed. 11The Prætor says, “if you or your slaves have forcibly ejected him.” The slaves are very properly mentioned, for the words, “you have forcibly ejected,” have reference to him personally who committed the act of violence, and do not refer to his slaves; for if my slaves should eject anyone, I will not be considered to have done so; and hence it was necessary to add, “or your slaves.” 12He also is considered to have ejected someone by force who directed or ordered this to be done. For it evidently makes very little difference whether one person dispossesses another with his own hands, or by the agency of someone else. Therefore, if my slaves should eject anyone with my consent, I myself will be held to have ejected him. 13Whenever a duly authorized agent has ejected anyone by force, Sabinus says that proceedings can be instituted against both parties, namely, against the principal as well as the agent, and that one of them is discharged from liability by the condemnation of the other; provided, however, that the amount of the appraisement in court has been paid by one of them; for he is not more excusable who ejected a person by the order of another than if he had killed a man by the direction of someone else. But where the alleged agent falsely represents himself as having authority, proceedings under the interdict should be instituted against him alone. The opinion of Sabinus is correct. 14If, however, I should ratify the act of someone who, in my name, has ejected a person by force; some authorities adopt the opinion of Sabinus and Cassius, who hold that the ratification is equal to a mandate, and that I should be considered to have ejected him, and hence I will be liable under this interdict. This is correct, because, where an offence is committed, it is perfectly just to compare a ratification to a mandate. 15Where it is added, “or your slaves,” this is very properly stated with reference to cases in which my slaves have forcibly ejected anyone. If, however, the master ordered this to be done, he himself committed the act of dispossession; but if he did not order it, he should not complain if he is liable for the acts of his slaves, even though they did not eject the person by his order; for he is not oppressed on this account, as something has either come into his hands which he must return, or if this is not the case, he will be released from liability if he surrenders his slaves by way of reparation for the offence which they committed. And although he is compelled to surrender his slaves by way of reparation, he should take this into consideration in estimating the damage which he has sustained; as a slave can injure his master in this way. 16By the term “slaves” the entire body of slaves is understood. 17But the inquiry is made, what number of slaves are included in this term, whether only two or three, or more. In considering the application of this interdict, the better opinion is that if only a single slave should eject anyone by force, the entire body of slaves shall be deemed to have committed the act. 18In the term “slaves,” it must be said that all of those are included whom we hold as such. 19If anyone refuses to defend his slave, or slaves, he should be compelled to submit to this interdict; or at least to the extent of forcing him to return whatever has come into his hands. 20If a son under paternal control, or a day laborer, dispossesses anyone by force, an available interdict will lie. 21If I make use of the interdict against anyone who, while in a state of freedom, is demanded as a slave, or vice versa, after legal proceedings have been instituted, and the man has been decided to be free, and it is proved that I have been forcibly ejected by his slaves, without his knowledge, I must be replaced in possession. 22An owner is considered to have possession of property which is held by his slave, his agent, or his tenant. Therefore, if any of these is forcibly deprived of possession, he himself is also considered to be dispossessed, even if he did not know that those by whom he had possession have been ejected. Hence, if anyone else, by whom I held possession, should be ejected, no one can entertain any doubt that I will be entitled to the benefit of the interdict. 23This interdict, however, will not lie in favor of anyone, unless he was in possession at the time when he was ejected, for no one is considered to have been ejected unless he was in possession. 24It is clear that anyone should be considered to have been ejected by force, where he held the property either corporeally or by intention. Hence, if he should depart from his land or his house, leaving none of his people there, and, on his return, should be prevented from entering upon his premises; or if anyone should stop him in the middle of his journey, and take possession of his property, he will be considered to have been ejected by force; for he has been deprived of possession which he held by intention, but not corporeally. 25The common saying that, “Possession of winter and summer resorts is not held by intention,” is given by way of an example, of which Proculus availed himself. The same rule will apply to all real property from which we temporarily withdraw without the intention of relinquishing possession of the same. 26The better opinion is to hold that a person is not dispossessed who did not have possession of property either by intention or corporeally, and not he who was prevented from entering upon the same, and taking possession of it; for he is ejected who loses possession, and not he who is not permitted to take it. 27Cassius says that one can repel force with force; for this right is conferred by the Law of Nature. Hence he holds that it is clear that armed aggression can be repelled by arms. 28To possess by force should be defined to mean where anyone having driven away the former occupant obtains possession by means of violence; or where he comes upon the ground ready and prepared to take possession, and contrary to good morals, has adopted measures to avoid being prevented from taking it. Labeo, however, says that he does not possess by violence who retains anything by the exertion of force. 29Labeo also says that he who, alarmed by the appearance of a crowd of persons, takes to flight, is held to have been ejected by force. Pomponius, likewise, says that violence does not exist without the exertion of corporeal force. I think that he who fled on account of the approach of a crowd should be considered to have been forcibly ejected, if they take possession of his property. 30Anyone who has taken possession of my property by force will be entitled to the benefit of the interdict, if he himself is ejected by another. 31Anyone who has been forcibly dispossessed can recover damages for all injury sustained through being ejected; for he must be placed in the same condition in which he would have been if he had not been dispossessed. 32If a tract of land of which I have been dispossessed is returned to me, but any other property of which I have been deprived by force is not returned, it must be said that the interdict will still lie; because it is true that I have been forcibly dispossessed. It is clear that if anyone desires to avail himself of this interdict with reference to the possession of the land, as well as of an action to compel the production of the personal property in court, he can do so, according to his discretion. This was stated by Julianus, and he adds that anyone has a right to bring suit for property taken by violence, in a case of this kind. 33Where the Prætor says, “which he had there,” we should understand this to mean all the property, not only that which belonged to him, but also all that was deposited with him, or lent or pledged to him, and of which he had the use or usufruct, or care, or any which was hired to him. For when the Prætor uses the word, “had,” property of every description is included in the term. 34Moreover, the Prætor very properly adds, “which he had at that time,” and we must understand the words, “at that time,” to mean when he was dispossessed. Hence, if he ceased to have possession of anything in that place afterwards, it must be said that the interdict will apply. Thus it happens that even if slaves or cattle have died since his dispossession, there will be ground for the interdict. Finally, Julianus says that where anyone has been forcibly deprived of a tract of land on which there were slaves, and the slaves afterwards died without his fault, their appraised value ought to be paid to him by means of the interdict; just as a thief, who had stolen a slave, is liable after the death of the slave. 35The result of this is that he will be compelled to refund the price of farm-houses or other buildings destroyed by fire; for Julianus says, where anyone has been ejected, the other party is always held responsible for preventing him from obtaining restitution. 36Therefore he asserts that it is established that anyone who has ejected another by force, and has afterwards lost possession without being guilty of fraud, will be liable under the interdict. 37The word “there” is mentioned by the Prætor, in order that no one can include property which he did not have in that place. 38But how shall we understand the word “there,” which the Prætor makes use of? Is the place from whence he was forcibly ejected meant, or does it refer to the entire place of possession? It is better to hold that it does not refer to a corner or place in which the person may have been, but to the entire property possessed, of which he was deprived when he was ejected. 39The year when this interdict is involved is an available one. 40In estimating the profits, the calculation is made from the day on which the person was ejected, although, in other interdicts, it is calculated from the day upon which they are issued, and the computation is not made beyond that time. The same rule applies to movable property which happened to be there, for its profits should be reckoned from the date on which the person was forcibly dispossessed. 41Not only an accounting for the profits must be had under this interdict, but that of any other benefits to which the plaintiff might have obtained. For Vivianus says that he who is dispossessed, even if violence was not used, will, under this edict, be entitled to restitution of everything which he would have had or acquired, or the judge must make an appraisement of the same, so that the party may obtain judgment to the extent of his interest in not having been dispossessed. 42Under the interdict Unde vi, even if the party is not in possession, he will be compelled to make restitution. 43As this interdict takes into account the atrocity of the illegal act committed, the question arises whether it will lie in favor of a freedman against his patron, or in favor of children against their parents. The better opinion is that it should not be granted to a freedman against his patron, or to children against their parents; for it will be preferable for them to bring an action in factum; unless the patron has employed armed force against his freedman, or the parent has done so against his children; for, under such circumstances, the interdict will lie. 44This interdict lies in favor of the heir and other successors. 45What is stated by Vivianus proves that the interdict Unde vi is only granted to the party in possession; for if anyone has forcibly ejected me, and did not eject my people, I cannot avail myself of the interdict, because I retain possession by those members of my family who have not been ejected. 46Vivianus also says that if anyone has driven away your slaves by force, and kept others and chained them, or given them commands, you are understood to have been forcibly ejected, for you cease to hold possession, as your slaves are possessed by another; and what is said with reference to a part of the slaves applies to all, if none of them were driven away, but all were taken possession of by the person who entered upon the property. 47Vivianus also discussed the question and asks what shall we say if I should take possession while someone else occupies the property, and I do not eject the possessor, but, having chained him, compel him to work? I think that the better opinion is that he who was placed in chains should be considered to have been forcibly ejected. 48An action in factum will, under this interdict, lie against the heir and the prætorian possessor of an estate, as well as other possessors, for whatever has come into their hands;

Ulpianus, On the Edict, Book LXIX. The same rule will apply where anyone has been ejected by armed force, because an action is granted on account of any illegal act of the deceased for the amount which may have come into the hands of the heir. It is, however, sufficient that the heir should not have obtained any profit, for he must not suffer any loss. 1This action, which can be brought against the heir and other successors, is a perpetual one, because it involves the pursuit of property. 2What shall we understand the words, “ejected by armed force,” to signify? Arms include all missile weapons, that is to say, not only swords, spears, javelins, or darts, but also sticks and stones. 3It is clear that if only one or two persons have sticks or swords, the possessor will be considered to have been ejected by armed force. 4Moreover, even where the aggressors come unarmed, if, at the time of the quarrel, those who came unarmed should proceed to use sticks or stones, this will be the employment of armed force. 5Even if those who came armed did not use their weapons in order to drive away the party in possession, but laid them aside, armed force will be held to have been employed; for the fear of weapons is sufficient to establish the fact of dispossession by armed force. 6If anyone, having seen armed men going elsewhere, became so terrified on this account as to take to flight, he is not considered to have been dispossessed; because the men who were armed had no intention of molesting him, but were on their way elsewhere. 7Hence, if anyone should hear that armed men are approaching, and relinquishes possession of his property through terror, it must be said that he has not been dispossessed by armed force; whether what he heard was true or false, unless possession is actually taken by the said persons. 8If, however, when the owner was about to take possession, armed persons, who have already seized his property, should prevent him from doing so, he is considered to have been ejected by armed force. 9Therefore, we can repel by the use of arms anyone who comes armed, but this must be done immediately, and not after some time has elapsed; if we remember that not only resistance can be offered to forcible ejection, but also that he who has been ejected can himself expel the intruder, if he does so at once, and not after any time has passed. 10If the person who comes armed is an agent, his principal will be considered to have used armed force in the dispossession, whether he directed this to be done, or, as Julianus says, subsequently ratified it. 11This also applies to the case of slaves; for if my slaves come armed without me, I am not considered to have come, but my slaves; unless I directed them to do so, or ratified their act. 12This interdict can also be employed against one by whose fraudulent conduct a person has been dispossessed by armed force; and will be granted, after the lapse of a year, for the recovery of whatever has come into the hands of him who was responsible for the act. 13It is evident that the interdict Unde m will be necessary for an usufructuary, if he is prevented from using and enjoying the usufruct of land. 14An usufructuary is understood to have been prevented from using and enjoying his right, when he is forcibly ejected while availing himself of his privilege, or is not allowed to enter upon the land, when he has left it without the intention of relinquishing his usufruct. If, however, anyone should prevent him from using and enjoying it in the beginning, there will not be ground for this interdict. What, then, should be done? The usufructuary must bring an action for the recovery of his usufruct. 15Again, this interdict has reference to him who is prevented from using and enjoying land, as well as to him who is interfered with in the use and enjoyment of a house. Consequently, we hold that it does not apply to movable property, where anyone is hindered from using and enjoying it, unless the said movable property is accessory to the land. Therefore, if the property was on the land, it must be said that this interdict will apply to it. 16Likewise, if not the usufruct, but only the use of the property was bequeathed, this interdict will lie; for, no matter in what way the usufruct or use was established, this interdict will be applicable. 17Anyone who has obtained possession of property in any way whatsoever, as an usufructuary, can avail himself of this interdict. If anyone who has been prevented from enjoying his privilege should afterwards forfeit his civil rights, or die, it is very properly held that this interdict will lie in favor of his heirs and successors; not for the purpose of constituting another usufruct, but in order that any damage which has been sustained in the past may be made good. 18In like manner, the heir is also liable to an action in faction for anything which has come into Tiis hands.

Ulpianus, On the Edict, Book LXIX. The Prætor says: “I forbid force to be employed to prevent one of you from retaining possession of the houses in question against the other, if you did not acquire possession of them either by violence, clandestinely, or under a precarious title. I will not grant this interdict in cases relating to sewers, or for more than the property is worth; and I will permit proceedings to be instituted within a year from the day on which the party was entitled to do so.” 1This interdict is framed for the benefit of the possessor of land whom the Prætor admits to such possession, and it is prohibitory, so far as the retaining of possession is concerned. 2The reason for the introduction of this interdict is because the possession of property should be distinct from its ownership. For it may happen that someone may be the possessor, but not the owner of the property in dispute, and one may be the owner but not the possessor; and the same person may be both the possessor and the owner. 3Therefore, whenever a controversy with reference to property arises between litigants, or they agree that one of them shall be the possessor and the other the claimant, or no such agreement is made; the result will be as follows. If they come to terms, the matter is at once disposed of, and the one who it is agreed shall hold possession will enjoy the advantages of a possessor, and the other will sustain the burdens of a claimant. If there is any dispute between them as to which one is in possession, because each of them declares that he has the best right to it, then, if the object of the dispute is real property, they must have recourse to this interdict. 4This interdict, commonly called Uti possidetis, is for the purpose of retaining possession; for it is granted to prevent any violence being employed against the party in possession, and hence it is introduced after the interdict Unde vi, for the latter restores possession after it has been lost, and this interdict provides against it being lost. Finally, the Prætor forbids force to be employed against the possessor; hence the former interdict opposes him while the latter one protects him. And, as Pedius says, every controversy having reference to possession either involves the restitution of property to us, of which we are not in possession, or permits us to hold any which we already possess. Proceedings for the recovery of possession are instituted either by means of an interdict, or by another action. Therefore, there are two ways of obtaining possession, that is, by an exception or an interdict. An exception is granted to the party in possession for several reasons. 5The following words are always inserted in this interdict: “If you do not deprive the other party of possession either by violence, clandestinely, or under a precarious title.” 6The interdict called Uti possidetis also protects the possessor of land, for no action is granted him, as it was sufficient for him to be in possession. 7This interdict can also be employed whether anyone alleges that he is in possession of the entire tract of land or only of a certain part of the same, or an undivided portion. 8This interdict is undoubtedly applicable to all cases involving the possession of real property, provided it can be possessed. 9When the Prætor says in the interdict, “where one of you has not deprived the other of possession, either by violence, or clandestinely, or under a precarious title,” this means that if anyone has acquired possession by force, or clandestinely, or under a precarious title from someone else than his adversary, it will be an advantage to him. If, however, he has deprived his adversary of possession, he should not gain his case, for the reason that he has illegally dispossessed him; for it is clear that possession of this kind should not be advantageous.

Ulpianus, On the Edict, Book LXIX. Where two parties are in possession of the entire property, let us see what opinion must be rendered. Let us examine how this can occur. If anyone should suggest a case where one of them holds possession justly, and the other unjustly; for instance, if I possess the property by a legal title, and you have obtained it by violence, or clandestinely, and you have deprived me of possession, I shall have the preference for the interdict; but if you have not obtained possession from me, neither of us will have the advantage, for both you and I are in possession. 1This interdict is twofold, and lies in favor of both plaintiffs and defendants. 2This interdict is sufficient for a person who is prevented from building on his own land, for you are held to interfere with my possession, if you prevent me from using it. 3If a tenant prevents an owner from repairing his house, it has been decided that the interdict Uti possidetis will lie where the owner states, in the presence of witnesses, that he does not intend to hinder the tenant from living in the house, but he does not wish him to be considered in possession of it. 4Moreover, let us see what the law is, if the agent of your neighbor transplants vines from your land to his own. Pomponius says that you can serve notice upon him, and cut the vines, and Labeo says the same thing. He also says that you can make use of the interdict Uti possidetis with reference to the place where the vines have taken root, since if he should employ violence to hinder you from cutting or removing the vines, he will be considered to have forcibly prevented you from taking possession; for Pomponius holds that anyone who prevents another from cultivating his own land prevents him from retaining possession of the same. 5Again, where something is projected by one neighbor over the land of another, and this is alleged to have been done without any right, let us see whether the interdict Uti possidetis will be available for one of them against the other. It is stated by Cassius that neither of them can employ it, because one of them possesses the land, and the other the surface with the building upon it. 6Labeo also says: “Part of my house projects over yours. Can you make use of the interdict against me if we both possess the place which is covered by the projection? Or can I employ the interdict against you, in order the more readily to obtain possession of the projection, as you now are in possession of the house, a part of which constitutes the said projection?” 7Ad Dig. 43,17,3,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 154, Note 7; Bd. I, § 223, Note 2.But if, above the house of which I am in possession, there is an apartment in which another person resides as the owner, Labeo says that I, and not he who resides in the said apartment, can make use of the interdict Uti possidetis, for the reason that whatever is built upon the soil always forms a portion of it. Labeo says that it is clear that if the apartment has a public entrance, the owner of the lower portion of the house is not in possession of it, but it will be possessed by him who has the entrance from the street. This is true with reference to an apartment with a public entrance. But parties in possession of buildings upon land are entitled to the special interdict and actions granted by the Prætor. The owner of the ground, however, is preferred in the case of an interdict Uti possidetis, not only against the person who has the building, but also against everyone else. Still, the Prætor will, in accordance with the terms of the lease, protect him who has a right to the building. Pomponius also adopts this opinion. 8Creditors who have been placed in possession for the preservation of property cannot avail themselves of the interdict Uti possidetis; and this is reasonable, because they are not actually in possession. It must be said that the same rule applies to all others who have been given possession as custodians of the property. 9If my neighbor causes his roof to project over my house, I can avail myself of the interdict Uti possidetis to compel him to remove it. 10I am not considered to hold possession by violence if I have obtained a tract of land from a person who acquired the same by taking forcible possession of it. 11In this interdict, a judgment is rendered for a sum equal to the appraised value of the property. We must understand the words, “to the amount that the property is worth,” to mean the interest which the party had in retaining possession. It is, however, the opinion of Servius, that the value of the possession should be estimated to be as much as that of the property; but this ought, by no means, to be conceded, for the value of the property is one thing, and that of possession is another.

Ulpianus, On the Edict, Book LXIX. If anyone should expel a person from his land by means of a crowd of men who are unarmed, he can be prosecuted for private violence.

The Same, On the Edict, Book LXIX. A site is not a tract of land, but a certain part of one. A tract of land includes everything which belongs to it, and we generally understand a site to mean land on which there is no building. It is, however, only our opinion and intention which distinguishes a site from a tract, for a small site can be called a tract, if we have the intention of considering it as such. It is not the size which makes the distinction between a site and a tract, but our intention, and any portion of a tract of land can be styled a tract, if we wish to call it such, and a tract can be considered a site, for if we add it to another body of land it will become a part of the latter. 1Labeo says that the term “site” not only applies to land in the country, but also to that in a city. 2A tract of land, however, has its limits, but those of a site cannot be ascertained until they have been determined and defined.

Ulpianus, On the Edict, Book LXIX. It is our practice to prosecute as a crime everything which is accomplished by either public or private violence. 1He who directs a person to be deprived of possession deprives him of it. 2The ratification of the commission of an offence resembles an order to commit it. 3In contracts involving fraud or good faith, the heir is liable in full.