THE DIGEST OR PANDECTS. BOOK XLIII.

TITLE I. CONCERNING INTERDICTS OR THE EXTRAORDINARY PROCEEDINGS TO WHICH THEY GIVE RISE.

1. Ulpianus, On the Edict, Book LXVII.

Let us see in what cases interdicts are available. It should be noted that they are applicable to both Divine or human affairs; to Divine affairs, where sacred or religious places are concerned. Interdicts are granted with reference to human affairs, where property has an 6wner, or where it belongs to no one. Free persons are included in that which belongs to no one, and interdicts will lie where they must be produced in court, or conducted anywhere. Things which have an owner are the property of the public, or of individuals. Public property consists of public places, highways, and rivers; property belonging to individuals is such as relates to property in its entirety, as in the case of an interdict Quorum, bonorum, and that which is separated, as in the case of the interdict Uti possidetis or De itinere actuque.

(1) There are three kinds of interdicts, exhibitory, prohibitory, and restitutory. There are also certain interdicts which are of a mixed nature, and which are both prohibitory and exhibitory.

(2) Some interdicts have reference to the present time, and others to future time. The interdict Uti possidetis has reference to the present time, and the one De itinere actuque de aqua sestiva has reference to future time.

(3) All interdicts are personal in their application, although they appear to relate to property.

(4) Some interdicts only last a year, and others are perpetual.

2. Paulus, On the Edict, Book LXIII.

There are double and single interdicts. The interdict Uti possidetis is an instance of a double one. Exhibitory and restitutory interdicts are single, and there are also prohibitory interdicts, as for instance, those De arboribus csedendis and De itinere actuque.

(1) Moreover, interdicts will lie in favor either of persons, or for the purpose of upholding the Divine Law, and protecting places which are religious; for example, to prevent any act being committed in a sacred place, or to compel matters to be restored to their former condition, where anything has been done; which includes the interdict having reference to burials and the construction of tombs.

Those which have been established in favor of persons either have reference to the common welfare, the maintenance of the rights of individuals, the discharge of official duty, or the preservation of private property. The interdict granting the use of public highways and public rivers, and prohibiting any obstruction from being placed upon a highway is an instance of one instituted for the common welfare; the interdicts to compel the production of children and freedmen in court are examples of those established for the protection of private rights. The interdict requiring the production of a freeman in court is an example of one to compel the performance of an official duty. Other interdicts are granted for the protection of property.

(2) Some interdicts include the pursuit of property, as, for instance, the one which has reference to private rights of way, for by proceedings under this interdict the title to property is involved. Interdicts which refer to sacred and religious places also embrace, to a certain extent, the title to property. That which has reference to the production of children in court, and which we have stated has for its object the maintenance of private rights, is also of this description, so that it is not strange that interdicts relating to private property include the title to it and not the right to its mere possession.

(3) Those interdicts which have reference to private property are instituted either for the purpose of acquiring, recovering, or retaining possession. Interdicts to obtain possession are such as are available by parties who have not hitherto acquired it; and an example of these is the interdict Quorum bonorum. The Salvian Edict which relates to pledges is one of this kind, and is as follows: "I forbid violence to be employed to prevent the purchaser from using a right of way which was used by the vendor".

Interdicts for the recovery of possession are mentioned under the title, "Unde vi", for there are certain interdicts which are classed under this head. The interdict, "Uti possidetis", is an instance of one of those issued for the purpose of retaining possession. As we have previously stated there are also interdicts which are double; these are for the purpose of both recovering and retaining possession.

3. 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.

4. Paulus, On the Edict, Book LXVII.

In cases where the interdicts are only in force for a year, Sabinus is of the opinion that an action should be granted after the year has elapsed, if the party who is sued has obtained any of said crops.

5. The Same, On Sabinus, Book XIII.

Noxal interdicts are those which are granted on account of some crime committed by persons under our control; as, for instance, where they have forcibly ejected anyone, or have erected a new work either by violence, or clandestinely. It is, however, the duty of the judge to release the owner, if he places the property in its former condition at his own expense; or if he permits the work to be removed, and directs a slave to be surrendered by way of reparation. If he does not surrender the slave, judgment must be rendered against him for the amount of expense incurred in removing the work; and if he neither suffers it to be removed, nor removes it himself, if he can do so, he shall have judgment rendered against him for an amount which the court may determine, just as if he himself has constructed the work in question.

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TITLE II. CONCERNING THE INTERDICT QUORUM BONORUM.

1. Ulpianus, On the Edict, Book LXVII.

The Prætor says: "Whenever possession of the property of an estate is granted to anyone under my Edict, you will restore to him everything belonging to said estate which you hold, either as heir, or merely as possessor, if there is no usucaption, or if he did not act in bad faith in order to avoid retaining possession."

(1) This interdict is restitutory, and applies to all property, and not to certain specific things. It is styled Quorum bonorum, and has for its object the obtaining possession of the entire property in dispute.

2. Paulus, On the Edict, Book XX.

The debtors of an estate are not liable under the interdict Quorum bonorum, but only those who have possession of any property.

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TITLE III. CONCERNING THE INTERDICT QUOD LEGATORUM.

1. Ulpianus, On the Edict, Book LXVII.

This interdict is commonly called Quod legatorum.

(1) It is also for the purpose of obtaining possession.

(2) It has for its object the restoration to the heir of everything belonging to the estate of which a legatee, against the consent of the heir, has taken possession. For it seemed perfectly just to the Prætor that anyone should not define his rights himself, by taking possession of the legacy, but should first apply to the heir. Therefore the Prætor, by means of this interdict, places in the hands of the heir property which is in the possession of others as legacies, so that the legatees can sue the heir.

(3) This interdict, on the ground of public convenience, is said to extend to the heir of the heir, both civil and praetorian, as well as to other successors.

(4) But as it is sometimes uncertain whether anyone has possession of property as legatee, as heir, or as possessor under the Prætorian Edict, Arrian very properly says that proceedings should, be instituted to claim the estate, and that this interdict ought to be granted whether anyone in possession is liable under it as an heir, a possessor, or a legatee; just as we are accustomed to do when it is doubtful which of two actions should be brought; for we propose two actions, alleging that we can obtain what we are entitled to by one or the other of them.

(5) When anyone has possession of property through a donation mortis causa, this interdict will not apply; because, of course, the Falcidian portion will remain in possession of the heir by operation of law, even though all the property has been actually transferred.

(6) Anyone who has received a preferred legacy is liable under this interdict, but only for what he is legally entitled to as a bequest, and not for that part of the estate which he holds in the capacity of heir.

The same rule will apply to a legacy bequeathed to an heir in any other way, for, in this case, it must be decided that the interdict will not be applicable to that part of the estate to which he is entitled as heir.

(7) Where the Prætor says, "or has ceased to hold possession by fraud," we must understand this to mean if he has ceased to have the power to make restitution.

(8) Hence the question arises, if the right of usufruct or use is bequeathed to anyone, and he takes possession of it, can he be compelled to restore it by the provisions of this interdict? The difficulty is that neither the usufruct nor the use can be actually possessed, but they are rather held. It can, however, be maintained that an interdict will lie. The same rule applies to the bequest of a servitude.

(9) The question arises, where anyone is placed in possession of an estate for the preservation of legacies, whether he can be compelled by this interdict to make restitution. The difficulty in the first place, is, that he who is placed in possession of the property for the purpose of insuring the payment of the legacies is not actually in possession, but rather has charge of the property; and in the second place, because this has been authorized by the Prætor. It will be safer to hold, however, that this interdict will lie; especially if security has already been given for the legacies, and the legatee does not withdraw, for then he is considered to have possession.

(10) We can not only say the legatee possesses the property by virtue of the legacies, but also that his heir and other successors can possess the same.

(11) Where the Prætor says, "with the consent of him to whom the property belongs," this must be understood to signify that, if permission to take possession had been granted to the legatee after the estate has been entered. upon, or praetorian possession has been obtained, the interdict will not lie; because if this is done before the estate has been entered upon, or the consent to praetorian possession has been secured, it may properly be held that this will not prejudice him, if he desires to avail himself of the interdict.

(12) Where two articles are bequeathed, and one of them is taken with the consent of the heir, and the other without it, the result will be that one of them can be recovered, and the other cannot. The same rule should be adopted with reference to a single article, a part of which is taken with the consent of the heir, and a part without it, for he can only be deprived of a portion of the same by means of an interdict.

(13) It must be held that there will be ground for this interdict, if possession has begun to be taken by you, or by someone to whose place you have succeeded. We understand one person to have succeeded to the place of another when he succeeds to the entire property, or merely to part of it.

(14) Possession is always a benefit when it has been begun with the consent of him to whom the property belongs. If, however, the consent of the owner is not obtained until afterwards, it will still benefit the possessor. Therefore, if anyone begins to hold possession with the consent of him who has an interest in the property, and his consent is afterwards withdrawn, this will not prejudice him, because he began to hold possession with the consent of the party interested.

(15) If one of two heirs, or any other persons who have an interest in the property, gives his consent to possession of the same by the legatee, and the other does not, it is evident that an interdict will only lie against the one who refused his consent.

(16) Where the Prætor says, "unless security is furnished," we should understand this to mean if the security continues to exist; for if it does not, the legatee will be placed in possession of the property of the estate for the purpose of insuring the payment of the legacies.

(17) I think that proper security should be furnished to the legatee either directly by operation of law, or in such a way that he can obtain it by an action on mandate, and then there will be ground for the interdict.

(18) If security is given for certain property, and not for some other, there will be no difficulty in instituting proceedings under the Edict with reference to the property for which security has been furnished, but this cannot be done to compel the return of the other.

2. Paulus, On the Edict, Book LXIII.

The case is different if anything has afterwards been added to the legacy, for, in this case, the sureties will be liable for the entire amount.

(1) Where the Prætor says, "if the praetorian possessor of the estate is not required to give security," we must understand this to mean, if he is ready to give it. Hence, he should not offer to furnish security, but should not delay to do so if the legatee demands it.

(2) When anyone does not make restitution, judgment to the amount of his interest should be rendered against him under this interdict.

(3) If the legatee is satisfied with a mere promise, the interdict should be granted. The same must be said, if the legatee refused to be secured by pledges.

(4) If the legatee was to blame for security not having been given,-even though none was furnished, he will be liable under the interdict.

If, however, he was to blame for security not having been given, but, at the time that the interdict was issued, he was ready to accept security, the interdict will not lie, unless security was given. But if the possessor under the Prætorian Edict was responsible for security not having been given, but was afterwards ready to furnish it, the interdict will lie; for the time when it was issued is taken into consideration.

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TITLE IV. CONCERNING THE INTERDICT WHICH PROHIBITS VIOLENCE BEING EMPLOYED AGAINST A PERSON PLACED IN POSSESSION.

1. Ulpianus, On the Edict, Book LXXII.

The Prætor says: "I will grant an action in factum, for the amount of the value of the property of which a person was placed in possession, against anyone who acts fraudulently to prevent him from obtaining control of said property by my permission, or by that of any other magistrate having jurisdiction."

(1) It was with the greatest wisdom that the Prætor introduced this interdict; for it would be useless for him to place anyone in possession of property for the purpose of preserving it, unless he protected him, and punished those who prevented him from occupying it.

(2) Moreover, this Edict is of general application, for it has reference to all persons placed in possession of property by the Prætor, as it seemed proper to him that all those whom he placed in possession should be protected. Where persons are placed in possession, either for the purpose of preserving the property, or to insure the payment of their legacies, or to protect the rights of an unborn child, they will be entitled to an action in factum under this Edict, if a master or anyone else should prevent them from doing so.

(3) This action will not only lie against anyone who prevents another from taking possession, but also against a person who drives him away, after he has already obtained possession. It is not required that he who prevents him from taking possession should use force.

(4) Therefore, where if anyone hinders another from taking possession, because he thinks that the property belongs to him, or is encumbered to him, or, in fact, does not belong to the debtor, the result will be that he will not be liable under this Edict.

(5) The following words, "for the amount of the value of the property of which he was placed in possession," include the entire interest of the creditor, so that the defendant shall have judgment rendered against him to the extent of the interest he had in not being prevented from obtaining possession. Hence, if he was placed in possession by virtue of a false claim or demand which was groundless, or if he should have been barred by an exception, this Edict will be of no advantage to him, because there was no reason why he should have been placed in possession.

(6) It is established that neither a minor nor an insane person is liable under this Edict, because they are destitute of will power. We should understand a minor to be one who is incapable of committing fraud, but if he is already capable of doing so, the opposite opinion must be held; therefore, if a guardian should commit a fraudulent act, we will grant an action against his ward, provided the guardian is solvent. Julianus says that the guardian himself can be sued.

(7) If anyone is prevented from obtaining possession with the consent of a master or a father, an action will be granted against them, just as if they committed the act by the agency of others.

(8) This action can only be brought within a year, except where anyone is placed in possession to insure the payment of a legacy; and it must be noted that it cannot be brought after the year has expired, as it is a penal one; nor will it be granted against heirs and other persons of this kind, unless with reference to property which has come into their hands. It will, however, be granted to the heir and other successors. For when anyone is prevented from obtaining possession on account of the preservation of legacies or trusts, the action is perpetual and is granted against the heir, because it is in the power of successors to avoid the operation of the interdict by offering to give security.

2. Paulus, On the Edict, Book LIX.

It makes no difference whether anyone is prevented from taking possession in his own name, or in that of another, for the words, "For the amount of the value of the property," have reference to the owner personally.

(1) He also is liable who, either in his own name or in that of another, prevents possession from being taken.

3. Ulpianus, On the Edict, Book LXVIII.

Where anyone is awarded possession for the protection of a trust, and is not admitted, he should be placed in possession by the authority of him who granted it to him. If he wishes to avail himself of the interdict, it must be said that it will be applicable. It would, however, be better for the judge to have his decree executed by extraordinary process, derived from the power of his office, and sometimes even to accomplish this by armed force.

(1) It was decided by Antoninus that a person may, under certain circumstances, be permitted to take possession of the property of the heir himself. Therefore, if anyone is not permitted to take possession of such property, it must be held that this equitable proceeding will lie.. He can also make use of extraordinary execution.

(2) The Prætor places an unborn child in possession. This interdict is both prohibitory and restitutory. If the mother prefers to bring an action in factum, it must be remembered that she can do so (as in the case of creditors), rather than avail herself of the interdict.

(3) If the woman is alleged to have obtained possession for the purpose of causing annoyance, or because she is not pregnant, or is not pregnant by the man whose property is in question, or where anything is alleged with reference to her status, the Prætor promises possession to the unborn child, under a Rescript of the Divine Hadrian, in conformity with the presumption of the Carbonian Edict.

4. 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.

(1) Moreover, 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.

(2) The 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.

(3) The 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.

(4) It 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.

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TITLE V. CONCERNING THE PRODUCTION OF PAPERS RELATING TO A WILL.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "If you have in your possession any documents which Lucius Titius is alleged to have left, and which have reference to his will; or if you have committed some fraudulent act to avoid having them in your possession, you must produce them for So-and-So. I shall include in my decree all memoranda, or anything else which he is said to have left."

(1) If anyone acknowledges that the will is in his possession, he should be ordered to produce it, and time should be granted him to do so, if he cannot produce it immediately. If he states that he cannot produce it, or denies that this ought to be done, the interdict will lie.

(2) This interdict not only has reference to the will itself, but also to everything relating to it, as, for instance, a codicil.

(3) It must be said that the interdict will be applicable whether the will is valid or not (whether it was void originally, or has been broken, or is defective in any other respect, or even if it is alleged to be forged, or to have been made by one who did not have testamentary capacity to make a will).

(4) It must be held that this interdict will apply whether the will in question was the last or the first one executed.

(5) Therefore, it should be said that this interdict has reference to every written will, whether it is perfect or imperfect.

(6) Hence, if there are several wills, made at different times, it must be held that this interdict will apply; for all instruments having reference to the will which have been drawn up at different times should be produced.

(7) If a discussion arises with reference to the condition of the testator, and a son under paternal control, or a slave is alleged to have drawn up the will, it shall be produced.

(8) Moreover, there will be ground for this interdict where a son under paternal control makes a will disposing of his castrense peculium.

(9) The same rule will apply if he who executed the will dies while in the hands of the enemy.

(10) This interdict does not refer to the will of a person who is living, because the Prætor employs the term "left".

(11) If the will has been erased without fraudulent intent,

2. Paulus, On the Edict, Book LXIV.

Either entirely, or partially,

3. Ulpianus, On the Edict, Book LXVIII.

This interdict will be applicable.

(1) If the will is written upon several sheets, they are all included under this interdict, because they constitute but a single will.

(2) If the will is deposited with anyone by Titius, proceedings can be instituted by virtue of this interdict, both against the person who has the will, and against him who deposited it with him.

(3) Hence, if the guardian of a temple or a notary has the will as a depositary, it must be said that he will be liable under this interdict.

(4) When the will is in the hands of a slave, his master will be liable under the interdict.

(5) If the testator himself says that the will is his, and wishes it to be produced, this interdict will not lie; but an action for its production must be brought to enable him to claim the will after it has been produced. This rule should be adopted in all cases where persons claim the ownership of documents.

(6) If anyone commits fraud in order to avoid having a will in his possession, he will still be liable under this interdict. Proceedings under the Cornelian Law relating to testaments will not, however, be prevented; as, for instance, if the party in question is alleged to have fraudulently suppressed the will. For no one can retain a will with impunity under the pretext that he has committed a more serious crime, and by the production of it, the crime, which is admitted, will be the more readily proved.

Anyone may be guilty of fraud and yet not come within the provisions of this law, as for example, if he did not steal or hide the will, but delivered it to another to avoid being compelled to produce it for the inspection of the party making use of the interdict; that is to say, if he did this, not with the intention of suppressing the will, but in order to avoid producing it.

(7) This interdict is exhibitory.

(8) Let us see what it is to produce anything. It is to place it in such a position as to afford an opportunity for it to be taken hold of.

(9) Production must be made before the magistrate in such a way that by his authority the witnesses may be notified to appear and acknowledge their seals. If they do not obey, Labeo says that they should be compelled to do so by the magistrate.

(10) All persons to whom anything has been left by a will can demand its production.

(11) In a case of this kind the amount of the judgment should be in proportion to the interest of him for whose inspection the person having the will in his possession refuses to produce it.

(12) Therefore, if the appointed heir makes use of this interdict, the estimate of the damages must be in proportion to the value of the estate.

(13) If a legacy is in dispute, the amount of the damages must be in proportion to the value of the legacy.

(14) If the legacy was bequeathed under a condition, the estimate will be made just as if the condition had been complied with; nor shall the legatee be compelled to give security to restore whatever he obtains, if the condition should not be fulfilled; because the decree imposes the penalty for contumacy incurred by the heir for not producing the will.

(15) Hence, if the legatee, having received the value of his legacy in this way, afterwards claims the legacy itself, the question arises whether he should be heard. I think that if the heir paid the amount, the legatee will be barred by an exception on the ground of fraud; but if anyone else paid it, he will not be barred. Therefore, the same distinction should be made if the heir obtained the value of the legacy, after having availed himself of the interdict.

(16) It is established that this interdict can be employed even after the year has elapsed.

(17) It will lie in favor of the heir and other successors.

4. Paulus, On the Edict, Book LXIX.

If the will is in the possession of a ward, and he has been deprived of it by the fraudulent act of his guardian, the interdict will lie against the guardian himself; for it is only just that he should be liable for his own crime and not his ward.

5. Javolenus, On Cassius, Book XIII.

The interdict, requiring a person to produce a will, will not lie where any controversy with reference to the estate is pending, or any public question is involved. Therefore the will should in the meantime be deposited either in a temple or in the hands of some responsible person.

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TITLE VI. CONCERNING THE INTERDICT FOR THE PURPOSE OF PREVENTING ANYTHING BEING DONE IN A SACRED PLACE.

1. Ulpianus, On the Edict, Book LXVIH.

The Prætor says: "I forbid any labor to be performed in a sacred place, or anything to be carried there."

(1) This interdict has reference to sacred places, and not to one where holy objects are kept.

(2) Where the Prætor says that no labor shall be performed in a sacred place, this does not refer to anything which is done to adorn it, but to acts committed for the purpose of defacing it, or rendering it inconvenient.

(3) The care of temples and of other sacred places is entrusted to those who have charge of them.

2. Hermogenianus, Epitomes of Law, Book HI.

It is not permitted to do anything to the walls or doors or any other parts of sacred edifices, from which injury or inconvenience may result.

3. Paulus, Decisions, Book V.

Neither the walls nor the doors can be utilized for habitation, without the permission of the Emperor, on account of the danger of fire.

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TITLE VII. CONCERNING THE INTERDICT RELATING TO PUBLIC PLACES AND HIGHWAYS.

1. Pomponius, On Sabinus, Book XXX.

Anyone shall be permitted to avail himself of the benefit of public property intended for the use of all, as, for instance, the public highways and roads; and therefore, on the demand of any person whomsoever, interference with them may be forbidden.

2. Ulpianus, Digest, Book XLVIII.

No one is allowed to erect a monument on a public highway.

3. Ulpianus, On Sabinus, Book XXXIII.

Roads existing in any particular neighborhood, which have been derived from the contribution of land owned by private individuals, and date from time immemorial, are included in the number of public highways.

(1) A difference exists between roads of this kind and military highways, namely, military highways terminate at the seashore, or in cities, or at public streams, or at some other military highway, but this is not the case with roads through a neighborhood, for some of them terminate at military highways, and others end without any exit.

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TITLE VIII. CONCERNING THE INTERDICT FORBIDDING ANYTHING TO BE DONE IN A PUBLIC PLACE OR ON A HIGHWAY.

1. Paulus, On the Edict, Book LXIV.

The Prætor forbids any building to be erected in a public place, and issues an interdict to that effect.

2. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "Nothing shall be done in a public place, or brought there, which will cause any damage to it; except what is permitted by some law, decree of the Senate, Edict, or Rescript of the Emperors, and if anything of this kind is done, I will grant an interdict."

(1) This interdict is prohibitory.

(2) By means of it, the public as well as the private welfare is protected. For public places are intended for the use of private persons, that is to say, as the property of the State, and not as belonging to any individual; and we have only as much right to their enjoyment as anyone of the people has to prevent their being interfered with. For which reason, if any work is done in a public place which tends to the injury of a private individual, the person responsible for it can be proceeded against under the prohibitory interdict which has been introduced for this purpose.

(3) Labeo defines the term, "public place," as applying to such localities, houses, fields, highways, and roads as belong to the community at large.

(4) I do not think that this interdict has reference to places which belong to the Treasury, for no one can do anything in such places, nor can any private person prevent anything from being done there. Property of the Treasury, to a certain extent, belongs to the Emperor as his own. Therefore, if anyone builds anything on said property, there will be no ground for the application of this interdict. If any controversy arises on this point, the Imperial Prefects will be the judges.

(5) Hence, this interdict relates to places which are intended for the use of the public, and if anything is done there which may injure a private individual, the Prætor can intervene by means of this interdict.

(6) If anyone has an awning suspended over his portico, which shuts off the light from his neighbor, the interdict will be issued in the following terms: "Do not place anything in the public street which may interfere with the light of Gaius Seius."

(7) If anyone wishes to repair anything in a public place, Aristo says that there will be ground for the application of this interdict, in order to prevent him from doing so.

(8) This interdict is available against anyone who builds a foundation in the sea, by a person who may be injured by it; but if no one sustains any damage, he who builds upon the shore, or constructs a foundation in the sea, should be protected.

(9) Where anyone is prevented from fishing in, or sailing upon the sea, he will not be entitled to this interdict, just as in the case of a person who is prevented from taking part in games in a public field, or bathing in a public bath, or being present in a theater; but in all these cases an action for reparation of injury must be employed.

(10) The Prætor very properly says, "where any injury is sustained by the party on this account." For where anything is allowed to be done in a public place permission should be granted, for it to be done without causing injury to anyone, and the Emperor is accustomed to grant permission when a request is made for the construction of any new work.

(11) Moreover, injury is considered to be sustained when any benefit of any description whatever, which is derived from a public place, is lost.

(12) Hence, if the view enjoyed by anyone, or his approach to a public place is interfered with, and diminished, or restricted, this interdict should be employed.

(13) Labeo thinks if I erect a building in a public place, so as to prevent the water from flowing from my premises upon yours, which they formerly did without any right enjoyed by me, that I will not be liable under the interdict.

(14) It is clear that if the building which I erected should intercept the light of your house, this interdict will lie.

(15) He also says that if I erect a building in a public place, and it interferes with one which you have already erected in the same place, this interdict will not apply, as you also have built contrary to law, unless you have done so by virtue of some special privilege which has been granted to you.

(16) If anyone obtains from the Emperor general permission to build in a public place, it must not be believed that he can erect the building in such a way as to cause inconvenience to anyone; for such a concession is not understood to be granted unless this was expressly stated.

(17) If anyone constructs a house in a public place without anyone preventing it, he cannot be compelled to remove it, for fear that the city may be marred by its demolition; and because the interdict is prohibitory and not restitutory. If, however, the said building interferes with public use, it should be demolished on the application of the officer in charge of public works; but if it does not interfere with anything, a land tax can be imposed upon it, for the tax receives this name because it is paid on account of the ground.

(18) But if no work has yet been done, it is the duty of the judge having jurisdiction to require security that it will not be done, and the bond must be drawn up in such a way as to render the heir and other successors liable.

(19) The rule with reference to sacred places is different, for we not only forbid any work to be done in a sacred place, but where any has been done, we order everything to be restored to its former condition. This rule has been adopted for the sake of religion.

(20) The Prætor says: "I forbid anything to be built on a public highway or road, or to be placed there, by which the said highway or road is, or may be damaged."

(21) By a public highway we mean one whose soil belongs to the people, for we do not understand a private road to mean the same as a public one. In the case of a private road, the soil belongs to another, and we have only the right of walking and driving over it; but the soil of a public highway is owned by the community, and has been established with reference to direction, and within certain limits, by him who had the right to render it public, in order that everyone might travel upon it, and traverse it.

(22) Some roads are public, some are private, and others are local, belonging to the neighborhood. We call roads public which the Greeks designated as royal, and we name praetorian or consular roads. Private roads are such as some persons style agrarian. Local, or neighborhood roads are those which are situated in villages, or lead to towns; certain authorities also call these public roads. This, however, is only true where they have not been established by the contribution of land by private persons; but it is otherwise if they are repaired at the expense of individuals, for a road is not private on this account. The repairs of the same are common, because such a road is for the common use and benefit.

(23) Private roads are understood to be of two kinds, some of them are through land upon which a servitude to furnish a right of way to the land of another has been imposed, others give access to certain tracts of land, and anyone can make use of them, after leaving a consular road, when a lane; a path, or a road for driving is found leading to a farm. I think that roads which lead from a consular highway to farms or villages are also public.

(24) This interdict only applies to roads in the country and not to those in cities, for the magistrates are charged with the care of the latter.

(25) If traffic is intercepted on a public highway, or it is closed, the magistrates shall intervene.

(26) If anyone conducts a sewer across a public highway, and, for that reason, it becomes less fit for use, Labeo says that he who placed it there will be liable.

(27) Hence, if anyone digs a ditch on his own land, and the water collected by it runs over the highway, he will be liable under this interdict, for he will be considered to have obstructed it.

(28) Labeo also says that if anyone builds a house on his own ground, and the water then collects upon the highway, he will not be liable under the interdict, because he did not cause the water to flow upon the highway, but he merely did not take care of it.

Nerva, however, says, more properly, that he will be liable in both instances, as it is clear that if the land adjoins the public highway, the water flowing from it injures the latter; for if the water flows from the land of a neighbor upon yours, and you are compelled to take care of that water, there will be ground for an interdict against your neighbor. If, however, it is not necessary for you to take care of it, your neighbor will not be liable, but you will be; for he who had the use of the water is considered to have committed the act which damaged the highway.

Nerva also says that if proceedings under the interdict are instituted against you, you will not be obliged to do anything more, or bring an action against your neighbor to force him to do what will satisfy the person who has sued you. If it should be decided otherwise, you will be considered responsible, even if you have brought a bona fide action against your neighbor, and it is not your fault that the person who sued you is not content with what you have done.

(29) He also says that if the place where the road is situated becomes unhealthy on account of a bad odor, an interdict cannot be employed on this account.

(30) This interdict also applies where animals are pastured on a public highway, or road, and injured.

(31) The Prætor also says, "by which the said highway or road is, or may be damaged." Therefore this applies, whether the road is immediately damaged, or whether this takes place afterwards, for this is the meaning of the words, "is, or may be." For there are certain things which injure a road immediately, and others which do not do so at once, but will in the future.

(32) Moreover, a road is understood to be damaged if it is rendered less available for travel, that is to say, for walking or driving; as, for instance, if, having been level, it becomes hilly; or, having been smooth, it becomes rough; or, having been wide, it becomes narrow; or, having been dry, it becomes muddy.

(33) I know that the point has been discussed whether an arch or a bridge can be constructed across a public highway. Many authorities hold that the person who does this will be liable under the interdict, because a highway must not be rendered less available for use.

(34) This interdict is perpetual, and popular, and judgment should be rendered to the extent of the interest of the plaintiff.

(35) The Prætor says: "You shall restore everything to its former condition, if you have done any work, or placed anything upon the public highway by means of which the said highway or road is, or may be damaged."

(36) This interdict is founded upon the same reason as the former one, and the only difference between them is that this is restitu-tory, and the other prohibitory.

(37) He is not liable under this interdict who builds anything on the public highway, but he who is in possession of what has been built. Hence, if one person should erect something, and another should hold it, the latter will be liable; and this is more fitting, for he who has control of the obstruction can restore the highway to its original condition.

(38) We consider him to have possession of the building who holds or enjoys it by the right of possession, whether he himself constructed it or acquired it by purchase, lease, bequest, inheritance, or in any other way.

(39) Hence Ofilius thinks that if anyone abandons an obstruction which he has raised upon the highway, by which it is injured, he will not be liable under this interdict; for he does not have possession of what he constructed. But let us see whether an action can be granted against him. I think that an interdict will be available to compel him to remove whatever he built upon the public highway, and restore the latter to its former condition.

(40) If a tree falls from your land upon the public highway, in such a way as to obstruct it, and you consider the tree as abandoned, Labeo says that you will not be liable. He adds that if the complainant is ready to remove the tree at his own expense, he can properly proceed against you under the interdict relating to the repair of highways. If, however, you do not consider the tree as abandoned, he can properly proceed against you under this interdict.

(41) Labeo also says that if my neighbor obstructs the public highway by some work which he does, that is as advantageous to me as to himself, but did this only for the benefit of his own land, I can not be sued under the interdict; but if we caused this work to be performed in common, both of us will be liable.

(42) This interdict also applies against a person who has fraudulently avoided having possession of, or holding the structure which injures the highway; for he who is in possession of, or holds it, and he who has acted fraudulently to avoid doing so, must be subject to the same restrictions. The opinion of Labeo seems to me to be correct.

(43) When the Prætor says, "you shall restore it to its former condition," he is understood to mean that it shall be placed in its original state, which is accomplished either by removing what has been built, or by replacing what has been taken away, and this sometimes at his own expense. For if the party who is sued under the interdict did the work, or someone else did it by his order, or he ratified what the latter had done, he must restore everything to its original condition at his own expense. If, however, nothing of this kind took place, but he merely holds possession of what has been constructed, we, in this instance, say that he must only suffer the work to be removed.

(44) It must be remembered that this interdict is not a temporary one, for it has reference to the public welfare. Judgment is rendered under it to the extent of the interest of the plaintiff in having the work which has been constructed demolished.

(45) The Prætor says: "I forbid violence to be employed to prevent anyone from freely passing and driving over a public highway, or road."

3. Celsus, Digest, Book XXXIX.

I think that the shores of the sea over which the Roman people have control belong to them.

(1) The use of the sea as well as that of the air is common to all men, and the piles which are driven into it belong to the person who •has placed them there; but this should not be conceded if the shore is damaged, or the future use of the sea is impaired on account of it.

4. Scævola, Opinions, Book V.

"It is allowed by the Law of Nations to build upon the sea-shore, unless the public use of it is interfered with by doing so."

5. Paulus, On Sabinus, Book XVI.

If a stream which conducts water through a public place injures a private person, he will be entitled to an action under the Law of the Twelve Tables to compel security to be given for any damage caused by the owner.

6. Julianus, Digest, Book XLIII.

He who avails himself of this interdict to prevent any work done in a public place from causing damage to a private individual can employ an attorney, although the proceeding under the interdict has reference to a public place.

7. The Same, Digest, Book XLVIII.

Just as a person who builds in a public place without anyone attempting to prevent him is not compelled to demolish what he has constructed in order to prevent the city from being defaced by the ruins, so anyone who builds contrary to the Prætorian Edict should remove what he has erected; otherwise, the authority of the Prætor becomes vain and illusory.

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TITLE IX. CONCERNING THE EDICT RELATING TO THE ENJOYMENT OF A PUBLIC PLACE.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "I forbid force to be employed to prevent anyone who has leased public property, or his partner, from enjoying it in accordance with the terms of the lease."

(1) It is evident that this interdict was established for the general welfare, for it protects the public revenue when it forbids violence to be employed against anyone who has leased public land for the purpose of enjoying it.

(2) If a lessee and his partner both apply to have the interdict issued, the lessee himself will be entitled to the preference.

(3) The Prætor says, "In accordance with the terms of the lease," and this is reasonable, for a tenant who desires to enjoy the property beyond, or contrary to the terms of his lease, should not be heard.

2. Paulus, Decisions, Book V.

It is customary to permit pictures and statues, which will be ornamental to a city, to be set up in public places.

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TITLE X. CONCERNING THE EDICT WHICH HAS REFERENCE TO PUBLIC STREETS AND ANYTHING DONE THEREIN.

1. Papinianus, On the Duties of the Ædiles.

The Ædiles should see that the streets of cities are kept in order, that the overflow of water does not injure houses, and that bridges are constructed wherever this is necessary.

(1) They should also see that the walls of the city, as well as those of others, and especially such as face the street, are not in bad condition, but should require the owners of the same to repair and rebuild them. If, however, the latter fail to repair or rebuild them, they should fine them until they do so.

(2) They should also see that no one digs holes in the streets or undermines them, or builds anything in them. If a slave does anything of this kind, he can be beaten by any passerby; if he is proved to be a freeman before the Ædiles, they can fine him in accordance with law, and demolish whatever he has built.

(3) Every person must construct the public street in front of his own house, clean the gutters which are exposed, that is to say, open to the sky, and keep the street in such a condition that a vehicle will not be prevented from traversing it. Those who rent the houses must build the street, if the owner does not do so, and they can deduct the expense from the rent.

(4) The Ædiles shall also see that nothing is allowed to project in front of the shops, unless where a fuller desires to dry clothing, or a carriage-maker places his work outside; but, in these instances, whatever they do must not interfere with the passage of vehicles.

(5) The Ædiles must not permit any quarreling to take place in the streets, nor any filth, dead animals, or skins to be thrown into them.

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TITLE XI. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO REPAIRS OF PUBLIC STREETS AND HIGHWAYS.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "I forbid force to be employed to prevent anyone from opening up or repairing a public street or highway who has the right to do so, unless the condition of the street or highway may be rendered worse thereby."

(1) To open up a street is to restore it to its former height and breadth; and it is a part of the repair of streets to clean them. Properly speaking, however, to clean a street means to reduce it to its proper level by removing whatever has been deposited on it. For he who repairs a street, as well as he who opens up and cleans it, are persons who restore it to its former condition.

(2) If anyone, under the pretext of repairing a street, makes it worse, force can be employed against him with impunity, because he who avails himself of the interdict under the pretext of reparation cannot make the street wider, longer, higher, or lower, nor can he throw sand into it, or pave it with stone, if it is merely composed of earth; or, on the other hand, where it has been paved with stone, can he remove it, leaving only the soil.

(3) This interdict is perpetual, is granted for and against everyone, and judgment is rendered under it to the extent of the interest of the plaintiff.

2. Javolenus, On Cassius, Book X.

The public cannot lose a highway by failing to make use of it.

3. Paulus, Decisions, Book I.

Where anyone throws a public highway on the land of his neighbor, the Actio vise receptse will only be granted against him to the extent of the interest of him whose property was injured thereby.

(1) If anyone plows up a highway, he alone shall be compelled to repair it.

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TITLE XII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO RIVERS AND THE PREVENTION OF ANYTHING BEING DONE IN THEM OR ON THEIR BANKS WHICH MAY INTERFERE WITH NAVIGATION.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "Nothing shall be thrown into a public river or deposited on its banks, by means of which the landing of merchandise, traffic, or the movement of shipping may be interfered with."

(1) A river is distinguished from a small stream by its superior' size, or by the opinion of the people who live in the neighborhood.

(2) Some rivers have a continuous flow, and others are torrential. Those which have a continuous flow run always; those which are torrential only flow during the winter. If, however, a river, which at other times continues to flow, should dry up in the summer, it will not, on this account, be removed from the former class.

(3) Some rivers are public, and some are not. Cassius defines a public river to be one which flows uninterruptedly. This opinion of Cassius, which is approved by Celsus, seems to be plausible.

(4) This interdict has reference to public rivers, but it does not apply to one which is private, because a private river does not differ from other places which belong to individuals.

(5) A bank is properly defined to be what contains a river when it pursues its natural course, for it does not change its banks on account of rain, the tide, or for any other reason. No one says that the Nile, which covers Egypt with its overflow, changes or enlarges its banks; for when it returns to its ordinary dimensions, the sides of its channel should be repaired. If, however, a river should naturally increase in size in such a way as to acquire a permanent enlargement, either through the addition of the water of another stream, or for some other cause, it undoubtedly must be held that it has changed its banks, just as if, having changed its bed, it begins to flow elsewhere.

(6) If an island is formed in a public river, and anything is built upon it, it will not be considered to have been constructed in a public place, for the island becomes the property of the first occupant if the neighboring fields have regular boundaries; or belongs to him to whose bank it is contiguous; or if formed in the middle of the channel, it will belong to those who own land on both banks of the stream.

(7) In like manner, if a river leaves its bed and begins to flow elsewhere, anything which was built in the old bed will not come under the terms of this interdict, for what belongs to the neighbors on both sides is not constructed in a public stream; or, if the land has boundaries, the bed of the river will belong to the first occupant, and it certainly ceases to be public property.

Moreover, although the new bed which the river has made for itself was previously private property, it at once becomes public; because it is impossible for the bed of a public stream not to be public.

(8) A canal, made by human hands, through which a public river flows is, nevertheless, public property to such an extent that if anything is built there, it is considered to have been built in a public stream.

(9) It is otherwise if a river overflows the land of another, and does not make a new bed for itself; for then what the water covered does not become public property.

(10) Again, if a river surrounds land, it must be noted that the land still remains the property of the original owner. Therefore, if anything is built in it, it is not built in a public stream. Whatever is done on private land does not come within the scope of this interdict, any more than what is done in a private stream; for anything which is done in a private stream is just the same as if it was done in any other place belonging to a private individual.

(11) We understand anything to have been built in a public stream where this was done in the water itself; for if anything is built outside of the water, it is not considered to have been done in the stream, so that any structure erected upon the bank is not held to have been built in the stream.

(12) The Prætor does not absolutely prohibit any work being done in a public river, or on the bank of the same, but only whatever may interfere with the landing of goods, or navigation. Therefore, this interdict only applies to public rivers which are navigable, and not to any others.

Labeo, however, says that even if anything is done to a river that is not navigable, which may cause it to dry up, or which obstructs the course of the water, it will not be unjust to grant an available .interdict to prevent any violence from being employed against removing or demolishing a structure which has been built in the bed of the stream, or on its bank, that interferes with the passage or current of the river, and to compel everything to be re-established in good condition, in accordance with the judgment of a reliable citizen.

(13) The word statio, a landing-place for ships, is derived from the verb statuo. By it, therefore, the place is indicated where ships can remain in safety.

(14) The Prætor says, "or the movement of shipping may be interfered with." This is used instead of the word navigation, and, indeed, we are accustomed to employ the terms shipping and navigation, instead of the vessel itself. Hence, by the term "shipping" may also be understood the course of the vessel. Boats are also included in this term, for their use is frequently necessary. If the approach for pedestrians is obstructed, the movement of shipping is also interfered with.

(15) The anchorage and the course of navigation are also considered to be interfered with where the use of the same is interrupted, or rendered more difficult, or diminished, or made less frequent, or entirely destroyed. Hence, if the water is drawn away, and the river, having become smaller, is rendered less navigable; or if its width is increased, or the water being more widely distributed becomes shallower; or if, on the other hand, the stream is rendered more narrow, and runs very rapidly; or if anything is done to inconvenience navigation, make it more difficult, or entirely prevent it; there will be cause for the interdict.

(16) Labeo says that an exception on the ground that the work was only performed for the purpose of preserving the bank should not be granted to him who is sued under the interdict; but that it should be on the ground that nothing has been done except what was authorized by law.

(17) Where anything has been built in the sea, Labeo says that the following interdict will lie. "Nothing shall be constructed in the sea, or on the shore of the same, by which a harbor, anchorage, or the course of navigation may be obstructed."

(18) He also thinks that the same rule will apply to any public stream which is not navigable.

(19) The Prætor further says, "If you have placed anything in a public river or done any work therein, or on the bank thereof, by which the anchorage of vessels or the course of navigation has been, or may be interfered with, you shall restore everything to its former condition."

(20) The interdict above mentioned is prohibitory; the one which has reference to the same case is restitutory.

(21) He who has done any work, or placed anything in a river or upon its bank which may obstruct navigation, is obliged to restore everything to its former condition, if what he has done may interfere with the anchorage of vessels or their movements.

(22) The following words, "has done or placed," indicate that he who built or deposited the obstruction is not liable, but that he who has possession of it after this has been done is liable. Finally, Labeo says that if your agent has diverted the course of the stream, you will be liable under this interdict, if you use the water.

2. Pomponius, On Sabinus, Book XXXIV.

There is nothing to prevent anyone from taking water from a public stream unless this is forbidden by the Emperor or the Senate; provided the water is^intended for the use of the public. If the stream is either navigable, or another is rendered navigable by it, this is not permitted to be done.

3. Paulus, On Sabinus, Book XVI,

Public rivers which have a regular course, together with their banks, are public property.

(1) The banks of a river are considered to be those that confine it when the water is at its highest point.

(2) The places along the banks of a stream are not all public, as they are accessory to the banks, beginning at the point where the latter begins to incline from the level ground to the water.

4. Scævola, Opinions, Book V.

Inquiry has been made whether he who owns houses on both sides of a public stream has a right to build a bridge which will be his private property. The answer was that he cannot do so.

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TITLE XIII. CONCERNING THE INTERDICT TO PREVENT ANYTHING FROM BEING BUILT IN A PUBLIC RIVER OR ON ITS BANK WHICH MIGHT CAUSE THE WATER TO FLOW IN A DIFFERENT DIRECTION THAN IT DID DURING THE PRECEDING SUMMER.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "I forbid anything to be built in a public river or upon its banks, or anything to be placed in such a river or on its banks, by means of which the water may be caused to flow in a different direction than it did during the previous summer."

(1) By means of this interdict, the Prætor makes provision against the drying up of a river, due to improper concessions for drawing off the water; and to prevent the beds of streams from changing and injuring the neighbors.

(2) This refers to public rivers, whether they are navigable or not.

(3) The Prætor says, "by which the water may be caused to flow in a different direction than it did during the previous summer." Hence, not everyone who built or placed an obstruction in the river will be liable, but only he who, by building or placing it there, caused the water to take a different course than it had done during the previous summer. However, where he says, "a different direction," this does not have reference to the amount of the water, but to the power, manner, and course of its current.

And, generally speaking, it must be said that a person will only be liable under the interdict, if the channel is changed by what he has done, provided it is rendered lower or more narrow, and, in consequence, the current becomes more rapid, and causes inconvenience to those residing in the neighborhood. If the neighbors suffer any annoyance from the act of the party in question, there will be ground for the interdict.

(4) If anyone who formerly conducted water from a river by means of a covered aqueduct now desires to conduct it by an open aqueduct or vice versa, it has been settled that he will be liable under the interdict, provided that by doing so he causes any inconvenience to persons living near the river.

(5) In like manner, if he conducts it by means of a ditch, or does so in any other place, or changes the bed of the river, he will be liable under this interdict.

(6) There are some authorities who hold that an exception to this interdict can be pleaded on the ground that the work was only done for the purpose of repairing the banks, so that if anyone causes the water to flow in a different direction for the purpose of repairing the banks, there will be no ground for the interdict.

This opinion is not accepted by other authorities, for the banks should not be repaired if it causes inconvenience to those living in the neighborhood. We are, however, accustomed to have the Prætor decide, after investigation, whether he ought to grant this exception, for very frequently it is advantageous to permit this to be done.

(7) If, however, any other advantage is obtained by the person who did something to a public stream (suppose, for instance, that the water usually caused him a great deal of damage, and that his land was overflowed), and he raised levees, or took other measures to repair the banks, so as to protect his land, and this, to some extent, altered the course of the river; why should not his interest be consulted? I know that several persons, with a view to the protection of their land, have absolutely diverted the course of streams, and changed their beds, for it is necessary in cases of this kind to take into consideration the benefit and safety of the party interested, if no injury is sustained by other persons in the neighborhood.

(8) He also is liable under this interdict who causes a river to flow in a different direction from that in which it flowed during the previous summer. Therefore, the authorities say, the Prætor included the previous summer, because the natural course of a river is more certain in summer than in winter.

This interdict has reference to the past, and not to the present summer; because the course of the river during the past summer is less subject to doubt. The summer extends to the autumnal equinox. If recourse is had to the interdict, during the summer, the previous season should be considered; and if this is done during the winter, not the summer which will follow the winter, but the past one must be taken into account.

(9) This interdict will lie for the benefit of any of the people, but it cannot be employed against everyone, but only against him who has caused the water to flow in a different direction, when he had no right to do so.

(10) This interdict is also available against heirs.

(11) The Prætor finally says: "You will restore everything to its former condition, if you have anything in your possession which has been built or placed in a public river, or on the bank of the same, by means of which the water is caused to flow in a different direction from that in which it flowed during the previous summer."

(12) The interdict in question is restitutory; the former one is prohibitory and has reference to work not yet performed. Hence, if anything has already been done, restoration to its former condition can be obtained by means of this interdict; and if it is desired that nothing'shall be done, the former interdict must be employed; and if anything is done after the interdict has been granted, the person responsible shall be punished.

(13) It is not unjust, as Labeo says, to include in this restitutory interdict whatever was done to avoid remaining in possession of the structure with reference to which the interdict was issued.

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TITLE XIV. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE USE OF A PUBLIC RIVER FOR NAVIGATION.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "I forbid violence to be used to prevent anyone from conducting a vessel or a boat upon a public river, or to hinder him from loading or unloading the same, on the bank of said river. I also forbid any interference with navigation on any lake, canal, or public body of water."

(1) It is provided by this interdict that no one shall be prevented from using a public stream for the purpose of navigation. For, just as an interdict was promulgated in the case of a person prevented from making use of the public highways; so, also, the Prætor thought that this interdict should be published.

(2) If the above-mentioned places belong to private individuals, the interdict will not be applicable.

(3) A lake is a body of water which has a perpetual supply.

(4) A pond is a body of water which, for a time, is stagnant, and which ordinarily increases in size during the winter.

(5) A ditch is a receptacle for water made by human hands.

(6) All of these may be public.

(7) Sabinus, as well as Labeo, is of the opinion that an interdict will lie where anyone is forbidden to fish in a lake or pond, which he has leased from a farmer of the revenue. Therefore, if he has leased it from a municipality, it will be perfectly just for his rights to be protected by an interdict on account of the revenue to be obtained.

(8) Where anyone desires to make use of an interdict of this description for the purpose of lowering ground to water his cattle, he should not be heard; and this was stated by Mela. He also says that this interdict will lie to prevent anyone from employing force to keep the cattle of another from approaching a public river, or the bank of the same.

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TITLE XV. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO RAISING THE BANKS OF STREAMS.

1. Ulpianus, On the Edict, Book LXVIII.

The Prætor says: "I forbid force to be employed to prevent anyone from doing any work in any public river, or on the bank of the same, which he has a right to do for the purpose of strengthening the said bank, or protecting his land which adjoins it; provided that, by so doing, no interference is made with navigation, and security against threatened injury is furnished for ten years, in accordance with the judgment of a good citizen; or where it is not the fault of the party in question that a bond or sureties have not been given for this purpose."

(1) It is very advantageous to repair and strengthen the banks of public streams. Therefore, as there is an interdict which has reference to the repair of public highways, so also there is one which relates to the strengthening of the banks of rivers.

(2) The Prætor with good reason adds, "provided that, by so doing, no interference is made with navigation," for only such repairs shquld be permitted which offer no impediment to navigation.

(3) He who wishes to repair his bank should provide against threatened injury either by giving a bond, or sureties, dependent upon the rank of the parties interested. It is expressly stated in this interdict that security shall be given, either by bond or surety, for any injury which may be caused within ten years, in accordance with the judgment of a good citizen.

(4) Security should not only be given to the neighbors, but also to persons owning land on the other side of the stream.

(5) Care should be taken that security is furnished to these persons before the work has been performed; for, after this has been done, no one can be proceeded against under this interdict; even if any damage should afterwards result, but suit can be brought under the Aquilian Law.

(6) It should be noted that the Prætor makes no provision for repairing the banks of a lake, a canal, or a pond. The same rule, however, must be observed which applies to the repairs of the banks of a stream.

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TITLE XVI. CONCERNING THE INTERDICT AGAINST VIOLENCE AND ARMED FORCE.

1. 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."

(1) This 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.

(2) It 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.

(3) This 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.

(4) Generally 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.

(5) Hence, 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.

(6) Nor 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.

(7) This 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.

(8) No 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.

(9) He 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.

(10) Finally, 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.

(11) The 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."

(12) He 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.

(13) Whenever 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.

(14) If, 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.

(15) Where 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.

(16) By the term "slaves" the entire body of slaves is understood.

(17) But 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.

(18) In the term "slaves," it must be said that all of those are included whom we hold as such.

(19) If 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.

(20) If a son under paternal control, or a day laborer, dispossesses anyone by force, an available interdict will lie.

(21) If 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.

(22) An 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.

(23) This 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.

(24) It 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.

(25) The 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.

(26) The 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.

(27) Cassius 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.

(28) To 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.

(29) Labeo 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.

(30) Anyone 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.

(31) Anyone 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.

(32) If 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.

(33) Where 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.

(34) Moreover, 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.

(35) The 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.

(36) Therefore 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.

(37) The word "there" is mentioned by the Prætor, in order that no one can include property which he did not have in that place.

(38) But 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.

(39) The year when this interdict is involved is an available one.

(40) In 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.

(41) Not 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.

(42) Under the interdict Unde vi, even if the party is not in possession, he will be compelled to make restitution.

(43) As 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.

(44) This interdict lies in favor of the heir and other successors.

(45) What 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.

(46) Vivianus 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.

(47) Vivianus 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.

(48) An action in factum will, under this interdict, lie against the heir and the praetorian possessor of an estate, as well as other possessors, for whatever has come into their hands;

2. Paulus, On the Edict, Book LXV.

Or for anything which they may have acquired through any fraudulent acts committed by them.

3. 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.

(1) This action, which can be brought against the heir and other successors, is a perpetual one, because it involves the pursuit of property.

(2) What 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.

(3) It 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.

(4) Moreover, 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.

(5) Even 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.

(6) If 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.

(7) Hence, 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.

(8) If, 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.

(9) Therefore, 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.

(10) If 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.

(11) This 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.

(12) This 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.

(13) It is evident that the interdict Unde vi will be necessary for an usufructuary, if he is prevented from using and enjoying the usufruct of land.

(14) An 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.

(15) Again, 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.

(16) Likewise, 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.

(17) Anyone 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.

(18) In like manner, the heir is also liable to an action in factum for anything which has come into his hands.

4. The Same, On the Edict, Book X.

If anyone dispossesses me by force, in the name of a municipality, Pomponius says that I will be entitled to an interdict against the said municipality, provided anything has come into its hands.

5. The Same, On the Edict, Book XL

If I place you in possession of property in compliance with a judicial decree, Pomponius says that the interdict Unde -m will not apply, as he is not forcibly ejected who is compelled to place another in possession.

6. Paulus, On the Edict, Book XVII.

When a decision is rendered under the interdict Unde vi, it should be for the value of the interest the plaintiff had in remaining in possession of the property.

Pomponius says that this is our practice, that is to say, that the property is considered to be equal in value to the interest of the plaintiff. This may be either less, or more, for often it is more to the interest of the plaintiff to retain a slave than he is worth; for example, where it is to the interest of the owner to have possession of him, either that he may be put to torture, or prove some fact, or accept an estate.

7. The Same, On the Edict, Book XXIV.

If I have been forcibly ejected by you, and Titius has begun to possess the same property, I can institute proceedings under the interdict against no one but yourself.

8. The Same, On the Edict, Book LIV.

Fulcinius was accustomed to say that possession was acquired by violence, whenever anyone who was not the owner, but who was in possession, was forcibly ejected.

9. The Same, On the Edict, Book LXV.

Where there are several heirs, each of them is only liable for the amount which has come into his hands. For which reason an heir will sometimes be liable for the entire amount that came into his hands, even though he may only have inherited a portion of the estate.

(1) The Prætor orders anyone who has been forcibly deprived of an usufruct to be restored to his former condition; that is to say, the condition in which he would have been if he had not been ejected. Therefore, if the usufruct should be terminated by lapse of time, after the usufructuary has been deprived of it by the owner, the latter will, nevertheless, be compelled to make restitution, that is to say, to again establish the usufruct.

10. Gaius, On the Edict of the Urban Prætor, Title: On Cases Involving Freedom.

If a trespasser should expel both the owner and the usufructuary from a tract of land, and the usufructuary should lose his right on account of not having used it during the prescribed time, no one doubts that the owner can institute proceedings against the trespasser, either alone or with the usufructuary; or, if he should not do so, he can retain the usufruct after it has been restored to him, and any damages sustained by the usufructuary shall be recovered from him who was responsible for the loss.

11. Pomponii, On Plautius, Book VI.

He employs force who does not permit the party in possession to make use of the property in any way that he may desire, whether by sowing seed, or cultivating, or digging, or plowing, or building upon it, or by the commission of any other act which interferes with the free possession of the land by his adversary.

12. Marcellus, Digest, Book XIX.

A tenant refused to permit a man to whom the lessor had sold the land and directed to take possession to enter upon it; and this tenant was afterwards forcibly dispossessed by another. The question arose, who would be entitled to the interdict Unde vi? I held that it did not make any difference whether the tenant prevented the owner himself, or the purchaser to whom the owner had ordered possession to be given, from entering upon the premises. Hence the interdict Unde vi would lie in favor of the tenant, and he himself would be liable to a similar interdict in favor of the lessor, whom he was considered to have ejected, when he refused to give possession to the purchaser, unless he did so for a just and reasonable cause.

13. Ulpianus, On Sabinus, Book VIII.

Neither the interdict Unde vi nor any other interdict implies infamy.

14. Pomponius, On Sabinus, Book XXIX.

If, however, you are ejected by armed force, you will be entitled to recover the land, even if you originally obtained possession of it either by violence, or clandestinely, or under a precarious title.

15. Paulus, On Sabinus, Book XIII.

If you forcibly ejected me, or if you cause this to be done by violence or clandestinely, even though you may afterwards lose possession without being guilty of fraud or negligence, you will still be liable to have judgment rendered against you for the amount of my interest; because you were to blame in the first place, as you either ejected me by force, or caused this to be done by violence, or clandestinely.

16. Ulpianus, On the Edict, Book XXIX.

It must be said with reference to the interdict Unde vi that, in the case of dispossession by a son under paternal control, his father will be liable for anything which has come into his hands.

17. Julianus, Digest, Book XLVIII.

Where anyone forcibly recovers possession of property of which he was deprived by violence during the same dispute, he is understood to have been restored to his former position rather than to have regained possession of the property by violence. Therefore if I deprive you of anything by force, and you wrest it from me in the same way, and then I again take it from you, you can avail yourself of the interdict Unde vi against me.

18. Papinianus, Questions, Book XXVI.

If anyone sells a tract of land which he has leased, and directs the purchaser to take possession of the same, and the tenant prevents him from doing so, and the purchaser afterwards forcibly expels the tenant, the question arises, who will be entitled to the interdict Unde vi? It was established that the tenant would be liable to the interdict in favor of the vendor; because it made no difference whether he himself, or another who was sent by him, had prevented him from taking possession. For possession can not be held to have been lost before the property has been delivered to the purchaser, because no one has the intention of losing possession in favor of a purchaser, before the latter himself has obtained it.

The purchaser, also, who afterwards employed force, would himself be liable to the interdict in favor of the tenant; for it was not from him, but from the vendor, who had himself been deprived of it, that forcible possession of the land had been acquired.

The question arose whether relief should be granted to the purchaser, if he had afterwards forcibly expelled the tenant, with the consent of the vendor. I gave it as my opinion that he was not entitled to relief, because he had undertaken the execution by an unlawful mandate.

(1) Where anyone brings suit to recover land against a person who is liable under the interdict Unde vi, it has been decided that, while the case is pending, proceedings based upon the interdict can be legally conducted.

19. Tryphoninus, Disputations, Book XV.

Julianus very properly held that if you forcibly dispossess me of land, on which there is movable property, you will be obliged, under the interdict Unde vi, to restore to me not only the possession of the land, but also that of the movable property which was there at the time; even though I may have been in default in proceeding against you under the interdict; so that if some of the slaves or cattle have died, or any other property has been destroyed by accident, you will, nevertheless, be obliged to make restitution, because you are in default more than a debtor is considered to be.

20. Labeo, Epitomes of Probabilities by Paulus, Book III.

If your tenant has been forcibly ejected, you can proceed under the interdict Unde vi. The same rule should be adopted if the lessee of your house is forcibly ejected.

Paulus: This also applies to a sub-tenant, or a sub-lessee.

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TITLE XVII. CONCERNING THE INTERDICT UTI POSSIDETIS.

1. 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."

(1) This 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.

(2) The 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.

(3) Therefore, 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.

(4) This 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.

(5) The 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."

(6) The 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.

(7) This 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.

(8) This interdict is undoubtedly applicable to all cases involving the possession of real property, provided it can be possessed.

(9) When 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.

2. Paulus, On the Edict, Book LXV.

In the consideration of this interdict, it makes no difference whether the possession is just or unjust, so far as other parties are concerned; for he who is in possession, through this very fact, has a better right than he who does not occupy the property.

3. 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.

(1) This interdict is twofold, and lies in favor of both plaintiffs and defendants.

(2) This 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.

(3) If 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.

(4) Moreover, 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.

(5) Again, 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.

(6) Labeo 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?"

(7) 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.

(8) Creditors 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.

(9) If 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.

(10) I 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.

(11) In 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.

4. The Same, On the Edict, Book LXX.

In conclusion, I think that it must be said that this interdict ought to be granted among usufructuaries, even if one of them claims the usufruct, and the other the possession. The same rule should be adopted where anyone alleges that he is in possession of the usufruct. This is also held by Pomponius. Hence this interdict should also be granted where one person claims the use and another the usufruct of the same property.

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TITLE XVIII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE SURFACE OF THE LAND.

1. Ulpianus, On the Edict, Book LXX.

The Prætor says: "I forbid you to prevent the enjoyment of the surface of the land in question, in accordance with the terms of the lease or the contract, either by the employment of force, or clandestinely, or under a precarious title. If any other action having reference to the surface of the land is applied for, I will grant it where proper cause is shown."

(1) Anyone who has a right to use the surface of land belonging to another is protected by a civil action. For if he has leased it, he can bring suit under the lease; if he has purchased it, he can bring an action on purchase against the owner of the land, and if the latter interferes with him, he can be sued for the amount of the plaintiff's interest.

When his rights are interfered with by another, the owner will be obliged to indemnify him, and assign him his rights of action. It was, however, considered much more advisable to employ this interdict and to promise a kind of real action, because it was uncertain whether the action under the lease could be brought, as it is always better to have possession than to bring a personal action.

(2) In this case a double interdict is proposed, just as in the case of the interdict Uti possidetis. Therefore the Prætor protects him who claims the right to the surface of the land by an interdict resembling that of Uti possidetis, and he does not require anything else of him, except that he must have a title to possession. He only asks one thing, namely, whether he has obtained possession from his adversary by force, clandestinely, or under a precarious title. All the formalities are observed under this interdict which are applicable to the interdict Uti possidetis.

(3) When the Prætor says, "If any other action having reference to the surface of the land is applied for, I will grant it, where proper cause is shown," this must be understood to mean that if anyone has leased the surface of the land for a short time, a real action will be refused him. This action in rem, however, will lie in favor of him who has leased the surface of the land for a long time, after proper cause has been shown.

(4) Moreover, he on whose land a building has been erected does not need an equitable action, but he has a real one which is the same as that to which he is entitled for the purpose of recovering the soil. It is clear, if he wishes to bring suit against the person having the right to the building, that he can make use of an exception in factum, for when we grant an action to anyone, it must be said that he is, with much more reason, entitled to an exception.

(5) If the surface of the soil is evicted from the possessor, it will be perfectly just to come to his relief under a stipulation having reference to eviction, or at any rate, by an action on purchase.

(6) Again, for the reason that an action in rem is granted to anyone having a right to the surface of the soil, it is also granted against him; and it must be maintained that he is entitled to a sort of usufruct or use, and that his right can be established by means of praetorian actions.

(7) It should be understood that the right to the surface of the soil can be transferred by delivery, as well as bequeathed, and donated.

(8) If this right is held in common by two persons, we will grant them an action in partition.

(9) Servitudes are also established by praetorian law, and proceedings to recover them can be instituted by means of equitable actions, just like those which are established by the Civil Law. An interdict having reference to them will also lie.

2. Gaius, On the Provincial Edict, Book XXV.

We say that houses form part of the surface of land where they have been erected under the terms of a lease; and the ownership of them, in accordance with both civil and natural law, is vested in the proprietor of the soil.

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TITLE XIX. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO PRIVATE RIGHTS OF WAY.

1. Ulpianus, On the Edict, Book LXX.

The Prætor says: "I forbid you to prevent the enjoyment of the private road or way in question, as you have done during the past year; unless you have obtained the use of the same from your adversary, either by violence, clandestinely, or under a precarious title."

(1) This interdict is prohibitory, and only has in view the preservation of rustic servitudes.

(2) In granting this interdict, the Prætor does not inquire whether the applicant has a servitude imposed by law or not, but only whether he has used the right of way for the present year, without employing violence, or secretly, or under a precarious title, and he protects him, although he may not be using the right of way at the time when the interdict is granted.

Therefore, whether he is entitled to the right of way, or whether he is not, he is in a position to claim the protection of the Prætor, provided he has made use of his right during a year, or for a reasonable period, that is to say, for not less than thirty days. This enjoyment has no reference to the present time, for, in most instances, we do not use a road constantly, but only when necessity demands it. Hence the Prætor restricted its use to the term of a year.

(3) We should compute the year back from the date of the interdict.

(4) If anyone makes use of this interdict, it will be sufficient to prove one of two things, namely, that he has used the road either to walk upon, or to drive over.

(5) Julianus says that the interdict will lie in favor of the plaintiff until he has entered upon the road, which is true.

(6) Vivianus very properly says that where anyone, on account of the inconvenience caused by a stream, or because the public highway has been obstructed, makes a new road through the field of a neighbor, he is, by no means, understood to acquire the use of it, even if he does this frequently; hence the interdict cannot be employed by him, not for the reason that he has used the road by a precarious title, but because he has not used it at all. According to this, he is not considered to have used either road, since he has still less used the old one over which he did not travel, on account of the inconvenience caused by the stream, or because it was obstructed. The same rule must also be said to apply where it was not a public highway, but a private road which was obstructed, for, in this instance, the question is the same.

(7) If a tenant, a guest, or anyone else makes a road through the land of another, the proprietor will be considered to have used it, and therefore he will be entitled to the interdict; and this was also mentioned by Pedius, who added that, if he did not know through whose land he had passed, he would retain the servitude.

(8) If, however, I should make a road through land which a friend of mine thinks belongs to him, he will be understood to be entitled to the interdict for his own benefit, and not for mine.

(9) If anyone has not used a right of way for the past year, on account of an inundation, but did use it the year before, he can avail himself of this interdict by changing the date, and will be entitled to complete restitution under the clause of the interdict, "if there seems to me to be any good reason."

If, however, he has been prevented by violence from using the right of way, Marcellus thinks that he must be granted complete restitution. Moreover, the interdict with the changed date can be employed in other cases, in which a party is ordinarily entitled to demand complete restitution.

(10) It must also be noted that, where delay is granted to my adversary, and my case under the interdict will be prejudiced thereby, it is only just that the date of the interdict should be changed.

(11) If I have conveyed to you under a precarious title a tract of land to which a right of way is due, and you apply to the owner of the adjacent premises held under a precarious title, to permit you to use the said right of way, will you be barred by an exception, if you wish to employ the interdict against him to whom you have applied for permission to use the right of way under a precarious title?

The better opinion is that you will be barred; and this can be gathered from what Julianus said in a case of the same kind. For he asks, if I should convey to you a tract of land by a precarious title, to which a right of way is due, and you obtain the right to use the road by a precarious title, I can still avail myself of the interdict, because, as the precarious title does not bind me, so I am not considered to be in possession by anything which you may have done under such a title. For whenever my tenant, or the person to whom I conveyed the land by a precarious title, uses the road, I am understood to use it; for which reason I very properly say that I am enjoying the use of it. Hence he says the result will be that, if I have obtained the right of way by a precarious title, and I afterwards convey the land to you under the same title, and although you travelled upon the road with the belief that the right was due to my land, the interdict cannot be employed by me, and I will, not without reason, be held to have used the road by a precarious title, for not your opinion but mine should be considered. I think, however, that you can avail yourself of the interdict, although Julianus says nothing on this point.

(12) If anyone has used the right of way for the above-mentioned term of a year, without employing violence, or acting clandestinely, or relying on a precarious title, but has not used it since, or has done so clandestinely, or under a precarious title, let us see whether this will prejudice his rights. The better opinion is that it will not prejudice them .in any way, so far as the interdict is concerned.

2. Paulus, On the Edict, Book LXVI.

Any right which has been properly acquired cannot be extinguished or changed by any defect which may supervene.

3. Ulpianus, On the Edict, Book LXX.

Labeo refers to the following case, namely: "If you are using a right of way which you have legally obtained from me, and I sell the land on which the right is imposed, and the purchaser afterwards prevents you from using it, although you may be considered to be using it clandestinely, so far as he is concerned (for anyone who makes use of a right, after having been forbidden to do so, uses it clandestinely) ; still, the interdict will lie in your favor for a year, because, during this year, there was a time when you made use of the right without the employment of violence, or without doing so clandestinely, or under a precarious title."

(1) It must be noted that a person is considered to make use of a right of way clandestinely, not only after he has been forbidden to do so, but also when he uses it after he from whom he acquired the right has been prohibited. It is clear that, if I was not aware that he had been forbidden to use it, and continue to do so, it must be said that I will not be injured.

(2) Where anyone has obtained the use of a right of way through my agent by having employed violence, or has acted clandestinely, or holds it by a precarious title, he can be prevented by me from using it, and he cannot avail himself of the interdict, because he who possesses by a defective title obtained through my agent is considered to have possession from me by violence, clandestinely, or under a precarious title.

Pedius says that, if anyone, in either of these ways, has acquired possession from a person whom he succeeded by inheritance, by purchase, or by any other title, the same rule will apply. For where we succeed to the rights of others, it is not just that we should be injured by something which did not injure him whom we succeed.

(3) In this interdict, the value of the interest which the party had in not having been prevented from using the right of way is taken into account.

(4) We are considered to enjoy servitudes through our slaves, our tenants, our friends, or our guests, and by almost all those who hold the servitudes in our name. Julianus, however, says that a servitude is not retained for the owner of the property by an usufructuary, and that this interdict will not lie in favor of the owner through the usufructuary.

(5) Julianus also says that if I have an usufruct in your land whose ownership is actually vested in you, and both of us pass through the land of a neighbor, we can both avail ourselves of this interdict.

If the usufructuary should be prevented from enjoying his right by a stranger, or by the owner, or the latter is interrupted by the usufructuary, the interdict will apply; for it can be employed against anyone whomsoever that interferes with the right of way.

(6) This interdict will also lie in favor of one who obtains possession of a tract of land by reason of a donation.

(7) Where anyone purchases land by my order, it is perfectly just that this interdict should be granted me, in order that he who bought the property under my direction should enjoy his right.

(8) If, however, anyone purchases the usufruct or use of land, or it is bequeathed or transferred to him, he will be entitled to this interdict.

(9) Further, anyone to whom land has been transferred by way of dowry can institute proceedings under this interdict.

(10) And, generally speaking, it must be said that there will be ground for this interdict in all cases where a right of way had been obtained by sale, or by any other contract.

(11) The Prætor says: "I forbid anyone to forcibly prevent you from repairing a road or path, and restoring it to the same condition in which it was when you enjoyed it during the last year, if you have not used it by employing violence, acting clandestinely, or by virtue of a precarious title. Anyone who wishes to avail himself of this interdict must furnish security to his adversary for any damage which may result from any fault of his."

(12) The public welfare also caused the introduction of this interdict, for it was only proper that an interdict should be promulgated for the benefit of him who enjoys a right of way in order to enable him to repair the road. For how can anyone conveniently use a road or path unless he repairs it? For as soon as the road becomes damaged, he who is entitled to the right of way can use and enjoy it to less advantage.

(13) This interdict differs from the previous one, because all can have recourse to the latter who have used the road for a year; but only those can avail themselves of this interdict who have used the road for a year, and have, in addition, the right to repair it. This right, however, is held to be vested in him to whom the servitude is due. Therefore, anyone who makes use of this interdict must prove two things: first, that he has used the road for a year; and second, that he is entitled to the servitude, for if he fails to establish either of them, the interdict will not apply.

Nor is this unreasonable, for if he who wishes to enjoy the right of way until his claim to the servitude is established does not produce the proof of it, what has he lost who suffers him to do what he has already done for a year? But he who desires to repair the road undertakes something new, and ought not to be permitted to attempt this on the land of another, unless he shows that he is actually entitled to the servitude.

(14) Moreover, it may happen that someone has the right to pass and drive over the premises of another, but does not have the right to repair the road, because, in granting the servitude, it may have been expressly provided that the right to repair the road was not included; or it may have been done in such a way that if the beneficiary should wish to repair it, he would be allowed to do so only in a certain way.

Hence the Prætor very properly says, with reference to repairs, "I forbid anyone to prevent you from repairing the road, as you have a right to do," that is to say, to the extent that you are permitted in accordance with the terms of the servitude imposed.

(15) We understand by the term "repair," to restore the road to its former condition, that is to say, that it shall not be widened, or lengthened, lowered, or raised, for it is one thing to repair a road and a very different thing to build it.

(16) The question is asked by Labeo, if anyone desires to construct a new bridge for the purpose of repairing a road, whether he should be permitted to do so. He says that he should be permitted to do so, because a structure of this kind forms part of the repair of a road. I think that the opinion of Labeo is correct; provided that, if this was not done, one could not travel conveniently back and forth upon the road.

4. Venuleius, Interdicts, Book I.

The ancients expressly added that violence should not be employed to prevent anyone from bringing materials suitable for repairing a road. This provision is superfluous, as anyone who does not permit materials to be brought without which a road cannot be repaired is considered to use violence to prevent the repairs from being made.

(1) If, however, anyone who can bring the materials necessary for the repairs by a shorter route prefers to bring them by a longer one, in order to subject him who owes the servitude to annoyance, force can be used against him with impunity, because it is he himself who interferes with the repair of the road.

5. Ulpianus, On the Edict, Book XX.

It is apparent that if anyone prevents the materials from being piled up, he employs force to prevent the repairs from being made.

(1) If anyone, being able to transport the materials through another part of a field without causing any inconvenience to the owner of the land, transports them through some other part, it has been very properly decided that force can be employed to prevent him from doing so.

(2) There is no doubt that this interdict can not only be granted to the person himself who has been interfered with, but also to his successors. It will also be granted for and against a purchaser.

(3) If anyone has a servitude that was not legally imposed, but of which he has had the enjoyment for a long time, the fact that he has used it for an extended period will entitle him to employ this interdict.

(4) He who wishes to avail himself of this interdict should furnish security to his adversary against any injury which may be caused by his acts.

6. Paulus, On the Edict, Book LXVI.

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

7. Celsus, Digest, Book XXV.

If anyone has passed to and fro through your land without the employment of violence, or without acting clandestinely, or under a precarious title, and still did so without any right, but with the intention of not traversing the land, if he had been forbidden; this interdict will not lie under these circumstances, for, to enable it to do so, the person referred to must possess some right in the land.

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TITLE XX. CONCERNING THE EDICT WHICH HAS REFERENCE TO WATER USED EVERY DAY AND TO SUCH AS IS ONLY USED DURING THE SUMMER.

1. Ulpianus, On the Edict, Book LXX.

The Prætor says: "I forbid force be used against you to prevent you from conducting the water in question the same way in which you have conducted it during the past year, provided you have not done so, either by violence, or clandestinely, or under a precarious title."

(1) This interdict is prohibitory, and is sometimes restitutory, and has reference to water in daily use.

(2) Water in daily use is not such as is made use of constantly, but is that which anyone can use every day if he so desires; although sometimes, while it may not be convenient to conduct it during the winter, one, nevertheless, has the right to do so.

(3) There are two kinds of servitudes relating to water, one of them for its daily use, and the other for its use in the summer. That which can be used every day differs from that which is used in the summer, for the former is such as is conducted constantly both in summer and in winter, although sometimes it is not made use of. That which is called water for daily use has its servitude divided by intervals of time. That which is for use during the summer is such as is only convenient to use during that season, as we are accustomed to speak of summer clothing, summer resorts, and summer camps, which we make use of occasionally during the winter, but for the most part during the summer.

I think water that is used in the summer, and that which is for daily use, should be distinguished by considering the intention of the parties, and the nature of the places where it is used; for if it is such that it can always be conducted, but I only use it in summer, it must be said that this is summer water. Moreover, if it can only be conducted during the summer, it is also summer water. If the places are such that, by their nature, the water can only be introduced during the summer, it must be held that it will properly be called summer water.

(4) When it is stated in the interdict, "as you have conducted the water during the past year," this means not every day, but even only one day or night during the entire year. Therefore, daily water is such as can be conducted every day during the winter or summer, although there may be times when it is not conducted. Summer water is such as can be conducted every day, but is used only in summer, and not in winter; not because this cannot be done during the winter, but because it is not usually the case.

(5) Again, the Prætor, in this interdict, only refers to water which runs continuously, for water cannot be conducted unless its flow is constant.

(6) Although we stated that this interdict only has reference to water which flows continuously, it also relates to such as can be conducted. For there is certain water which, though its flow is continuous, still cannot be conducted; as, for instance, well water, and such as is so deep underground that it cannot be raised to the surface so as to be of use. A servitude for drawing water of this kind, which cannot be conducted, may be imposed.

(7) These interdicts with reference to water and springs are considered only to apply to water which is drawn from its source, and not from anywhere else, for a servitude can be imposed upon water of this kind under the Civil Law.

(8) The source of water is the place where it originates, and is the spring itself, if it proceeds from a spring. If, however, it is derived from a river or a lake, the first parts of the trench by which it is conducted from the said river or lake into the canal is considered to be its source. If water, oozing through the ground, first appears in some place or other, it is clear that we must call the place where it first emerges from the earth its source.

(9) And, no matter in what way the right to water may be established, it must be held that this interdict will apply.

(10) If, however, the right to the water does not legally belong to anyone, but he thinks that he has the legal right to conduct it, and does so, as, in this instance, the error is not in law, but in fact, it must be held, and it is also our practice, that he is entitled to avail himself of this interdict; for it is sufficient if he thought that he had the legal right to conduct the water, and did not do so either by violence, or clandestinely, or under a precarious title.

(11) The question is asked whether these interdicts only have reference to water which is used for irrigating land, or whether they apply to all water, even such as is employed for our use and convenience. It is our practice to consider that they have reference to all kinds of water. Hence this interdict will be applicable, even where anyone desires to bring water into his houses in the city.

(12) Moreover, Labeo says that even where there are certain aqueducts which do not belong to the land, because they can be used by anyone, the interdict still will apply.

(13) Labeo also says that even if the Prætor, in this interdict, meant to refer to cold water, the interdicts should, nevertheless, not be refused where warm water is concerned, as the use of water of this kind is necessary, for sometimes it is employed instead of cold water in irrigating fields.

In addition to this, in some places warm water is indispensable for the purpose of irrigation, as, for example, at Hieropolis, since it is a fact that the Hieropolitans irrigate their lands in Asia with warm water. And although water of this kind may not be absolutely necessary for irrigation purposes, still no one doubts that these interdicts will apply under such circumstances.

(14) There will be ground for this interdict whether the water is in a town or out of it.

(15) It, however, must be understood that the Prætor orders the water to be conducted in the same way as it was conducted during the past year, hence this cannot be done in a larger quantity, or in a different place. Therefore, if the water which anyone wishes to conduct is different from that which he conducted during the past year, or if it was the same and he desires to conduct it through a different part of his premises, force may be used to prevent him from doing so.

(16) Labeo says that every portion of the land through which the water is conducted is entitled to the benefit of the servitude. Hence, if the plaintiff has purchased an adjoining field, and wishes to conduct the water which he has used during the past year into the field which he has recently purchased, he can legally avail himself of this interdict, as is the case of rights of way; so that, once having entered upon his own land, he can enter upon the other wherever he pleases, unless he is prevented by the person from whom the servitude of the water was obtained.

(17) The question is also asked where anyone mixes other water with that which he has used during the preceding year, whether he can be prevented from doing so with impunity. An opinion of Ofilius is extant, who thinks that he can legally be prevented from doing so, but only in the place where he first allows the water to run into his canal. Ofilius says that he can legally be prevented with reference to his entire right to the water. I concur in the opinion of Ofilius that the right cannot be divided, because violence cannot be employed with reference to a portion of the water, where this is not applicable to all of it.

(18) Trebatius holds that if a larger number of cattle are driven to a watering-place than the owner has a right to take there, all of them can be prevented from coming, because those which have been added to the cattle which had the right to drink will annul the right of all of them to make use of the privilege.

Marcellus, however, says that if he who has the right to conduct a certain number of cattle to a watering-place conducts more than that number, he should not be prevented from bringing all of them. This is true, because cattle can be separated.

(19) Aristo holds that he alone is entitled to employ this interdict who thinks that he has a right to do so; and not he who, well knowing that he has no such right, makes use of it.

(20) He also says that he who, during the past year, conducted water without violence, or clandestinely, or under a precarious title, but whose enjoyment during part of the same year was subject to one or the other of these defects, can still properly make use of this interdict for the time when he did so, and no such defect existed, should be taken into consideration; as it is true that there was a period during the past year when he enjoyed the servitude without employing violence, or acting clandestinely, or relying on precarious title.

(21) The question arose, where anyone has conducted water for a longer period than a year, and during the following time, that is, •within the year, the water flowed of itself, without his conducting it, whether there would be ground for this interdict.

Severus Valerius says that the interdict will lie in his favor, as he is considered to have conducted the water, although, strictly speaking, he may not be held actually to have done so.

(22) The question was also asked, if anyone thought that he had the right to conduct water every other day, and conducted it only one day, whether he could be held to have done so properly, and without deceiving the possessor of the land where the water originated, so that he would be entitled to make use of this interdict. For the Prætor says, "as you have conducted the water during the past year," that is, on alternate days, it makes no difference whether the water was due every fifth day, or every other day, or daily, so far as he who desires to avail himself of the interdict is concerned; for as it is sufficient to have conducted the water only one day during the past year it is of no consequence what right to conduct it the person has, since if anyone who has the right to conduct it every fifth day wishes to avail himself of the interdict, alleging that he has the right to conduct the water every other day, he will be held to have no right to do so.

(23) Moreover, it must be noted that if, when you are conducting water, your adversary prohibits you from doing so, and then in the meantime, you lose your right to conduct it, you can, by means of this interdict, obtain restitution by recovering what you have lost.

I think that this opinion is correct.

(24) If you should sell and deliver the land upon which you are accustomed to conduct water, you can still avail yourself of the interdict.

(25) This interdict will lie against anyone who prevents me from conducting the water, and it makes no difference whether he has the ownership of the land or not, as he will still be liable under the interdict, for, after the servitude has once become operative, it can be claimed against anyone whomsoever.

(26) If a dispute arises between two rivals (that is to say, between two persons who conduct water through the same canal), with reference to the water, and each one of them claims to have the exclusive right, a double interdict will lie in their favor.

(27) Labeo thinks that, under this interdict, a man will be prevented from building anything on the land through which the water is conducted, or from digging or sowing there, or from cutting down any trees, or from erecting any building by means of which the water which he conducted during the past year under a good title through your land may be polluted, vitiated, spoiled, or deteriorated. He says that, in like manner, the interdict can be employed in the case of summer water.

(28) If anyone relinquishes the right to draw water, the abandonment will be valid.

(29) The Prætor further says, "I forbid violence to be employed to prevent you from drawing water, as you have done during the past summer, without the exertion of force, or clandestinely, or under a precarious title. I will grant this interdict to heirs, purchasers, and praetorian possessors of property."

(30) This interdict has reference to summer water.

(31) As we have stated that a difference exists between water used only during the summer and that which may be used daily, it must also be noted that a difference exists between the interdicts; for the one which has reference to water used daily contains the following clause, "As you have conducted the water during the past year," and that which relates to water used only during the summer contains the following clause, "As you have conducted it during the past summer." This is not unreasonable, for as the individual in question did not use the water during the winter, he should refer, not to the present summer, but to the previous one.

(32) Learned men have decided that summer begins from the vernal equinox, and terminates at the autumnal equinox. Hence summer and winter are divided by the period of six months.

(33) Last summer is calculated from the comparison of two summer seasons.

(34) On this account, if an interdict is issued during the summer, sometimes the period includes a year and six months. This happens where water is conducted at the beginning of the vernal equinox, and the interdict is issued during the next summer, on the day before the autumnal equinox. Hence, if it is issued in the winter, the period will include two years.

(35) If anyone has been accustomed to conduct the water only during the winter, and not during the summer, he can avail himself of the interdict.

(36) Anyone is entitled to an available interdict who has conducted the water during this summer and not during the previous one.

(37) The Prætor says: "I will grant an interdict to heirs, purchasers, and praetorian possessors of property." It should be observed that these words not only have reference to water used during the summer, but also to that used every day, for, as interdicts are granted to successors with reference to rights of way, so the Prætor thought that these also should be granted.

(38) The Prætor says: "I forbid violence to be employed to prevent anyone from conducting water from a reservoir on his premises to whom the right to do so has been conceded. Whenever an interdict with reference to the construction of some work should be issued I will order security against threatened injury to be furnished."

(39) It was necessary to propose this interdict, for, as the preceding ones have reference to persons who conduct water from its source on account of a servitude having been imposed, or because they think that this has been done, it seemed to be just that an interdict should be granted to one who conducted water from a reservoir, that is to say, from the receptacle which contains water for the use of the public and which is designated a reservoir.

(40) If permission is given to conduct water from a reservoir, an interdict should be granted.

(41) Moreover, permission will be given to conduct water from a reservoir, a stream, or from any other public place.

(42) This permission is granted by the Emperor, and no one else has a right to give it.

(43) This right is sometimes granted to land, and sometimes to persons. When it is granted to land, it is not extinguished with the death of the party interested; but when it is granted to persons, it is lost by their death, and therefore does not pass to any other owner of the land, or to heirs or other successors.

(44) It is clear that the right can be claimed by him to whom the ownership of the land is transmitted. For if he proves that the water is due to his land, and has flowed in the name of him by whom the ownership has been transmitted to himself, he can undoubtedly obtain the right to conduct it; for this is not a favor, but it will be an injustice if it should not be obtained.

(45) We should also remember that, in this interdict, the entire question of the assignment of the right to the water is determined. For this interdict is not merely preliminary, as those formerly described are, nor does it only relate to temporary possession, but the party interested either has had the right assigned to himself, or he has not, and the interdict effectually disposes of the whole matter.

2. Pomponius, On Sabinus, Book XXXII.

If I have the right to conduct the water during the day or the night, I cannot do so at different hours than those during which I am entitled to conduct it.

3. The Same, On Sabinus, Book XXXIV.

We have adopted the rule that water can be conducted, not only for irrigating purposes, but also for the use of cattle, and even for pleasure.

(1) Several persons can conduct water from a river, provided they do not cause any damage to their neighbors, or even those who are on the opposite bank, if the stream narrows.

(2) If you have conducted water from a public river, and it leaves its bed, you cannot follow it up, even though the place where it now runs belongs to me, because the servitude was not imposed upon that land. You can, however, follow it up, if the river should gradually accrue to your land by alluvial deposit, because the entire locality is subject to the servitude of conducting the water of the river. But if the river, having changed its bed, begins to surround it, you cannot then follow it up, because the abandoned bed is not subject to the servitude which, in consequence, is interrupted.

(3) The water which originates in a brook is tacitly considered to be for the benefit of him who conducts it from thence.

(4) An aqueduct, whose origin is beyond the memory of man, is considered to have been lawfully established in the place through which it passes.

(5) He who is entitled to conduct water for daily use can place pipes in a stream, or do anything else; provided he causes no damage to the land of his neighbor, or interferes with the right of others to use water from the same source.

(6) Anyone who has a right to conduct water can also legally conduct other water above it by means of an aqueduct constructed upon the shore, provided no injury is done to the conduit below.

4. Julianus, Digest, Book XLI.

I granted to Lucius Titius the privilege of conducting water from my spring. The question arose whether I could grant to Mævius the right to conduct water by the same aqueduct. If you think that this action can be granted to two persons to conduct it by the same aqueduct, how ought they to avail themselves of the right?

The answer was that as a right of way can be granted to several persons conjointly, or separately; so, in like manner, the right to conduct water can legally be granted to them. If the parties do not agree among themselves, in what way shall they make use of it? It will not be inequitable to grant them a praetorian action, just as many authorities have decided that a suit of this kind can be granted in partition to several persons who are entitled to the enjoyment of an usufruct.

5. The Same, On Minicius, Book IV.

It is established that the use of water can be divided not only by seasons, but also by measurement. One person can have the right to conduct it for daily use, and another to do so during the summer; so that the water will be divided between them during the summer, and, during the winter, he alone can conduct it who has the right to its daily use.

(1) It was agreed between two persons who were entitled to the privilege of conducting water by the same aqueduct, at different hours, that the hours for its use should be changed. If they had conducted it for a longer period than was necessary, as prescribed by the servitude, so that neither of them used it during the specified time for which it had been granted him, I ask whether they had lost the right to its use. It was denied that they had lost it.

6. Neratius, Parchments, Book HI.

While we are examining the interdicts which have reference to water used during the summer, we think that we should first determine what summer water is, concerning which an interdict is usually granted relating to the preceding season; that is to say, whether summer water should be decided to be such as one only has a right to use during the summer, whether the intention of him who has the right to conduct it during that season ought to be taken into account; whether this designation depends upon the nature of the water itself, which can only be conducted during the summer; or whether the advantage to the places to which it is conducted should be considered.

Hence it was held that the water was properly so called on account of two things; namely, its nature, and the benefit of the land upon which it is conveyed; so that if its nature is such that it can only be conducted during the summer, even though it is also desired to do this during the winter; or if its nature permits it to be conducted during any season of the year, and the benefit to the places where it is taken only requires its use during the summer by the persons entitled to it, it is very properly called summer water.

7. Paulus, Decisions, Book V.

If proceedings are instituted with reference to a right of way, or the right to conduct water, security must be furnished that, as long as the plaintiff attempts to prove his right to the servitude, no obstacle will be offered to his conducting the water, or using the right of way. If, however, he denies that his adversary has any right to use the right of way, or to conduct the water, he should, without any apprehension of losing the servitude, furnish security that he will not make use of it until the case has been disposed of.

8. Scævola, Observations.

He who is entitled to a right of way through land for the purpose of conducting water is permitted to construct a canal through any part thereof that he wishes, provided he does not interfere with some other aqueduct.

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TITLE XXI. CONCERNING THE INTERDICT HAVING REFERENCE TO CONDUITS.

1. Ulpianus, On the Edict, Book LXX.

The Prætor says: "I forbid force to be employed against anyone to prevent him from repairing or cleaning any aqueduct, canal, or reservoir, which he has a right to use for the purpose of conducting water, provided he does not conduct it otherwise than he has done during the preceding summer, without the employment of violence, or clandestinely or under a precarious title."

(1) This interdict is extremely useful, for unless anyone is permitted to repair a conduit, he will be inconvenienced in his use of the same.

(2) Therefore, the Prætor says, "An aqueduct and a canal." A canal is a place excavated throughout its length, and derives its name from a Greek word meaning to flow.

(3) A reservoir is a place from which one looks down, and from it public exhibitions are named.

(4) Conduits are opposed to ditches, and are for the purpose of conducting and forcing water from a stream, whether they are of wood, stone, or any other material whatsoever. They were invented for the purpose of containing and conveying water.

(5) A ditch is a place excavated at the side of a stream, and is derived from the word incision, because it is made by cutting; for the stone or the earth is first cut, in order to permit the water to be brought from the river. Pits and wells are also included in this interdict.

(6) The Prætor next says, "to repair and clean." To repair is to restore anything which is injured to its former condition. In the term "repair" are included to cover, or support from below, to strengthen, to build, and also to haul and transport everything necessary for that purpose.

(7) Several authorities hold that the term "clean" only has reference to a canal which is in good condition, but it is evident that it also applies to one which needs repair, for frequently a canal needs both repairing and cleaning.

(8) The Prætor says, "for the purpose of conducting the water." This is added for a good reason, as he only is permitted to repair and clean a water-course who made it in order to conduct water.

(9) This interdict will also lie in favor of one who has not the right to conduct water, provided he did conduct it either during the previous summer, or during that year; as it is sufficient that he did not do so by the employment of violence, or clandestinely, or under a precarious title.

(10) If anyone desires to make a conduit of stone, which was previously merely dug through the earth, it is held that he cannot legally avail himself of this interdict, for he who does this does not merely repair the water-course.

This opinion was adopted by Ofilius.

(11) Hence, even if a person wishes to dig a canal through a different place, he can be prevented from doing so with impunity. This rule also applies whether he lowers, raises, widens, extends, covers, or uncovers the conduit. I, however, think that he can be prevented from changing it in other respects, but so far as covering and uncovering it is concerned, I do not believe that he can be interfered with, unless his adversary proves that it is for his advantage that this should not be done.

2. Paulus, On the Edict, Book LXVI.

Labeo asserts that a conduit which has been open cannot be changed to a subterranean one, because, by doing so, the owner of the land will be deprived of the privilege of watering his cattle, or of drawing water from the said conduit.

Pomponius says that he does not concur in this opinion, because the owner enjoys this privilege rather from accident than from any right which he possesses, unless this was the intention in the beginning when the servitude was imposed.

3. Ulpianus, On the Edict, Book LXX.

Servius, however, holds that water which formerly flowed through an open channel is conducted in a different way, if it is subsequently conveyed through one that is covered; for if anyone constructs a work by means of which the water is better preserved or contained, he cannot be prevented from doing so with impunity.

I think the contrary applies with reference to a pipe, unless greater benefit is derived by the adversary.

(1) Servius and Labeo say that if a person wishes to make the conduit of stone which, in the first place, was dug through the earth, and therefore did not retain the water, he should be heard. If, on the other hand, he should change the conduit which was formerly built of stone into merely a ditch through the earth, either wholly or in part, he cannot be prevented from doing so. It seems to me that any urgent and necessary repairs should be permitted.

(2) If anyone desires to connect a new channel or new pipes with the water-course, which were never there before, Labeo says that this interdict will be applicable. We, however, are of the opinion that, in a case of this kind, the benefit of him who conducts the water without causing any inconvenience to the owner of the land should be considered.

(3) If water is conducted into a lake, and from the latter by means of several aqueducts, this interdict will lie for the benefit of anyone desiring to repair the lake itself.

(4) This interdict has reference to all conduits, whether they are situated in public or in private places.

(5) Even if the pipe is for the purpose of conducting warm water, this interdict will also be available, where any repairs of the same should be made.

(6) Aristo thinks that a praetorian action will lie where a subterranean pipe through which vapor is conveyed into hot baths requires repairs; and it must be said that an interdict can also be employed in a case of this kind.

(7) This interdict is also granted to the same persons, in the cases above enumerated, in which interdicts with reference to water are granted.

(8) Where notice to desist from the construction of a new work is served upon anyone who is repairing a conduit, it has been very properly held that he need not pay any attention to it, for as the Prætor forbids violence to be employed against him under such circumstances, it is absurd that he should be interfered with by the service of notice to stop the construction of a new work.

It must be said that an action in rem can undoubtedly be brought against the party in question, on the ground that he had no right to make the repairs.

(9) There is no question whatever, that he who makes the repairs should give security against threatened injury.

(10) Ofilius thinks that this interdict will lie in favor of anyone who is prevented from bringing or transporting any materials required for repairs. This is true.

4. Venuleius, Interdicts, Book I.

The interdict is also granted where aqueducts ought to be repaired, and no inquiry is made whether a right to conduct the water exists or not. For the repair of roads is not as necessary as that of aqueducts, for if the latter are not repaired, the entire use of the water will be stopped, and persons will be exposed to death by thirst. It is evident that water cannot be obtained without repairing aqueducts; but if a road is not repaired, passage to and fro will only be rendered difficult, and this is less during the summer time.

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TITLE XXII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO SPRINGS.

1. Ulpianus, On the Edict, Book LXX.

The Prætor says: "I forbid force to be employed to prevent you from making use of the spring in question, the water of which you have used during the past year, without employing force, or clandestinely, or under a precarious title. I will also grant an interdict of the same kind with reference to lakes, wells, and fish-ponds."

(1) This interdict was introduced for the benefit of him who is prevented from using the water of a spring. For servitudes are usually granted not only for the purpose of conducting water, but also for drawing it; and as those relating to the conducting of water and the drawing of the same are distinct, so, also, the interdicts relating to them are separately granted.

(2) Moreover, this interdict will apply if anyone is prevented from using water; that is to say, if he is either hindered from drawing it, or driving his cattle to it.

(3) The same rule which we have mentioned as governing previous interdicts must also be said to apply to those which have reference to persons.

(4) This interdict will not lie in the case of cisterns, for a cistern has not perpetual, or running water. From this it is evident that, in all these instances, it is required that the water be running. Cisterns, however, are filled by rains. In conclusion, it is established that the interdict will not apply if the lake, fish-pond, or well, does not contain running water.

(5) It is clear that the interdict will also be sufficient, where anyone is prevented from using a road giving access to the water to be drawn.

(6) The Prætor next says: "I forbid force to be employed to prevent you from repairing and cleaning the spring in question, in order that you may retain the water; provided you do not make use of it in a different way than you have done during the past year, without the employment of force, or clandestinely, or under a precarious title."

(7) This interdict is as advantageous as the one which has reference to the repair of conduits; for if it is not permitted to clean and repair a spring, it will be of no use.

(8) A spring should be cleaned and repaired for the purpose of retaining the water, so that anyone may use it in the same way in which this was done during the past year.

(9) To retain water is to confine it in such a way that it will not overflow, or be lost; provided anyone is not permitted to seek for and open new springs, for this is an innovation upon what has been done during the preceding year.

(10) An interdict can also be employed where a lake, a well, or a fish-pond is to be repaired or cleaned.

(11) This interdict is granted to all persons who are allowed to make use of the one having reference to summer water.

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TITLE XXIII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO SEWERS.

1. 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."

(1) The 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.

(2) By 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.

(3) This interdict applies to private sewers, for those which are public demand the care of officials.

(4) A sewer is an excavation by means of which filth is carried away.

(5) The interdict first mentioned is prohibitory, and by it a neighbor is prevented from using violence to prevent a sewer from being cleaned and repaired.

(6) In the term "sewer" are included both the ditch and the pipe.

(7) For 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.

(8) The 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.

(9) Labeo 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.

(10) Where the Prætor says, "is common to his house and yours," he means is directed towards, extends to, or comes as far as your house.

(11) This interdict also has reference to a next neighbor, as well as against others farther away, through whose houses the sewer in question runs.

(12) For 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.

(13) If 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.

(14) The 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.

(15) The 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."

(16) This 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.

2. Venuleius, Interdicts, Book I.

Although the repair of existing sewers, and not the construction of new ones, is included in this interdict, Labeo says that an interdict should, nevertheless, be granted to prevent anyone from employing violence against another who builds a sewer, because the same question of public welfare is involved; as the Prætor has, by an interdict, forbidden force to be used to hinder anyone from constructing a sewer in a public place. This opinion is also adopted by Ofilius and Trebatius. Labeo also says that anyone ought, without interference, to be permitted by the interdict to clean and repair a sewer already constructed; but that the officer in charge of the public highways should grant permission to build a new one.

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TITLE XXIV. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO WORKS UNDERTAKEN BY VIOLENCE OR CLANDESTINELY.

1. 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."

(1) This 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 the property to its former condition.

(2) It makes very little difference whether the party in question has the right to do the work or not; for, even if he 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 others.

(3) Then 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.

(4) This interdict only has reference to work which is done upon land, with the employment of violence or in a clandestine manner.

(5) Let 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.

(6) Pedius 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.

(7) Cascellius 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.

(8) Moreover, Aristo says that he also employs violence who, knowing that he will be opposed, uses force to avoid being prohibited.

(9) Likewise, 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.

(10) If 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.

(11) He 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.

2. Venuleius, Interdicts, Book II.

So that it may not be within the power of another to render my condition worse, without my being guilty of any offence.

3. 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?

(1) It 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.

(2) If permission has been granted, an exception will be necessary to oppose him who makes use of the interdict.

(3) Moreover, 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.

(4) Nerva 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.

(5) 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.

(6) Again, 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.

(7) Cassius 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.

(8) Aristo 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.

4. Venuleius, Interdicts, Book II.

Servius says that he is held to have acted clandestinely, even if he thinks that no controversy will arise with reference to what he does; for it is not necessary to pay attention to every one's inconsiderate opinion and judgment, otherwise, fools would be in a better condition than wise men.

5. Ulpianus, On the Edict, Book LXX.

He who does work in a different way than that in which he gave notice that it would be done, or deceives the person who had an interest in not having it performed, or intentionally serves notice upon his adversary, when he knows that he cannot hinder him, or notifies him so late that he cannot leave his house in order to interfere with the work, is held to have acted clandestinely. Aristo says that Labeo adopted this opinion.

(1) When anyone gives notice that a new structure is about to be erected, he is not always considered to have acted clandestinely, if he does the work after the notice has been given; for (according to Labeo), both the day and the hour should be included in the notice, as well as the place where the work is to be done, and the nature of it. A notice should not be either vague nor obscure, nor should it so restrict the adversary that he cannot appear within the time designated, in order to prevent the work from being performed.

(2) If there is no one upon whom the notice can be served, and no fraud has been committed by the person intending to do the work, notice should be served upon the friends or agent of the party interested, or at his house.

(3) Servius, however, very properly states that it will be sufficient to notify the husband of a woman, who is interested, that the work is about to be done, or to do it with his knowledge; although it will also be sufficient not to have the intention of concealing it from him.

(4) He also says, that if anyone desires to construct a new work in a public place belonging to a municipality, it will be sufficient if notice is served upon the official having charge of the affairs of the city.

(5) If anyone, thinking that certain land belongs to you, while in fact it is mine, undertakes a new work with the intention of concealing it from you, but not from me, the interdict will lie in my favor.

(6) He also says that, if someone undertakes a new work with the intention of concealing it from my servant, or my agent, I will be entitled to an interdict.

(7) If anyone who did not serve notice that he was about to begin a new work, but was himself notified not to undertake it, and, nevertheless, does so, I think that the better opinion will be that he employed violence.

(8) These words, "what has been done by violence or clandestinely," Mucius says should be understood to mean what you yourself, or anyone of your people, have done, or what has been done by your command.

(9) Labeo, however, thinks that a larger number of persons are included in these words; for, in the first place, it includes the heirs of the persons enumerated by Mucius.

(10) He also says that this interdict is available against an agent, a guardian, a curator, and a municipality or syndic, as representing other parties.

(11) If my slave undertakes a new work, an action cannot be brought against me on this account, but it will be necessary for him to do it either in my name, or in his own; for if I have your slave employed by the day, and he begins any work in my name, proceedings can be instituted under this interdict on this ground, not against you, but against me, by whose order, or in whose name the work was performed by your slave.

(12) In like manner, where such work is performed by the order of anyone, this action will lie not against him, but against the person in whose name the order was given. For if an agent, a guardian, a curator, or the duumvir of a municipality, acting in the name of him or those whose business he transacts, should order the work to be performed, proceedings must be instituted against him in whose name this was done, and not against him who ordered it to be done. If I direct you to order work to be performed, and you obey me, the action should be brought against you, and not against me.

(13) As the interdict is expressed in the following terms, "what has been done by violence, or clandestinely," and not "what you have done by violence, or clandestinely," Labeo thinks that it extends to other persons than to those whom we have mentioned above.

(14) Our practice renders me liable under the interdict Quod vi aut clam, whether I have done any new work or ordered it to be done.

6. Paulus, On the Edict, Book LXXVH.

If I direct you to construct a new work, and you order another to do it, it cannot be considered that it has been done by my command; therefore, you as well as the other party, will be liable. Let us see whether I, also, will be liable. The better opinion is that I will be, as I directed another to begin it. But if any one of these three should make reparation, the other two will be released.

7. 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.

(1) Neratius 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.

(2) Julianus 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.

(3) It 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.

(4) Gallus 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.

(5) We 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.

(6) If 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.

(7) It 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.

(8) Again, 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.

(9) If 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.

(10) Hence, if he removes the tiles from a building, the better opinion is that he will be liable to the interdict.

8. Venuleius, Interdicts, Book II.

For the origin of things of this kind is derived from the soil. Moreover, tiles are not of themselves possessed, but only with the entire edifice, nor does it make any difference whether they are attached to it, or only placed upon it.

9. 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.

(1) If, however, a lock, a key, a bench, or a wardrobe is carried away, proceedings cannot be instituted under the interdict Quod vi aut clam.

(2) But 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.

(3) If 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.

10. Venuleius, Interdicts, Book II.

This is because the pile of straw is not attached to the soil, but is supported by it, but buildings are attached to the soil.

11. 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.

(1) If 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.

(2) If 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.

(3) If anyone should come into my vineyard, and remove the supports of my vines, he will be liable under this interdict.

(4) Where 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.

(5) This 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.

(6) If 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.

(7) Should 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.

(8) If 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.

(9) It 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.

(10) If 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.

(11) Aristo, 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.

(12) In 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 an'd, 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.

(13) If 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.

(14) Julianus 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.

12. Venuleius, Interdicts, Book II.

Although a tenant and an usufructuary are entitled to the benefit of this interdict with reference to the crops, still, the owner will also be entitled to it if he has any additional interest.

13. 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.

(1) Labeo 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.

(2) He 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.

(3) If 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.

(4) It 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.

(5) If 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.

(6) If 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.

(7) Julianus 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.

14. Julianus, Digest, Book LXVIII.

For if my slave constructs a new work without my knowledge, and I afterwards sell or manumit him, proceedings can only be instituted against me to compel me to allow the work to be demolished. The plaintiff, however, can proceed against the purchaser of the slave, and force him to surrender him by way of reparation, or pay the expense incurred in restoring the property to its original condition.

This action can also be brought against the slave himself, after he has been manumitted.

15. 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.

(1) If 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.

(2) 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 on the violation of a sepulchre can be brought.

(3) This 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.

(4) The 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.

(5) If, 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.

(6) 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.

(7) In 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.

(8) Therefore, 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.

(9) The 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.

(10) Where 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.

(11) In 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.

(12) For 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.

16. Paulus, On the Edict, Book LXVII.

This interdict will lie in favor of those who are not in possession of the property, provided they have an interest therein.

(1) Where anyone, with violence, or clandestinely, cuts down trees which do not bear fruit, as, for instance, cypresses, the interdict will only lie in favor of the owner. If, however, any pleasure is afforded by trees of this kind, it may be said that the usufructuary also has an interest on this account, and that he will be entitled to the interdict.

(2) In short, if anyone has constructed a work with violence, or clandestinely, and is in possession, he must permit the removal of what has been built, and pay the expenses of doing so; but if he who did the work is not in possession, he must pay the expense of removal; if he is in possession, but did not construct the work, he must only permit it to be removed.

17. The Same, On the Edict, Book LXIX.

The interdict Quod vi aut clam is acquired for the owner by almost any person, and even by a tenant.

18. Celsus, Digest, Book XXV.

If anyone cuts down any timber before it is mature, he will be liable under the interdict Quod vi aut clam. In like manner, if he cuts it down after it has matured, and the owner sustains no damage, he will not be liable for anything.

(1) It has been very properly stated that if you should petition a magistrate to order your adversary to appear in court, in order to prevent him from serving notice upon you not to construct a new work, you will be held to have acted clandestinely, if, in the meantime, you proceed with the work.

19. Ulpianus, On the Edict, Book LVH.

Sabinus says that a son under paternal control, who is a tenant, is entitled to the interdict Quod vi aut clam against anyone who sets fire to trees.

20. Paulus, On Sabinus, Book XIII.

He is considered to have acted with violence who continues the construction of a new work after having been forbidden to do so; for instance, by deterring his adversary from notifying him, or by closing a door against him.

(1) A man is also understood to be prevented by any kind of an act whatsoever; that is to say, by the opposition of someone speaking to him, or raising his hand against him, or throwing a stone upon the structure with the intention of forbidding him to proceed.

(2) Moreover, he who has been forbidden to proceed acts with violence as long as matters remain in the same condition; for if he afterwards makes an agreement with his adversary, he ceases to use violence.

(3) Likewise, if the work which has been prohibited is carried on by the heir, or by someone who purchased the property from him, without having knowledge of the facts, Pomponius says that it should be held that he will not be liable to the interdict.

(4) Any new work which is done in a ship, or with reference to any other movable property, even if it will increase its dimensions, is not included in this interdict.

(5) Whether the work is constructed in a private or a public place, or in one which is- sacred or religious, the interdict will lie.

21. Pomponius, On Sabinus, Book XXIX.

Where a new work is ordered to be removed by'a judge who has been applied to under this interdict, and anyone else removes it with violence, or clandestinely, the party against whom judgment has been rendered will, nevertheless, be ordered, under all circumstances, to restore the property to its former condition.

(1) If I order my slave to construct a new work, and no suspicion of clandestine action attaches to me, but my slave thinks that my adversary will oppose him if he should hear of it; will I be liable ? I do not think that you will be, because I, personally, should only be considered.

(2) In the construction of a new work, the land as well as the air which may be affected must be taken into account.

(3) If anyone, on account of the construction of a new work, loses any right attaching to his land, this should be remedied by the interdict.

22. Venuleius, Interdicts, Book II.

If you have drawn over, and planted a sprout of one of my vines on your land, and it takes root, I will be entitled to the interdict Quod vi aut clam for the term of a year. If, however, the year should elapse, I shall no longer have a right of action; for even the roots which remain on my land become yours, because they are accessory.

(1) If anyone cultivates land with violence, or clandestinely, I think that he will be liable under this interdict, just as if he had dug a ditch; for the application of this interdict is not based upon the kind of work, but upon every description of labor which is performed upon the soil.

(2) If you attach a tablet to my door,¹ and before serving notice upon you I remove it, and we then institute proceedings against one another under the interdict Quod vi aut clam, and you do not desist to enable me to be released, you should have judgment rendered against you for not restoring the property to its former condition, to the extent of my interest; or I can plead an exception based upon the fact that you have acted with violence, or clandestinely, or under a precarious title.

¹ That is, as a public notification that the building was hypothecated. — ED.

(3) If you throw manure upon my premises, after I have forbidden you to do so, Trebatius says that you will be liable under the interdict Quod vi aut clam, even though you cause me no damage, and do not change the appearance of my land.

Labeo is of the opposite opinion, for he holds that anyone will not be liable under this interdict who merely makes a road through my land, or releases a bird of prey there, or hunts upon it, without constructing any new work.

(4) If anyone extends his roof or gutter above a tomb, even if it does not touch the monument itself, proceedings can, nevertheless, lawfully be instituted against him by means of the interdict Quod vi aut clam, because a sepulchre is not only a place intended for interment, but is entitled to all the air above it, and, on this account, the action for violation of a tomb can be brought.

(5) If he who served notice that he was about to undertake a new work should begin it immediately, he will not be understood to have done so clandestinely; but he will be considered to have acted clandestinely if he undertakes it after the designated time has expired.

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TITLE XXV. CONCERNING THE WITHDRAWAL OF OPPOSITION.

1. 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."

(1) Withdrawals of opposition are discussed under this Title.

(2) The 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.

(3) He only is entitled to serve notice not to construct a new work in whom the right of ownership or the servitude is vested.

(4) It 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.

(5) Julianus 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.

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TITLE XXVI. CONCERNING PRECARIOUS TENURES.

1. Ulpianus, Institutes, Book I.

A precarious tenure is one by which a party petitioning for it is permitted to enjoy the use of property as long as he who grants him permission suffers him to do so.¹

¹ The title De precario corresponds to tenancy at will, under the Common Law. Littleton describes the latter as follows: "Tenant at will is, where lands or tenements are left by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sowne and before the corne is ripe, put him out, yet the lessee shall have the corne, and shall have free entry, egresse and regresse to cut and carrie away the corne, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for yeares, which knoweth the end of his terme, doth sow the land, and his terme endeth before the corne is ripe. In this case the lessor, or he in the reversion shall have the corne, because the lesses knew the certainty of his terme and when it would end." (Littleton, Tenures, Vill, 68.) "It is regularly true, that every lease at will must in law be at the will of both parties, and therefore when the lease is made to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also." (Coke, Institutes, I, 55, a.) — ED.

(1) This species of generosity is derived from the Law of Nations.

(2) It differs from a donation, in that he who makes a donation has no intention of receiving the property again; but he who grants anything by a precarious tenure does so with the expectation of resuming control of the property when he chooses to release it from the tenure.

(3) It also resembles a loan for use, for he who lends property in this manner does so in such a way as not to render the article loaned the property of the person who receives it, but he only permits him to make use of it.

2. 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."

(1) This interdict is restitutory. It is based upon natural equity, and lies in favor of anyone who desires to revoke the precarious tenure.

(2) 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.

(3) He 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.

3. Gaius, On the Provincial Edict, Book XXV.

For example, where you have requested me to give you a right of way over your land, or to permit you to allow your gutter to project over my roof, or your beams to rest upon my wall.

4. Ulpianus, On the Edict, Book XVII.

A precarious title also exists with reference to movable property.

(1) Moreover, we must also remember that he who holds property by a precarious tenure is also in possession of the same.

(2) It 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.

(3) Likewise, 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.

(4) Likewise, 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.

5. Pomponius, On Sabinus, Book XXIX.

If while the precarious tenure is still existing, you request that it be continued for a long time, it will be extended; for the title to possession is not changed and a precarious title is not created in this way, but is merely prolonged. If, however, you request it after the time has elapsed, the better opinion is that a precarious title having once been extinguished is not renewed, but a new one is established.

6. 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.

(1) If 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.

(2) He 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.

(3) 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.

(4) The 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.

7. Venuleius, Interdicts, Book HI.

But if I am entitled to retain possession of property by means of the interdict Uti possidetis, although the question relating to the ownership of the same may not have been decided, and I grant you possession of it under a precarious tenure, you will be liable under this interdict.

8. 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.

(1) When 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.

(2) Let 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.

(3) The 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.

(4) Under 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.

(5) If 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.

(6) Generally 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.

(7) 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.

(8) The 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.

9. Gaius, On the Provincial Edict, Book XXVI.

Precarious possession can be established between parties who are either present, or absent; for instance, by means of a letter, or a messenger.

10. Pomponius, On Plautius, Book V.

Although anyone may have only asked for a female slave under a precarious tenure, it is held that it was intended that he should be entitled to any offspring of the said female slave.

11. Celsus, Digest, Book VII.

If a debtor who has asked that property pledged be given him under a precarious tenure should discharge the debt, the said tenure comes to an end; as it was the intention of the parties that it should only continue to exist until the time when the debt was paid.

12. The Same, Digest, Book XXV.

When anything is granted under a precarious tenure, and it is agreed that the grantee shall hold possession under it until the Kalends of July, will he who received it be entitled to an exception to prevent him from being deprived of possession of the property before that time? An agreement of this kind is of no force or effect, for it is not lawful for property belonging to another to be held in possession against the consent of the owner.

(1) Property held by a precarious tenure passes to the heir of him who granted it, but it does not pass to the heir of him who received it, because possession was given only to himself, and not to his heir.

13. Paulus, On Quintus Mucius, Book XXXIII.

If your slave should request that property be granted him under a precarious tenure, and this is done by your order, or you ratify his request in your own name, you will be liable as holding the property in this manner. If, however, your slave or your son should make a request in his own responsibility, without your knowledge, you will not be considered to hold the property under a precarious tenure, but the person who granted it will be entitled to proceed against you by the action De peculia, or by that for property employed for the benefit of another.

14. Paulus, On Sabinus, Book XIII.

The interdict having reference to property held by a precarious tenure was introduced with good reason, because there was no action available for this purpose under the Civil Law. For occupancy by a precarious tenure relates to donations and benefactions, rather than to contracts made in the ordinary course of business.

15. Pomponius, On Sabinus, Book XX.

It is based upon absolute justice, as it prescribes that a person shall only make use of our property to the extent that we are willing to grant him permission to do so.

(1) Guests, and others who are entitled to free lodgings, are not understood to hold under a precarious tenure.

(2) We can hold under a precarious tenure property which consists of a right, as thai which permits the insertion of beams into a building, or allows structures to project over land.

(3) Anyone who has obtained security for the restitution of his property is not entitled to the benefit of the interdict relating to a precarious tenure.

(4) There is no question that anyone who has obtained possession under a precarious tenure does not actually acquire it. But is there any doubt that he who has requested to grant it, will continue to retain possession? Where possession under a precarious tenure has been granted to a slave, it is established that it is held by both parties; by him who made the request, because he holds possession in fact, arid by the owner of the property, because he did not have the intention of relinquishing it.

(5) It makes no difference, so far as this interdict is concerned, in what place anyone holds possession, or began to hold it under a precarious tenure.

16. The Same, On Sabinus, Book XXII.

If I adopt a person to whom property has been granted under a precarious tenure, I will also hold possession of it under the same tenure.

17. The Same, On Sabinus, Book XXIII.

When anyone possesses land under a precarious tenure, he can make use of the interdict Uti possidetis against all other persons, except him from whom he obtained the land.

18. Julianus, Digest, Book XIII.

Anyone can give his own property under a precarious tenure to the. party in possession, even though he himself does not possess it.

19. The Same, Digest, Book XLIX.

Two persons cannot hold the same property by a precarious title, any more than two can hold possession of the same thing through violence, or clandestinely; for two just or unjust possessions of it cannot exist at one and the same time.

(1) Anyone who requests that my slave be transferred to him under a precarious title is considered to hold him from me under such a title, if I grant his request; and hence he will be liable to me under the interdict in question.

(2) Where anything is requested to be granted under a precarious tenure, we cannot only make use of this interdict, but also of the proceeding for the recovery of property whose amount is undetermined; that is to say, the Actio Prasscriptis Verbis.

20. Ulpianus, Opinions, Book II.

The vendor can follow up any property which has been sold, and which is to remain in the hands of the purchaser under a precarious title, until the entire price has been paid, if it was the purchaser's fault that payment has not been made.

21. Venuleius, Actions, Book IV.

When anyone obtains permission to reside upon land under a precarious tenure, it is superfluous for the words, "For him and his household" to be added; for it is understood that permission is granted through him for his family to make use of the property.

22. The Same, Interdicts, Book HI.

If anyone who is in possession merely as possessor should request the owner of the property to grant him permission to retain it under a precarious tenure, or if he who purchased property belonging to another should make this request to the owner of the same, it is evident that they will hold possession under a precarious tenure; and they should not be considered to have themselves changed their title to possession, as possession under a precarious tenure has been granted them by the owner of the land. For if you should ask another for property in your possession to be granted you under a precarious tenure, you will be considered to have ceased to possess it under the first title, and to begin to hold it under a precarious one.

On the other hand, if a person who has the right to take the property away from the possessor should ask him to grant it to him by a precarious tenure, he will be liable under the interdict in.question; as an advantage has been obtained by this request, that is to say, the possession which belongs to another.

(1) If a ward, without the authority of his guardian, should ask that property be granted him under a precarious tenure, Labeo says that he will hold precarious possession of it, and will be liable under this interdict; for where anyone has possession naturally, there is no ground for the exertion of the authority of a guardian. The words, "which you hold under a precarious tenure," are perfectly applicable, because what he possesses he holds by the title under which he asked for the grant of the property. There is nothing new to be determined by the Prætor in this case; for if the ward holds the property, he will be required by the judge to surrender it, and if he does not hold it, he will not be liable.

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TITLE XXVII. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE CUTTING OF TREES.

1. 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."

(1) This interdict is prohibitory.

(2) Where 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.

(3) Vines are also included under the term trees.

(4) This 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.

(5) 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.

(6) The 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.

(7) The 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."

(8) What 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.

(9) There 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.

2. Pomponius, On Sabinus, Book XXXIV.

If a tree on the premises of a neighbor is made to project over your land by the force of the wind, according to the Law of the Twelve Tables, you can bring an action against your neighbor to compel him to remove it, on the ground that he has no right to have a tree in that condition.

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TITLE XXVIII. CONCERNING THE INTERDICT HAVING REFERENCE TO THE GATHERING OF FRUIT WHICH HAS FALLEN FROM THE PREMISES OF ONE PERSON UPON THOSE OF ANOTHER.

1. 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."

(1) All kinds of fruits are included under this term.

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TITLE XXIX. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF A PERSON WHO IS FREE.

1. Ulpianus, On the Edict, Book LXXI.

The Prætor says: "You shall produce any person who is free, the possession of whom you fraudulently hold."

(1) This 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.

2. Venuleius, Interdicts, Book IV.

For there is not much difference between slaves and persons who have not the power to depart at their pleasure.

3. Ulpianus, On the Edict, Book LXXI.

The Lex Favia also had reference to this, and the interdict does not prevent recourse to the Favian Law, for a person can institute proceedings under the interdict, and an accusation can still be brought under the Lex Favia; 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 Favian Law.

(1) These 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.

(2) He, 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.

(3) If 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.

(4) If 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.

(5) If 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.

(6) A 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.

(7) It 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.

(8) The Prætor says, "You shall produce the person." To produce him 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.

(9) This interdict will lie in favor of every individual, for no one is forbidden to favor freedom.

(10) It 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.

(11) If, 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.

(12) But 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.

(13) If, 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.

(14) Labeo 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.

(15) This interdict is perpetual.

4. Venuleius, Interdicts, Book IV.

If anyone restrains of his liberty a freeman who is not aware of his own condition, he will still be required to reproduce him, if he fraudulently retains him under his control.

(1) Trebatius, also, says that anyone who in good faith purchases a freeman as a slave, and retains him under his control, is not liable.

(2) A man who is free should, at no time, be fraudulently restrained of his liberty, and this is so far true that some authorities hold that not even the least delay should be allowed the person required to produce him, as he is liable to the penalty for an act which has been committed.

(3) This interdict does not lie in favor of a creditor, for the purpose of producing his debtor in court; for no one is obliged to produce a debtor who conceals himself, but under the Edict of the Pra?tor his property may be taken in execution.

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TITLE XXX. CONCERNING THE INTERDICT WHICH HAS REFERENCE TO THE PRODUCTION OF CHILDREN AND THEIR RECOVERY.

1. 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."

(1) This 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.

(2) In 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.

(3) If, 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.

(4) In 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.

(5) If 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.

2. Hermogenianus, Epitomes of Law, Book VI.

On the other hand, the father can, with much more propriety, be compelled by the husband of his daughter to produce her, and permit him to recover her, even if she is under paternal control.

3. 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."

(1) The 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.

(2) This 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.

(3) Moreover, 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.

(4) Julianus 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.

(5) Even 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.

(6) In 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.

4. Africanus, Questions, Book IV.

If I say that anyone who alleges that he is the head of a household is my son, and under my control, and that, by my order, he has entered upon an estate, I ought to assert my claim to it, and have recourse to the interdict under which I can take my son away with me.

5. Venuleius, Interdicts, Book IV.

If a son is in the possession of another with his own consent, this interdict cannot be employed, because he is rather in his own possession than in that of him against whom proceedings may be instituted under the interdict, as he has free power to depart or remain; unless there is a dispute between two persons, each of whom alleges that he is his father, and one of whom demands that the child shall be produced by the other.

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TITLE XXXI. CONCERNING THE INTERDICT UTRUBI.

1. Ulpianus, On the Edict, Book LXXII.

The Prætor says: "I forbid force to be employed to prevent anyone from removing a slave from the place where he is at present, if he has remained there the greater part of the year."

(1) This interdict has reference to the possession of movables; it, however, obtains its validity in the same way as the interdict Uti possidetis, which only applies to real property; so that he also will succeed under this interdict who has obtained possession of the slave without the employment of force, or clandestinely, or by a precarious title, if an adversary attempts to interfere with his possession.

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TITLE XXXII. CONCERNING THE INTERDICT HAVING REFERENCE TO THE REMOVAL OF TENANTS.

1. Ulpianus, On the Edict, Book LXXIII.

The Prætor says: "I forbid force to be employed to prevent your tenant from leaving, and taking with him the slave in question, if the latter does not constitute a part of the property which, in accordance with the agreement between yourself and the plaintiff, should be held by way of pledge to secure the rent; whether the said property has been taken or brought into your house, born there, or made there; but if he forms part of the same, I forbid you to prevent your tenant from taking him away with him, when he departs; provided he has paid you the rent out of said property, or has furnished you security for it, or you are to blame for its not having been paid."

(1) This interdict was introduced for the benefit of a lessee who wishes to depart after having paid his rent. It does not lie in favor of a tenant on a farm.

(2) Relief can also be given to a lessee by extraordinary proceedings, and therefore this interdict is not frequently employed.

(3) Still, it will lie in favor of one who has a gratuitous lodging.

(4) If the rent is not yet due, Labeo says that this interdict cannot be employed, unless the tenant is ready to pay it. Hence, if he has paid it for half the year, and owes it for the other half, he cannot have recourse to the interdict unless he pays the rent for the remaining six months. This, however, is only the case where a special agreement was made when the house was rented, providing that the lessee should not be permitted to leave before the end of the year, or before a specified time has elapsed.

The same rule applies where anyone rents a house for several years, and the term has not yet expired; for where property is pledged for the entire amount of the rent, the result will be that the interdict will not be available, unless the articles pledged have been released.

(5) It must, however, be noted that the Prætor does not require the property to belong to the lessee, nor that it should have been expressly pledged, but that it must be brought into the house as pledged. Hence this interdict will apply, even if the property belongs to another, if it has been brought into the house for the purpose of being pledged, and is such as cannot be given in pledge. If it has not been brought in for that purpose it cannot be retained by the lessor.

(6) This interdict is perpetual, and is granted for and against heirs.

2. Gaius, On the Provincial Edict, Book XXVI.

There is no doubt that this interdict will lie in favor of a lessee, even with reference to property which does not belong to him, but which has been lent to, hired by, or deposited with him.

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TITLE XXXIII. CONCERNING THE SALVIAN INTERDICT.

1. Julianus, Digest, Book XLIX.

If a tenant on a farm brings a female slave on the land, for the purpose of pledging her, and afterwards sells her, an interdict should be granted in order to obtain possession of a child born to the said female slave while she was in the hands of the purchaser.

(1) If a tenant brings property on a farm, which is owned by two persons, for the purpose of pledging the same, with the understanding that it shall be jointly encumbered to both of them, each one can properly make use of the Salvian Interdict against a third party; but if this interdict is granted with reference to them alone, the position of the possessor will be preferable.

If, however, it was agreed that the property should be equally encumbered to each of the joint-owners of the land, a praetorian action should be granted between them, and against other parties, by means of which each of the said joint-owners can obtain possession of half the property.

(2) It is proper that the same rule should be observed where a tenant brings property held in common with another upon the land, for the purpose of pledging the same, so that pursuit of the pledge may only be made for half of the value of the property in question.

2. Ulpianus, On the Edict, Book LXX.

In the Salvian Interdict, if the property to be pledged is brought upon land belonging to two joint-owners, the party in possession will be preferred, and they must have recourse to the Servian Action.

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