Ulpianus, On the Edict, Book LXXI. Where a house or a wall is held in common, and it becomes necessary to rebuild it, or demolish it, or insert something into it; an action can be brought for the partition of common property, or we may institute proceedings under the Edict Uti possidetis.

Ad Dig. 19,2,14ROHGE, Bd. 18 (1876), Nr. 19, S. 80: Relocatio tacita bei Schiffs-Frachtverträgen.The Same, On the Edict, Book LXXI. Where anyone rents land for a certain time, he remains a tenant even after it has expired; for it is understood that where an owner allows a tenant to remain on the land he leases it to him again. A contract of this kind does not require either words, or writing to establish it, but it becomes valid by mere consent. Therefore, if the owner of the property should become insane or die in the meantime, Marcellus states that it cannot be held that the lease is renewed; and this is correct.

Ulpianus, On the Edict, Book XVII. The Prætor says: “Where anyone has been notified on the ground to discontinue the construction of a new work, the right to proceed with which is in dispute, and he persists in doing so, in the same place, before withdrawal has been granted; or where the circumstances are such that withdrawal should be granted, he shall restore the property to its original condition.” 1An interdict is granted in the following instances. It is stated in the Edict that no work shall be done, after the service of notice, before withdrawal is granted, or, in lieu of this, security has been furnished to restore the property to its former condition. Therefore, he who proceeds with the work, even though he may have the right to do so, is, nevertheless, considered to have violated the interdict of the Prætor, and he will be compelled to demolish the structure. 2There is ground for this interdict, whether notice has been served upon land which is vacant, or which has been built upon. 3The Prætor says, “He shall restore the property to its original condition.” He orders what has been done to be restored, and it makes no difference whether it was done in accordance with law or not, hence, the interdict will be applicable whether the act was legal or illegal. 4Again, whatever was done before withdrawal upon notice, or before anything occurred which is considered to take the place of a withdrawal, is held not to have been legally done. 5If he who erected the building should be willing to give security, and the plaintiff refuses to enter into a stipulation, this should be considered as a withdrawal; for as this is the plaintiff’s fault, it is evident that the circumstances are such that withdrawal ought to be made. 6This interdict is granted perpetually, and will lie in favor of the heir and other successors. 7There will be ground for the interdict against the person himself who constructed the work, or against him who ratified it after it was finished. 8It is clear that this interdict will lie against the heir of him who constructed the work; and where this question arises, it must be noted that Labeo was of the opinion that it should only be granted against the heir where he had obtained some benefit from the structure, or where he had prevented himself, by fraudulent conduct on his part, from obtaining any benefit therefrom. Some authorities hold than an action in factum should be granted in addition to the interdict; which opinion is correct. 9The Prætor next says: “Where anyone has been notified, on the premises, not to proceed with the new work, and if security has been given, or it is your fault that it was not given, I forbid force to be employed to prevent the other party from proceeding with the work in that place.” 10This interdict is prohibitory, as it prohibits interference with anyone, who gives security, from proceeding with his work, for the ornamentation of cities is concerned in not permitting buildings to be abandoned. 11Nor does it make any difference whether the person in question is entitled by law to build, or not; as he who notified him to discontinue the new work is safe after security has been furnished him. 12This interdict will also lie in favor of the person to whom security was given. 13The Prætor adds, “Or if it is your fault that security was not given.” Hence, there will not be ground for the interdict if security is not furnished, but merely a promise for indemnity is made; for a building should not be permitted to be erected in a public place, before it is ascertained by what authority this is done. 14If security is given, but should not continue to exist, the interdict will cease to be applicable. 15Where it was the fault of the person who served the notice that security was not furnished for a certain time, but it is no longer his fault, the interdict will cease to apply. 16This interdict is also available after the lapse of a year, and will lie in favor of the heir and other successors.

The Same, On the Edict, Book LXXI. Aristo says that when any other transaction is mixed with a donation, an obligation growing out of the former is not contracted with reference to the donation. Pomponius also says that he holds the same opinion. 1He also says that Aristo thinks that if I deliver to you a slave on condition that you manumit him after five years, you cannot act before the five years have elapsed, because a species of donation is considered to be included in the transaction. He, however, states that it will be otherwise if I deliver the slave to you in order that you may manumit him immediately; for, in this instance, there is no donation, and hence the obligation exists. Pomponius, however, says that in the first instance the intention of the parties should be ascertained, for the term of five years may not have been prescribed with a view to making a donation. 2Aristo also says, that if a slave is delivered for the purpose of making a donation on condition that he shall be manumitted after five years have elapsed, and the slave belongs to another, a doubt may arise whether the slave can be acquired by usucaption, because a species of donation exists in this case. Pomponius says that this question also applies to donations mortis causa, and he is inclined to think that if the slave was donated under the condition that he be manumitted after five years, it may be held that he can be acquired by usucaption. 3Labeo says that if anyone should give me property belonging to another, and I should incur considerable expense on account of it, and then it should be evicted, I will not be entitled to any action on this account against the donor; but it is evident that I will be entitled to one against him on the ground of fraud, if he acted in bad faith.

Ulpianus, On the Edict, Book LXXI. The Prætor says: “I forbid force to be employed by you against anyone who has the right to repair and clean the sewer in question, which is common to his house and yours. I will order security to be furnished for the reparation of any damage which may result from the work.” 1The Prætor placed two interdicts under this title, one of which is prohibitory, and the other restitutory, and he first discusses the one which is prohibitory. 2By means of these interdicts, the Prætor provides that sewers shall be cleaned and repaired, and both of them have reference to the health and protection of cities; for the filth of the sewers threatens to render the atmosphere pestilential and ruin buildings. The same rule applies even when the sewers are not repaired. 3This interdict applies to private sewers, for those which are public demand the care of officials. 4A sewer is an excavation by means of which filth is carried away. 5The interdict first mentioned is prohibitory, and by it a neighbor is prevented from using violence to prevent a sewer from being cleaned and repaired. 6In the term “sewer” are included both the ditch and the pipe. 7For the reason that the repairing and cleaning of sewers is considered to have reference to the public welfare, it was decided that the clause, “if you have not made use of it by violence, or clandestinely, or under a precarious title,” should not be added; so that, even if anyone had used it under such circumstances, he still would not be prevented from repairing or cleaning the sewer, if he desired to do so. 8The Prætor next says, “which is common to his house and yours.” In this instance, the term “house” must be understood to signify every kind of building, just as if it had been said “to his building and yours.” Labeo goes even farther, for he thinks that there will be ground for this interdict, if there is a vacant space between the two edifices, and if, as he suggests, the sewer leads from a house in the city to adjoining land. 9Labeo also holds that anyone who desires to connect his private sewer with a public one ought to be protected against being prevented by violence. Pomponius says that if anyone desires to construct a drain which will flow into a public sewer, he should not be hindered from doing so. 10Where the Prætor says, “is common to his house and yours,” he means is directed towards, extends to, or comes as far as your house. 11This interdict also has reference to a next neighbor, as well as against others farther away, through whose houses the sewer in question runs. 12For which reason Favius Mela says that this interdict will lie to authorize anyone to enter the house of a neighbor, and take up his pavement for the purpose of cleaning the sewer. Pomponius, however, says that, in this instance, the penalty of a stipulation for the reparation of damage may be incurred; but this will not be the case if the person above mentioned is ready to replace what he was obliged to take up for the purpose of repairing the sewer. 13If anyone serves notice of a new work upon me when I am cleaning or repairing my sewer, it is very properly held that I may pay no attention to the notice, and can continue to repair what I have begun. 14The Prætor, however, promises that security shall be given against any injury which may result from defective work; for, just as permission is given to repair and clean sewers, so it must be said that no damage should be caused to the houses of others. 15The Prætor next says: “You shall restore all to its former condition, where anything has been done to a public sewer or placed in it by which its use may be interfered with. Likewise, I forbid anything to be done to the sewer, or to be thrown into it.” 16This interdict has reference to public sewers, and prohibits anything being thrown into them, or deposited in them by which their use may be injuriously affected.

Vivianus, On the Edict, Book LXXI. The Prætor says: “I order you to restore to its former condition everything which you have done to the property in question by the employment of violence or clandestinely, as soon as proceedings are instituted against you for that purpose.” 1This interdict is restitutory, and, by means of it, the deceit of those who have undertaken to do anything with violence, or clandestinely, is obviated; and they are ordered to restore fhe property to its former condition. 2It makes very little difference whether the party in question has the right to do the work or not; for, even if Be has, he will, nevertheless, be liable under the interdict, because he employed violence or acted clandestinely; since he should protect his rights, and not contrive to injure hers. 3Then the question is asked whether anyone can oppose to this interdict the exception that the defendant did not do anything which he had not acquired a right to do. The better opinion is that he will not be allowed to avail himself of such an exception, for he cannot protect himself legally by an exception, where he has employed violence or acted clandestinely. 4This interdict only has reference to work which is done upon land, with the employment of violence or in a clandestine manner. 5Let us see what is meant by the employment of violence, or a clandestine act. Quintus Mucius says that anything is considered to have been done with the employment of violence where a person does it after he has been forbidden. The definition of Quintus Mucius appears to me to be complete. 6Pedius and Pomponius assert that if anyone is forbidden to proceed with a work by the casting of even a small stone upon it, he will be held to have used violence; and this is our practice. 7Cascellius and Trebatius think that the same rule will apply, if he proceeds with the work after notice has been served upon him in the presence of witnesses, which is true. 8Moreover, Aristo says that he also employs violence who, knowing that he will be opposed, uses force to avoid being prohibited. 9Likewise, Labeo says that if I forbid anyone to proceed, and he desists while in my presence, but afterwards resumes the work, he will be considered to have employed violence, unless he has obtained my consent, or has some other good reason for doing so. 10If anyone is prevented by weakness, or is restrained by the fear of offending you, or someone whose power is exerted in your favor, and, for either of these reasons, does not forbid you to proceed, you will not be considered to have employed violence. This was also stated by Labeo. 11He also says that if anyone should deter you when you desire to prevent me from doing the work, for instance, by arms, without any fraudulent act on my part, and, on this account, you do not come to prevent me, I will not be considered to have employed violence.

Ulpianus, On the Edict, Book LXXI. In order to prevent anyone from proceeding, it is not necessary that the person himself should act, for anyone is legally considered to have hindered another, either by his slave or by his agent. The same rule will apply if a day laborer employed by me should attempt to prevent him. Nor can the objection be urged that action is not ordinarily acquired through the agency of one who is free; for the hindrance proves that you effected this by the employment of violence. And why should this be remarkable, when I will be entitled to bring suit, even if you have done the work clandestinely, and therefore, the right of action will be acquired by me, rather through the illegal act which you have committed, than through that of another? 1It should be noted that it is not necessary for the violence to be exerted continuously; for after it has once been committed in the beginning, it is considered to endure. 2If permission has been granted, an exception will be necessary to oppose him who makes use of the interdict. 3Moreover, if not only I should grant permission, but if my agent, or a guardian who is administering a guardianship, or the curator of a ward, an insane person, or a minor, should also grant it, it must be said that there will be ground for an exception. 4Nerva asserts that it is clear there will be no ground for an exception if the Governor, or some official having charge of the business of a city, permits work to be done in a public place; for he says that although the care of public places may have been entrusted to him, still the right to transfer them was not granted. This is only true where municipal law does not confer greater authority upon the public official having charge of the affairs of a city. The same rule should be adopted if the right was granted by the Emperor himself, or by someone upon whom he has bestowed the power to do so. 5Ad Dig. 43,24,3,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 8.If anyone is ready to defend himself in court against certain persons who think that he should be forbidden to construct a work, let us see whether he will be held to have desisted through the employment of violence. The better opinion is that he should be considered to have done so, if he offers to give security, and is ready to defend his right. This was also stated by Sabinus. 6Again, if anyone is prepared to furnish security against any damage which may result, when he has only been forbidden to proceed on this account, or because he did not defend himself, or for the reason that he did not furnish security against threatened injury, it must be said, in consequence, that he has ceased to proceed with the work through the employment of violence. 7Cassius says that he is held to have acted clandestinely who conceals what he is doing from his adversary, and fails to notify him, provided he feared, or thought that he had good reason to fear, opposition. 8Aristo also thinks that he acts clandestinely when, with the intention of concealing what he is doing, he keeps with him the person whom he thinks will oppose him, and believes, or has reason to believe, that he will oppose what he expects to do.

Ulpianus, On the Edict, Book LXXI. If another person should construct the new work without my permission, I will only be liable to the extent of allowing it to be demolished. 1Neratius also says that where the slave of any person constructs a new work, by the employment of violence, or clandestinely, he will be required, under the interdict to restore everything to its former condition, at his own expense, or permit this to be done, and surrender the slave by way of reparation. He asserts that it is evident that if the interdict is employed after the slave has died, or been alienated, his master will only be compelled to permit the work to be demolished, so that the purchaser can be sued under the interdict for payment of the expenses, or the surrender of the slave by way of reparation; but he will be released from liability, if the owner of the new work restores everything at his own expense, or has judgment rendered against him because he did not do so. If, on the other hand, the master of the slave either restores everything to its former condition, or has judgment rendered against him for the amount of damage sustained, the same rule will apply. But if he has only abandoned the slave by way of reparation, the interdict can be properly employed against the owner of the new work. 2Julianus says that anyone who constructs a new work before the withdrawal of the notice, and in violation of what he was forbidden to do, will be liable under two interdicts, one of them being based upon the notice which has been served with reference to a new work, and the other upon the employment of violence, or clandestine action. Where the withdrawal of the notice has been made, the defendant is not considered to have acted with violence or clandestinely, even though the prohibition remains; for a person who has given security ought to be permitted to build, because, by doing so, he becomes the possessor, and he should not be held to have acted clandestinely either before or after the withdrawal of the notice, since he who serves notice of a new work cannot be considered to have concealed himself, or to have been warned before he caused any controversy. 3It is very properly asked by Julianus whether this interdict may not be opposed by the exception: “Have you not done this work by the employment of violence, or clandestinely?” For instance, I use the interdict Quod vi aut clam against you; can you oppose me with the exception, “Have you not done the work by violence, or clandestinely?” Julianus says that it is perfectly just for this exception to be granted; for he states that if you build anything by violence or clandestinely, and I demolish it by violence, or clandestinely, and you employ this interdict against me, I will be entitled to the benefit of this exception. This procedure, however, should not be resorted to unless good and sufficient cause exists; otherwise, everything ought to be referred to the wisdom of the judge. 4Gallus doubts whether still another exception may not be interposed; for example, where for the purpose of preventing a fire from spreading I demolish the house of my neighbor, and proceedings are instituted against me either under the interdict Quod vi aut clam, or for the reparation of wrongful damage. Gallus is uncertain whether the exception, “if you have not done this to prevent the spread of the fire,” ought to be employed. Servius says that if a magistrate directed this to be done, the exception ought to be granted, but a private individual should not be permitted to demolish the house. If, however, any act was committed by violence, or clandestinely, and the fire did not extend to that point, the amount of simple damages should be estimated, but if it did reach that point, the party in question should be released from liability. He states that the conclusion would be the same if the act had been committed for the prevention of future injury, as, both houses having been destroyed, it would appear that no injury or damage had been caused. But if you should do this when there was no fire, and fire should afterwards break out, the same rule will not apply; because, as Labeo says, the appraisement of damages should be made, not with reference to the former event, but according to the present condition of the property. 5We have noted above that, although the terms of the interdict have a broad application, still, the proceeding is held to apply only to work which is performed upon land. Hence, he who takes the crops is not liable under the interdict Quod vi aut clam, for he does not perform any new work upon the land. He, however, who fells trees, or cuts reeds or willows, will be liable; for, to a certain extent, he lays hands upon the earth, and injures the soil. The same rule applies to the cutting of vines. He, however, who removes the crops, should be sued by an action on theft. Therefore, where anyone constructs a new work upon the soil, there will be ground for the interdict. Anything which is done to trees we understand to apply to the soil, but not anything which is done with reference to the fruits of trees. 6If anyone spreads a heap of manure over a field whose soil is already rich, proceedings can be instituted against him under the interdict Quod vi aut clam. This is proper, because the soil is deteriorated. 7It is clear that if anything new is built for the purpose of cultivating land, the interdict Quod vi aut clam will not apply, if the condition of the land is improved, even though it may have been constructed by violence or clandestinely, after notice has been served prohibiting it. 8Again, if you dig a ditch in a public wood, and my ox falls into it, I can proceed against you under this interdict, because this has been done in a public place. 9If anyone should demolish a house, there is no doubt that he will be liable under the interdict, even though he did not level it with the ground. 10Hence, if he removes the tiles from a building, the better opinion is that he will be liable to the interdict.

Ulpianus, On the Edict, Book LXXI. If anyone removes branches from trees, we still allow this interdict to be employed. With reference to what we have stated as to the removal of tiles from a building, if they are not placed upon the building, but are separate from it, this interdict will not apply. 1If, however, a lock, a key, a bench, or a wardrobe is carried away, proceedings cannot be instituted under the interdict Quod vi aut clam. 2But if anyone tears away something which is attached to a house, for instance, a statue, or anything else, he will be liable under the interdict Quod vi aut clam. 3If anyone cultivates land with violence, or clandestinely, or excavates a ditch therein, he will be liable under this interdict. If he burns a heap of straw, or scatters it in such a way that it cannot be used for the benefit of the land, there will not be ground for the interdict.

Ulpianus, On the Edict, Book LXXI. Labeo says that anyone who pours something into the well of his neighbor, in order to spoil the water by doing so, will be liable under the interdict Quod vi aut clam, because living water is considered to constitute part of the land, and this is just as if he had constructed a new work in the water. 1If anyone should remove, either by violence or clandestinely, a statue erected in a city in a public place, the question arose whether he would be liable under this interdict. An opinion of Cassius is extant to the effect that he whose statue has been erected in a public place in a city can avail himself of this interdict, because it is to his interest that the statue should not be removed. Moreover, the municipal authorities can also bring an action of theft, on the ground that the property, having become public, is theirs. If, however, the statue should fall, they themselves can remove it. This opinion is correct. 2If anyone removes a statue from a monument, will the person to whom the right of sepulture therein belongs be permitted to institute proceedings under the interdict? It is established that, in cases of this kind, there will be ground for the interdict, and, indeed, it must be said that where anything has been placed on a tomb for the purpose of ornamenting it, it is considered to form part of the same. This rule is also applicable if the party tears away or breaks down a door. 3If anyone should come into my vineyard, and remove the supports of my vines, he will be liable under this interdict. 4Where the Prætor says, “what is done by violence, or clandestinely,” let us see what time should be considered, and whether the past or the present is referred to. This point is explained by Julianus, for he says that, in this interdict, we must understand the present time to be meant. If, however, any damage has resulted, and the master, or he whose land was injured, removes the cause of the damage at his own expense, it is better to adopt the opinion which Julianus holds, namely, that the damage should be repaired, and the expenses be reimbursed. 5This interdict includes everything whatsoever which has been done with violence or clandestinely. But it sometimes happens that the same work has been partly accomplished by violence, and partly clandestinely; as, for instance, although I forbade you to proceed, you laid the foundation of a building, and afterwards, we having agreed that you should not finish it, you, nevertheless, did so, during my absence and without my knowledge; or, on the other hand, you, having laid the foundation clandestinely, completed the building in spite of my opposition. This is our practice; for the interdict is sufficient when the work has been done with violence and clandestinely. 6If the new work was constructed by the order of a guardian or a curator, as it is established (and as Cassius holds), that a ward or an insane person is not liable on account of the fraud of his guardian or curator, the result will be that an equitable action or an available interdict will lie against the guardian or curator himself. It is clear, however, that the ward and the insane person will be liable to the extent of permitting the demolition of the work, as well as to a noxal action. 7Should a slave be excused who has constructed a new work in obedience to the orders of a guardian or a curator? For slaves are usually pardoned when they obey their masters or those who occupy their places, in the performance of acts which have not the atrocious character of crimes, or serious offences. In this case this should be admitted. 8If the land should be sold after a new work has been constructed with violence or clandestinely, let us see whether the vendor can, nevertheless, avail himself of this interdict. The opinion of certain authorities is extant to the effect that the interdict will lie in favor of the vendor, even if the sale has not been concluded, and nothing had been paid to the purchaser in an action on sale for the work which was constructed before the transaction took place; for it is sufficient if, on this account, the vendor sold the land at a lower price. The same rule should be adopted where he did not sell it at a lower price. 9It is, however, clear that if the new work was constructed after the sale of the land, even if the vendor himself has proceedings under the interdict instituted against him, for the reason that delivery has not yet been made, he will still be liable to the purchaser in an action on purchase; for all benefits and inconveniences should be for the advantage or disadvantage of the latter. 10If land has been sold under the condition of being returned if a higher price can be obtained, who will be entitled to the interdict? Julianus says that the interdict Quod vi aut clam will lie in favor of the person to whose interest it was that the work should not be constructed. For when land is sold under this condition, all the advantage and disadvantage will be enjoyed or endured by the purchaser; and this applies to whatever was done before the property was transferred under the terms of the sale. Therefore, if any new work has been constructed with violence, or clandestinely, although the condition of the vendor may be improved, the purchaser will be entitled to an available interdict, but he will be compelled to assign the right of action acquired under the action of sale, as well as any other profits which may have been obtained in the meantime. 11Aristo, however, says that notice must even be served upon him who is not in possession, for he states that if anyone should sell me a tract of land which he has not yet delivered, and a neighbor, desiring to construct a new work, knowing that I have bought the land, and am living upon it, should notify me, he will hereafter be secure so far as any suspicion relating to the clandestine construction of a new work is concerned; which in fact is true. 12In case a sale is made of land under the condition that it will be of no effect, if a better price can be obtained within a certain time, and the land is delivered to the purchaser under a precarious title, I think that he can make use of the interdict Quod vi aut clam. If, however, delivery has not yet been made, or if it has been made under a precarious title, I do not believe there can be any doubt that the vendor will have a right to the interdict, for it will lie in his favor even though the property may not be at his risk. Nor does it make much difference if it is at the risk of the purchaser, for immediately after the sale has been contracted, the property is at the risk of the purchaser and, nevertheless, before delivery has been made, no one will maintain that he is entitled to the interdict. Still, if he is in possession precariously, let us see whether he can avail himself of the interdict, because he has the interest, no matter by what title he holds possession. Therefore, even if he has leased the property, there is much more reason that he should be entitled to it; for, beyond all doubt, a tenant can institute proceedings by means of the interdict. If the condition of the vendor should become better before the work has been constructed with violence, or clandestinely, Julianus entertains no doubt that the interdict will lie in favor of the vendor, for the disagreement between Cassius and Julianus relates to a new work which has been begun in the meantime, and has no reference to one which has subsequently been undertaken. 13If a tract of land has been sold under the condition that if the purchaser is not pleased with it, the sale will be void, it is more easy for us to determine that the purchaser will be entitled to the interdict, provided he is in possession. If the question of the annulment of the sale is referred to a third party for arbitration, the same rule should be adopted. This is also the case if it is sold under the condition that if some event transpires, the land shall be considered as not sold. The same rule must be said to apply, if the sale was contracted with the understanding that it would be void if the terms were not complied with within a specified time. 14Julianus also says that this interdict not only lies in favor of the owner of the land, but also in favor of those whose interest it is not to have the new work constructed.

Ulpianus, On the Edict, Book LXXI. Finally, if there are trees on the land, the usufruct of which belongs to Titius, and they are cut down by a stranger, or by the owner, Titius can institute proceedings against both of them, under the Aquilian Law, and the interdict Quod vi aut clam. 1Labeo says that if the new work is constructed against the opposition of your son, you will be entitled to the interdict, just as if the opposition had been made by yourself; and your son will also be entitled to it, nevertheless. 2He also says that no one is considered to have constructed a work clandestinely against a son under paternal control, where the land forms a part of his peculium; for if he was aware that he was under paternal control, he will not be considered to have done the work with the intention of concealing it from him, as he knows that he cannot bring suit against him. 3If one of two joint-owners of a tract of land cuts down any trees, the other can institute proceedings against him under this interdict, as it lies in favor of any person having an interest in the property. 4It is stated still more broadly by Servius, that if you grant me permission to cut down trees on your land, and then someone else cuts them down with violence, or clandestinely, I will be entitled to this interdict, because I am the party interested. It is still more easy to admit this, if I have purchased from you, or have obtained from you by some other contract, permission to cut the trees. 5If a new work was constructed with violence, or clandestinely, upon land which at the time did not belong to anyone, and the ownership of it afterwards vested in some person, the question arises whether there would be ground for the interdict; as, for instance, where a succession was vacant, and Titius afterwards entered upon the estate, would he be entitled to the interdict? It was frequently stated by Vivianus that this interdict will lie in favor of the heir, because the work had been performed before his acceptance of the estate. Labeo says that it makes no difference if the party in question did not know who would be the heir, for he can readily make use of this pretext, even after the estate has been accepted. He also says that no objection can be raised because, at that time, there was no owner of the land, for a burial-place has no owner, and if any new work is” constructed upon it, I can institute proceedings by means of the interdict Quod m aut clam. It should also be added to what has previously been stated that inheritance takes the place of ownership. It can very properly be held that the interdict will lie in favor of the heir and other successors, if the work was constructed with violence, or clandestinely, before or after they succeeded to the estate. 6If my tenant constructs a new work with my consent, or I afterwards ratify his act, it is just the same as if my agent had constructed it. In this instance it is established that I will be liable, whether he acted with my consent, or whether I ratified what he had done. 7Julianus says that if a tenant cuts down a tree, the ownership of which was in dispute, or does anything else, and it was done by order of the owner, both parties will be liable, not only for permitting the tree to be cut down, but also for the payment of all expenses of restoring the property to its former condition. If, however, the owner did not order the work to be done, the tenant will be liable for permitting the tree to be felled, and for the payment of the expenses; and the owner will be compelled to do nothing more than to allow the removal of the tree.

Ulpianus, On the Edict, Book LXXI. This interdict can always be employed against him who is in possession of a new work. Therefore, if anyone has constructed a new work upon my land without my knowledge or consent, there will be ground for the interdict. 1If you have leased your land for excavation, and the lessee throws the stones which he takes out upon the field of a neighbor, Labeo says that you will not be liable under the interdict Quod vi aut clam, unless this was done by your direction. I, however, think that the lessee will be liable, but not the lessor, unless to the extent of being compelled to permit the removal of the stones, and to assign any right of action which he may have; otherwise, he cannot be held responsible. 2Ad Dig. 43,24,15,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 298, Note 15.Labeo says that if earth is piled up by my order upon a burial-place belonging to another, proceedings can be instituted against me under the interdict Quod vi aut clam; and if this was done with the common consent of several persons, proceedings can be instituted against any one of them, or against each one individually; for an undertaking in which several persons are concerned renders each of them individually liable in full. If, however, some of them acted on their own responsibility, suit should be brought against all, that is to say, for the entire amount. Hence, if one of them is sued, this will not release the others, and even if a judgment is rendered against only one, the result will be the same; while, in the former instance, if one is sued, the others will be released. In addition to this, the action based oh the violation of a sepulchre can be brought. 3This interdict is granted against the heir and other successors, for the amount which has come into their hands, but it will not be after a year has elapsed. 4The year begins to run from the time when the work has been completed, or labor upon it has ceased, even though it may not be finished. Otherwise, if the year was computed from the day when the work was begun, it would be necessary to bring several suits against those who delayed its completion. 5If, however, the place in which the work was performed was not easy of access (as, for example, if it was done with violence, or clandestinely in a burial-place, or in some other retired locality, or under ground, or under water, or in a sewer), the interdict will lie with reference to the new work, even after the lapse of a year, if proper cause be shown. For if proper cause is shown, the exception based on the fact that a year has elapsed cannot be pleaded, that is to say, where good and sufficient cause for ignorance is established. 6Ad Dig. 43,24,15,6ROHGE, Bd. 22 (1878), Nr. 69, S. 308: Restitution Minderjähriger gegen Wechselverjährung.If anyone who “is absent on business for the State, when he returns, desires to make use of the interdict Quod vi aut clam, the better opinion is that he should not be excluded from doing so on the ground of a year having elapsed, but that he will be entitled to a year after his return. For if a minor under twenty-five years of age should be away on public business, and, during his absence, attains his majority, the year will be reckoned from the date of his return, and not from the day when he completed his twenty-fifth year. This was stated in a Rescript by the Divine Pius, and confirmed by all the other Emperors who succeeded him. 7In the proceedings under this interdict, the amount of the judgment is based upon the interest of the plaintiff in not having the new work constructed. It is the duty of the judge to decide that the property shall be restored in such a way that the condition of the plaintiff will be the same as it would have been if the new work, on account of which the action was brought, had not been undertaken either by violence, or clandestinely. 8Therefore, sometimes the right of ownership must be taken into consideration, as, for example, where servitudes are lost, or usufructs extinguished because of the new work which was undertaken, which may not only happen while it was in progress of construction, but also at the time of its demolition, when the condition of the servitudes, of the usufruct, or of the property itself becomes impaired. 9The interest of the plaintiff, however, must be established by his oath in court, or, if this cannot be done, it must be determined by the judge. 10Where anyone has been guilty of fraud to avoid restoring the property to its former condition, he must be considered as having the power to do so. 11In this interdict, the negligence of the defendant must also be taken into consideration, and this must be estimated in accordance with the wisdom of the judge. 12For the reason that this interdict has reference to the interest of the plaintiff in not having a new work constructed, if he has obtained the value of his interest by means of some other action, the result will be that he can obtain nothing else by the employment of this interdict.

Ulpianus, On the Edict, Book LXI. The Prætor says: “The notice will hold, if the complainant has a right to prevent the construction of a new work against his consent; otherwise, I will grant a withdrawal of the prohibition.” 1Withdrawals of opposition are discussed under this Title. 2The words of the Prætor indicate that a withdrawal of this kind only should be made where the notice does not hold, and that he intends that it only should hold where the person serving it has a right to forbid a new work being constructed without his consent. Moreover, whether security is given or not, the withdrawal granted is only applicable to property with reference to which the notice is not valid. It is clear that if security has been furnished, and withdrawal is granted afterwards, the withdrawal is not necessary. 3He only is entitled to serve notice not to construct a new work in whom the right of ownership or the servitude is vested. 4It was also held by Julianus that the usufructuary had the right to recover the servitude; and, according to this, he can serve notice upon a neighbor not to construct a new work, and the withdrawal of opposition will also be valid. If, however, he should serve notice upon the owner of the land himself, the withdrawal of opposition would be of no effect, nor would the usufructuary have any right of action against the owner, since he has one against the neighbor; as, for instance, to prevent him from raising his house to a greater height. But if his usufruct should be impaired by this act, he ought to bring an action to recover it. Julianus says the same thing with reference to others to whom servitudes are due from their neighbors. 5Julianus also says that it is not inequitable to allow a person, who has received land in pledge, the retention of a servitude imposed upon said land.

The Same, On the Edict, Book LXIII. The Prætor says: “You must return the property in question to him from whom you hold it by a precarious tenure, or which you have ceased to possess through some fraudulent act.” 1This interdict is restitutory. It is based upon natural equity, and lies in favor of anyone who desires to revoke the precarious tenure. 2Ad Dig. 43,26,2,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 376, Note 3.For it is naturally just that you should only enjoy my liberality as long as I desire you to do so, and that I can revoke it whenever I change my mind. Therefore, where anything is granted under a precarious tenure, we can not only make use of the interdict, but also of the Actio præscriptis verbis, which is based upon good faith. 3He is considered to hold property by a precarious title who has possession of the same either in fact or in law, for the sole reason that he has asked for, and obtained the right to possess, or to use it.

Ulpianus, On the Edict, Book XVII. A precarious title also exists with reference to movable property. 1Moreover, we must also remember that he who holds property by a precarious tenure is also in possession of the same. 2It is not he who has asked for the property under a precarious tenure, but he who holds it under such a tenure, that is liable under this interdict. For it may happen that he who did not ask for it may, nevertheless, hold it by a precarious tenure; as, for instance, if my servant should apply for it, or anyone else who is under my control should do so, he will acquire it for me under this tenure. 3Likewise, if I should ask for property under a precarious tenure, which already belongs to me, although I have made this request, I will not hold the property under this tenure, for the reason that it is established that no one can hold his own property by a precarious title. 4Likewise, he who requests property to be given him under a precarious tenure, for a certain period of time, will still be considered to possess it under this tenure after the time has elapsed, even though he may not have asked to hold it longer; as the owner of property is understood to renew the precarious tenure when he permits the person who asked for it under such a title to continue to hold possession of the same.

Ulpianus, On the Edict, Book LXXI. If, in the meantime, the owner of the property should become insane, or die, Marcellus says that it is not possible for the precarious tenure to be renewed. This is true. 1If my agent, under my direction, asks for property under a precarious tenure, or if I ratify his act, I will properly be said to hold it under such a tenure. 2He who has asked permission to reside upon land under a precarious tenure is not in possession of the land, but its possession remains with the person who granted him permission. For jurists hold that an usufructuary, a tenant, and a lessee, all live on the land, and still they are not in possession of it. 3Ad Dig. 43,26,6,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 182, Note 10.Julianus says that where anyone who has forcibly ejected another afterwards obtains from him the same land by a precarious tenure, he ceases to possess it by force, and begins to hold it by a precarious title; and he does not think that he has changed his title to the property, as he commences to possess it under a precarious tenure with the consent of him who ejected him. For if he had bought the same property for him, he would begin to acquire the ownership of the same as the purchaser. 4The question arose, if anyone should give his property to me in pledge, and then ask to hold it by a precarious tenure, whether there would be ground for this interdict. The point in this case is whether a precarious title to one’s own property can exist. The better opinion seems to me to be that the precarious tenure relates to the pledge, as it is the possession, and not the ownership, which is granted. This opinion is extremely useful, for, every day, creditors are requested by those who have given their property in pledge, to permit them to hold it by a precarious tenure. A precarious tenure of this kind should be valid.

Ulpianus, On the Edict, Book LXXI. The question arose, if Titius should request me to allow him to use something belonging to Sempronius, and I afterwards ask Sempronius to grant permission for this to be done and he, desiring to favor me, gives permission, Titius will hold the property from me by a precarious title, and I can sue him under the interdict. Sempronius, however, cannot proceed against him, because the following words, “which you hold of him by a precarious title,” show that the interdict can be employed by the person who asked for the precarious tenure, and not by him to whom the property belongs. But will Sempronius be entitled to sue me under the interdict, on account of my having requested him to permit the property to be held under a precarious tenure? The better opinion is, that he will not be entitled to the interdict, because I do not hold the property by a precarious title, as I did not obtain it for myself, but for another. He will, nevertheless, be entitled to an action on mandate against me, because he granted it to you under my direction. Or, if anyone should say that this was done, not by my direction, but rather in order to render me his debtor, it must be held that an action in factum should also be granted against me. 1When anyone has obtained property from Titius under a precarious tenure, it is also considered to be held from his heir in the same manner, as is stated by Sabinus and Celsus; and this is our practice. Therefore, a man is considered to hold property under this tenure from all other successors; which opinion is approved by Labeo. He adds that, even if he did not know that there was an heir, fie would still hold the property from him under a precarious tenure. 2Let us see what the rule will be, if you request me to grant you property under a precarious tenure, and I alienate it; will the tenure continue to exist, after the transfer of the property to another? The better opinion is that he can make use of the interdict, if he has not revoked the precarious tenure; just as if you held the property in this way from him, and not from me, and if you permit him to hold it by this tenure for some time, he can properly employ the interdict just as if you held it from him. 3The Prætor wished that he also should be liable under this proceeding, who committed a fraudulent act in order to avoid retaining possession. It must be noted that anyone who retains possession by a precarious tenure is not liable for negligence, but only for fraud; although he who has borrowed an article is responsible for negligence, as well as for fraud. And it is not without reason that he who obtains property by a precarious title is only liable for fraud, for all this only arises from the generosity of him who granted the property under such a tenure; and it is sufficient if he is only liable for fraud. It may, however, be said that he will also be liable for gross negligence which resembles fraud. 4Under this interdict the property should be restored to its original condition, and if this is not done, judgment must be rendered for the amount of the interest of the plaintiff in having the property restored to its former condition, from the time when the interdict was issued. Therefore, an estimate of the crops should also be made, and paid for from the same date. 5If he who obtained the property under a precarious tenure does not make use of a servitude, and, on this account, it is extinguished, let us see whether he will be liable to the interdict. I think that he will not be liable, unless he was guilty of fraud. 6Generally speaking, it must be held that in making restitution, both fraud and gross negligence should be taken into account, but nothing else. It is evident that after the issue of the interdict, fraud, and both gross and ordinary negligence should be considered, for where anyone who holds property under a precarious tenure is in default, he should be responsible for everything. 7Ad Dig. 43,26,8,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 160, Note 17.Labeo says that this interdict can be employed after the lapse of a year, and this is our practice; for, as property is sometimes granted under a precarious tenure for a considerable time, it would be absurd to hold that there will be no ground for the interdict after a year. 8The heir of him who asks that he be granted the property under a precarious tenure will be liable under this interdict, just as he himself would be, if he had possession of the property, or was guilty of fraud to avoid having it, or to prevent it from coming into his hands; but he will only be liable for the amount of the profit which he obtained, where any fraud was committed by the deceased.

Ulpianus, On the Edict, Book LXXI. The Prætor says: “If a tree projects from your premises over those of your neighbor, and you are to blame for not removing it, I forbid force to be employed to prevent him from doing so and keeping it as his own.” 1This interdict is prohibitory. 2Where a tree projects over the house of a neighbor, the question arises whether the Prætor can order the entire tree to be removed, or only that portion of it which projects above the building? Rutilius says that it should be taken out by the roots, and this is held to be correct by many authorities. Labeo asserts that if the owner does not remove the tree, he who is injured by it can, if he wishes to do so, cut it down and carry away the wood. 3Vines are also included under the term trees. 4This interdict lies not only in favor of the owner of the house, but also in favor of the usufructuary of the same, for the reason that it is to his interest, also, that the tree should not project above the building. 5Ad Dig. 43,27,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169a, Note 4d.Moreover, the opinion should be adopted, that if a tree projects over a house owned in common by several persons, each of the joint-owners will be entitled to the benefit of the interdict, and indeed, for the entire amount, because each one of them has a right to bring an action to recover servitudes. 6The Prætor says: “If you are to blame for not removing it, I forbid force to be employed to prevent him from doing so.” Therefore, authority to remove the tree is first granted to you, and if you fail to do so, then the Prætor forbids you to employ violence in order to prevent your neighbor from removing it. 7The Prætor also says: “Where a tree on your premises projects over those of your neighbor, and you are to blame for not trimming it up to a height of fifteen feet from the ground, I forbid force to be employed to prevent your neighbor from trimming it up to the height aforesaid, and removing the wood for his own use.” 8What the Prætor says, the Law of the Twelve Tables intended to establish; namely, that the branches of trees should be cut off within fifteen feet of the ground, in order that the shade of the tree may not injure the land of a neighbor. 9There is a difference between the two Sections of the interdict, for if the tree projects over a neighboring house, it must be entirely cut down; but if it projects over land, it need only be trimmed to the height of fifteen feet from the ground.

Ulpianus, On the Edict, Book LXXI. The Prætor says: “Where any nuts fall from the premises of your neighbor upon yours, I forbid force to be employed to prevent him from gathering them, and carrying them away within the space of three days.” 1All kinds of fruits are included under this term.

Ulpianus, On the Edict, Book LXXI. The Prætor says: “You shall produce any person who is free, the possession of whom you fraudulently hold.” 1This interdict has been framed for the purpose of maintaining freedom; that is to say, to prevent any persons who are free from being restrained of their liberty by anyone.

Ulpianus, On the Edict, Book LXXI. The Lex Fabia also had reference to this, and the interdict does not prevent recourse to the Fabian Law, for a person can institute proceedings under the interdict, and an accusation can still be brought under the Lex Fabia; and vice versa, anyone who institutes proceedings under this law can, nevertheless, avail himself of the benefit of the interdict, especially as one party can employ the interdict, and the other make use of the action authorized by the Fabian Law. 1These words, “any person who is free,” have reference to every one who is free whether he has reached the age of puberty or not; whether the individual is male or female; whether there is one, or there are several; and whether the party in question is his own master, or under the control of another; for we only consider whether he is free. 2He, however, who has another under his control, will not be liable under this interdict, as he is not considered to hold anyone fraudulently who avails himself of a right to which he is legally entitled. 3If anyone restrains of his liberty a person whom he has ransomed from the enemy, he will not be liable under the interdict, because he does not do so fraudulently. It is clear that if he tenders the amount of the ransom the interdict will apply. But, if he releases him without having received the money, it must be said that there will be ground for the interdict, if once having given him his liberty, he afterwards desires to hold him. 4If anyone retains his son, who is not under his control, he is usually considered to do so without being guilty of fraud; for genuine affection causes his retention to be made, without the presumption of fraud, unless the existence of bad faith is evident. Hence, the same rule will apply if a patron subjects to his authority his freedmen, his foster-child, or a slave still under the age of puberty, who has been surrendered by way of reparation for damage which he has caused. And, generally speaking, anyone who has a good reason for retaining control of a freeman is not considered to act in bad faith. 5If anyone continues to hold a free person with his own consent, he is not considered to do so in bad faith; but what if he holds him with his consent, but, after having deceived, seduced, or solicited him, without having good and sufficient reasons for doing so? He is very properly held to retain him fraudulently. 6A man who does not know that a freeman is one of his family is not guilty of bad faith; but when he is aware of it, and still holds him, he is not free from fraud. 7It is clear that if he who holds possession of the freeman is in doubt as to whether he is free or a slave, or institutes proceedings to ascertain his condition, this interdict must not be employed, but proceedings to establish freedom should be instituted, for it has very properly been held that there will only be ground for this interdict where there is no doubt that the man is free. If, however, a question is raised as to his condition, the right to bring another action ought not to be prejudiced. 8The Prætor says, “You shall produce the person.” To produce hin is to bring him to public notice, and afford an opportunity of seeing and touching him. The term “to produce” literally means not to keep him in secrecy. 9This interdict will lie in favor of every individual, for no one is forbidden to favor freedom. 10It is clear that all those who are liable to suspicion should be excluded from the use of this interdict, if the character of the person is such that he is presumably acting in collusion, or for the purpose of annoyance. 11If, however, a woman or a minor desires to make use of this interdict for the benefit of a blood-relative, a parent, or a connection, it must be said that the interdict should be granted; for they can prosecute others in criminal cases when they do so for injuries committed against themselves. 12But where there are several persons who wish to avail themselves of this interdict, the one who has the greatest interest in the matter, or who is best fitted for the purpose, should be selected by the Prætor; and this choice should depend upon the relationship, the trustworthiness, or the rank of the individual selected. 13If, however, when proceedings have been instituted under this interdict, another person desires to proceed under it, it is evident that permission to make use of it cannot afterwards readily be granted to another, unless something can be proved with reference to the perfidy of the original prosecutor. Therefore, where proper cause is shown, this interdict can be employed more than once. For one person cannot be prosecuted more than once in criminal cases, unless the first accuser is convicted of prevarication. But the defendant, having been convicted, prefers to pay the damages assessed in court rather than produce the man, it will not be unjust to grant the same interdict against him repeatedly, or grant it to the same party who cannot be barred by an exception, or to someone else. 14Labeo says that this interdict may be granted against a person who is absent, and if no defence is made by him, his property can be taken in execution. 15This interdict is perpetual.

Ulpianus, On the Edict, Book LXXI. The Prætor says: “You shall produce any male or female child who is subject to the authority of Lucius Titius, and who is in your hands, or whose possession you have fraudulently relinquished.” 1This interdict is intended to be employed against one whom a parent desires shall produce a child that he alleges is subject to his authority. It is evident from the words of the Edict that it will lie in favor of the person entitled to the control of the child. 2In this interdict, the Prætor does not consider the reason why the child is in the possession of him who is required to produce it, as is the case in a former interdict; but holds that it should by all means be restored, if it is subject to the authority of the plaintiff. 3If, however, it is the mother of the child who retains it in her possession, and it appears to be better that it should remain under her care than to be placed under that of its father, that is to say, if the reason is perfectly just, the Divine Pius decided, and it was stated in a Rescript by Marcus Severus, that relief should be granted to the mother by means of an exception. 4In like manner, if it should be ascertained that the child was under no one’s control, although this decision may be unjust, if anyone should attempt to proceed under this interdict, he can be barred by the exception of res judicata; so that the question is no longer whether the child is under the control of the plaintiff, but whether there has been a decision on this point. 5If a father wishes to take his daughter away, or to have her produced after she is married to me, cannot an exception be granted me against the interdict, if he, having, in the first place, agreed to the marriage, should afterwards desire to dissolve it, even if children have been born? Where a marriage has been properly solemnized, it certainly ought not, under our practice, to be interfered with on account of paternal control. Still, an attempt should be made to persuade the father not to exert his right of paternal authority with too much severity.

Ulpianus, On the Edict, Book LXXI. The Prætor next says: “If Lucius Titius is under the control of Lucius Titius, I forbid force to be employed to prevent the latter from taking Lucius Titius with him.” 1The interdicts previously mentioned are exhibitory, that is. to say, they have reference to the production of children and others of whom we have spoken. This interdict also relates to the removal of such persons, and anyone who has the right to do so can take them away from him. Therefore, the first interdict, which relates to the production of children, is preparatory to this one, by which the plaintiff can remove the person who was produced. 2This interdict should be granted for the same reason for which we have stated children should be produced in court. Hence, whatever we have previously stated should also be understood to be applicable here. 3Moreover, this interdict is not granted against the child itself whom the plaintiff desires to take away, but someone must appear to defend it against the interdict. The interdict, however, will not lie, and the Prætor himself can at once proceed, and render a decision, if any controversy arises before him as to whether the child is, or is not, under paternal control. 4Julianus says that whenever an interdict is employed, or an investigation is instituted with reference to the removal of a child, and the latter is under the age of puberty, in some instances the inquiry should be deferred until the child reaches that age, and in others, it ought to be decided without delay. This is a matter which must be determined in accordance with the rank of the persons between whom the controversy has arisen, and the nature of the case. If the party who alleges that he is the father is one whose social position, wisdom, and integrity are established, he will be entitled to keep the minor in his care until the case has been disposed of; but if he who instituted proceedings is of inferior rank, a malicious person, or one of bad reputation, the investigation should take place at once. Likewise, if he who denies that the minor is under the control of another is honorable in every respect, and is either a testamentary guardian, or one appointed by the Prætor, and has care of the ward, and charge of him during the trial of the case; and on the other hand, he who alleges that he is his father is a malicious person, the investigation should not be postponed. Where, however, both parties are liable to suspicion, either on account of inferior rank, or bad character, Julianus says it will not be improper to appoint someone else by whom the child can be brought up in the meantime, and postpone the determination of the case until it reaches the age of puberty; in order that, through the collusion or ignorance of one or the other of the contending parties, a child who is independent may not be decided to be under the control of another, or one who is subject to the authority of another may be held to occupy the place of the head of a household. 5Even if it should be conclusively proved by the father that the child is under his control, still, if after investigation it is ascertained that the mother should have the preference, and retain possession of the child, she can do so; for it was established by several decrees of the Divine Pius that the mother can obtain permission for the child to remain with her on account of the bad character of the father, without any diminution of paternal authority. 6In this interdict, the Prætor orders that a girl or a boy seventeen years of age, or one who is near that age, shall, pending the hearing of the case, be left in the care of the mother of the family. We say that a child is near the age of seventeen, immediately after he has reached that of puberty. The mother of a family is understood to be a woman of acknowledged good repute.

Ulpianus, On the Edict, Book LXXI. “In your possession” has a broader meaning than “In your hands,” for what you have in your hands is whatever is held by you under any title whatsoever, but what is in your possession is, to a certain extent, retained by you as your own.

The Same, On the Edict, Book LXXI. Where a crime or an offence is not classed as atrocious, it will be pardoned in those who commit it, if, as slaves, they have obeyed their masters; or where the offenders have obeyed those who take the place of masters, as, for instance, guardians and curators. 1Anyone who commits a fraud for the purpose of relinquishing possession is considered to still retain possession. 2In contracts, the successors of those who have been guilty of fraud are not only liable for any profits which they may obtain, but also for the entire amount; that is to say, each one will be liable for his share as heir.