Justinian: DIGESTA

ne quid in flumine publico ripave eius fiat, quo peius navigetur.
Dig. 43.13.0. Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit.

that nothing be done in the public river or on its bank, whereby it may be navigated the worse.
Dig. 43.13.0. that nothing be done in a public river, whereby the water would flow otherwise than as it flowed in the previous summer.

Dig. 43.14.0. Ut in flumine publico navigare liceat.
Dig.

Dig. 43.14.0. That it be permitted to navigate on a public river.
Dig.

43.15.0. De ripa munienda.
Dig. 43.16.0. De vi et de vi armata.

43.15.0. On reinforcing the riverbank.
Dig. 43.16.0. On force and on armed force.

Dig. 43.17.0. Uti possidetis.
Dig.

Dig. 43.17.0. As you possess.
Dig.

43.18.0. De superficiebus.
Dig. 43.19.0. De itinere actuque privato.

43.18.0. On superficies.
Digest. 43.19.0. On a private right of way and of driving.

Dig. 43.20.0. De aqua cottidiana et aestiva.
Dig.

Dig. 43.20.0. On daily and summer water.
Dig.

43.21.0. De rivis.
Dig. 43.22.0. De fonte.

43.21.0. On watercourses.
Dig. 43.22.0. On springs.

Dig. 43.23.0. De cloacis.
Dig.

Dig. 43.23.0. On sewers.
Dig.

43.24.0. Quod vi aut clam.
Dig. 43.25.0. De remissionibus.

43.24.0. What by force or secretly.
Dig. 43.25.0. On remissions.

Dig. 43.26.0. De precario.
Dig.

Dig. 43.26.0. On precarium.
Dig.

43.27.0. De arboribus caedendis.
Dig. 43.28.0. De glande legenda.

43.27.0. On trees to be felled.
Dig. 43.28.0. On acorns to be gathered.

Dig. 43.29.0. De homine libero exhibendo.
Dig.

Digest 43.29.0. On exhibiting a free man.
Digest.

43.30.0. De liberis exhibendis, item ducendis.
Dig. 43.31.0. Utrubi.

43.30.0. On children to be exhibited, likewise to be led away.
Dig. 43.31.0. Which-of-the-two.

Dig. 43.32.0. De migrando.
Dig.

Digest 43.32.0. On moving.
Digest.

43.33.0. De salviano interdicto.
Dig. 43.1.0. De interdictis sive extraordinariis actionibus, quae pro his competunt.

43.33.0. On the salvian interdict.
Dig. 43.1.0. On interdicts or extraordinary actions, which are competent for these.

Dig. 43.2.0. Quorum bonorum.
Dig.

Dig. 43.2.0. Of which goods.
Dig.

43.3.0. Quod legatorum.
Dig. 43.4.0. Ne vis fiat ei, qui in possessionem missus erit.

43.3.0. What pertains to legacies.
Dig. 43.4.0. That no force be done to him who will be sent into possession.

Dig. 43.5.0. De tabulis exhibendis.
Dig.

Dig. 43.5.0. On exhibiting documents.
Dig.

43.6.0. Ne quid in loco sacro fiat.
Dig. 43.7.0. De locis et itineribus publicis.

43.6.0. That nothing be done in a sacred place.
Dig. 43.7.0. On public places and public roads.

Dig. 43.8.0. Ne quid in loco publico vel itinere fiat.
Dig.

Dig. 43.8.0. That nothing be done in a public place or on a road.
Dig.

43.9.0. De loco publico fruendo.
Dig. 43.10.0. De via publica et si quid in ea factum esse dicatur.

43.9.0. On enjoying a public place.
Dig. 43.10.0. On the public road and if anything is said to have been done on it.

Dig. 43.11.0. De via publica et itinere publico reficiendo.
Dig.

Dig. 43.11.0. On repairing the public way and the public thoroughfare.
Dig.

43.12.0. De fluminibus. ne quid in flumine publico ripave eius fiat, quo peius navigetur.
Dig.

43.12.0. On rivers. that nothing be done in a public river or on its bank, whereby navigation is made worse.
Dig.

43.13.0. Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit.
Dig. 43.14.0. Ut in flumine publico navigare liceat.

43.13.0. Let nothing be done in a public river whereby the water would flow otherwise, but as it flowed in the previous summer.
Dig. 43.14.0. That it be permitted to navigate in a public river.

Dig. 43.15.0. De ripa munienda.
Dig.

Dig. 43.15.0. On fortifying the riverbank.
Dig.

43.16.0. De vi et de vi armata.
Dig. 43.17.0. Uti possidetis.

43.16.0. On force and on armed force.
Dig. 43.17.0. As you possess.

Dig. 43.18.0. De superficiebus.
Dig.

Dig. 43.18.0. On superficies.
Dig.

43.19.0. De itinere actuque privato.
Dig. 43.20.0. De aqua cottidiana et aestiva.

43.19.0. On the private right of way (iter) and of driving (actus).
Dig. 43.20.0. On the daily and the summer water.

Dig. 43.21.0. De rivis.
Dig.

Dig. 43.21.0. On watercourses.
Dig.

43.22.0. De fonte.
Dig. 43.23.0. De cloacis.

43.22.0. On the spring.
Dig. 43.23.0. On sewers.

Dig. 43.24.0. Quod vi aut clam.
Dig.

Dig. 43.24.0. What by force or stealth.
Dig.

43.25.0. De remissionibus.
Dig. 43.26.0. De precario.

43.25.0. On remissions.
Dig. 43.26.0. On precarium.

Dig. 43.27.0. De arboribus caedendis.
Dig.

Dig. 43.27.0. On trees to be felled.
Dig.

43.28.0. De glande legenda.
Dig. 43.29.0. De homine libero exhibendo.

43.28.0. On gathering acorns.
Dig. 43.29.0. On exhibiting a free man.

Dig. 43.30.0. De liberis exhibendis, item ducendis.
Dig.

Dig. 43.30.0. On producing children, likewise on leading them away.
Dig.

43.31.0. Utrubi.
Dig. 43.32.0. De migrando.

43.31.0. Which-of-the-two.
Dig. 43.32.0. On migrating.

Dig. 43.33.0. De salviano interdicto.

Dig. 43.33.0. On the Salvian interdict.

Dig. 43.1.0. De interdictis sive extraordinariis actionibus, quae pro his competunt.

Dig. 43.1.0. On interdicts, or extraordinary actions which are available in their place.

Dig. 43.1.1pr.

Digest 43.1.1, preface.

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Videamus, de quibus rebus interdicta competunt. et sciendum est interdicta aut de divinis rebus aut de humanis competere. divinis, ut de locis sacris vel de locis religiosis.

Let us see concerning which matters interdicts lie. And it must be known that interdicts pertain either to divine matters or to human matters. To divine matters, as to sacred places or to religious places.

de rebus hominum interdicta redduntur aut de his, quae sunt alicuius, aut de his, quae nullius sunt. quae sunt nullius, haec sunt: liberae personae, de quibus exhibendis ducendis interdicta competunt. quae sunt alicuius, haec sunt aut publica aut singulorum.

concerning the affairs of men, interdicts are rendered either about those things which are someone’s, or about those things which are no one’s. those which are no one’s are these: free persons, for the producing and leading off of whom interdicts are competent. those which are someone’s are either public or of individuals.

publica: de locis publicis, de viis deque fluminibus publicis. quae autem singulorum sunt, aut ad universitatem pertinent, ut interdictum quorum bonorum, aut ad singulas res, ut est interdictum uti possidetis, de itinere actuque.

public: about public places, about roads and about public rivers. but those which are of individuals either pertain to a universality, as the interdict "quorum bonorum," or to single things, as is the interdict "uti possidetis," concerning right-of-way and driving.

Dig. 43.1.1.1

Digest 43.1.1.1

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Interdictorum autem tres species sunt, exhibitoria prohibitoria restitutoria: sunt tamen quaedam interdicta et mixta, quae et prohibitoria sunt et exhibitoria.

Of interdicts, however, there are three kinds: exhibitory, prohibitory, restitutory; yet there are certain interdicts that are mixed as well, which are both prohibitory and exhibitory.

Dig. 43.1.1.2

Digest 43.1.1.2

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Interdictorum quaedam in praesens, quaedam in praeteritum referuntur: in praesens, ut uti possidetis: in praeteritum, ut de itinere actuque, de aqua aestiva.

Some interdicts are referred to the present, some to the past: to the present, as ‘uti possidetis’; to the past, as concerning the right of way and the right of driving, concerning summer water.

Dig. 43.1.1.3

Digest 43.1.1.3

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Interdicta omnia licet in rem videantur concepta, vi tamen ipsa personalia sunt.

Although all interdicts may seem to be conceived in rem, nevertheless by their very force they themselves are personal.

Dig. 43.1.1.4

Digest 43.1.1.4

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Interdictorum quaedam annalia sunt, quaedam perpetua.

Some interdicts are annual, some are perpetual.

Dig. 43.1.2pr.

Digest 43.1.2, preface.

Paulus 63 ad ed.

Paulus 63 on the edict.

Interdictorum quaedam duplicia sunt, quaedam simplicia. duplicia dicuntur, ut uti possidetis, simplicia sunt ea, veluti exhibitoria et restitutoria, item prohibitoria de arboribus caedendis et de itinere actuque.

Some interdicts are double, some are simple. They are called double, as uti possidetis; the simple are those, for example exhibitory and restitutory, likewise prohibitory concerning trees to be cut and concerning the right of way and of driving.

Dig. 43.1.2.1

Digest 43.1.2.1

Paulus 63 ad ed.

Paulus 63 On the Edict.

Interdicta autem competunt vel hominum causa vel divini iuris aut de religione, sicut est " ne quid in loco sacro fiat" vel " quod factum est restituatur" et de mortuo inferendo vel sepulchro aedificando. hominum causa competunt vel ad publicam utilitatem pertinentia vel sui iuris tuendi causa vel officii tuendi causa vel rei familiaris. publicae utilitatis causa competit interdictum " ut via publica uti liceat" et " flumine publico" et " ne quid fiat in via publica": iuris sui tuendi causa de liberis exhibendis, item de liberto exhibendo: officii causa de homine libero exhibendo: reliqua interdicta rei familiaris causa dantur.

however, interdicts are available either for the sake of men or by reason of divine law or concerning religion, such as “that nothing be done in a sacred place” or “that what has been done be restored,” and about bringing in a dead person or building a sepulcher. for the sake of men they are available either those pertaining to public utility, or for the purpose of defending one’s own right, or for the purpose of defending duty, or for the household estate. for the sake of public utility the interdict is available “that it be permitted to use a public road” and “concerning a public river” and “that nothing be done on a public road”: for defending one’s own right, about children to be produced, likewise about a freedman to be produced: for the sake of duty, about a free man to be produced: the remaining interdicts are given for the sake of the family estate.

Dig. 43.1.2.2

Digest 43.1.2.2

Paulus 63 ad ed.

Paulus 63 on the Edict.

Quaedam interdicta rei persecutionem continent, veluti de itinere actuque privato: nam proprietatis causam continet hoc interdictum. sed et illa interdicta, quae de locis sacris et de religiosis proponuntur, veluti proprietatis causam continent, item illa de liberis exhibendis, quae iuris tuendi causa diximus competere, ut non sit mirum, si, quae interdicta ad rem familiarem pertinent, proprietatis, non possessionis causam habeant.

Certain interdicts contain a prosecution of the thing, as, for example, that concerning a private way and drive; for this interdict contains the ground of ownership. But also those interdicts which are proposed concerning sacred and religious places likewise contain the ground of ownership, and likewise those concerning the producing of children, which we have said are available for the sake of protecting right, so that it is not surprising if those interdicts which pertain to the household property have the cause of ownership, not of possession.

Dig. 43.1.2.3

Digest 43.1.2.3

Paulus 63 ad ed.

Paulus 63 on the Edict.

Haec autem interdicta, quae ad rem familiarem spectant, aut apiscendae sunt possessionis aut reciperandae aut retinendae. apiscendae possessionis sunt interdicta, quae competunt his, qui ante non sunt nancti possessionem. sunt autem interdicta apiscendae possessionis " quorum bonorum": salvianum quoque interdictum, quod est de pignoribus, ex hoc genere est: et " quo itinere venditor usus est, quo minus emptor utatur, vim fieri veto". reciperandae possessionis causa proponuntur sub rubrica unde vi: aliqua enim sub hoc titulo interdicta sunt.

These interdicts, however, which pertain to the estate, are either for acquiring possession or for recovering it or for retaining it. For acquiring possession are those interdicts which are competent to those who previously have not obtained possession. Now the interdicts for acquiring possession are “quorum bonorum”; the Salvian interdict also, which is about pledges, is of this kind; and “as to the right-of-way which the seller used, I forbid force to be employed so that the buyer be hindered from using it.” For the sake of recovering possession they are set forth under the rubric unde vi: for under this title there are certain interdicts.

retinendae possessionis sunt interdicta uti possidetis. sunt interdicta ut diximus, duplicia tam reciperandae quam apiscendae possessionis.

The interdicts uti possidetis are for retaining possession. The interdicts, as we have said, are twofold: both for the recovering and for the acquiring of possession.

Dig. 43.1.3

Digest 43.1.3

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

In interdictis exinde ratio habetur fructuum, ex quo edita sunt, non retro.

In interdicts, from then on account is taken of the fruits, from the time they have been issued, not retroactively.

Dig. 43.1.4

Digest 43.1.4

Paulus 67 ad ed.

Paulus 67 to the Edict.

Ex quibus causis annua interdicta sunt, ex his de eo, quod ad eum cum quo agitur pervenit, post annum iudicium dandum sabinus respondit.

Of the causes for which interdicts are annual, among these Sabinus answered that, concerning what has come to the one with whom suit is being conducted, after a year a judicial action is to be granted.

Dig. 43.1.5

Digest 43.1.5

Paulus 13 ad sab.

Paulus 13 On Sabinus.

Interdicta noxalia ea sunt, quae ob delictum eorum, quos in potestate habemus, dantur, veluti cum vi deiecerunt aut vi aut clam opus fecerunt. sed officio iudicis continetur, ut dominum sua impensa opus restituentem absolvat: patientiam tollendo operi praestantem noxae dedere iubeat et absolvat, si non dedat, quantum impensae in tollendo opere erogatum sit, tanti condemnet: si neque patientiam praestet neque ipse tollat, cum possit, in tantum condemnet, in quantum iudex aestimaverit, atque si ipse fecisset.

Noxal interdicts are those which are granted on account of the delict of those whom we have in our power, as when they have thrown someone out by force, or have done a work by force or by stealth. But it is included in the duty of the judge that he acquit the owner who restores the work at his own expense: he should order the one affording patience for the removing of the work to surrender for the noxa and acquit; if he does not surrender, he should condemn him in as much as was expended as costs in taking down the work; if he neither affords patience nor himself takes it down, though he can, he should condemn him to such an amount as the judge shall have assessed, as if he had done it himself.

Dig. 43.2.0. Quorum bonorum.

Dig. 43.2.0. Of which goods.

Dig. 43.2.1pr.

Digest 43.2.1pr.

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Ait praetor: " quorum bonorum ex edicto meo illi possessio data est, quod de his bonis pro herede aut pro possessore possides possideresve, si nihil usucaptum esset, quod quidem dolo malo fecisti, uti desineres possidere, id illi restituas".

The praetor says: "Of which goods possession has been given to that man by my edict, whatever of these goods you possess or would possess as heir or as possessor, if nothing had been acquired by usucaption; and whatever indeed you have done with malicious fraud, in order that you might cease to possess, that you shall restore to him."

Dig. 43.2.1.1

Digest 43.2.1.1

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Hoc interdictum restitutorium est et ad universitatem bonorum, non ad singulas res pertinet et appellatur " quorum bonorum" et est apiscendae possessionis universorum bonorum.

This interdict is restitutory and pertains to the universality of the goods, not to individual things, and it is called “quorum bonorum” and is for acquiring possession of the entire estate.

Dig. 43.2.2

Digest 43.2.2

Paulus 20 ad ed.

Paulus 20 on the Edict.

Interdicto quorum bonorum debitores hereditarii non tenentur, sed tantum corporum possessores.

By the interdict “quorum bonorum,” hereditary debtors are not bound, but only possessors of the corporeal things.

Dig. 43.3.0. Quod legatorum.

Digest 43.3.0. What pertains to legacies.

Dig. 43.3.1pr.

Digest 43.3.1 pr.

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Dig. 43.3.1.1

Digest 43.3.1.1

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Hoc interdictum volgo " quod legatorum" appellatur.

This interdict is commonly called " quod legatorum."

Dig. 43.3.1.2

Digest 43.3.1.2

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Est autem et ipsum apiscendae possessionis et continet hanc causam, ut, quod quis legatorum nomine non ex voluntate heredis occupavit, id restituat heredi. etenim aequissimum praetori visum est unumquemque non sibi ipsum ius dicere occupatis legatis, sed ab herede petere: redigit igitur ad heredes per hoc interdictum ea, quae legatorum nomine possidentur, ut perinde legatarii possint eum convenire.

And there is also the interdict itself of acquiring possession, and it embraces this case: that what someone has seized in the name of legacies, not by the will of the heir, he must restore to the heir. For it seemed most equitable to the praetor that each person should not declare the law for himself by occupying legacies, but should seek them from the heir. Therefore he brings back to the heirs, by this interdict, those things which are possessed under the title of legacies, so that the legatees may in like manner be able to proceed against him.

Dig. 43.3.1.3

Digest 43.3.1.3

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Hoc interdictum et heredem heredis bonorumque possessoris habere propter utilitatem huius dicendum est, nec non ceteros quoque successores.

This interdict must be said to belong, on account of its utility, also to the heir of an heir and to the bonorum possessor, and likewise to the other successors as well.

Dig. 43.3.1.4

Digest 43.3.1.4

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Quia autem nonnumquam incertum est, utrum quis pro legato an pro herede vel pro possessore possideat, bellissime arrianus scribit hereditatis petitionem instituendam et hoc interdictum reddendum, ut, sive quis pro herede vel pro possessore sive pro legato possideat, hoc interdicto teneatur: quemadmodum solemus facere, quotiens incertum est, quae potius actio teneat: nam duas dictamus protestati ex altera nos velle consequi quod nos contingit.

Because, however, it is sometimes uncertain whether someone possesses on behalf of a legatee or on behalf of an heir or of a possessor, most excellently arrianus writes that a petition for inheritance should be instituted and that this interdict should be issued, so that, whether someone possesses as heir or as possessor or as legatee, he is held by this interdict: just as we are accustomed to do whenever it is uncertain which action rather holds; for we dictate two, having protested that by the other we wish to obtain what pertains to us.

Dig. 43.3.1.5

Digest 43.3.1.5

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Si quis ex mortis causa donatione possideat, utique cessabit interdictum, quia portio legis falcidiae apud heredem ipso iure remanet, etsi corporaliter res in solidum translatae sunt:

If anyone should possess by a donation mortis causa, the interdict will certainly cease, because the portion of the Lex Falcidia remains with the heir by the law itself, even if the things have been transferred corporeally in full.

Dig. 43.3.1.6

Digest 43.3.1.6

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Qui vero ex causa praeceptionis, utique tenetur hoc interdicto, sed pro ea scilicet parte, quam iure legati habet, non etiam pro ea, quam quasi heres habet. idemque erit dicendum et si alio genere legati uni ex heredibus legatum sit: nam et hic dicendum est pro ea parte, qua heres est, cessare interdictum.

But the one who, by reason of preemption, is certainly bound by this interdict is bound only for that share which he has by the right of the legacy, not also for that which he has as heir. And the same must be said even if by another kind of legacy a legacy has been left to one of the heirs: for here too it must be said that, for the share in which he is heir, the interdict ceases.

Dig. 43.3.1.7

Digest 43.3.1.7

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Quod ait praetor " aut dolo desiit possidere", sic accipere debemus " desiit facultatem habere restituendi".

What the praetor says, " or by fraud he ceased to possess", we ought to take thus: " ceased to have the faculty of restoring".

Dig. 43.3.1.8

Digest 43.3.1.8

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Unde est quaesitum, si usus fructus vel usus fuerit alicui relictus eumque occupaverit, an hoc interdicto restituere sit compellendus. movet, quod neque usus fructus neque usus possidetur, sed magis tenetur: potest tamen defendi competere interdictum. idem dicendum est et in servitute relicta.

Whence the question has been raised, if a usufruct or a use has been left to someone and he has occupied it, whether he is to be compelled by this interdict to restore. What prompts the doubt is that neither usufruct nor use is possessed, but rather is held; nevertheless it can be defended that the interdict is applicable. The same is to be said also in the case of a servitude left by bequest.

Dig. 43.3.1.9

Digest 43.3.1.9

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Quaesitum est, si quis legatorum servandorum causa missus sit in possessionem, an hoc interdicto teneatur ad restitutionem. movet illud primum, quod non possidet is qui missus est in possessionem legatorum causa, sed potius custodit, deinde quod praetorem habet huius rei auctorem. tutius tamen erit dicendum hoc interdictum competere, maxime si satisdatum sit iam legatorum nomine nec recedat: tunc enim etiam possidere videtur.

It has been asked, if someone has been sent into possession for the sake of preserving the legacies, whether he is bound under this interdict to restitution. what first moves is this, that he who has been sent into possession for the sake of the legacies does not possess, but rather keeps custody; then, that he has the praetor as the author of this matter. nevertheless it will be safer to say that this interdict lies, especially if security has already been furnished in the name of the legacies and he does not withdraw: for then he is even deemed to possess.

Dig. 43.3.1.10

Digest 43.3.1.10

Ulpianus 67 ad ed.

Ulpian 67 On the Edict.

Legatorum nomine non tantum ipsum possidere dicemus cui legatum est, verum heredem quoque eius ceterosque successores.

Under the title of legacies we will say that not only the very person to whom the legacy has been left possesses, but his heir also and his other successors.

Dig. 43.3.1.11

Digest 43.3.1.11

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Quod ait praetor " voluntate eius, ad quem ea res pertinet", ita erit interpretandum, ut, si post aditam hereditatem vel bonorum possessionem adgnitam voluntas accommodata est legatario, ut possideret, interdictum cesset: quod si ante aditam hereditatem bonorumve possessionem adgnitam hoc factum est, rectius dicetur eam voluntatem non nocere debere.

As for the praetor’s statement, “by the will of him to whom that thing pertains,” it is to be interpreted thus: if, after the inheritance has been entered upon or the bonorum possessio has been acknowledged, consent has been accommodated to the legatee for him to possess, the interdict ceases; but if this was done before the inheritance was entered upon or the bonorum possessio acknowledged, it will be more correct to say that such consent ought not to be prejudicial.

Dig. 43.3.1.12

Digest 43.3.1.12

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Si duae res legatae sint, altera ex voluntate occupata, altera non ex voluntate eveniet, ut altera revocari possit, altera non. idemque erit probandum et in una re, cuius pars ex voluntate, altera pars non ex voluntate occupata est: nam pars sola per interdictum auferetur.

If two things have been bequeathed, and one has been occupied by consent while the other not by consent, the result will be that one can be recalled, the other not. And the same must be approved even in a single thing, a part of which has been occupied by consent and another part not by consent: for only the part will be removed through the interdict.

Dig. 43.3.1.13

Digest 43.3.1.13

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Illud tenendum, sive a te sive ab eo, in cuius locum successisti, possideri aliquid coeptum est, interdicto huic locum fore. in locum successisse accipimus, sive per universitatem sive in rem sit successum.

This must be maintained: whether by you or by him into whose place you have succeeded something has begun to be possessed, there will be place for this interdict. We take “to have succeeded into the place” to mean whether the succession is by universality or in rem.

Dig. 43.3.1.14

Digest 43.3.1.14

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Prodest autem possedisse, quotiens voluntate eius, ad quem ea res pertinet, possideri coeptum est: sed et si postea voluntas accessit eius, ad quem ea res pertinebat, tamen prodesse possessori debere. unde si quis coepit quidem ex voluntate eius, ad quem ea res pertinet, possidere, postea vero voluntas non perseverat, nihil nocet, quia semel possideri coepit ex voluntate.

It is, moreover, advantageous to have possessed, whenever possession was begun by the will of him to whom that thing pertains: but even if afterwards the will of him to whom that thing pertained was added, nevertheless it ought to benefit the possessor. Whence, if someone indeed began to possess by the will of him to whom that thing pertains, but afterwards the will does not persist, it does no harm, because possession was once begun by will.

Dig. 43.3.1.15

Digest 43.3.1.15

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Si alter ex heredibus iisve, ad quos ea res pertinet, voluerit rem a legatario possideri, alter non, ei, qui noluit, interdictum competet: ei, qui voluit, non competere palam est.

If one of the heirs, or of those to whom that matter pertains, should wish the thing to be possessed by the legatee, and another not, an interdict will be available to the one who did not wish it; it is clear that it is not available to the one who did wish it.

Dig. 43.3.1.16

Digest 43.3.1.16

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Quod ait praetor " nisi satisdatum sit", accipere debemus " si perseveret satisdatum", scilicet ut, si non perseveret cautum, mittatur in possessionem legatorum servandorum causa.

What the praetor says, "unless security has been given," we ought to take as, "if the giving of security persists," namely that, if the guarantee does not persist, he is to be sent into possession for the purpose of preserving the legacies.

Dig. 43.3.1.17

Digest 43.3.1.17

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Satisdatum sic arbitror, si sic satisdatum sit, ut legatario vel ipso iure adquisita sit idonea cautio vel per mandati actionem adquiri possit, et tunc interdicto locum fore.

I consider that security has been furnished thus, if security has been so furnished that an adequate caution has been acquired for the legatee, either by the law itself, or can be acquired through an action of mandate, and then there will be room for the interdict.

Dig. 43.3.1.18

Digest 43.3.1.18

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Si quarundam rerum nomine satisdatum sit, quarundam non sit satisdatum, earum rerum nomine sine impedimento agi poterit, de quibus satisdatum est, ceterarum non poterit.

If, in respect of certain things, security has been furnished, and in respect of certain others it has not been furnished, in the name of those things for which security has been furnished one may proceed without impediment; as to the rest, one may not.

Dig. 43.3.2pr.

Digest 43.3.2 pr.

Paulus 63 ad ed.

Paul 63 on the Edict.

Diversum est, si postea pars legato adcreverit: nam hoc nomine tenentur fideiussores in totum.

It is different if later a share shall accrue to the legacy: for under this head the guarantors are liable for the whole.

Dig. 43.3.2.1

Digest 43.3.2.1

Paulus 63 ad ed.

Paulus 63 on the Edict

Quod ait praetor " si per bonorum possessorem non stat, ut satisdetur", sic accipimus, si paratus sit satisdare: non ergo offerre debet satisdationem, sed petenti satis moram non facere.

As to what the praetor says, "if it does not stand by the possessor of the goods that security be given," we take it thus: if he is ready to furnish security; therefore he ought not to offer security of his own accord, but not to cause delay to the one requesting security.

Dig. 43.3.2.2

Digest 43.3.2.2

Paulus 63 ad ed.

Paulus 63 on the Edict.

Ex hoc interdicto qui non restituit, in id quod interest debet condemnari.

From this interdict, whoever does not restore ought to be condemned in the amount of the interest.

Dig. 43.3.2.3

Digest 43.3.2.3

Paulus 63 ad ed.

Paulus 63 on the Edict.

Si legatarius repromissione contentus fuit, dandum est interdictum. idem dicendum est, si legatarius pignoribus noluit sibi caveri.

If the legatee was content with a repromission, the interdict is to be granted. The same must be said, if the legatee did not wish to be given security by pledges.

Dig. 43.3.2.4

Digest 43.3.2.4

Paulus 63 ad ed.

Paulus 63 on the Edict.

Si per legatarium factum sit, quo minus satisdetur, licet cautum non sit, tenetur interdicto. sed si forte factum sit per legatarium, quo minus satisdetur, eo autem tempore, quo editur interdictum, satis accipere paratus sit, non competit interdictum, nisi satisdatum sit. item si per bonorum possessorem stetit, quo minus satisdaret, sed modo paratus est cavere, tenet interdictum: illud enim tempus inspicitur, quo interdictum editur.

If through the legatee it has come about that security is not given, although it has not been stipulated for, he is liable under the interdict. But if perchance it has happened through the legatee that security is not given, yet at the time when the interdict is issued he is ready to accept security, the interdict does not lie, unless security has been given. Likewise, if it was owing to the possessor of the goods that he did not give security, but only now he is prepared to give a caution, the interdict holds: for the time that is looked to is that at which the interdict is issued.

Dig. 43.4.0. Ne vis fiat ei, qui in possessionem missus erit.

Dig. 43.4.0. That no force be used against him who has been put in possession.

Dig. 43.4.1pr.

Digest 43.4.1pr.

Ulpianus 72 ad ed.

Ulpian, 72 on the Edict.

Ait praetor: " si quis dolo malo fecerit, quo minus quis permissu meo eiusve, cuius ea iurisdictio fuit, in possessionem bonorum sit, in eum in factum iudicium, quanti ea res fuit, ob quam in possessionem missus erit, dabo".

The praetor says: "if anyone shall have acted with malicious fraud, whereby someone, by my permission or by that of the one whose jurisdiction it was, is prevented from being in possession of the goods, I will grant against him an action on the facts, for as much as that matter was worth, on account of which he will have been sent into possession."

Dig. 43.4.1.1

Digest 43.4.1.1

Ulpianus 72 ad ed.

Ulpian, 72 On the Edict.

Hoc edictum summa providentia praetor proposuit: frustra enim in possessionem mitteret rei servandae causa, nisi missos tueretur et prohibentes venire in possessionem coerceret.

The praetor set forth this edict with the utmost providence: for he would send into possession for the sake of preserving the thing in vain, unless he protected those sent and coerced those prohibiting them from coming into possession.

Dig. 43.4.1.2

Digest 43.4.1.2

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

Est autem generale hoc edictum: pertinet enim ad omnes, qui in possessionem a praetore missi sunt: convenit enim praetori omnes, quos ipse in possessionem misit, tueri. sed sive rei servandae causa sive legatorum aut ventris nomine in possessionem missi fuerint, habent ex hoc edicto in factum actionem, sive doli sive aliter prohibuerint.

This edict is, moreover, general: for it pertains to all who have been sent into possession by the praetor; for it is fitting for the praetor to protect all whom he himself has sent into possession. But whether they have been sent into possession for the sake of preserving the thing, or in the name of legacies or of the womb (i.e., the unborn child), they have from this edict an action in factum, whether the prohibition was by fraud or otherwise.

Dig. 43.4.1.3

Digest 43.4.1.3

Ulpianus 72 ad ed.

Ulpian 72 on the edict.

Haec actio non tantum eum tenet, qui prohibuit quem venire in possessionem, sed etiam eum, qui possessione pulsus est, cum venisset in possessionem: nec exigitur, ut vi fecerit qui prohibuit.

This action holds not only him who prohibited someone from coming into possession, but also him who was expelled from possession after he had come into possession: nor is it required that the one who prohibited should have acted by force.

Dig. 43.4.1.4

Digest 43.4.1.4

Ulpianus 72 ad ed.

Ulpian, 72 On the Edict.

Si quis ideo possessione arcuerit, quia rem suam putabat vel sibi nexam vel certe non esse debitoris, consequens est, ut hoc edicto non teneatur.

If someone has for that reason barred from possession, because he supposed the thing to be his own, or bound to himself, or at any rate not to be the debtor’s, it follows that he is not held by this edict.

Dig. 43.4.1.5

Digest 43.4.1.5

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

Haec verba " quanti ea res erit, ob quam in possessionem missus erit" continent utilitatem creditoris, ut quantum eius interest possessionem habere, tantum ei qui prohibuit condemnetur. proinde si ob falsum creditum vel ob falsam petitionem missus est in possessionem vel si exceptione summoveri potuit, nihil ei debet prodesse hoc edictum, quia propter nullam causam in possessionem missus est.

These words, "for how much that matter will be worth, on account of which he will have been sent into possession," comprise the utility of the creditor, namely that, to the extent it is his interest to have possession, to that extent the one who prohibited it is condemned to him. Accordingly, if he was sent into possession on account of a false credit (debt) or on account of a false petition, or if he could have been removed by an exception, this edict ought to profit him nothing, because he was sent into possession for no cause.

Dig. 43.4.1.6

Digest 43.4.1.6

Ulpianus 72 ad ed.

Ulpian, 72 on the Edict.

Hoc edicto neque pupillum neque furiosum teneri constat, quia affectu carent. sed pupillum eum debemus accipere, qui doli capax non est: ceterum si iam doli capax sit, contra erit dicendum. ergo et si tutor dolo fecerit, in pupillum dabimus actionem, si modo solvendo sit tutor: sed et ipsum tutorem posse conveniri iulianus scribit.

It is settled that by this edict neither a pupil nor a madman is held, because they lack intent; but we ought to take “pupil” to mean one who is not capable of dolus; however, if he is already capable of dolus, the contrary must be said. Therefore even if the tutor (guardian) acted with dolus, we will grant an action against the pupil, provided only that the tutor is solvent; but Julian writes that the tutor himself also can be sued.

Dig. 43.4.1.7

Digest 43.4.1.7

Ulpianus 72 ad ed.

Ulpian book 72 on the Edict.

Si domini vel patris voluntate prohibitus quis sit a possessione, in ipsos dabitur actio, quasi per alios hoc fecerint.

If by the will of the master or the father someone has been prohibited from possession, an action will be granted against them, as though they had done this through others.

Dig. 43.4.1.8

Digest 43.4.1.8

Ulpianus 72 ad ed.

Ulpian, 72 On the Edict.

Hanc actionem excepta legatorum missione intra annum competere et non postea sciendum est, cum sit poenalis, nec in heredes similesque personas dabitur, nisi in id quod ad eas pervenit: sed heredi similibusque personis dabitur. nam cum prohibitus quis est legatorum vel fideicommissorum causa possessionem adipisci, tunc actio et perpetua est et in heredem dabitur, quia est in potestate successorum evitare interdictum satisdatione oblata.

One should know that this action, the missio of legatees excepted, is competent within a year and not thereafter, since it is penal, and it will not be granted against heirs and similar persons, except up to that which has come to them; but it will be granted to the heir and to persons of like kind. For when someone has been prohibited, for the sake of legacies or fideicommissa, from acquiring possession, then the action is both perpetual and will be given against the heir, because it is in the power of successors to avoid the interdict by offering security (satisdation).

Dig. 43.4.2pr.

Digest 43.4.2, preface.

Paulus 59 ad ed.

Paulus 59 On the Edict.

Suo quis an alieno nomine prohibitus sit, nihil interest: haec enim verba " quanti ea res est" referenda sunt ad personam domini.

Whether someone has been prohibited in his own name or in another’s name, it makes no difference: for these words “how much that thing is worth” are to be referred to the person of the owner.

Dig. 43.4.2.1

Digest 43.4.2.1

Paulus 59 ad ed.

Paulus, 59 on the edict.

Item tam is tenetur, qui suo nomine, quam qui alieno nomine prohibuit.

Likewise, he is liable just as much who prohibited in his own name as he who prohibited in another’s name.

Dig. 43.4.3pr.

Digest 43.4.3 pr.

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Si quis missus fuerit in possessionem fideicommissi servandi causa et non admittatur, potestate eius inducendus est in possessionem, qui eum misit, aut si quis volet uti interdicto, consequens erit dicere interdictum locum habere. sed melius erit dicere extra ordinem ipsos iure suae potestatis exsequi oportere decretum suum, nonnumquam etiam per manum militarem.

If someone has been sent into possession for the purpose of preserving a fideicommiss and is not admitted, he must be inducted into possession by the authority of the one who sent him; or, if anyone wishes to use an interdict, it will be consequent to say that the interdict has place. But it will be better to say that, outside the ordinary course, they themselves ought, by the right of their own power, to execute their decree, sometimes even by military force.

Dig. 43.4.3.1

Digest 43.4.3.1

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Constitutum est ab antonino, ut etiam in bona heredis quis admittatur certis modis. si quis igitur in his bonis non admittatur, dicendum est actionem hanc utilem competere: ceterum poterit uti et extraordinaria exsecutione.

It has been established by Antoninus that someone also be admitted into the goods of the heir in certain ways. Therefore, if someone is not admitted into these goods, it must be said that this useful action is available; moreover, he will be able to make use also of extraordinary execution.

Dig. 43.4.3.2

Digest 43.4.3.2

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Praetor ventrem in possessionem mittit, et hoc interdictum prohibitorium et restitutorium est. sed si mulier velit in factum actione uti ad exemplum creditorum magis quam interdicto, posse eam experiri sciendum est.

The praetor puts the womb into possession, and this interdict is both prohibitory and restitutory. But if the woman wishes to use an action in factum on the model of the creditors rather than the interdict, it should be known that she can proceed.

Dig. 43.4.3.3

Digest 43.4.3.3

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si mulier dicatur calumniae causa in possessionem venisse, quod non sit praegnas vel non ex eo praegnas, vel si de statu mulieris aliquid dicatur: ex epistula divi hadriani ad exemplum praesumptionis carboniani edicti ventri praetor pollicetur possessionem.

If it be said that a woman has come into possession for the sake of calumny, on the ground that she is not pregnant or not pregnant by him, or if anything be said about the status of the woman: from the letter of the deified Hadrian, following the example of the presumption of the Carbonian edict, the praetor promises possession on behalf of the womb.

Dig. 43.4.4pr.

Digest 43.4.4, beginning.

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Per interdictum etiam ei subvenit praetor, qui damni infecti ab eo in possessionem missus est, ne ei vis fiat.

By interdict the praetor also comes to the aid of the one who has been sent by him into possession on account of damnum infectum, lest violence be done to him.

Dig. 43.4.4.1

Digest 43.4.4.1

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Poena autem eius, qui non promittit vel satis non dat, haec est, ut in possessionem mittatur adversarius. sive ergo promittat, sive per eum non fiat, quo minus promittat, non tenebit interdictum repulso per exceptionem eo qui experitur.

Moreover, the penalty of one who does not promise or does not give security is this: that the adversary is sent into possession. Therefore, whether he does promise, or it is not through him that he fails to promise, the interdict will not bind, the one who brings the action being repelled by an exception.

Dig. 43.4.4.2

Digest 43.4.4.2

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Praetor in eum, qui neque cavit neque possidere passus est eum qui missus est, iudicium pollicetur in tantum, quantum praestare eum oporteret, si de ea re cautum fuerat.

The praetor promises an action against him who neither gave security nor allowed him who was sent to possess, to the extent that he ought to make good, if security had been taken concerning that matter.

Dig. 43.4.4.3

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Sed et ex alia causa hoc iudicium proposuit, si eo tempore, quo in possessionem mitti desiderabat, praetoris adeundi potestas non fuerit, scilicet ut, si, cum potestas praetoris adeundi non esset, damnum interim datum est, haberet iudicium qui damnum passus est.

But also on another cause he proposed this action: if at the time when he desired to be sent into possession there was no power of approaching the praetor, namely that, if, when there was no power of approaching the praetor, damage was in the meantime inflicted, he who suffered the damage should have an action.

Dig. 43.4.4.4

Digest 43.4.4.4

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Item subiectum, si ex alia causa in possessionem missus prohibitus esse dicetur, habere in factum actionem.

Likewise it is subjoined that, if one who has been sent into possession on another ground is alleged to have been prohibited, he has an action in factum.

Dig. 43.5.0. De tabulis exhibendis.

Digest 43.5.0. On producing documents.

Dig. 43.5.1pr.

Digest 43.5.1, preface.

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Praetor ait: " quas tabulas lucius titius ad causam testamenti sui pertinentes reliquisse dicetur, si hae penes te sunt aut dolo malo tuo factum est, ut desinerent esse, ita eas illi exhibeas. item si libellus aliudve quid relictum esse dicetur, decreto comprehendam".

The praetor says: "Whatever tablets which Lucius Titius will be said to have left, pertaining to the case of his will, if these are in your possession or it has come about by your malicious fraud that they ceased to exist, then produce them to him. Likewise, if a booklet or anything else will be said to have been left, I will include it in the decree."

Dig. 43.5.1.1

Digest 43.5.1.1

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si quis forte confiteatur penes se esse testamentum, iubendus est exhibere, et tempus ei dandum est, ut exhibeat, si non potest in praesentiarum exhibere. sed si neget se exhibere posse vel oportere, interdictum hoc competit.

If anyone should perchance confess that a testament is in his possession, he must be ordered to exhibit it, and time must be given to him to exhibit it, if he cannot exhibit it at present. But if he denies that he is able or ought to exhibit it, this interdict lies.

Dig. 43.5.1.2

Digest 43.5.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdictum pertinet non tantum ad testamenti tabulas, verum ad omnia, quae ad causam testamenti pertinent: ut puta et ad codicillos pertinet.

This interdict pertains not only to the tablets of a testament, but truly to all things that pertain to the cause of the testament: for example, it also pertains to codicils.

Dig. 43.5.1.3

Digest 43.5.1.3

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Sive autem valet testamentum sive non, vel quod ab initio inutiliter factum est, sive ruptum sit vel in quo alio vitio, sed etiam si falsum esse dicatur vel ab eo factum qui testamenti factionem non habuerit: dicendum est interdictum valere.

Whether, moreover, the testament is valid or not, or one which from the beginning was ineffectually made, or whether it has been revoked or is affected by some other vice, but even if it is said to be false or made by one who did not have testamentary capacity: it must be said that the interdict prevails.

Dig. 43.5.1.4

Digest 43.5.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sive supremae tabulae sint sive non sint, sed priores, dicendum interdictum hoc locum habere.

Whether the latest testamentary tablets exist or do not, but only earlier ones, it must be said that this interdict has place.

Dig. 43.5.1.5

Digest 43.5.1.5

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Itaque dicendum est ad omnem omnino scripturam testamenti, sive perfectam sive imperfectam, interdictum hoc pertinere.

Therefore it must be said that this interdict pertains to absolutely every writing of a testament, whether perfect or imperfect.

Dig. 43.5.1.6

Digest 43.5.1.6

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Proinde et si plures tabulae sint testamenti, quia saepius fecerat, dicendum est interdicto locum fore: est enim quod ad causam testamenti pertineat, quidquid quoquo tempore factum exhiberi debeat.

Accordingly, even if there are several tablets of the testament, because he had made it rather often, it must be said there is room for the interdict: for whatever, at whatever time made, ought to be exhibited, pertains to the cause of the testament.

Dig. 43.5.1.7

Digest 43.5.1.7

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Sed et si de statu disceptetur, si testator filius familias vel servus hoc fecisse dicatur, et hoc exhibebitur.

But also, if there is a dispute about status, if it is said that the testator, a filius familias, or a slave did this, this too will be exhibited.

Dig. 43.5.1.8

Digest 43.5.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Item si filius familias fecerit testamentum, qui de castrensi peculio testabatur, habet locum interdictum.

Likewise, if a son-in-power has made a testament—one who was testating concerning his castrense peculium—the interdict has place.

Dig. 43.5.1.9

Digest 43.5.1.9

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Idem est et si is, qui testamentum fecit, apud hostes decessit.

It is the same also if he who made the will died among the enemy.

Dig. 43.5.1.10

Digest 43.5.1.10

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum ad vivi tabulas non pertinet, quia verba praetoris " reliquerit" fecerunt mentionem.

This interdict does not pertain to a living man’s tablets, because the praetor’s words made mention of “reliquerit.”

Dig. 43.5.1.11

Digest 43.5.1.11

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et si deletum sine dolo sit testamentum.

But also if the testament has been deleted without fraud.

Dig. 43.5.2

Digest 43.5.2

Paulus 64 ad ed.

Paulus 64 on the Edict.

Vel totum vel pars eius,

Either the whole or a part of it,

Dig. 43.5.3pr.

Digest 43.5.3pr.

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Locum habet hoc interdictum.

This interdict is applicable.

Dig. 43.5.3.1

Digest 43.5.3.1

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si tabulae in pluribus codicibus scriptae sint, omnes interdicto isto continentur, quia unum testamentum est.

If the tablets have been written in several codices, all are contained under that interdict, because it is one testament.

Dig. 43.5.3.2

Digest 43.5.3.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si tabulae testamenti apud aliquem depositae sunt a titio, hoc interdicto agendum est et cum eo qui detinet et cum eo qui deposuit.

If the testamentary tablets have been deposited with someone by Titius, one must proceed by this interdict both against him who detains them and against him who deposited them.

Dig. 43.5.3.3

Digest 43.5.3.3

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Proinde et si custodiam tabularum aedituus vel tabularius suscepit, dicendum est teneri eum interdicto.

Accordingly, even if the aedituus or the tabularius has undertaken the custody of the tablets, it must be said that he is bound by the interdict.

Dig. 43.5.3.4

Digest 43.5.3.4

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si penes servum tabulae fuerint, dominus interdicto tenebitur.

If the tablets are in the slave’s possession, the master will be bound by the interdict.

Dig. 43.5.3.5

Digest 43.5.3.5

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Si ipse testator, dum vivit, tabulas suas esse dicat et exhiberi desideret, interdictum hoc locum non habebit, sed ad exhibendum erit agendum, ut exhibitas vindicet. quod in omnibus, qui corpora sua esse dicunt instrumentorum, probandum est.

If the testator himself, while he lives, says the tablets are his and desires that they be exhibited, this interdict will have no place, but one must proceed by the action ad exhibendum, in order that, once exhibited, he may vindicate them. This must be proved in all cases of those who say that the bodies of instruments are theirs.

Dig. 43.5.3.6

Digest 43.5.3.6

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si quis dolo malo fecerit, quo minus penes eum tabulae essent, nihilo minus hoc interdicto tenebitur, nec praeiudicatur aliquid legi corneliae testamentariae, quasi dolo malo testamentum suppresserit. nemo enim ideo impune retinet tabulas, quod maius facinus admisit, cum exhibitis tabulis admissum eius magis manifestetur. et posse aliquem dolo malo facere, ut in eam legem non incidat, ut puta si neque amoverit neque celaverit tabulas, sed idcirco alii tradiderit, ne eas interdicenti exhiberet, hoc est si non supprimendi animo vel consilio fecit, sed ne huic exhiberet.

If anyone has acted with malicious fraud so that the tablets were not in his possession, nonetheless he will be held by this interdict, nor is anything prejudged to the Cornelian testamentary law, as though he had suppressed a testament by malicious fraud. For no one therefore retains the tablets with impunity because he has committed a greater crime, since, when the tablets are produced, his offense is made more manifest. And a person can act with malicious fraud so as not to fall under that law, as, for example, if he has neither removed nor concealed the tablets, but for that very reason has handed them over to another, lest he exhibit them to the party seeking the interdict—that is, if he did this not with the intention or plan of suppressing them, but so as not to exhibit them to this man.

Dig. 43.5.3.7

Digest 43.5.3.7

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Hoc interdictum exhibitorium est.

This interdict is exhibitory.

Dig. 43.5.3.8

Digest 43.5.3.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Quid sit exhibere, videamus. exhibere hoc est materiae ipsius adprehendendae copiam facere.

Let us see what it is to exhibit. to exhibit is to make available an opportunity for the very matter to be apprehended.

Dig. 43.5.3.9

Digest 43.5.3.9

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Exhibere autem apud praetorem oportet, ut ex auctoritate eius signatores admoniti venirent ad recognoscenda signa: et si forte non optemperent testes, labeo scribit coerceri eos a praetore debere.

Moreover, one ought to exhibit it before the praetor, so that, by his authority, the signatories, having been admonished, might come to recognize the seals; and if perchance the witnesses do not comply, Labeo writes that they ought to be coerced by the praetor.

Dig. 43.5.3.10

Digest 43.5.3.10

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Solent autem exhiberi tabulas desiderare omnes omnino, qui quid in testamento adscriptum habent.

However, absolutely all who have anything entered in the testament are accustomed to desire that the tablets be produced.

Dig. 43.5.3.11

Digest 43.5.3.11

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Condemnatio autem huius iudicii quanti interfuit aestimari debet.

But the condemnation in this action ought to be estimated at how much it mattered.

Dig. 43.5.3.12

Digest 43.5.3.12

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Quare si heres scriptus hoc interdicto experiatur, ad hereditatem referenda est aestimatio:

Wherefore, if the heir named in the will proceeds under this interdict, the valuation is to be referred to the inheritance:

Dig. 43.5.3.13

Digest 43.5.3.13

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Et si legatum sit, tantum venit in aestimationem, quantum sit in legato:

And if a legacy has been bequeathed, only as much comes into estimation as there is in the legacy:

Dig. 43.5.3.14

Digest 43.5.3.14

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Et si sub condicione legatum sit, quasi condicione existente sic aestimandum est, nec compelli debebit ad cavendum, ut se restituturum caveat, quidquid consecutus est, si condicio defecerit, quia poena contumaciae praestatur ab eo qui non exhibet.

And if a legacy has been left under a condition, it is to be assessed as though the condition were in existence; nor should he be compelled to give security, to the effect that he will restore whatever he has obtained if the condition should fail, because the penalty of contumacy is exacted from him who does not produce.

Dig. 43.5.3.15

Digest 43.5.3.15

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Inde quaeritur, si hinc consecutus aestimationem legatarius postea legatum petat, an sit audiendus. et putem, si heres idem praestitit, exceptione doli repellendum, si alius, repelli non oportere. et ideo et si heres sit, qui interdicto usus est aestimationem consecutus, eadem est distinctio.

Thence the question is raised: if a legatee, having by this means obtained the estimation, later demands the legacy, is he to be heard? And I think that, if the heir himself furnished the same, he should be repelled by the exceptio doli; if it was another, he ought not to be repelled. And therefore, even if it is the heir who, having used the interdict, has obtained the estimation, the same distinction applies.

Dig. 43.5.3.16

Digest 43.5.3.16

Ulpianus 68 ad ed.

Ulpian book 68 on the edict.

Interdictum hoc et post annum competere constat. sed et heredi ceterisque successoribus competit.

It is established that this interdict is available even after a year. but it is also available to the heir and the other successors.

Dig. 43.5.4

Digest 43.5.4

Paulus 69 ad ed.

Paulus 69 on the Edict.

Si sint tabulae apud pupillum et dolo tutoris desierint esse, in ipsum tutorem competit interdictum: aequum enim est ipsum ex delicto suo teneri, non pupillum.

If the tablets were with the ward and, by the guardian’s fraud, have ceased to be, the interdict lies against the guardian himself: for it is equitable that he himself be held liable on account of his own delict, not the ward.

Dig. 43.5.5

Digest 43.5.5

Iavolenus 13 ex cass.

Javolenus 13 from Cassius.

De tabulis proferendis interdictum competere non oportet, si hereditatis controversia ex his pendet aut si ad publicam quaestionem pertinet: itaque in aede sacra interim deponendae sunt aut apud virum idoneum.

The interdict concerning the producing of tablets ought not to be available, if a controversy of inheritance depends on these or if it pertains to a public investigation: therefore in the meantime they are to be deposited in a sacred temple or with a competent man.

Dig. 43.6.0. Ne quid in loco sacro fiat.

Digest 43.6.0. That nothing be done in a sacred place.

Dig. 43.6.1pr.

Digest 43.6.1pr.

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Ait praetor: " in loco sacro facere inve eum immittere quid veto".

The praetor says: " I forbid to do anything in a sacred place or to send anything into it".

Dig. 43.6.1.1

Digest 43.6.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum de sacro loco, non de sacrario competit.

This interdict pertains to a sacred place, not to a sacrarium.

Dig. 43.6.1.2

Digest 43.6.1.2

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Quod ait praetor, ne quid in loco sacro fiat, non ad hoc pertinet, quod ornamenti causa fit, sed quod deformitatis vel incommodi.

What the praetor says, that nothing be done in a sacred place, does not pertain to what is done for the sake of ornament, but to what entails deformity or inconvenience.

Dig. 43.6.1.3

Digest 43.6.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et cura aedium locorumque sacrorum mandata est his, qui aedes sacras curant.

But the care of temples and sacred places is also mandated to those who tend sacred temples.

Dig. 43.6.2

Digest 43.6.2

Hermogenianus 3 iuris epit.

Hermogenianus Book 3 of the Epitomes of Law.

In muris itemque portis et aliis sanctis locis aliquid facere, ex quo damnum aut incommodum irrogetur, non permittitur.

On the walls and likewise the gates and other sacred places, it is not permitted to do anything from which damage or inconvenience is inflicted.

Dig. 43.6.3

Digest 43.6.3

Paulus 5 sent.

Paulus Book 5 of the Sentences.

Neque muri neque portae habitari sine permissu principis propter fortuita incendia possunt.

Neither the walls nor the gates may be inhabited without the emperor’s permission, on account of accidental fires.

Dig. 43.7.0. De locis et itineribus publicis.

Dig. 43.7.0. On public places and public roads.

Dig. 43.7.1

Digest 43.7.1

Pomponius 30 ad sab.

Pomponius 30 on Sabinus.

Cuilibet in publicum petere permittendum est id, quod ad usum omnium pertineat, veluti vias publicas, itinera publica: et ideo quolibet postulante de his interdicitur.

It should be permitted to anyone to claim into the public that which pertains to the use of all, such as public roads and public thoroughfares; and therefore, upon anyone petitioning, an interdict is issued concerning these.

Dig. 43.7.2

Digest 43.7.2

Iulianus 48 Dig.

Julian 48 Digest.

Nemini licet in via publica monumentum exstruere.

No one is permitted to erect a monument in a public way.

Dig. 43.7.3pr.

Digest 43.7.3, preface.

Ulpianus 33 ad sab.

Ulpian 33 on sab.

Viae vicinales, quae ex agris privatorum collatis factae sunt, quarum memoria non exstat, publicarum viarum numero sunt.

Vicinal roads, which have been made from the fields of private persons contributed in common, of which no record exists, are in the number of public roads.

Dig. 43.7.3.1

Digest 43.7.3.1

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Sed inter eas et ceteras vias militares hoc interest, quod viae militares exitum ad mare aut in urbes aut in flumina publica aut ad aliam viam militarem habent, harum autem vicinalium viarum dissimilis condicio est: nam pars earum in militares vias exitum habent, pars sine ullo exitu intermoriuntur.

But between these and the other military roads this is the distinction, that military roads have an outlet to the sea or into cities or into public rivers or to another military road, whereas the condition of these vicinal roads is dissimilar: for part of them have an outlet into the military roads, part die out without any outlet.

Dig. 43.8.0. Ne quid in loco publico vel itinere fiat.

Digest 43.8.0. Let nothing be done in a public place or on a roadway.

Dig. 43.8.1

Digest 43.8.1

Paulus 64 ad ed.

Paulus 64 on the Edict.

In loco publico praetor prohibet aedificare et interdictum proponit.

In a public place the praetor forbids building and puts forth an interdict.

Dig. 43.8.2pr.

Digest 43.8.2, preface.

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Praetor ait: " ne quid in loco publico facias inve eum locum immittas, qua ex re quid illi damni detur, praeterquam quod lege senatus consulto edicto decretove principum tibi concessum est. de eo, quod factum erit, interdictum non dabo".

The praetor says: "Do not do anything in a public place, nor introduce anything into that place, from which any damage would be done to it, except what has been granted to you by law, by senatorial decree, by edict, or by a decree of the emperors. Concerning that which shall have been done, I will not grant an interdict."

Dig. 43.8.2.1

Digest 43.8.2.1

Ulpianus 68 ad ed.

Ulpian book 68 on the Edict.

Hoc interdictum prohibitorium est.

This interdict is prohibitory.

Dig. 43.8.2.2

Digest 43.8.2.2

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Et tam publicis utilitatibus quam privatorum per hoc prospicitur. loca enim publica utique privatorum usibus deserviunt, iure scilicet civitatis, non quasi propria cuiusque, et tantum iuris habemus ad optinendum, quantum quilibet ex populo ad prohibendum habet. propter quod si quod forte opus in publico fiet, quod ad privati damnum redundet, prohibitorio interdicto potest conveniri, propter quam rem hoc interdictum propositum est.

And by this provision regard is had as much to public utilities as to those of private persons. For public places assuredly serve the uses of private individuals, by the right of the city, not as though they were the property of each; and we have only so much right to occupy as anyone of the populace has to prohibit. Wherefore, if perchance some work is done in a public place which redounds to the damage of a private person, it can be met by a prohibitory interdict, for which reason this interdict has been set forth.

Dig. 43.8.2.3

Digest 43.8.2.3

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Publici loci appellatio quemadmodum accipiatur, labeo definit, ut et ad areas et ad insulas et ad agros et ad vias publicas itineraque publica pertineat.

Labeo defines how the appellation of a public place is to be understood, namely that it pertains both to areas and to blocks and to fields and to public roads and public thoroughfares.

Dig. 43.8.2.4

Digest 43.8.2.4

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Hoc interdictum ad ea loca, quae sunt in fisci patrimonio, non puto pertinere: in his enim neque facere quicquam neque prohibere privatus potest: res enim fiscales quasi propriae et privatae principis sunt. igitur si quis in his aliquid faciat, nequaquam hoc interdictum locum habebit: sed si forte de his sit controversia, praefecti eorum iudices sunt.

I do not think this interdict pertains to those places which are in the patrimony of the fisc: for in these a private person can neither do anything nor prohibit; for fiscal things are as if the princeps’s own and private property. Therefore, if anyone does anything in these, by no means will this interdict have application; but if perhaps there is a controversy about these, their prefects are the judges.

Dig. 43.8.2.5

Digest 43.8.2.5

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Ad ea igitur loca hoc interdictum pertinet, quae publico usui destinata sunt, ut, si quid illic fiat, quod privato noceret, praetor intercederet interdicto suo.

Accordingly, this interdict pertains to those places that are destined for public use, so that, if anything should be done there which would harm a private person, the praetor might intervene by his interdict.

Dig. 43.8.2.6

Digest 43.8.2.6

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Cum quidam velum in maeniano immissum haberet, qui vicini luminibus officiebat, utile interdictum competit: " ne quid in publico immittas, qua ex re luminibus gaii seii officias".

When someone had an awning let down on a balcony, which was obstructing the neighbor’s lights, the useful interdict lies: " do not let anything into the public space, by which you obstruct the lights of gaius seius".

Dig. 43.8.2.7

Digest 43.8.2.7

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si quis quod in publico loco positum habuit, reficere voluit, hoc interdicto locum esse aristo ait ad prohibendum eum reficere.

If someone wished to repair what he had set in a public place, Aristo says that there is scope for this interdict to prohibit him from repairing it.

Dig. 43.8.2.8

Digest 43.8.2.8

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Adversus eum, qui molem in mare proiecit, interdictum utile competit ei, cui forte haec res nocitura sit: si autem nemo damnum sentit, tuendus est is, qui in litore aedificat vel molem in mare iacit.

Against the one who has thrown a mole into the sea, a useful interdict lies in favor of him to whom perchance this thing would be harmful: but if no one suffers damage, he who builds on the shore or casts a mole into the sea is to be protected.

Dig. 43.8.2.9

Digest 43.8.2.9

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si quis in mari piscari aut navigare prohibeatur, non habebit interdictum, quemadmodum nec is, qui in campo publico ludere vel in publico balineo lavare aut in theatro spectare arceatur: sed in omnibus his casibus iniuriarum actione utendum est.

If someone is prohibited from fishing or sailing on the sea, he will not have an interdict, just as neither will he who is prevented from playing in a public field or from washing in a public bath or from spectating in the theater: but in all these cases the action for injuries must be used.

Dig. 43.8.2.10

Digest 43.8.2.10

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Merito ait praetor " qua ex re quid illi damni detur": nam quotiensque aliquid in publico fieri permittitur, ita oportet permitti, ut sine iniuria cuiusquam fiat. et ita solet princeps, quotiens aliquid novi operis instituendum petitur, permittere.

Rightly the praetor says " from which matter what damages are to be awarded to him": for whenever something is permitted to be done in public, it ought so to be permitted that it be done without anyone’s injury. And thus the emperor is accustomed, whenever the instituting of some new work is requested, to permit it.

Dig. 43.8.2.11

Digest 43.8.2.11

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Damnum autem pati videtur, qui commodum amittit, quod ex publico consequebatur, qualequale sit.

However, he is deemed to suffer loss who loses a benefit which he was obtaining from the public, whatever its kind may be.

Dig. 43.8.2.12

Digest 43.8.2.12

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Proinde si cui prospectus, si cui aditus sit deterior aut angustior, interdicto opus est.

Accordingly, if anyone’s prospect, if anyone’s access is made worse or more constricted, an interdict is necessary.

Dig. 43.8.2.13

Digest 43.8.2.13

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si quid in loco publico aedificavero, ut ea, quae ex meo ad te nullo iure defluebant, desinant fluere, interdicto me non teneri labeo putat.

If I should build anything in a public place, so that those things which from my property were flowing down to you with no right may cease to flow, Labeo thinks that I am not held under the interdict.

Dig. 43.8.2.14

Digest 43.8.2.14

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Plane si aedificium hoc effecerit, ut minus luminis insula tua habeat, interdictum hoc competit.

Plainly, if this building has effected that your insula has less light, this interdict is available.

Dig. 43.8.2.15

Digest 43.8.2.15

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Idem ait, si in publico aedificem, deinde hoc aedificium ei obstet, quod tu in publico aedificaveras, cessare hoc interdictum, cum tu quoque illicite aedificaveris, nisi forte tu iure tibi concesso aedificaveras.

The same says that, if I build on public ground, and then this edifice is obstructed by what you had built on public ground, this interdict ceases, since you likewise built illicitly, unless perhaps you had built under a right conceded to you.

Dig. 43.8.2.16

Digest 43.8.2.16

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si quis a principe simpliciter impetraverit, ut in publico loco aedificet, non est credendus sic aedificare, ut cum incommodo alicuius id fiat, neque sic conceditur: nisi forte quis hoc impetraverit.

If someone has simply obtained from the emperor to build in a public place, he is not to be understood to build in such a way that it be done to the inconvenience of anyone, nor is it conceded on such terms: unless perhaps someone has obtained this very thing.

Dig. 43.8.2.17

Digest 43.8.2.17

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Si quis nemine prohibente in publico aedificaverit, non esse eum cogendum tollere, ne ruinis urbs deformetur, et quia prohibitorium est interdictum, non restitutorium. si tamen obstet id aedificium publico usui, utique is, qui operibus publicis procurat, debebit id deponere, aut si non obstet, solarium ei imponere: vectigal enim hoc sic appellatur solarium ex eo, quod pro solo pendatur.

if someone, with no one forbidding, has built on public property, he is not to be compelled to remove it, lest the city be disfigured by ruins, and because the interdict is prohibitory, not restitutory. if, however, that building obstructs public use, then indeed the one who has charge of public works ought to take it down; or, if it does not obstruct, to impose upon him a solarium (ground-rent): for this vectigal is thus called “solarium” from the fact that it is paid for the soil.

Dig. 43.8.2.18

Digest 43.8.2.18

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si tamen adhuc nullum opus factum fuerit, officio iudicis continetur, uti caveatur non fieri: et ea omnia etiam in persona heredum ceterorumque successorum erunt cavenda.

If, however, no work has yet been done, it is contained within the office of the judge that security be taken to prevent its being done; and all these things must also be secured against the persons of heirs and other successors.

Dig. 43.8.2.19

Digest 43.8.2.19

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Locorum sacrorum diversa causa est: in loco enim sacro non solum facere vetamur, sed et factum restituere iubemur: hoc propter religionem.

The case of sacred places is different: for in a sacred place we are not only forbidden to act, but are also ordered to restore what has been done—this on account of religion.

Dig. 43.8.2.20

Digest 43.8.2.20

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Ait praetor: " in via publica itinereve publico facere immittere quid, quo ea via idve iter deterius sit fiat, veto".

The praetor says: " in a public road or in a public way to make or to introduce anything, by which that road or that way would be or become worse, I forbid".

Dig. 43.8.2.21

Digest 43.8.2.21

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Viam publicam eam dicimus, cuius etiam solum publicum est: non enim sicuti in privata via, ita et in publica accipimus: viae privatae solum alienum est, ius tantum eundi et agendi nobis competit: viae autem publicae solum publicum est, relictum ad directum certis finibus latitudinis ab eo, qui ius publicandi habuit, ut ea publice iretur commearetur.

We call that a public way whose very soil is public: for we do not take a public way just as we do a private way; the soil of a private way is another’s, only the right of going and of driving belongs to us; but the soil of a public way is public, left in a straight course with fixed bounds of width by him who had the right of making it public, so that it might be publicly gone upon and traveled.

Dig. 43.8.2.22

Digest 43.8.2.22

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Viarum quaedam publicae sunt, quaedam privatae, quaedam vicinales. publicas vias dicimus, quas graeci basilikas, nostri praetorias, alii consulares vias appellant. privatae sunt, quas agrarias quidam dicunt.

Some roads are public, some private, some vicinal. we call public roads those which the Greeks call basilikai, our people praetorian, others consular roads. private are those which some call agrarian.

vicinales sunt viae, quae in vicis sunt vel quae in vicos ducunt: has quoque publicas esse quidam dicunt: quod ita verum est, si non ex collatione privatorum hoc iter constitutum est. aliter atque si ex collatione privatorum reficiatur: nam si ex collatione privatorum reficiatur, non utique privata est: refectio enim idcirco de communi fit, quia usum utilitatemque communem habet.

Vicinal roads are the roads which are in the vici or which lead into the vici: some also say that these too are public: which is thus true, if this way has not been established from a contribution of private persons. It is otherwise than if it be repaired from a contribution of private persons: for if it be repaired from a contribution of private persons, it is not necessarily private: for the refection is on that account made from the common fund, because it has a common use and utility.

Dig. 43.8.2.23

Digest 43.8.2.23

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Privatae viae dupliciter accipi possunt, vel hae, quae sunt in agris, quibus imposita est servitus, ut ad agrum alterius ducant, vel hae, quae ad agros ducunt, per quas omnibus commeare liceat, in quas exitur de via consulari et sic post illam excipit via vel iter vel actus ad villam ducens. has ergo, quae post consularem excipiunt in villas vel in alias colonias ducentes, putem etiam ipsas publicas esse.

Private roads can be understood in a twofold way, either those which are in the fields, upon which a servitude has been imposed, so that they lead to another’s field, or those which lead to fields, along which it is permitted for all to pass, into which one goes out from the consular road, and thus after that the way—or the path or the drive—leading to a villa takes over. Therefore, those which after the consular road take over, leading into villas or into other colonies, I think even these themselves are public.

Dig. 43.8.2.24

Digest 43.8.2.24

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum tantum ad vias rusticas pertinet, ad urbicas vero non: harum enim cura pertinet ad magistratus.

This interdict pertains only to rural roads, but not to urban ones: for the care of these pertains to the magistrates.

Dig. 43.8.2.25

Digest 43.8.2.25

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Si viae publicae exemptus commeatus sit vel via coartata, interveniunt magistratus.

If the passage of a public road has been removed, or the road has been narrowed, the magistrates intervene.

Dig. 43.8.2.26

Digest 43.8.2.26

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si quis cloacam in viam publicam immitteret exque ea re minus habilis via per cloacam fiat, teneri eum labeo scribit: immisisse enim eum videri.

If someone were to let a sewer into a public road, and from this matter the road becomes less serviceable by reason of the sewer, Labeo writes that he is held liable: for he is considered to have let it in.

Dig. 43.8.2.27

Digest 43.8.2.27

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Proinde et si fossam quis in fundo suo fecerit, ut ibi aqua collecta in viam decurrat, hoc interdicto tenebitur: immissum enim habere etiam hunc videri.

Accordingly, even if someone has made a ditch on his own land, so that water collected there runs down into the road, he will be liable under this interdict: for this person too is considered to have an immission.

Dig. 43.8.2.28

Digest 43.8.2.28

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Idem labeo scribit, si quis in suo ita aedificaverit, ut aqua in via collecta restagnet, non teneri eum interdicto, quia non immittat aquam, sed non recipit: nerva autem melius scribit utrumque teneri. plane si fundus viam publicam contingat et ex eo aqua derivata deteriorem viam faciat, quae tamen aqua ex vicini fundo in tuum veniat: si quidem necesse habeas eam aquam recipere, interdictum locum habebit adversus vicinum tuum: si autem necesse non sit, non teneri vicinum tuum, te tamen teneri: eum enim videri factum habere, qui usum eius aquae habeat. idem nerva scribit, si tecum interdicto agatur, nihil ultra te facere cogendum, quam ut arbitratu eius qui tecum experitur cum vicino experiaris: ceterum aliter observantibus futurum, ut tenearis etiam, si iam bona fide cum vicino egeris neque per te stet, quo minus arbitratu actoris cum vicino experiaris.

The same Labeo writes that if someone on his own property has so built that water collected in the roadway pools, he is not held by the interdict, because he does not let water in, but does not receive it: Nerva, however, writes better that both are held. Clearly, if an estate touches a public road and from it water derived makes the road worse, which water nevertheless comes from a neighbor’s land onto yours: if indeed you have necessity to receive that water, the interdict will have place against your neighbor: but if there is no necessity, your neighbor is not held, yet you are held: for he is deemed to have done the act who has the use of that water. The same Nerva writes that, if action by interdict is brought against you, you are to be compelled to do nothing further than, at the arbitrament of him who proceeds against you, to proceed against your neighbor: otherwise, if a different practice be observed, it will come about that you are held even if you have already dealt in good faith with your neighbor and it is not through you that it fails to happen that, at the plaintiff’s arbitrament, you proceed against your neighbor.

Dig. 43.8.2.29

Digest 43.8.2.29

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Idem ait, si odore solo locus pestilentiosus fiat, non esse ab re de re ea interdicto uti.

He likewise says that, if by smell alone a place becomes pestilential, it is not out of place to use an interdict concerning that matter.

Dig. 43.8.2.30

Digest 43.8.2.30

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum etiam ad ea, quae pascuntur in via publica itinereve publico et deteriorem faciant viam, locum habet.

This interdict also has application to those animals that are pastured on the public road or the public way and make the road worse.

Dig. 43.8.2.31

Digest 43.8.2.31

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Deinde ait praetor: " quo ea via idque iter deterius sit fiat". hoc sive statim deterior via sit, sive postea: ad hoc enim pertinent haec verba " sic fiat": etenim quaedam sunt talia, ut statim facto suo noceant, quaedam talia, ut in praesentiarum quidem nihil noceant, in futurum autem nocere debeant.

Then the praetor says: "by which that road and that right-of-way be made worse, so let it be done." This holds whether the road become worse immediately or later; for to this the words "so let it be done" pertain: for certain things are such that they harm at once by the very act, others are such that, for the present indeed they harm nothing, but in the future, however, they ought to cause harm.

Dig. 43.8.2.32

Digest 43.8.2.32

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Deteriorem autem viam fieri sic accipiendum est, si usus eius ad commeandum corrumpatur, hoc est ad eundum vel agendum, ut, cum plane fuerit, clivosa fiat vel ex molli aspera aut angustior ex latiore aut palustris ex sicca.

And that a road becomes worse is to be understood thus: if its use for passage is corrupted—namely, for going or for driving—so that, when it had been level, it becomes sloping, or from smooth it becomes rough, or narrower from broader, or marshy from dry.

Dig. 43.8.2.33

Digest 43.8.2.33

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Scio tractatum, an permittendum sit specus et pontem per viam publicam facere: et plerique probant interdicto eum teneri: non enim oportere eum deteriorem viam facere.

I know it has been discussed whether it should be permitted to make a conduit and a bridge through a public way: and most approve that he is held by an interdict; for he ought not to make the road worse.

Dig. 43.8.2.34

Digest 43.8.2.34

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdictum perpetuum et populare est condemnatioque ex eo facienda est, quanti actoris intersit.

This interdict is perpetual and popular, and a condemnation must be made thereon in the amount of the plaintiff’s interest.

Dig. 43.8.2.35

Digest 43.8.2.35

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Praetor ait: " quod in via publica itinereve publico factum immissum habes, quo ea via idve iter deterius sit fiat, restituas".

The Praetor says: "whatever on a public road or on a public way you have done or have let in, by which that road or that way is or becomes worse, you shall restore".

Dig. 43.8.2.36

Digest 43.8.2.36

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum ex eadem causa proficiscitur, ex qua et superius: et tantum interest, quod hoc restitutorium, illud prohibitorium est.

This interdict proceeds from the same cause as the one above; and the only difference is that this one is restitutory, that one prohibitory.

Dig. 43.8.2.37

Digest 43.8.2.37

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdicto non is tenetur, qui in via publica aliquid fecit, sed is, qui factum habet. proinde si alius fecit, alius factum habet, is tenetur, qui factum habet: et est hoc utilius, quia is potest restituere, qui factum immissum habet.

By this interdict, he is not held who did something in the public way, but he who has the thing done. Accordingly, if one person did it and another has the thing done, he is held who has the thing done: and this is more useful, because he can restore who has the thing introduced.

Dig. 43.8.2.38

Digest 43.8.2.38

Ulpianus 68 ad ed.

Ulpian book 68 on the Edict.

Habere eum dicimus, qui utitur et iure possessionis fruitur, sive ipse opus fecit sive ex causa emptionis vel conductionis vel legato vel hereditate vel quo alio modo adquisiit.

We say that he “has” who uses and enjoys the right of possession, whether he himself made the work, or by reason of purchase or lease, or by legacy or inheritance, or in whatever other way he acquired it.

Dig. 43.8.2.39

Digest 43.8.2.39

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Unde ofilius putat eum, qui pro derelicto reliquit id opus quod fecit, si viam publicam corrupit et reliquit, non teneri hoc interdicto: non enim habet quod fecit. sed an in eum actio debeat dari, videbimus. et puto utile interdictum competere, ut, quod in via publica aedificavit, restituat.

Whence Ofilius thinks that he who, as abandoned, has left as derelict the work which he made—if he has damaged a public road and left it—is not held by this interdict: for he does not have what he made. But whether an action ought to be granted against him, we shall see. And I think a useful interdict lies, to the effect that he restore what he built on the public road.

Dig. 43.8.2.40

Digest 43.8.2.40

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Si ex fundo tuo arbor in viam publicam sic ceciderit, ut itineri sit impedimento, eamque pro derelicto habeas, non teneri labeo scribit: si tamen, inquit, actor sua impensa arborem tollere paratus fuerit, recte tecum acturum interdicto de via publica reficienda. sed si pro derelicto non habeas, recte tecum agi hoc interdicto.

If from your estate a tree has fallen into the public road in such a way as to be an impediment to travel, and you hold it as derelict, Labeo writes that you are not liable; if, however, he says, the plaintiff is ready, at his own expense, to remove the tree, he will proceed rightly against you by the interdict for restoring the public way. But if you do not hold it as derelict, it is right that you be proceeded against by this interdict.

Dig. 43.8.2.41

Digest 43.8.2.41

Ulpianus 68 ad ed.

Ulpian book 68 on the Edict.

Idem labeo scribit, si vicinus meus viam opere corruperit, quamvis opus, quod fecit, tam mihi quam ipsi utile sit, tamen si is vicinus fundi sui causa id fecerit, me tamen non posse hoc interdicto conveniri: si autem communiter hoc opus fieri curaverimus, utrumque nostrum teneri.

The same Labeo writes: if my neighbor has spoiled a road by a work, although the work which he did is as useful to me as to himself, nevertheless, if that neighbor did it for the sake of his own estate, I nevertheless cannot be sued under this interdict; but if we have taken care that this work be done in common, each of us is held liable.

Dig. 43.8.2.42

Digest 43.8.2.42

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum locum habet etiam adversus eum, qui dolo malo fecit, quo minus possideret vel haberet: etenim parem esse condicionem oportet eius, qui quid possideat vel habeat, atque eius, cuius dolo malo factum sit, quo minus possideret vel haberet: et mihi videtur vera labeonis sententia.

This interdict has place also against him who by malicious fraud has brought it about that another not possess or have; for the condition ought to be equal for him who possesses or has something and for him by whose malicious fraud it has been done that he not possess or have; and to me Labeo’s opinion seems true.

Dig. 43.8.2.43

Digest 43.8.2.43

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

" restituas" inquit. restituere videtur, qui in pristinum statum reducit: quod fit, sive quis tollit id quod factum est vel reponat quod sublatum est. et interdum suo sumptu: nam si ipse, quo qui interdixit, fecerit, vel iussu eius alius, aut ratum habitum sit quod fecit, ipse suis sumptibus debet restituere: si vero nihil horum intervenit, sed habet factum, tunc dicemus patientiam solam eum praestare debere.

'"restore," he says. He is deemed to restore who brings back into the pristine state: which is done whether someone removes what has been done or puts back what has been taken away. And sometimes at his own expense: for if he himself, on account of whom the one who issued the interdict acted, has done it, or another by his order, or what he did has been held ratified, he himself ought to restore at his own expenses. But if none of these has intervened, but he “has the deed,” then we shall say that he owes to furnish patience alone.'

Dig. 43.8.2.44

Digest 43.8.2.44

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Interdictum hoc non esse temporarium sciendum est: pertinet enim ad publicam utilitatem: condemnatioque ex eo facienda est, quanti actoris intersit tolli quod factum est.

It is to be known that this interdict is not temporary: for it pertains to the public utility: and the condemnation therefrom is to be made for as much as it is in the plaintiff’s interest that what has been done be removed.

Dig. 43.8.2.45

Digest 43.8.2.45

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Praetor ait: " quo minus illi via publica itinereve publico ire agere liceat, vim fieri veto".

The Praetor says: "I forbid force to be used to prevent his being allowed to go or to drive on a public road or a public right-of-way".

Dig. 43.8.3pr.

Digest 43.8.3, preface.

Celsus 39 Dig.

Celsus 39 Digest.

Litora, in quae populus romanus imperium habet, populi romani esse arbitror:

The shores, over which the Roman people holds imperium, I judge to belong to the Roman people:

Dig. 43.8.3.1

Digest 43.8.3.1

Celsus 39 Dig.

Celsus 39 Digest.

Maris communem usum omnibus hominibus, ut aeris, iactasque in id pilas eius esse qui iecerit: sed id concedendum non esse, si deterior litoris marisve usus eo modo futurus sit.

The common use of the sea is for all human beings, as is that of the air, and the piles cast into it belong to the one who cast them: but this is not to be conceded, if in that way the use of the shore or of the sea would become worse.

Dig. 43.8.4

Digest 43.8.4

Scaevola 5 resp.

Scaevola book 5 of responses.

Respondit in litore iure gentium aedificare licere, nisi usus publicus impediretur.

He answered that on the shore it is permitted by the law of nations to build, unless public use is impeded.

Dig. 43.8.5

Digest 43.8.5

Paulus 16 ad sab.

Paulus 16 to Sabinus.

Si per publicum locum rivus aquae ductus privato nocebit, erit actio privato ex lege duodecim tabularum, ut noxa domino sarciatur.

If a channel of water conducted through a public place will harm a private person, there will be an action for the private party under the law of the Twelve Tables, that the noxa be made good to the owner.

Dig. 43.8.6

Digest 43.8.6

Iulianus 43 Dig.

Julianus Digest 43

Ei, qui hoc interdicto experitur " ne quid in loco publico fiat, quo damnum privato detur", quamvis de loco publico interdicat, nihilo minus procuratoris dandi facultas est.

For one who proceeds by this interdict, "that nothing be done in a public place whereby damage is given to a private person," although he interdicts concerning a public place, nonetheless there is the capacity to appoint a procurator.

Dig. 43.8.7

Digest 43.8.7

Iulianus 48 Dig.

Julian 48 Dig.

Sicut is, qui nullo prohibente in loco publico aedificaverat, cogendus non est demolire, ne ruinis urbs deformetur, ita qui adversus edictum praetoris aedificaverit, tollere aedificium debet: alioqui inane et lusorium praetoris imperium erit.

Just as he who, with no one forbidding, had built in a public place is not to be compelled to demolish, lest the city be disfigured by ruins, so he who has built contrary to the praetor’s edict must remove the building; otherwise the praetor’s imperium will be empty and a mere plaything.

Dig. 43.9.0. De loco publico fruendo.

Dig. 43.9.0. On enjoying a public place.

Dig. 43.9.1pr.

Digest 43.9.1, pr.

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Praetor ait: " quo minus loco publico, quem is, cui locandi ius fuerit, fruendum alicui locavit, ei qui conduxit sociove eius e lege locationis frui liceat, vim fieri veto".

The Praetor says: "I forbid force to be used to prevent, in a public place which the person who has the right of letting has let to someone for enjoyment, the one who has taken it on lease or his partner from enjoying it according to the law (terms) of the lease."

Dig. 43.9.1.1

Digest 43.9.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Interdictum hoc publicae utilitatis causa proponi palam est: tuetur enim vectigalia publica, dum prohibetur quis vim facere ei, qui id fruendum conduxit.

That this interdict is put forward for the sake of public utility is plain: for it protects the public revenues, since one is prohibited from using force against him who has leased that thing to be enjoyed (for the fruits).

Dig. 43.9.1.2

Digest 43.9.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed si simul veniant ad interdictum movendum ipse qui conduxerit et socius eius, magis est, ut ipse conductor praeferatur.

But if he himself who has leased and his partner should come at the same time to set an interdict in motion, the stronger view is that the lessee himself be preferred.

Dig. 43.9.1.3

Digest 43.9.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Ait praetor " quo minus e lege locationis frui liceat". merito ait " e lege locationis": ultra legem enim vel contra legem non debet audiri, qui frui desiderat.

The praetor says " whereby it may be less permitted to enjoy under the law of the letting". He rightly says " under the law of the letting": for beyond the law or against the law, he who desires to enjoy ought not to be heard.

Dig. 43.9.2

Digest 43.9.2

Paulus 5 sent.

Paulus 5 sentences.

Concedi solet, ut imagines et statuae, quae ornamenta rei publicae sunt futurae, in publicum ponantur.

It is usually granted that images and statues, which are to be ornaments of the republic, be placed in public.

Dig. 43.10.0. De via publica et si quid in ea factum esse dicatur.

Digest 43.10.0. On the public way and if anything is said to have been done on it.

Dig. 43.10.1pr.

Digest 43.10.1, preface.

Papinianus lib. de cura urb.

Papinian book On the Care of the City.

Ohi astunomikoi epimeleisvwsan twn kata tyn polin hodwn, hopws an homalisvwsin kai ta hreumata my blapty tas oikias kai gefurai wsin ohu an dey.

Let the city-wardens take care of the roads throughout the city, so that they may be leveled, and that the streams not harm the houses, and that there be bridges wherever there is need.

Dig. 43.10.1.1

Digest 43.10.1.1

Papinianus lib. de cura urb.

Papinianus book On the Care of the City.

Epimeleisvwsan de hopws ohi idioi toixoi y twn allwn y twn peri tas oikias ha eis tyn hodon ferei my sfalera y, hina hws dei kavairwsin ohi despotai twn oikiwn kai episkeuazwsin. ean de my kavairwsin myde episkeuazwsin, zymioutwsan autous, hews an asfaly poiyswsin.

Let them take care that their own walls, or those of others, or those around the houses which give onto the road, be not unstable, so that the masters of the houses may cleanse them as is proper and repair them. But if they neither cleanse nor repair, let them be fined until they make them safe.

Dig. 43.10.1.2

Digest 43.10.1.2

Papinianus lib. de cura urb.

Papinian, book On the Care of the City.

Epimeleisvwsan de hopws mydeis orussy tas hodous myde xwnnuy myde ktisy eis tas hodous myden: ei de my, ho men doulos hupo tou entuxontos mastigousvw, ho de eleuveros endeiknusvw tois astunomois, ohi de astunomoi zymioutwsan kata ton nomon kai to gegonos kataluetwsan.

Let them take care that no one dig up the roads nor dump nor build anything into the roads; but if not, let the slave be flogged by whoever encounters him, and let the free man be reported to the city-wardens, and let the city-wardens penalize according to the law and demolish what has been done.

Dig. 43.10.1.3

Digest 43.10.1.3

Papinianus lib. de cura urb.

Papinian, book On the care of the city.

Episkeuazein de tas hodous tas dymosias kata tyn heautou oikian hekaston kai tas hudrorroas ekkavairein tas ek tou hupaivriou kai episkeuazein ohutws, hws an my kwluy hamacan epienai. hosoi de misvwsamenoi oikousin, ean my episkeuasy ho despotys, autoi episkeuasantes hupologizesvwsan to analwma kata ton misvon.

Let each person repair the public roads along his own house, and clear out the water-drains that come from the open air, and repair them in such a way as not to hinder a wagon from passing. And as many as dwell by renting: if the owner does not make the repair, let them themselves make the repair and reckon the expense against the rent.

Dig. 43.10.1.4

Digest 43.10.1.4

Papinianus lib. de cura urb.

Papinian book on the care of the city.

Epimeleisvwsan de kai hopws pro twn ergastyriwn myden prokeimenon y, plyn ean knafeus himatia qugy y tektwn troxous ecw tivy: tivesvwsan de kai ohutoi, hwste my kwluein hamacan badizein.

Let them also take care that in front of the workshops nothing be set out, unless it be that a fuller lays out garments to dry or a carpenter sets wheels outside: but let these likewise be arranged so as not to hinder a wagon from passing.

Dig. 43.10.1.5

Digest 43.10.1.5

Papinianus lib. de cura urb.

Papinian, book On the Care of the City.

My eatwsan de myde maxesvai en tais hodois myde kopron ekballein myde nekra myde dermata hriptein.

And let them not permit fighting in the streets, nor to cast out dung or corpses, nor to fling hides.

Dig. 43.11.0. De via publica et itinere publico reficiendo.

Dig. 43.11.0. On repairing the public road and the public right-of-way.

Dig. 43.11.1pr.

Digest 43.11.1, preface.

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Praetor ait: " quo minus illi viam publicam iterve publicum aperire reficere liceat, dum ne ea via idve iter deterius fiat, vim fieri veto".

The praetor says: " I forbid force to be used to the effect that it be less permitted to him to open or repair a public road or a public way, provided that that road or that way is not made worse."

Dig. 43.11.1.1

Digest 43.11.1.1

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Viam aperire est ad veterem altitudinem latitudinemque restituere. sed et purgare refectionis portio est: purgare autem proprie dicitur ad libramentum proprium redigere sublato eo quod super eam esset. reficit enim et qui aperit et qui purgat et omnes omnino, qui in pristinum statum reducunt.

To open a road is to restore it to its former height and breadth. But clearing too is a portion of refection: to clear, properly, is said to reduce it to its proper level, with that which was upon it removed. For he performs refection both who opens and who clears, and, in general, all who bring it back to its pristine state.

Dig. 43.11.1.2

Digest 43.11.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si quis in specie refectionis deteriorem viam facit, impune vim patietur. propter quod neque latiorem neque longiorem neque altiorem neque humiliorem viam sub nomine refectionis is qui intercidit potest facere, vel in viam terrenam glaream inicere aut sternere viam lapide quae terrena sit, vel contra lapide stratam terrenam facere.

If anyone under the appearance of refection makes a road worse, he will with impunity suffer force. wherefore neither a wider nor a longer nor a higher nor a lower road may he who has cut it off make under the name of refection, nor may he throw gravel onto an earthen road or strew with stone a road which is earthen, or, conversely, make earthen a road paved with stone.

Dig. 43.11.1.3

Digest 43.11.1.3

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Interdictum hoc perpetuo dabitur et omnibus et in omnes, et habet condemnationem in id quod actoris intererit.

This interdict will be granted perpetually, both to all and against all, and it carries condemnation up to the amount of the plaintiff’s interest.

Dig. 43.11.2

Digest 43.11.2

Iavolenus 10 ex cass.

Javolenus 10 from Cassius.

Viam publicam populus non utendo amittere non potest.

The people cannot lose a public way by non-use.

Dig. 43.11.3pr.

Digest 43.11.3 beginning.

Paulus 1 sent.

Paul 1 Opinions.

Si in agrum vicini viam publicam quis reiecerit, tantum in eum viae receptae actio dabitur, quanti eius interest, cuius fundo iniuria irrogata est.

If someone has shifted a public road into a neighbor’s field, the action for a reclaimed way will be given against him to the value of the interest of the one whose estate the injury has been inflicted upon.

Dig. 43.11.3.1

Digest 43.11.3.1

Paulus 1 sent.

Paulus Sentences 1.

Qui viam publicam exaraverit, ad munitionem eius solus compellitur.

Whoever shall have torn up a public way is compelled alone to its repair.

Dig. 43.12.0. De fluminibus. ne quid in flumine publico ripave eius fiat, quo peius navigetur.

Digest 43.12.0. On rivers. that nothing be done in a public river or on its bank, whereby navigation is made worse.

Dig. 43.12.1pr.

Digest 43.12.1, beginning.

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Ait praetor: " ne quid in flumine publico ripave eius facias neve quid in flumine publico neve in ripa eius immittas, quo statio iterve navigio deterior sit fiat".

The praetor says: "do not do anything in a public river or on its bank, nor introduce anything into a public river nor onto its bank, whereby the station or the route for a vessel would be, or be made, worse".

Dig. 43.12.1.1

Digest 43.12.1.1

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Flumen a rivo magnitudine discernendum est aut existimatione circumcolentium.

A river must be distinguished from a brook by magnitude, or by the estimation of the surrounding inhabitants.

Dig. 43.12.1.2

Digest 43.12.1.2

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Item fluminum quaedam sunt perennia, quaedam torrentia. perenne est, quod semper fluat, aenaos, torrens ho xeimarrous: si tamen aliqua aestate exaruerit, quod alioquin perenne fluebat, non ideo minus perenne est.

Likewise some rivers are perennial, some torrential. perennial is that which always flows, aenaos, torrent ho xeimarrous: if, however, in some summer it has dried up, which otherwise flowed perennially, it is not for that reason any less perennial.

Dig. 43.12.1.3

Digest 43.12.1.3

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Fluminum quaedam publica sunt, quaedam non. publicum flumen esse cassius definit, quod perenne sit: haec sententia cassii, quam et celsus probat, videtur esse probabilis.

Some rivers are public, some are not. cassius defines a public river to be one which is perennial: this opinion of cassius, which celsus also approves, seems to be probable.

Dig. 43.12.1.4

Digest 43.12.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum ad flumina publica pertinet: si autem flumen privatum sit, cessabit interdictum: nihil enim differt a ceteris locis privatis flumen privatum.

This interdict pertains to public rivers; but if the river is private, the interdict will cease: for a private river differs in no way from other private places.

Dig. 43.12.1.5

Digest 43.12.1.5

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Ripa autem ita recte definietur id, quod flumen continet naturalem rigorem cursus sui tenens: ceterum si quando vel imbribus vel mari vel qua alia ratione ad tempus excrevit, ripas non mutat: nemo denique dixit nilum, qui incremento suo aegyptum operit, ripas suas mutare vel ampliare. nam cum ad perpetuam sui mensuram redierit, ripae alvei eius muniendae sunt. si tamen naturaliter creverit, ut perpetuum incrementum nanctus sit, vel alio flumine admixto vel qua alia ratione, dubio procul dicendum est ripas quoque eum mutasse, quemadmodum si alveo mutato alia coepit currere.

A bank, moreover, will be rightly defined as that which contains the river, keeping the natural rigor of its course: however, if at any time it has for a time swollen either by rains or by the sea or by some other cause, it does not change its banks: no one, in fine, has said that the Nile, which by its increment covers Egypt, changes or enlarges its banks. For when it has returned to its perpetual measure, the banks of its channel must be fortified. If, however, it has naturally grown so that it has acquired a permanent increment, either with another river admixed or by some other cause, beyond doubt it must be said that it has changed its banks as well, just as if, its channel having been changed, it has begun to run elsewhere.

Dig. 43.12.1.6

Digest 43.12.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si insula in publico flumine fuerit nata inque ea aliquid fiat, non videtur in publico fieri. illa enim insula aut occupantis est, si limitati agri fuerunt, aut eius cuius ripam contingit, aut, si in medio alveo nata est, eorum est qui prope utrasque ripas possident.

If an island has been born in a public river and something is done upon it, it is not considered to be done in public. For that island is either the occupant’s, if the fields have been delimited, or it is his whose bank it touches; or, if it has been born in the middle of the channel, it belongs to those who possess near to both banks.

Dig. 43.12.1.7

Digest 43.12.1.7

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Simili modo et si flumen alveum suum reliquit et alia fluere coeperit, quidquid in veteri alveo factum est, ad hoc interdictum non pertinet: non enim in flumine publico factum erit, quod est utriusque vicini aut, si limitatus est ager, occupantis alveus fiet: certe desinit esse publicus. ille etiam alveus, quem sibi flumen fecit, etsi privatus ante fuit, incipit tamen esse publicus, quia impossibile est, ut alveus fluminis publici non sit publicus.

In a similar manner, if a river has left its own channel and has begun to flow elsewhere, whatever has been done in the old channel does not pertain to this interdict: for it will not have been done in a public river; rather it will belong to both neighbors, or, if the land is delimited, the channel will become that of the occupier: certainly it ceases to be public. That channel also which the river has made for itself, although previously it was private, nevertheless begins to be public, because it is impossible that the channel of a public river not be public.

Dig. 43.12.1.8

Digest 43.12.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si fossa manu facta sit, per quam fluit publicum flumen, nihilo minus publica fit: et ideo si quid ibi fiat, in flumine publico factum videtur.

If a fosse made by hand has been made, through which a public river flows, nonetheless it becomes public; and therefore, if anything is done there, it is deemed to have been done in a public river.

Dig. 43.12.1.9

Digest 43.12.1.9

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Aliter atque si flumen aliquam terram inundaverit, non alveum sibi fecerit: tunc enim non fit publicum, quod aqua opertum est.

Otherwise than if a river has inundated some land and has not made a channel for itself: for then what is covered by water does not become public.

Dig. 43.12.1.10

Digest 43.12.1.10

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Item si amnis aliquid circumeat, sciendum est eius manere cuius fuit: si quid igitur illic factum est, non est factum in publico flumine. nec pertinet ad hoc interdictum, si quid in privato factum sit, ne quidem si in privato flumine fiat: nam quod fit in privato flumine, perinde est, atque si in alio privato loco fiat.

Likewise, if a river encircles something, it is to be known that it remains that of him whose it was: if, therefore, anything has been done there, it has not been done in a public river. Nor does this interdict pertain, if anything has been done on private property, not even if it be done in a private river: for what is done in a private river is just the same as if it were done in some other private place.

Dig. 43.12.1.11

Digest 43.12.1.11

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

In flumine publico factum accipere debemus, quidquid in aqua fiat: nam si quid extra factum sit, non est in flumine factum: et quod in ripa fiat, non videtur in flumine factum.

We must take as “done in a public river” whatever is done in the water: for if something is done outside, it is not done in the river; and what is done on the bank is not considered to have been done in the river.

Dig. 43.12.1.12

Digest 43.12.1.12

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Non autem omne, quod in flumine publico ripave fit, coercet praetor, sed si quid fiat, quo deterior statio et navigatio fiat. ergo hoc interdictum ad ea tantum flumina publica pertinet, quae sunt navigabilia, ad cetera non pertinet. sed labeo scribit non esse iniquum etiam si quid in eo flumine, quod navigabile non sit, fiat, ut exarescat vel aquae cursus impediatur, utile interdictum competere " ne vis ei fiat, quo minus id opus, quod in alveo fluminis ripave ita factum sit, ut iter cursus fluminis deterior sit fiat, tollere demoliri purgare restituere viri boni arbitratu possit".

However, the praetor does not restrain everything that is done in a public river or on its bank, but only if something is done whereby the station (anchorage) and navigation are made worse. Therefore this interdict pertains only to those public rivers which are navigable; it does not pertain to the others. But Labeo writes that it is not inequitable that even if something is done in a river which is not navigable, so that it dries up or the course of the water is impeded, a useful interdict be available: "that no force be done to him, whereby he be hindered from being able, as to that work which has been made in the bed of the river or on its bank in such a way that the course of the river is made worse, to remove, demolish, clear, restore it at the arbitrament of a good man."

Dig. 43.12.1.13

Digest 43.12.1.13

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Stationem dicimus a stando: is igitur locus demonstratur, ubicumque naves tuto stare possunt.

We call it a station from “standing”: therefore that place is designated, wherever ships can safely lie at rest.

Dig. 43.12.1.14

Digest 43.12.1.14

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Ait praetor: " iterque navigii deterius fiat". hoc pro navigatione positum est: immo navigium solemus dicere etiam ipsam navem, iter ergo navigio potest et sic accipi " iter navi deterius fiat". navigii appellatione etiam rates continentur, quia plerumque et ratum usus necessarius est. si pedestre iter impediatur, non ideo minus iter navigio deterius fit.

The praetor says: "and let the passage of a vessel be made worse." This is set down in place of "navigation": indeed, we are accustomed to call "navigium" even the ship itself; therefore "iter navigio" can also be taken thus, "let the passage for a ship be made worse." Under the appellation of "navigium" rafts too are contained, because very often even the use of a raft is necessary. If a pedestrian way is impeded, not for that reason is the passage for a vessel any the less made worse.

Dig. 43.12.1.15

Digest 43.12.1.15

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Deterior statio itemque iter navigio fieri videtur, si usus eius corrumpatur vel difficilior fiat aut minor vel rarior aut si in totum auferatur. proinde sive derivetur aqua, ut exiguior facta minus sit navigabilis, vel si dilatetur, aut diffusa brevem aquam faciat, vel contra sic coangustetur, et rapidius flumen faciat, vel si quid aliud fiat quod navigationem incommodet difficilioremve faciat vel prorsus impediat, interdicto locus erit.

A station and likewise a route for a vessel are seen to be made worse, if its use is corrupted or is made more difficult, or is made smaller or rarer, or if it is taken away altogether. Accordingly, whether the water is diverted, so that, made scantier, it is less navigable; or if it is widened, or, being diffused, makes shallow water; or, conversely, is so constricted and makes the river more rapid; or if anything else is done that incommodes navigation or makes it more difficult or altogether impedes it, there will be ground for the interdict.

Dig. 43.12.1.16

Digest 43.12.1.16

Ulpianus 68 ad ed.

Ulpianus 68 On the Edict.

Labeo scribit non esse dandam exceptionem ei, qui interdicto convenitur: " aut nisi ripae tuendae causa factum sit", sed ita excipiendum ait: " extra quam si quid ita factum sit, uti de lege fieri licuit".

Labeo writes that an exception is not to be granted to him who is proceeded against by interdict: "or unless it was done for the sake of protecting the riverbank," but says it should be excepted thus: "except in so far as if anything has been done in such a manner as it was permitted by law to be done".

Dig. 43.12.1.17

Digest 43.12.1.17

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si in mari aliquid fiat, labeo competere tale interdictum: " ne quid in mari inve litore" " quo portus, statio iterve navigio deterius fiat".

If something be done in the sea, Labeo says that such an interdict will lie: " that nothing be done in the sea or on the shore" " by which the port, the station (anchorage), or the route for a vessel be made worse".

Dig. 43.12.1.18

Digest 43.12.1.18

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Sed et si in flumine publico, non tamen navigabili fiat, idem putat.

But even if it occurs in a public river, yet not a navigable one, he holds the same.

Dig. 43.12.1.19

Digest 43.12.1.19

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Deinde ait praetor: " quod in flumine publico ripave eius fiat sive quid in id flumen ripamve eius immissum habes, quo statio iterve navigio deterior sit fiat, restituas".

Then the praetor says: "whatever is done in a public river or on its bank, or if you have had anything discharged into that river or its bank, by which the berth or the route for a vessel becomes or is made worse, you shall restore".

Dig. 43.12.1.20

Digest 43.12.1.20

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Superius interdictum prohibitorium est, hoc restitutorium, ad eandem causam pertinens.

The interdict above is prohibitory; this one is restitutory, pertaining to the same cause.

Dig. 43.12.1.21

Digest 43.12.1.21

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Iubetur autem is, qui factum vel immissum habet, restituere quod habet, si modo id quod habet stationem vel navigium deterius faciat.

Moreover, he is ordered, who has a work or an emission, to restore what he has, provided that what he has makes the station or the vessel worse.

Dig. 43.12.1.22

Digest 43.12.1.22

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Haec verba " factum habes" vel " immissum habes" ostendunt non eum teneri, qui fecit vel immisit, sed qui factum immissum habet. denique labeo scribit, si auctor tuus aquam derivaverit, et hoc interdicto, si ea tu utaris.

These words " factum habes" or " immissum habes" show that the one held liable is not the person who did or let in, but the one who has the deed, the letting‑in. finally labeo writes that, if your author has diverted water, you are bound by this interdict, if you make use of it.

Dig. 43.12.2

Digest 43.12.2

Pomponius 34 ad sab.

Pomponius book 34 on Sabinus.

Quominus ex publico flumine ducatur aqua, nihil impedit ( nisi imperator aut senatus vetet), si modo ea aqua in usu publico non erit: sed si aut navigabile est aut ex eo aliud navigabile fit, non permittitur id facere.

That water be drawn from a public river, nothing prevents ( unless the emperor or the senate forbids), provided only that that water is not in public use: but if either it is navigable, or from it something else becomes navigable, it is not permitted to do that.

Dig. 43.12.3pr.

Digest 43.12.3, proem.

Paulus 16 ad sab.

Paulus 16 on Sabinus.

Flumina publica quae fluunt ripaeque eorum publicae sunt.

The rivers that flow are public, and their banks are public.

Dig. 43.12.3.1

Digest 43.12.3.1

Paulus 16 ad sab.

Paulus 16 on Sabinus.

Ripa ea putatur esse, quae plenissimum flumen continet.

The bank is considered to be that which contains the river at its fullest.

Dig. 43.12.3.2

Digest 43.12.3.2

Paulus 16 ad sab.

Paulus 16 on Sabinus.

Secundum ripas fluminum loca non omnia publica sunt, cum ripae cedant, ex quo primum a plano vergere incipit usque ad aquam.

Along the banks of rivers, not all places are public, since the banks extend from the point where they first begin to slope from the level down to the water.

Dig. 43.12.4

Digest 43.12.4

Scaevola 5 resp.

Scaevola 5 responses.

Quaesitum est, an is, qui in utraque ripa fluminis publici domus habeat, pontem privati iuris facere potest. respondit non posse.

It was asked whether he who has houses on both banks of a public river can make a bridge of private right. he answered that he cannot.

Dig. 43.13.0. Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit.

Digest 43.13.0. Let nothing be done in a public river by which the water may flow otherwise, but that it flow as it flowed in the previous summer.

Dig. 43.13.1pr.

Digest 43.13.1, pr.

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Ait praetor: " in flumine publico inve ripa eius facere aut in id flumen ripamve eius immittere, quo aliter aqua fluat, quam priore aestate fluxit, veto".

The praetor says: " in a public river or on its bank to make, or into that river or onto its bank to cast, whereby the water may flow otherwise than it flowed in the previous summer, I forbid".

Dig. 43.13.1.1

Digest 43.13.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdicto prospexit praetor, ne derivationibus minus concessis flumina excrescant vel mutatus alveus vicinis iniuriam aliquam adferat.

By this interdict the praetor provided that rivers not swell through diversions allowed in too small a measure, or that a changed channel not bring some injury to the neighbors.

Dig. 43.13.1.2

Digest 43.13.1.2

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Pertinet autem ad flumina publica, sive navigabilia sunt sive non sunt.

It pertains, moreover, to public rivers, whether they are navigable or are not.

Dig. 43.13.1.3

Digest 43.13.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Ait praetor: " quo aliter aqua fluat, quam priore aestate fluxit": non omnis ergo, qui immisit vel qui fecit, tenetur, sed qui faciendo vel immittendo efficit aliter, quam priore aestate fluxit, aquam fluere. quod autem ait " aliter fluat", non ad quantitatem aquae fluentis pertinet, sed ad modum et ad rigorem cursus aquae referendum est. et generaliter dicendum est ita demum interdicto quem teneri, si mutetur aquae cursus per hoc quod factum est, dum vel depressior vel artior fiat aqua ac per hoc rapidior fit cum incommodo accolentium: et si quod aliud vitii accolae ex facto eius qui convenitur sentient, interdicto locus erit.

The praetor says: " that the water flow otherwise than it flowed in the prior summer": not everyone, therefore, who let it in or who did the work is liable, but he who by doing or by letting in brings it about that the water flows otherwise than it flowed in the prior summer. And as for his saying " let it flow otherwise," it does not pertain to the quantity of the water flowing, but must be referred to the mode and to the rigor of the course of the water. And generally it must be said that only then is someone held by the interdict, if the course of the water is changed by what has been done, in that the water becomes either lower or narrower and thereby becomes more rapid, to the inconvenience of the neighbors: and if the neighbors feel any other defect from the deed of the one who is sued, there will be a place for the interdict.

Dig. 43.13.1.4

Digest 43.13.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si quis ex rivo tecto per apertum ducere velit vel contra qui ante aperto duxit, nunc operto velit, interdicto teneri placuit, si modo hoc factum eius incommodum circa colentibus adferat.

If anyone should wish to conduct from a covered channel through open [ground], or conversely, he who previously conducted in the open now wishes it covered, it has been decided that he is held by the interdict, provided only that this act of his brings inconvenience to those cultivating in the vicinity.

Dig. 43.13.1.5

Digest 43.13.1.5

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Simili modo et si incile ducat aut alio loco faciat aut si alveum fluminis mutet, hoc interdicto tenebitur.

In like manner, if he also leads a sluice or makes one in another place, or if he alters the river’s channel, he will be held by this interdict.

Dig. 43.13.1.6

Digest 43.13.1.6

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Sunt qui putent excipiendum hoc interdicto " quod eius ripae muniendae causa non fiet", scilicet ut, si quid fiat, quo aliter aqua fluat, si tamen muniendae ripae causa fiat, interdicto locus non sit. sed nec hoc quibusdam placet: neque enim ripae cum incommodo accolentium muniendae sunt. hoc tamen iure utimur, ut praetor ex causa aestimet, an hanc exceptionem dare debeat: plerumque enim utilitas suadet exceptionem istam dari.

There are those who think that this exception should be inserted into the interdict: “that which will be done for the sake of strengthening that bank shall not be done,” namely so that, if anything be done by which the water flows otherwise, yet if it is done for the sake of strengthening the bank, there should be no place for the interdict. But this does not please some: for banks are not to be strengthened with the inconvenience of the neighbors. Nevertheless, we use this rule, that the praetor should assess from the circumstances whether he ought to grant this exception; for, in most cases, utility urges that that exception be given.

Dig. 43.13.1.7

Digest 43.13.1.7

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et si alia utilitas vertatur eius, qui quid in flumine publico fecit ( pone enim grande damnum flumen ei dare solitum, praedia eius depopulari), si forte aggeres vel quam aliam munitionem adhibuit, ut agrum suum tueretur eaque res cursum fluminis ad aliquid immutavit, cur ei non consulatur? plerosque scio prorsus flumina avertisse alveosque mutasse, dum praediis suis consulunt. oportet enim in huiusmodi rebus utilitatem et tutelam facientis spectari, sine iniuria utique accolarum.

But also, if some other utility accrues to the one who has done something in a public river (put, for example, that the river was wont to inflict great damage on him, to devastate his estates), if perchance he employed embankments or some other fortification to protect his land, and this matter altered the course of the river in some respect, why should provision not be made for him? I know that very many have outright diverted rivers and changed their channels, while looking out for their estates. For in matters of this kind the utility and protection of the one acting ought to be regarded, of course without injury to the neighbors.

Dig. 43.13.1.8

Digest 43.13.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Is autem hoc interdicto tenetur, qui aliter fecit fluere, quam priore aestate fluxit. et idcirco aiunt praetorem priorem aestatem comprehendisse, quia semper certior est naturalis cursus fluminum aestate potius quam hieme. nec ad instantem aestatem, sed ad priorem interdictum hoc refertur, quia illius aestatis fluxus indubitatior est.

But he is held by this interdict who has made it flow otherwise than it flowed in the prior summer. And therefore they say that the praetor has comprehended the prior summer, because the natural course of rivers is always more certain in summer rather than in winter. And this interdict is referred not to the present summer, but to the prior, because the flow of that summer is more indubitable.

aestas ad aequinoctium autumnale refertur. et si forte aestate interdicetur, proxima superior aestas erit intuenda: si vero hieme, tunc non proxima hieme aestas, sed superior erit inspicienda.

summer is referred up to the autumnal equinox. and if perchance an interdict is issued in summer, the immediately prior summer is to be considered: but if in winter, then the summer not next to that winter, but the earlier one, is to be inspected.

Dig. 43.13.1.9

Digest 43.13.1.9

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Hoc interdictum cuivis ex populo competit, sed non adversus omnes, verum adversus eum, qui deneget, ut aliter aqua flueret, cum ius non haberet.

This interdict is competent to any one of the populace, but not against all, rather against him who denies that the water should flow otherwise, though he has no right.

Dig. 43.13.1.10

Digest 43.13.1.10

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum et in heredes competit.

This interdict is also available against heirs.

Dig. 43.13.1.11

Digest 43.13.1.11

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Deinde ait praetor: " quod in flumine publico ripave eius factum sive quid in flumen ripamve eius immissum habes, si ob id aliter aqua fluit atque uti priore aestate fluxit, restituas".

Then the praetor says: "whatever has been done in a public river or on its bank, or if you have introduced anything into the river or onto its bank, if on account of that the water flows otherwise than as it flowed in the previous summer, you shall restore."

Dig. 43.13.1.12

Digest 43.13.1.12

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum restitutorium proponitur: superius enim prohibitorium est et pertinet ad ea, quae nondum facta sunt. si quid igitur iam factum est, per hoc interdictum restituetur: si quid ne fiat prospicitur, superiore interdicto erit utendum, et si quid post interdictum redditum fuerit factum, coercebitur.

This restitutory interdict is set forth: for the one above is prohibitory and pertains to things which have not yet been done. If, therefore, anything has already been done, it will be restored by this interdict; if provision is made that something not be done, the earlier interdict must be used; and if anything has been done after the interdict has been issued, it will be restrained.

Dig. 43.13.1.13

Digest 43.13.1.13

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

In hoc interdicto restitutorio non est iniquum, ut labeo ait, venire etiam, quod dolo factum est quo minus haberes.

In this restitutory interdict it is not inequitable, as Labeo says, that there be included also what was done by fraud whereby you might not have it.

Dig. 43.14.0. Ut in flumine publico navigare liceat.

Dig. 43.14.0. That it be lawful to navigate on a public river.

Dig. 43.14.1pr.

Digest 43.14.1pr.

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Praetor ait: " quo minus illi in flumine publico navem ratem agere quove minus per ripam onerare exonerare liceat, vim fieri veto. item ut per lacum fossam stagnum publicum navigare liceat, interdicam".

The praetor says: " so that it be not the less lawful for him to ply a ship or raft in a public river, or to load or unload along the bank, I forbid force to be used. Likewise, in order that it be lawful to navigate through a public lake, ditch, or pond, I will interdict".

Dig. 43.14.1.1

Digest 43.14.1.1

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdicto prospicitur, ne quis flumine publico navigare prohibeatur: sicuti enim ei, qui via publica uti prohibeatur, interdictum supra propositum est, ita hoc quoque proponendum praetor putavit.

By this interdict it is provided that no one be prohibited from navigating a public river: for just as, for one who is prohibited from using a public road, an interdict has been set forth above, so the praetor thought that this one too should be proposed.

Dig. 43.14.1.2

Digest 43.14.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si privata sunt supra scripta, interdictum cessat.

If the above-written are private, the interdict ceases.

Dig. 43.14.1.3

Digest 43.14.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Lacus est, quod perpetuam habet aquam.

A lake is that which has perpetual water.

Dig. 43.14.1.4

Digest 43.14.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Stagnum est, quod temporalem contineat aquam ibidem stagnantem, quae quidem aqua plerumque hieme cogitur.

A pond is that which contains temporary water stagnating there, which water indeed for the most part is gathered in winter.

Dig. 43.14.1.5

Digest 43.14.1.5

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Fossa est receptaculum aquae manu facta.

A ditch is a receptacle for water made by hand.

Dig. 43.14.1.6

Digest 43.14.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Possunt autem etiam haec esse publica.

Moreover, these also can be public.

Dig. 43.14.1.7

Digest 43.14.1.7

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Publicano plane, qui lacum vel stagnum conduxit, si piscari prohibeatur, utile interdictum competere sabinus consentit: et ita labeo. ergo et si a municipibus conductum habeat, aequissimum erit ob vectigalis favorem interdicto eum tueri.

Plainly, for a publican who has taken a lake or a pond on lease, if he is prohibited from fishing, Sabinus agrees that a utile interdict lies; and so Labeo. Therefore even if he holds it on lease from the municipes, it will be most equitable, in favor of the revenue, to protect him by interdict.

Dig. 43.14.1.8

Digest 43.14.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si quis velit interdictum tale movere, ut locus deprimatur pecoris appellendi gratia, non debet audiri: et ita mela scribit.

If someone should wish to bring such an interdict, that a place be lowered for the purpose of driving cattle, he ought not to be heard: and thus mela writes.

Dig. 43.14.1.9

Digest 43.14.1.9

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Idem ait tale interdictum competere, ne cui vis fiat, quo minus pecus ad flumen publicum ripamve fluminis publici appellatur.

The same says that such an interdict lies, that no force be done to anyone whereby cattle are prevented from being driven to a public river or to the bank of a public river.

Dig. 43.15.0. De ripa munienda.

Digest 43.15.0. On fortifying the riverbank.

Dig. 43.15.1pr.

Digest 43.15.1, preface.

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Praetor ait: " quo minus illi in flumine publico ripave eius opus facere ripae agrive qui circa ripam est tuendi causa liceat, dum ne ob id navigatio deterior fiat, si tibi damni infecti in annos decem viri boni arbitratu vel cautum vel satisdatum est aut per illum non stat, quo minus viri boni arbitratu caveatur vel satisdetur, vim fieri veto".

The Praetor says: " I forbid force to be used, to prevent it from being permitted to that man to make a work in a public river or on its bank, for the purpose of protecting the bank or the field which is around the bank, provided that navigation is not made worse on that account, if for you, for damage not yet done, for ten years, in accordance with the decision of a good man, either security has been given or surety has been provided, or it is not through him that it is prevented that, in accordance with the decision of a good man, security be given or surety be provided."

Dig. 43.15.1.1

Digest 43.15.1.1

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Ripas fluminum publicorum reficere munire utilissimum est. sicuti igitur de via publica reficienda interdictum propositum est, ita etiam de ripa fluminis munienda proponendum fuit.

To refit and fortify the banks of public rivers is most useful. And so, just as an interdict has been proposed for a public road to be refitted, so also one had to be proposed for a riverbank to be fortified.

Dig. 43.15.1.2

Digest 43.15.1.2

Ulpianus 68 ad ed.

Ulpian book 68 on the Edict.

Merito adicit " dum ne ob id navigatio deterior fiat": illa enim sola refectio toleranda est, quae navigio non est impedimento.

Rightly he adds "provided that on account of this the navigation not become deteriorated": for only that refecting is to be tolerated which is not an impediment to the ship.

Dig. 43.15.1.3

Digest 43.15.1.3

Ulpianus 68 ad ed.

Ulpian Book 68 on the Edict.

Is autem, qui ripam vult munire, de damno futuro debet vel cavere vel satisdare secundum qualitatem personae: et hoc interdicto expressum est, ut damni infecti in annos decem viri boni arbitratu vel caveatur vel satisdetur.

Moreover, he who wishes to fortify the bank ought either to give a caution or to furnish surety for future damage, according to the quality of the person: and this is expressed by the interdict, that for damage not yet done, for ten years, by the arbitrament of a good man, either caution be given or surety be furnished.

Dig. 43.15.1.4

Digest 43.15.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Dabitur autem satis vicinis: sed et his, qui trans flumen possidebunt.

But security will be given to the neighbors: and also to those who will possess across the river.

Dig. 43.15.1.5

Digest 43.15.1.5

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Etenim curandum fuit, ut eis ante opus factum caveretur: nam post opus factum persequendi hoc interdicto nulla facultas superest, etiamsi quid damni postea datum fuerit, sed lege aquilia experiendum est.

For indeed it had to be provided that security be taken for them before the work was done; for after the work has been done no faculty remains of pursuing this by the interdict, even if some damage has afterwards been inflicted, but one must proceed under the Lex Aquilia.

Dig. 43.15.1.6

Digest 43.15.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the edict

Illud notandum est, quod ripae lacus fossae stagni muniendi nihil praetor hic cavit: sed idem erit observandum, quod in ripa fluminis munienda.

It should be noted that, as to the bank of a lake, of a ditch, of a pond being fortified, the praetor here made no provision: but the same is to be observed as in fortifying the bank of a river.

Dig. 43.16.0. De vi et de vi armata.

Digest 43.16.0. On force and on armed force.

Dig. 43.16.1pr.

Digest 43.16.1pr.

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Praetor ait: " unde tu illum vi deiecisti aut familia tua deiecit, de eo quaeque ille tunc ibi habuit tantummodo intra annum, post annum de eo, quod ad eum qui vi deiecit pervenerit, iudicium dabo".

The Praetor says: "From where you cast that man out by force, or your household cast him out, in respect of that and whatever he then had there, only within a year; after a year, in respect of that which has come to the one who cast out by force, I will grant an action."

Dig. 43.16.1.1

Digest 43.16.1.1

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Hoc interdictum proponitur ei, qui vi deiectus est: etenim fuit aequissimum vi deiecto subvenire: propter quod ad reciperandam possessionem interdictum hoc proponitur.

This interdict is propounded for him who has been ejected by force: for indeed it was most equitable to come to the aid of one ejected by force; on which account this interdict is set forth for recovering possession.

Dig. 43.16.1.2

Digest 43.16.1.2

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Ne quid autem per vim admittatur, etiam legibus iuliis prospicitur publicorum et privatorum nec non et constitutionibus principum.

Moreover, lest anything be committed by force, provision is also made by the Julian laws regarding public and private matters, and likewise by the constitutions of the emperors.

Dig. 43.16.1.3

Digest 43.16.1.3

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc interdictum non ad omnem vim pertinet, verum ad eos, qui de possessione deiciuntur. ad solam autem atrocem vim pertinet hoc interdictum, et ad eos tantum, qui de solo deiciuntur, ut puta de fundo sive aedificio: ad alium autem non pertinet.

This interdict does not pertain to every force, but to those who are ejected from possession. it pertains, however, only to atrocious force, and only to those who are ejected from the soil, for instance from a fundus or a building: but it does not pertain to any other.

Dig. 43.16.1.4

Digest 43.16.1.4

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Et si quis de area deiectus sit, sine dubio interdicto locus est: et generaliter ad omnes hoc pertinet interdictum, qui de re solo cohaerenti deiciuntur: qualisqualis enim fuerit locus, unde quis vi deiectus est, interdicto locus erit.

And if anyone has been thrown down from an area, without doubt there is ground for the interdict; and generally this interdict pertains to all who are thrown down from a thing adherent to the soil: for of whatever sort the place may have been from which someone was thrown down by force, there will be ground for the interdict.

Dig. 43.16.1.5

Digest 43.16.1.5

Ulpianus 69 ad ed.

Ulpian, book 69 on the Edict.

Proinde et si superficiaria insula fuerit, qua quis deiectus est, apparet interdicto fore locum.

Accordingly, even if it be a superficiary island, from which someone has been ejected, it is apparent that there will be room for the interdict.

Dig. 43.16.1.6

Digest 43.16.1.6

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Illud utique in dubium non venit interdictum hoc ad res mobiles non pertinere: nam ex causa furti vel vi bonorum raptorum actio competit: potest et ad exhibendum agi. plane si quae res sint in fundo vel in aedibus, unde quis deiectus est, etiam earum nomine interdictum competere non est ambigendum.

This, at any rate, does not come into doubt: that this interdict does not pertain to movable things; for an action lies on the ground of theft or for goods taken by force (rapine); one can also proceed ad exhibendum (for production). Clearly, if there are any things on the estate (fundus) or in the house (aedes) from which someone has been ejected, there is no room for doubt that the interdict likewise lies in respect of those as well.

Dig. 43.16.1.7

Digest 43.16.1.7

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Si quis de nave vi deiectus est, hoc interdicto locus non est, argumento eius, qui de vehiculo detractus est, quem nemo dixit interdicto hoc uti posse.

If someone has been thrown down from a ship by force, there is no place for this interdict, by the argument from the one who has been dragged from a vehicle, whom no one said could make use of this interdict.

Dig. 43.16.1.8

Digest 43.16.1.8

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Plane si quis de ligneis aedibus deiectus fuerit, nemo ambigit interdicto locum fore, quia qualequale sit quod solo cohaereat, inde qui vi deiectus est habet interdictum.

Plainly, if anyone has been cast down from wooden buildings, no one doubts there will be place for the interdict, since, whatever it may be that coheres with the soil, from there the one who has been cast down by force has the interdict.

Dig. 43.16.1.9

Digest 43.16.1.9

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Deicitur is qui possidet, sive civiliter sive naturaliter possideat: nam et naturalis possessio ad hoc interdictum pertinet.

He is ejected who possesses, whether he possess civilly or naturally: for natural possession also pertains to this interdict.

Dig. 43.16.1.10

Digest 43.16.1.10

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Denique et si maritus uxori donavit eaque deiecta sit, poterit interdicto uti: non tamen si colonus.

Finally, even if a husband has donated to his wife and she has been ejected, she can make use of the interdict; not, however, if it is a colonus (tenant‑farmer).

Dig. 43.16.1.11

Digest 43.16.1.11

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Ait praetor: " deiecisti aut familia deiecit". merito familiae mentio habita: nam cum " deiecisti" verbum refertur ad personam eius qui deiecit nec pertineat ad eum, cuius familia deiecit ( nec enim ego videor deiecisse, si familia mea deiecerit), consequens fuit addere " aut familia tua deiecit".

The praetor says: " you ejected, or the family ejected." Rightly was mention made of the family: for since the word " you ejected" is referred to the person of him who did the ejecting and does not pertain to him whose family did the ejecting (for I do not seem to have ejected, if my family should have ejected), it was consequent to add " or your family ejected."

Dig. 43.16.1.12

Digest 43.16.1.12

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Deiecisse autem etiam is videtur, qui mandavit vel iussit, ut aliquis deieceretur: parvi enim referre visum est, suis manibus quis deiciat an vero per alium: quare et si familia mea ex voluntate mea deiecerit, ego videor deiecisse.

He also is considered to have ejected who mandated or ordered that someone be ejected: for it has seemed to matter little whether one ejects with his own hands or indeed through another; wherefore even if my household, by my will, has ejected, I am deemed to have ejected.

Dig. 43.16.1.13

Digest 43.16.1.13

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Quotiens verus procurator deiecerit, cum utrolibet eorum, id est sive domino sive procuratore, agi posse sabinus ait et alterius nomine alteri eximi, sic tamen, si ab altero eorum litis aestimatio fuerit praestita ( non enim excusatus est, qui iussu alicuius deiecit, non magis quam si iussu alicuius occidit): cum autem falsus est procurator, cum ipso tantum procuratore interdici debere. sabini sententia vera est.

Whenever a true procurator has ejected, Sabinus says that one can proceed with either of them, that is, either with the owner (dominus) or with the procurator, and that by the name of the one the other is to be exempted, provided, however, that the valuation of the suit (litis aestimatio) has been rendered by one of them ( for he is not excused who has ejected by someone’s order, any more than if he killed by someone’s order): but when the procurator is false, the interdict ought to be only against the procurator himself. Sabinus’s opinion is true.

Dig. 43.16.1.14

Digest 43.16.1.14

Ulpianus 69 ad ed.

Ulpian, book 69 on the edict.

Sed et si quod alius deiecit, ratum habuero, sunt qui putent secundum sabinum et cassium, qui ratihabitionem mandato comparant, me videri deiecisse interdictoque isto teneri, et hoc verum est: rectius enim dicitur in maleficio ratihabitionem mandato comparari.

But also, if I have ratified what another has thrown down, there are those who think, following Sabinus and Cassius—who assimilate ratihabition (ratification) to a mandate—that I am deemed to have thrown it down and am held by that interdict; and this is true: for it is more correct to say that, in a maleficium (wrongdoing), ratihabition is compared to a mandate.

Dig. 43.16.1.15

Digest 43.16.1.15

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Quod igitur additur " aut familia tua deiecit", merito scriptum est in eum casum, in quem familia mea vi deiecit. ceterum si iussit, ipse deiecit, nec gravari debet dominus qui non iussit, si servorum suorum factum praestaret, etsi non iussu eius deiecerunt: nam non gravabitur hoc nomine, quippe cum aut pervenit ad eum aliquid et restitueret, aut non pervenit et ipsos servos maleficii causa noxae dedendo indemnis erit: quod enim noxae dedere compellitur, in damno non debet reputare, cum servus hoc possit domini deteriorem condicionem facere.

Therefore the addition “or your household ejected [him]” is rightly written for that case in which my household ejected [him] by force. Moreover, if he ordered it, he himself ejected [him]; and the master who did not order [it] ought not to be burdened, if he would have to answer for the deed of his slaves, even though they ejected [him] not by his order. For he will not be burdened under this head, since either something came to him and he would restore it, or nothing came, and by surrendering those slaves for the wrongdoing, by noxal surrender, he will be held harmless. For what he is compelled to give up by noxal surrender he ought not to reckon among damages, since by this a slave can make the master’s condition worse.

Dig. 43.16.1.16

Digest 43.16.1.16

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Familiae autem appellatio servos continet:

But the appellation "family" contains slaves:

Dig. 43.16.1.17

Digest 43.16.1.17

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Sed quaeritur, quem numerum servorum contineat, utrum plurium an vero et duum vel trium. sed verius est in hoc interdicto, etiamsi unus servus vi deiecerit, familiam videri deiecisse.

But it is asked what number of slaves it comprises, whether of several, or indeed even of two or three. but the truer view in this interdict is that, even if a single slave has ejected by force, the family is deemed to have ejected.

Dig. 43.16.1.18

Digest 43.16.1.18

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Familiae appellatione et eos, quos loco servorum habemus, contineri oportere dicendum est.

By the appellation “family” we must say that there are also contained those whom we hold in the place of slaves.

Dig. 43.16.1.19

Digest 43.16.1.19

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si quis tamen neget se servum vel familiam defendere, cogendus est pati hoc interdictum, ad hoc scilicet, ut quod ad eum pervenit restituat.

If, however, someone denies that he is defending a slave or the household, he must be compelled to submit to this interdict, to this end, namely, that he restore what has come to him.

Dig. 43.16.1.20

Digest 43.16.1.20

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Si filius familias vel mercennarius vi deiecerit, utile interdictum competit.

If a filius familias or a hireling has ejected by force, a useful interdict lies.

Dig. 43.16.1.21

Digest 43.16.1.21

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Si adversus eum, qui in libertatem ex servitute vel contra petitur, post inchoatum liberale iudicium utar interdicto et liber iudicatus fuerit et apparuerit ignorante eo a servis eius vi me deiectum, in possessionem restituar.

If, against him who is claimed into freedom from servitude, or the reverse is claimed, after the liberty proceeding has been initiated I make use of the interdict, and he has been adjudged free, and it has appeared that, he being unaware, I was by force cast out by his slaves, I shall be restored into possession.

Dig. 43.16.1.22

Digest 43.16.1.22

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Quod servus vel procurator vel colonus tenent, dominus videtur possidere, et ideo his deiectis ipse deici de possessione videtur, etiamsi ignoret eos deiectos, per quos possidebat. et si quis igitur alius, per quem possidebam, deiectus fuerit, mihi competere interdictum nemini dubium est.

What a slave or procurator or colonus hold, the owner is deemed to possess; and therefore, these being ejected, he himself is deemed to be ejected from possession, even if he does not know that those through whom he was possessing have been ejected. And if accordingly any other person, through whom I was possessing, shall have been ejected, it is to no one doubtful that the interdict is competent to me.

Dig. 43.16.1.23

Digest 43.16.1.23

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Interdictum autem hoc nulli competit nisi ei, qui tunc cum deiceretur possidebat, nec alius deici visus est quam qui possidet.

But this interdict pertains to no one except to him who at that time, when he was being ejected, was in possession; nor is anyone seen as ejected other than the one who possesses.

Dig. 43.16.1.24

Digest 43.16.1.24

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Sive autem corpore sive animo possidens quis deiectus est, palam est eum vi deiectum videri. idcircoque si quis de agro suo vel de domo processisset nemine suorum relicto, mox revertens prohibitus sit ingredi vel ipsum praedium, vel si quis eum in medio itinere detinuerit et ipse possederit, vi deiectus videtur: ademisti enim ei possessionem, quam animo retinebat, etsi non corpore.

Whether someone possessing either in body or in mind has been ejected, it is plain that he is seen as ejected by force. And therefore, if someone has gone out from his field or from his house, leaving none of his people behind, and, on soon returning, is prevented from entering either the very holding; or if someone has detained him in the middle of the road and himself has taken possession, he is deemed ejected by force: for you have taken from him the possession which he was retaining in mind, even if not in body.

Dig. 43.16.1.25

Digest 43.16.1.25

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Quod volgo dicitur aestivorum hibernorumque saltuum nos possessiones animo retinere, id exempli causa didici proculum dicere: nam ex omnibus praediis, ex quibus non hac mente recedemus, ut omisisse possessionem vellemus, idem est.

What is commonly said—that we retain by intention the possession of summer and winter saltus (wood‑pastures)—I have learned that Proculus says by way of example; for it is the same with all estates, from which we do not withdraw with this mind, namely that we wish to have abandoned possession.

Dig. 43.16.1.26

Digest 43.16.1.26

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Eum, qui neque animo neque corpore possidebat, ingredi autem et incipere possidere prohibeatur, non videri deiectum verius est: deicitur enim qui amittit possessionem, non qui non accipitur.

It is more correct that he not be deemed ejected, who was possessing neither in mind nor in body but is prohibited from entering and beginning to possess: for he is ejected who loses possession, not he who is not admitted.

Dig. 43.16.1.27

Digest 43.16.1.27

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Vim vi repellere licere cassius scribit idque ius natura comparatur: apparet autem, inquit, ex eo arma armis repellere licere.

To repel force with force is permitted, Cassius writes, and that right is furnished by nature: moreover, he says, from this it appears that it is permitted to repel arms with arms.

Dig. 43.16.1.28

Digest 43.16.1.28

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Vi possidere eum definiendum est, qui expulso vetere possessore adquisitam per vim possessionem optinet aut qui in hoc ipsum aptatus et praeparatus venit ut contra bonos mores auxilio, ne prohiberi possit ingrediens in possessionem, facit. sed qui per vim possessionem suam retinuerit, labeo ait non vi possidere.

To possess by force is to be defined as one who, the former possessor having been expelled, holds possession acquired by force, or one who has come equipped and prepared for this very purpose, so that, contrary to good morals and with aid, he makes it so that, on entering into possession, he cannot be prevented. But one who has retained his own possession by force, Labeo says, does not possess by force.

Dig. 43.16.1.29

Digest 43.16.1.29

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Idem labeo ait eum, qui metu turbae perterritus fugerit, vi videri deiectum. sed pomponius ait vim sine corporali vi locum non habere, ergo etiam eum, qui fugatus est supervenientibus quibusdam, si illi vi occupaverunt possessionem, videri vi deiectum.

The same labeo says that he who, thoroughly terrified by fear of a crowd, has fled, is considered to have been ejected by force. But pomponius says that force without corporeal force has no place; therefore even he who has been put to flight by certain supervening persons, if they occupied possession by force, is considered to have been ejected by force.

Dig. 43.16.1.30

Digest 43.16.1.30

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Qui a me vi possidebat, si ab alio deiciatur, habet interdictum.

He who was in possession by force against me, if he is ejected by another, has an interdict.

Dig. 43.16.1.31

Digest 43.16.1.31

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Qui vi deiectus est, quidquid damni senserit ob hoc quod deiectus est, reciperare debet: pristina enim causa restitui debet, quam habiturus erat, si non fuisset deiectus.

He who has been ejected by force ought to recuperate whatever damage he has suffered on account of his being ejected: for he ought to be restored to the pristine position which he would have had, if he had not been ejected.

Dig. 43.16.1.32

Digest 43.16.1.32

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si fundus, a quo vi expulsus sim, mihi restitutus esset, ceterae vero res, quae vi ablatae sunt, non restituantur, hic dicendum est interdictum nihilo minus tenere, quia verum est vi esse deiectum. plane si quis velit de possessione quidem rei soli per hoc interdictum experiri, de rebus vero mobilibus ad exhibendum actione, potest hoc suo arbitrio habere, et ita iulianus scribit: idem scribit et si quis vi bonorum raptorum de huiusmodi rebus velit experiri.

If the landed estate, from which I was expelled by force, has been restored to me, but the other things which were taken away by force are not restored, here it must be said that the interdict nonetheless holds, because it is true that he was ejected by force. Clearly, if someone wishes to try his case as to possession of real property by this interdict, but as to movable things by the action ad exhibendum, he can have it so at his own discretion, and thus Julianus writes; he writes the same also if someone wishes to proceed as to such things by the action for goods snatched by force.

Dig. 43.16.1.33

Digest 43.16.1.33

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Quod autem ait praetor: " quaeque ibi habuit", sic accipimus, ut omnes res contineantur, non solum quae propriae ipsius fuerunt, verum etiam si quae apud eum depositae vel ei commodatae vel pigneratae, quarumque usum vel usum fructum vel custodiam habuit, vel si quae ei locatae sunt: cum enim dicat praetor " habuit", omnia haec habendi verbo continentur.

But as for what the praetor says: "and whatever he had there," we thus take it, that all things are encompassed, not only those which were his own proper things, but also if any were deposited with him or lent to him by commodatum or pledged, and those of which he had use or usufruct or custody, or if any were leased to him: for since the praetor says "he had," all these are contained under the word "having."

Dig. 43.16.1.34

Digest 43.16.1.34

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Rectissime autem praetor addidit " tunc ibi habuit". " tunc" sic accipimus " cum deiceretur": et ideo et si quid postea desiit illic esse, dicendum erit in interdictum venire. sic fit, ut, etiamsi homines vel pecora demortua sint post deiectionem, interdicto locus sit.

Most correctly, moreover, the praetor added " tunc ibi habuit". We take " tunc" thus: " when it was thrown down"; and therefore, even if afterwards it ceased to be there, it must be said to come within the interdict. Thus it follows that, even if men or cattle have died after the throwing down, there is room for the interdict.

Dig. 43.16.1.35

Digest 43.16.1.35

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Denique scribit iulianus eum, qui vi deiecit ex eo praedio, in quo homines fuerant, propius esse, ut etiam sine culpa eius mortuis hominibus aestimationem eorum per interdictum restituere debeat, sicuti fur hominis etiam mortuo eo tenetur. huic consequens esse ait, ut villae quoque et aedium incendio consumptarum pretium restituere cogatur: ubi enim quis, inquit, deiecit, per eum stetisse videtur, quo minus restitueret.

Finally, Julian writes that the one who by force ejected someone from that estate in which there had been persons is more properly to be held such that, even if those persons died without his fault, he must restore their valuation through the interdict, just as a thief of a person is liable even if that person has died. He says that consequent to this it follows that he is also compelled to restore the price of a villa and of buildings consumed by fire; for where someone has ejected, it is deemed to have depended on him that restoration did not occur.

Dig. 43.16.1.36

Digest 43.16.1.36

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Idcirco constare ait eum, qui vi deiecit quique vi sine dolo malo desierit possidere, interdicto teneri.

Therefore he says it is settled that both he who has ejected by force and he who has ceased to possess by force without malicious deceit are held by the interdict.

Dig. 43.16.1.37

Digest 43.16.1.37

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

" ibi" autem ait praetor, ut ne quis et quae illic non habuit, complectatur.

" there," however, says the praetor, so that no one may also embrace things which he did not have there.

Dig. 43.16.1.38

Digest 43.16.1.38

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Sane quod ait praetor " ibi", quomodo accipimus? utrum in eo loco, unde quis vi deiectus est, an vero in omni possessione? et melius dicetur non ad angulum referendum vel locum, in quo fuerit, verum etiam ad omnem partem possessionis, qua quis caruit, cum deicitur.

Indeed, as the praetor says "there," how are we to take it? Is it in that place from which someone was ejected by force, or rather in the whole possession? And it will be better said that it is not to be referred to the corner or the place in which he was, but also to every part of the possession of which he was deprived when he was cast out.

Dig. 43.16.1.39

Digest 43.16.1.39

Ulpianus 69 ad ed.

Ulpian, Book 69 on the Edict.

Annus in hoc interdicto utilis est.

In this interdict, the year is “useful.”

Dig. 43.16.1.40

Digest 43.16.1.40

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Ex die, quo quis deiectus est, fructuum ratio habetur, quamvis in ceteris interdictis ex quo edita sunt, non retro, computantur. idem est et in rebus mobilibus, quae ibi erant: nam et earum fructus computandi sunt, ex quo quis vi deiectus est.

From the day on which someone was ejected, the reckoning of the fruits is taken, although in the other interdicts they are computed from the time when they were issued, not retroactively. The same holds also for the movable things that were there: for the fruits of those too are to be computed from the time when someone was ejected by force.

Dig. 43.16.1.41

Digest 43.16.1.41

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Non solum autem fructuum ratio in hoc interdicto habetur, verum ceterarum etiam utilitatium habenda est: nam vivianus refert in hoc interdicto omnia, quaecumque habiturus vel adsecuturus erat is qui deiectus est, si vi deiectus non esset, restitui aut eorum litem a iudice aestimari debere eumque tantum consecuturum, quanti sua interesset se vi deiectum non esse.

Not only, moreover, is account taken of the fruits in this interdict, but account must also be taken of the other benefits; for Vivianus reports that under this interdict all things whatsoever the person who was ejected was going to have or to acquire, if he had not been ejected by force, must either be restored or their claim be assessed by the judge, and that he will recover the amount of his interest in not having been ejected by force.

Dig. 43.16.1.42

Digest 43.16.1.42

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Ex interdicto unde vi etiam is qui non possidet restituere cogetur.

From the interdict "whence by force," even one who is not in possession will be compelled to restore.

Dig. 43.16.1.43

Digest 43.16.1.43

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Interdictum hoc quia atrocitatem facinoris in se habet, quaesitum est, an liberto in patronum vel liberis adversus parentes competit. et verius est nec liberto in patronum nec in parentes liberis dandum esse meliusque erit in factum actionem his competere. aliter atque si vi armata usus sit adversus libertum patronus vel adversus liberos parens: nam hic interdictum competit.

Because this interdict carries in itself the atrocity of the deed, it has been asked whether it is available to a freedman against his patron, or to children against their parents. And the truer view is that it should be granted neither to a freedman against his patron nor to children against their parents, and it will be better that an action in factum should lie for them. Otherwise, if the patron has used armed force against the freedman, or the parent against the children: for here the interdict is available.

Dig. 43.16.1.44

Digest 43.16.1.44

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Hoc interdictum et heredi et ceteris successoribus competit.

This interdict accrues to the heir and to the other successors as well.

Dig. 43.16.1.45

Digest 43.16.1.45

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Non alii autem, quam ei qui possidet, interdictum unde vi competere argumentum praebet, quod apud vivianum relatum est, si quis me vi deiecerit, meos non deiecerit, non posse me hoc interdicto experiri, quia per eos retineo possessionem, qui deiecti non sunt.

But an argument affords that the interdict “unde vi” lies for no one other than the one who possesses, namely the one reported by Vivianus: if someone has ejected me by force, but has not ejected my people, I cannot try this interdict, because I retain possession through those who have not been ejected.

Dig. 43.16.1.46

Digest 43.16.1.46

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Idem vivianus refert: servos quosdam vi depulit, alios retinuit et vinxit aut etiam eis imperavit: vi te deiectum intellegi: desisse enim possidere, cum servi ab alio possideantur. et quod in parte servorum dictum est, idem in omnibus dici ait, si forte nemo depulsus esset, sed possideri ab eo coepissent, qui ingressus in possessionem esset.

The same Vivianus reports: he drove off certain slaves by force, he retained others and bound them, or even commanded them—that you are to be understood as having been ejected by force; for you ceased to possess, when the slaves are possessed by another. And what has been said with respect to a part of the slaves, he says the same is to be said of all, if perhaps no one had been driven off, but they had begun to be possessed by him who had entered into possession.

Dig. 43.16.1.47

Digest 43.16.1.47

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Quid dicturi essemus, tractat, si aliquo possidente ego quoque ingressus sum in possessionem et non deiciam possessorem, sed vinctum opus facere cogam: quatenus res, inquit, esset? ego verius puto eum quoque deiectum videri, qui illic vinctus est.

He examines what we would say, if, with someone being in possession, I too have entered into possession and do not eject the possessor, but compel him, bound, to perform work: “how would the matter stand?” he says. I more truly think that he also is to be seen as ejected, who is bound there.

Dig. 43.16.1.48

Digest 43.16.1.48

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Ex causa huius interdicti in heredem et bonorum possessorem ceterosque successores in factum actio competit in id quod ad eos pervenit.

From the cause of this interdict, an action in factum is available against the heir and the possessor of the goods and the other successors, to the extent of what has come to them.

Dig. 43.16.2

Digest 43.16.2

Paulus 65 ad ed.

Paulus 65 on the Edict.

Dolove malo eorum factum est, quo minus perveniret.

Or was it by their malicious fraud that it came about that he did not arrive.

Dig. 43.16.3pr.

Digest 43.16.3, preface.

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Quod est et si quis armis deiectus est, quia ex facinoribus defunctorum de eo, quod ad heredem pervenit, actio datur: sufficit enim non in lucro versari eum heredem, non etiam damnum subire.

Which holds also if someone has been ejected by arms, since for the misdeeds of the deceased an action is given concerning that which has come to the heir: for it is sufficient that the heir not be in profit, nor need he also undergo loss.

Dig. 43.16.3.1

Digest 43.16.3.1

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Haec actio, quae adversus heredem ceterosque successores pertinet, perpetuo competit, quia in ea rei persecutio continetur.

This action, which lies against the heir and the other successors, is available perpetually, because in it the prosecution of the thing is contained.

Dig. 43.16.3.2

Digest 43.16.3.2

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Armis deiectum quomodo accipimus? arma sunt omnia tela, hoc est et fustes et lapides, non solum gladii hastae frameae, id est rhomphaeae.

How do we take “cast down by arms”? Arms comprise all weapons, that is, both clubs and stones, not only swords, spears, frameae—that is, rhomphaeae.

Dig. 43.16.3.3

Digest 43.16.3.3

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Plane et si unus vel alter fustem vel gladium tenuit, armis deiectus possessor videtur.

Plainly, even if one or two held a cudgel or a sword, the possessor is deemed to have been ejected by arms.

Dig. 43.16.3.4

Digest 43.16.3.4

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Plus dicitur, et si inermes venerant, si in ipsa concertatione qui inermes venerant eo processerunt, ut fustes aut lapides sumerent, vis erit armata.

It is further said that, even if they had come unarmed, if in the very confrontation those who had come unarmed went so far as to take up clubs or stones, the force will be armed.

Dig. 43.16.3.5

Digest 43.16.3.5

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Qui armati venerunt et si armis non sunt usi ad deiciendum, sed deiecerunt, armata vis facta esse videtur: sufficit enim terror armorum, ut videantur armis deiecisse.

Those who came armed, and even if they did not use arms for throwing down, but did throw down, armed violence seems to have been committed: for the terror of arms suffices, so that they are deemed to have thrown down by arms.

Dig. 43.16.3.6

Digest 43.16.3.6

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si quis autem visis armatis, qui alibi tendebant, metu hoc deterritus profugerit, non videtur deiectus, quia non hoc animo fuerunt qui armati erant, sed alio tendebant.

But if someone, on seeing armed men who were making for elsewhere, being deterred by this fear has fled, he is not considered ejected, because those who were armed were not of this intention, but were making for another place.

Dig. 43.16.3.7

Digest 43.16.3.7

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Proinde et si, cum armatos audisset venire, metu decesserit de possessione, sive verum sive falsum audisset, dicendum est non esse eum armis deiectum, nisi possessio ab his fuerit occupata.

Accordingly, even if, when he had heard that armed men were coming, he withdrew from possession out of fear, whether he had heard truth or falsehood, it must be said that he was not ejected by arms, unless the possession has been occupied by them.

Dig. 43.16.3.8

Digest 43.16.3.8

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si autem, cum dominus veniret in possessionem, armati eum prohibuerunt qui invaserant possessionem, videri eum armis deiectum.

However, if, when the owner was coming into possession, the armed men who had invaded the possession prevented him, he is considered to have been ejected by arms.

Dig. 43.16.3.9

Digest 43.16.3.9

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Eum igitur, qui cum armis venit, possumus armis repellere, sed hoc confestim, non ex intervallo, dummodo sciamus non solum resistere permissum, ne deiciatur, sed et si deiectus quis fuerit, eundem deicere non ex intervallo, sed ex continenti.

Therefore, him who comes with arms we can repel with arms, but this forthwith, not after an interval, provided that we know that not only is it permitted to resist, lest one be ejected, but also, if someone has been ejected, to eject that same person not after an interval, but on the spot.

Dig. 43.16.3.10

Digest 43.16.3.10

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Cum procurator armatus venit, et ipse dominus deiecisse videtur, sive mandavit sive, ut iulianus ait, ratum habuit.

When an armed procurator comes, the owner himself too is deemed to have ejected, whether he mandated it or, as Julian says, held it ratified.

Dig. 43.16.3.11

Digest 43.16.3.11

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Hoc et in familia dicendum est: nam cum familia sine me armata venit, ego non videor venisse, sed familia, nisi iussi vel ratum habui.

This, too, must be said regarding the household: for when the household came armed without me, I am not deemed to have come, but the household is, unless I ordered it or ratified it.

Dig. 43.16.3.12

Digest 43.16.3.12

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc interdictum etiam adversus eum proponitur, qui dolo malo fecit, quo quis armis deiceretur: et post annum reddetur in id, quod pervenit ad eum qui prohibuit unde vi.

This interdict is also brought against one who, by malicious fraud, contrived that someone be cast down by arms; and after a year recovery will be granted up to the amount that has come to the one who prohibited under the “unde vi” interdict.

Dig. 43.16.3.13

Digest 43.16.3.13

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Interdictum necessarium fuisse fructuario apparet " si prohibeatur uti frui usu fructu fundi".

It appears that an interdict was necessary for the usufructuary, "if he is prohibited from using and enjoying the usufruct of the estate".

Dig. 43.16.3.14

Digest 43.16.3.14

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Uti frui autem prohibuisse is videtur, qui vi deiecit utentem et fruentem aut non admisit, cum ex fundo exisset non usus fructus deserendi causa. ceterum si quis ab initio volentem incipere uti frui prohibuit, hoc interdictum locum non habet. quid ergo est?

However, he seems to have prohibited to use and to enjoy, who cast out by force one using and enjoying, or did not admit him, when he had gone out from the estate not for the purpose of abandoning the usufruct. But if someone from the beginning forbade one willing to begin to use and to enjoy, this interdict has no place. What then is it?

debet fructuarius usum fructum vindicare.

the usufructuary ought to vindicate the usufruct.

Dig. 43.16.3.15

Digest 43.16.3.15

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Pertinet autem hoc interdictum ad eum, qui fundo uti frui prohibitus est: sed pertinebit etiam ad eum, qui aedificiis uti frui prohibetur. consequenter autem dicemus ad res mobiles hoc interdictum non pertinere, si quis uti frui prohibitus est re mobili, nisi si rei soli accedebant res mobiles: si igitur ibi fuerunt, dicendum est etiam ad eas referri hoc interdictum debere.

This interdict pertains to one who has been prohibited from using and enjoying the estate; but it will also pertain to one who is prohibited from using and enjoying buildings. Consequently, we say that this interdict does not pertain to movable things, if someone is prohibited from using and enjoying a movable thing, unless the movables acceded to the real property (were appurtenant to the thing of the soil): if therefore they were there, it must be said that this interdict should also be referred to them.

Dig. 43.16.3.16

Digest 43.16.3.16

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Item si non usus fructus, sed usus sit relictus, competit hoc interdictum. ex quacumque enim causa constitutus est usus fructus vel usus, hoc interdictum locum habebit.

Likewise, if not the usufruct but the use has been left, this interdict is available. for from whatever cause the usufruct or the use has been constituted, this interdict will have place.

Dig. 43.16.3.17

Digest 43.16.3.17

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Qui usus fructus nomine qualiterqualiter fuit quasi in possessione, utetur hoc interdicto. sed si quis, posteaquam prohibitus est, capite minutus sit vel mortuus, recte dicitur heredibus et successoribus competere hoc interdictum, non ut in futurum constituatur usus fructus, sed ut praeterita causa et damnum praeteritum sarciatur.

He who, under the name of usufruct, has in any way whatsoever been as though in possession, will make use of this interdict. But if someone, after he has been prohibited, has been diminished in status (capitis deminutio) or has died, it is rightly said that this interdict is competent to the heirs and successors—not so that the usufruct may be constituted for the future, but so that the past cause and the past damage may be repaired.

Dig. 43.16.3.18

Digest 43.16.3.18

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Heres quoque simili modo debebit in factum actionem suscipere in id quod ad se pervenit.

The heir likewise, in a similar way, will be bound to undertake an action in factum to the extent of what has come to him.

Dig. 43.16.4

Digest 43.16.4

Ulpianus 10 ad ed.

Ulpian 10 on the Edict.

Si vi me deiecerit quis nomine municipum, in municipes mihi interdictum reddendum pomponius scribit, si quid ad eos pervenit.

If someone has ejected me by force in the name of the municipes, Pomponius writes that an interdict is to be granted to me against the municipes, if anything has come to them.

Dig. 43.16.5

Digest 43.16.5

Ulpianus 11 ad ed.

Ulpian Book 11 on the Edict.

Si per vim tibi possessionem tradidero, dicit pomponius unde vi interdictum cessare, quoniam non est deiectus, qui compulsus est in possessionem inducere.

If I have delivered possession to you by force, Pomponius says the interdict unde vi ceases to operate, since he is not ejected who has been compelled to induct another into possession.

Dig. 43.16.6

Digest 43.16.6

Paulus 17 ad ed.

Paulus 17 on the Edict.

In interdicto unde vi tanti condemnatio facienda est, quanti intersit possidere: et hoc iure nos uti pomponius scribit, id est tanti rem videri, quanti actoris intersit: quod alias minus esse, alias plus: nam saepe actoris pluris interesse hominem retinere, quam quanti is est, veluti cum quaestionis habendae aut rei probandae gratia aut hereditatis adeundae intersit eius eum possideri.

In the interdict unde vi the condemnation is to be made for as much as it is of interest to possess; and we employ this law, as Pomponius writes—that is, the thing is considered to be worth as much as it is in the plaintiff’s interest; which is sometimes less, sometimes more. For it is often of greater interest to the plaintiff to retain a man than the amount he is worth, for example when, for the sake of holding an inquest or of proving the matter, or of entering upon an inheritance, it is in his interest that he have him in possession.

Dig. 43.16.7

Digest 43.16.7

Paulus 24 ad ed.

Paulus 24 on the Edict.

Cum a te vi deiectus sim, si titius eandem rem possidere coeperit, non possum cum alio quam tecum interdicto experiri.

Since I have been ejected by force by you, if titius has begun to possess the same thing, I cannot proceed by interdict against anyone other than you.

Dig. 43.16.8

Digest 43.16.8

Paulus 54 ad ed.

Paulus 54 on the Edict.

Fulcinius dicebat vi possideri, quotiens vel non dominus, cum tamen possideret, vi deiectus est.

Fulcinius said that there is possession by force whenever even one who is not the owner, although he was in possession, has been ejected by force.

Dig. 43.16.9pr.

Digest 43.16.9, preface.

Paulus 65 ad ed.

Paulus 65 on the Edict.

Si plures heredes sunt, unusquisque non in amplius, quam ad eum pervenerit, tenetur. qua de causa interdum in solidum tenebitur is ad quem totum pervenerit, quamvis ex parte heres sit.

If there are several heirs, each is liable not for more than has come to him. For which reason, sometimes the one to whom the whole has come will be held in solidum, although he is an heir only in part.

Dig. 43.16.9.1

Digest 43.16.9.1

Paulus 65 ad ed.

Paulus 65 on the Edict.

Deiectum ab usu fructu in eandem causam praetor restitui iubet, id est in qua futurus esset, si deiectus non esset. itaque si tempore usus fructus finitus fuerit, postquam deiectus est a domino, nihilo minus cogendus erit restituere, id est usum fructum iterum constituere.

The praetor orders one ejected from a usufruct to be restored into the same condition, that is, in which he would be if he had not been ejected. Therefore, if the usufruct has ended by lapse of time after he was ejected by the owner, nonetheless he will be compelled to restore, that is, to constitute the usufruct again.

Dig. 43.16.10

Digest 43.16.10

Gaius 2 ad ed. pu. de liberali c.

Gaius 2 on the edict of the praetor urbanus, on the case of freedom.

Si de fundo proprietarium et fructuarium praedo expulerit atque ob id fructuarius constituto tempore non usus perdiderit ius suum, nemo dubitat, quin dominus, sive experiatur cum fructuario adversus praedonem sive non experiatur, retinere debeat reversum ad se usum fructum et, quod fructuarius perdidit, id ad damnum eius pertineat, cuius facto periit.

If from an estate a despoiler has expelled the proprietor and the usufructuary, and on that account the usufructuary, by non-use within the appointed time, has lost his right, no one doubts that the owner, whether he proceeds with the usufructuary against the despoiler or does not proceed, ought to retain the usufruct reverted to him; and that what the usufructuary lost pertains as damage to him by whose act it perished.

Dig. 43.16.11

Digest 43.16.11

Pomponius 6 ex plaut.

Pomponius 6 from Plautius.

Vim facit, qui non sinit possidentem eo, quod possidebit, uti arbitrio suo, sive inserendo sive fodiendo sive arando sive quid aedificando sive quid omnino faciendo, per quod liberam possessionem adversarii non relinquit.

He commits force who does not allow a possessor to use, at his own discretion, that which he possesses—whether by planting, or by digging, or by plowing, or by building something, or by doing anything at all—by which he does not leave the adversary’s possession free.

Dig. 43.16.12

Digest 43.16.12

Marcellus 19 Dig.

Marcellus 19 Digest.

Colonus eum, cui locator fundum vendiderat, cum is in possessionem missus esset, non admisit: deinde colonus vi ab alio deiectus est: quaerebatur, quis haberet interdictum unde vi. dixi nihil interesse, colonus dominum ingredi volentem prohibuisset an emptorem, cui iussisset dominus tradi possessionem, non admisit. igitur interdictum unde vi colono competiturum ipsumque simili interdicto locatori obstrictum fore, quem deiecisse tunc videretur, cum emptori possessionem non tradidit, nisi forte propter iustam et probabilem causam id fecisset.

A colonus did not admit him to whom the locator had sold the fundus, when that man had been put into possession; then the colonus was by force cast out by another. It was asked who would have the interdict unde vi. I said it makes no difference whether the colonus had prohibited the dominus, wishing to enter, or did not admit the purchaser to whom the dominus had ordered possession to be delivered. Therefore the interdict unde vi will be competent to the colonus, and he himself will be bound by a similar interdict to the locator, whom he would then be seen to have ejected, when he did not deliver possession to the purchaser, unless perhaps he did this for a just and probable cause.

Dig. 43.16.13

Digest 43.16.13

Ulpianus 8 ad sab.

Ulpian 8 on Sabinus.

Neque unde vi neque aliud interdictum famosum est.

Neither the unde vi nor any other interdict is infaming.

Dig. 43.16.14

Digest 43.16.14

Pomponius 29 ad sab.

Pomponius 29 to Sabinus.

Sed si vi armata deiectus es, sicut ipsum fundum recipis, etiamsi vi aut clam aut precario eum possideres, ita res quoque mobiles omnimodo recipies.

But if you were ejected by armed force, just as you recover the land itself, even if you possessed it by force or secretly or precariously, so too you will in every way recover the movable things as well.

Dig. 43.16.15

Digest 43.16.15

Paulus 13 ad sab.

Paul 13 on Sabinus.

Si vi me deieceris vel vi aut clam feceris, quamvis sine dolo et culpa amiseris possessionem, tamen damnandus es, quanti mea intersit, quia in eo ipso culpa tua praecessit, quod omnino vi deiecisti aut vi aut clam fecisti.

If you have ejected me by force, or have done it by force or secretly, although you may have lost possession without fraud (dolus) and fault (culpa), nevertheless you must be condemned for as much as it is of concern to me (quanti mea intersit), because in that very thing your fault has preceded, in that you altogether ejected by force or did it by force or secretly.

Dig. 43.16.16

Digest 43.16.16

Ulpianus 29 ad ed.

Ulpian 29 on the Edict.

In interdicto unde vi dicendum est, ut eius causa, quod ad patrem pervenit, ipse teneatur.

In the interdict “whence by force” it must be said that, on his account, he himself is liable for whatever has reached the father.

Dig. 43.16.17

Digest 43.16.17

Iulianus 48 Dig.

Julianus 48 Digest

Qui possessionem vi ereptam vi in ipso congressu reciperat, in pristinam causam reverti potius quam vi possidere intellegendus est: ideoque si te deiecero, ilico tu me, deinde ego te, unde vi interdictum tibi utile erit.

He who recovers, by force and in the very encounter, a possession snatched away by force is to be understood to have reverted to his former condition rather than to be possessing by force: and therefore, if I eject you, immediately you eject me, and then I eject you, the interdict “unde vi” will be useful to you.

Dig. 43.16.18pr.

Digest 43.16.18, beginning.

Papinianus 26 quaest.

Papinianus 26 Questions.

Cum fundum qui locaverat vendidisset, iussit emptorem in vacuam possessionem ire, quem colonus intrare prohibuit: postea emptor vi colonum expulit: de interdictis unde vi quaesitum est. placebat colonum interdicto venditori teneri, quia nihil interesset, ipsum an alium ex voluntate eius missum intrare prohibuerit: neque enim ante omissam possessionem videri, quam si tradita fuisset emptori, quia nemo eo animo esset, ut possessionem omitteret propter emptorem, quam emptor adeptus non fuisset. emptorem quoque, qui postea vim adhibuit, et ipsum interdicto colono teneri: non enim ab ipso, sed a venditore per vim fundum esse possessum, cui possessio esset ablata.

When the one who had leased out the estate sold it, he ordered the buyer to go into vacant possession, but the tenant-farmer (colonus) forbade him to enter; afterwards the buyer by force expelled the tenant: inquiry was made about the interdicts “whence by force” (unde vi). It was the prevailing view that the tenant was bound under the interdict to the seller (vendor), because it made no difference whether he had prohibited him himself, or another sent by his will, from entering; for he is not considered to have relinquished possession before it had been delivered to the buyer, since no one would be of a mind to let go possession on account of the buyer before the buyer had acquired it. The buyer also, who later applied force, was himself held under the interdict to the tenant; for the land had been taken by force not from him, but from the seller, from whom possession had been wrested away.

quaesitum est, an emptori succurri debeat, si voluntate venditoris colonum postea vi expulisset. dixi non esse iuvandum, qui mandatum illicitum susceperit.

it was asked whether the purchaser ought to be succored, if, by the will of the vendor, he later had expelled the colonus by force. I said that one who has undertaken an illicit mandate is not to be aided.

Dig. 43.16.18.1

Digest 43.16.18.1

Papinianus 26 quaest.

Papinian, 26 Questions.

Eum, qui fundum vindicavit ab eo, cum quo interdicto unde vi potuit experiri, pendente iudicio nihilo minus interdicto recte agere placuit.

It was decided that one who has vindicated a fundus from the person against whom he could have proceeded by the interdict unde vi may, while the action is pending, nonetheless proceed rightly by the interdict.

Dig. 43.16.19

Digest 43.16.19

Tryphonus 15 disp.

Tryphonus Disputations 15.

Merito iulianus respondit, si me de fundo vi deieceris, in quo res moventes fuerunt, cum mihi interdicto unde vi restituere debeas non solum possessionem soli, sed et ea quae ibi fuerunt, quamquam ego moram fecero, quo minus interdicto te convenirem, subtractis tamen mortalitate servis aut pecoribus aliisve rebus casu intercidentibus tuum tamen onus nihilo minus in eis restituendis esse, quia ex ipso tempore delicti plus quam frustrator debitor constitutus es.

Rightly Julianus replied, if you have ejected me by force from the farm on which movable things were, since by the interdict unde vi you ought to restore to me not only possession of the soil but also the things that were there, although I have caused delay, whereby I did not proceed against you by the interdict, yet with slaves removed by mortality, or herd-animals, or other things cut off by chance being deducted, nevertheless your burden is none the less to restore them, because from the very time of the delict you have been constituted a debtor more than a mere frustrator (defaulter).

Dig. 43.16.20

Digest 43.16.20

Labeo 3 pith. a paulo epit.

Labeo book 3 of the Pithana, epitomized by Paul.

Si colonus tuus vi deiectus est, ages unde vi interdicto. idem si inquilinus tuus vi deiectus fuerit. paulus: idem dici potest de coloni colono, item inquilini inquilino.

If your colonus has been ejected by force, you will bring the interdict unde vi. The same, if your inquilinus has been ejected by force. paulus: the same can be said of a colonus of a colonus, likewise of an inquilinus of an inquilinus.

Dig. 43.17.0. Uti possidetis.

Digest 43.17.0. As you possess.

Dig. 43.17.1pr.

Digest 43.17.1pr.

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Ait praetor: " uti eas aedes, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto. de cloacis hoc interdictum non dabo. neque pluris, quam quanti res erit: intra annum, quo primum experiundi potestas fuerit, agere permittam".

The praetor says: "As you possess those premises about which the matter is at issue, neither by force nor by stealth nor on sufferance (precariously), one from the other, I forbid force to be used to hinder your so possessing. Concerning sewers I will not grant this interdict. And not for more than the value which the thing will be: within a year from the time when there shall first have been the power to bring suit, I will permit action."

Dig. 43.17.1.1

Digest 43.17.1.1

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc interdictum de soli possessore scriptum est, quem potiorem praetor in soli possessione habeat, et est prohibitorium ad retinendam possessionem.

This interdict is written concerning the possessor of land, whom the praetor holds to be the superior in the possession of land, and it is prohibitory for retaining possession.

Dig. 43.17.1.2

Digest 43.17.1.2

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Huius autem interdicti proponendi causa haec fuit, quod separata esse debet possessio a proprietate: fieri etenim potest, ut alter possessor sit, dominus non sit, alter dominus quidem sit, possessor vero non sit: fieri potest, ut et possessor idem et dominus sit.

But the reason for proposing this interdict was this, that possession ought to be separated from proprietorship: for it can happen that one person is possessor and not owner, another indeed is owner but not possessor: it can happen that the same person is both possessor and owner.

Dig. 43.17.1.3

Digest 43.17.1.3

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Inter litigatores ergo quotiens est proprietatis controversia, aut convenit inter litigatores, uter possessor sit, uter petitor, aut non convenit. si convenit, absolutum est: ille possessoris commodo, quem convenit possidere, ille petitoris onere fungetur. sed si inter ipsos contendatur, uter possideat, quia alteruter se magis possidere adfirmat, tunc, si res soli sit, in cuius possessione contenditur, ad hoc interdictum remittentur.

Among the litigators, therefore, whenever there is a controversy over proprietorship, either it is agreed among the litigators which is the possessor and which the petitioner, or it is not agreed. If it is agreed, the matter is resolved: he will have the advantage of the possessor, whom it is agreed is in possession; the other will bear the burden of the petitioner. But if between themselves it is contested who possesses, because each of the two affirms that he is rather the possessor, then, if the thing is a res soli (a thing of the soil), as to the possession of which the dispute is waged, they will be referred to this interdict.

Dig. 43.17.1.4

Digest 43.17.1.4

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Est igitur hoc interdictum, quod volgo uti possidetis appellatur, retinendae possessionis ( nam huius rei causa redditur, ne vis fiat ei qui possidet) et consequenter proponitur post interdictum unde vi. illud enim restituit vi amissam possessionem, hoc interdictum tuetur, ne amittatur possessio, denique praetor possidenti vim fieri vetat: et illud quidem interdictum obpugnat possessorem, hoc tuetur. et ut pedius ait, omnis de possessione controversia aut eo pertinet, ut, quod non possidemus, nobis restituatur, aut ad hoc, ut retinere nobis liceat quod possidemus. restitutae possessionis ordo aut interdicto expeditur aut per actionem: retinendae itaque possessionis duplex via est, aut exceptio aut interdictum.

Therefore this is the interdict, which is commonly called uti possidetis, for retaining possession ( for the reason of this matter is rendered, lest force be done to him who possesses) and it is consequently proposed after the interdict unde vi. For that one restores possession lost by force; this interdict protects, lest possession be lost; finally the praetor forbids force to be done to one possessing: and that interdict indeed assails the possessor, this one protects him. And as Pedius says, every controversy about possession pertains either to this, that what we do not possess be restored to us, or to this, that it be permitted to us to retain what we possess. The course of restoring possession is either expedited by an interdict or through an action: accordingly the twofold way of retaining possession is either an exception or an interdict.

exceptio datur ex multis causis ei qui possidet.

an exception is granted for many causes to the possessor.

Dig. 43.17.1.5

Digest 43.17.1.5

Ulpianus 69 ad ed.

Ulpian 69 On the Edict

Perpetuo autem hoc interdicto insunt haec: " quod nec vi nec clam nec precario ab illo possides".

But in this perpetual interdict the following are contained: " that you possess from him neither by force nor secretly nor by precarious permission".

Dig. 43.17.1.6

Digest 43.17.1.6

Ulpianus 69 ad ed.

Ulpian book 69 on the Edict.

Interdictum autem possessorem praedii tuetur, quod est uti possidetis. actio enim numquam ultro possessori datur, quippe sufficit ei quod possideat.

However, the interdict protects the possessor of the estate, which is uti possidetis. for an action is never given to the possessor, since it suffices him that he possesses.

Dig. 43.17.1.7

Digest 43.17.1.7

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc interdictum locum habet, sive quis totum fundum possidere se dicat, sive pro certa parte, sive pro indiviso possideat.

This interdict has application, whether someone says that he possesses the whole estate, or for a certain part, or possesses in undivided ownership.

Dig. 43.17.1.8

Digest 43.17.1.8

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Hoc interdictum in omnibus etiam possessionibus, quae sunt soli, sine dubio locum habebit, dummodo possideri possit.

This interdict in all possessions as well, which are of the soil, will without doubt have place, provided that it can be possessed.

Dig. 43.17.1.9

Digest 43.17.1.9

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Quod ait praetor in interdicto: " nec vi nec clam nec precario alter ab altero possidetis", hoc eo pertinet, ut, si quis possidet vi aut clam aut precario, si quidem ab alio, prosit ei possessio, si vero ab adversario suo, non debeat eum propter hoc quod ab eo possidet vincere: has enim possessiones non debere proficere palam est.

What the praetor says in the interdict: " nec vi nec clam nec precario alter ab altero possidetis", tends to this effect, that if someone possesses by force or by stealth or by permission—if indeed from another—the possession benefits him; but if from his adversary, he ought not, on account of this fact that he possesses from him, to prevail: for it is clear that these possessions ought not to be of avail.

Dig. 43.17.2

Digest 43.17.2

Paulus 65 ad ed.

Paulus 65 on the Edict.

Usta enim an iniusta adversus ceteros possessio sit, in hoc interdicto nihil refert: qualiscumque enim possessor hoc ipso, quod possessor est, plus iuris habet quam ille qui non possidet.

For whether the possession be just or unjust against the others matters nothing in this interdict: for a possessor of whatever kind, by this very fact that he is a possessor, has more right than he who does not possess.

Dig. 43.17.3pr.

Digest 43.17.3 pr.

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Si duo possideant in solidum, videamus, quid sit dicendum. quod qualiter procedat, tractemus, si quis proponeret possessionem iustam et iniustam. ego possideo ex iusta causa, tu vi aut clam: si a me possides, superior sum interdicto, si vero non a me, neuter nostrum vincetur: nam et tu possides et ego.

If two should possess for the whole, let us see what is to be said. As to how that should proceed, let us discuss, if someone were to allege a just and an unjust possession. I possess from a just cause, you by force or stealth: if you possess from me, I am superior by the interdict; but if not from me, neither of us will be defeated: for both you possess and I.

Dig. 43.17.3.1

Digest 43.17.3.1

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Hoc interdictum duplex est et hi, quibus competit, et actores et rei sunt.

This interdict is twofold, and those to whom it is competent are both plaintiffs and defendants.

Dig. 43.17.3.2

Digest 43.17.3.2

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Hoc interdictum sufficit ei, qui aedificare in suo prohibetur: etenim videris mihi possessionis controversiam facere, qui prohibes me uti mea possessione.

This interdict suffices for one who is prohibited from building on his own property: for indeed you seem to me to be making a controversy of possession, you who forbid me to use my possession.

Dig. 43.17.3.3

Digest 43.17.3.3

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Cum inquilinus dominum aedes reficere volentem prohiberet, aeque competere interdictum uti possidetis placuit testarique dominum non prohibere inquilinum, ne habitaret, sed ne possideret.

When a tenant was prohibiting the owner who wished to repair the house, it was decided that the interdict uti possidetis was equally available, and that the owner should declare that he was not prohibiting the tenant from dwelling, but from possessing.

Dig. 43.17.3.4

Digest 43.17.3.4

Ulpianus 69 ad ed.

Ulpian Book 69 on the Edict.

Item videamus, si auctor vicini tui ex fundo tuo vites in suas arbores transduxit, quid iuris sit. et ait pomponius posse te ei denuntiare et vites praecidere, idque et labeo scribit, aut uti eum debere interdicto uti possidetis de eo loco, quo radices continentur vitium: nam si tibi vim fecerit, quo minus eas vites vel praecidas vel transducas, vim tibi facere videtur, quo minus possideas: etenim qui colere fundum prohibetur, possidere prohibetur, inquit pomponius.

Likewise let us see, if the agent of your neighbor has led vines from your estate onto his own trees, what the law is. And Pomponius says that you can give him notice and cut the vines, and Labeo writes this as well; or that you should employ the interdict uti possidetis with respect to that place in which the roots of the vines are contained: for if he has used force against you so that you do not either cut or transfer those vines, he seems to be using force against you so that you do not possess: for indeed, he who is prohibited from cultivating a farm is prohibited from possessing, says Pomponius.

Dig. 43.17.3.5

Digest 43.17.3.5

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Item videamus, si proiectio supra vicini solum non iure haberi dicatur, an interdictum uti possidetis sit utile alteri adversus alterum. et est apud cassium relatum utrique esse inutile, quia alter solum possidet, alter cum aedibus superficiem.

Likewise let us see, if a projection above a neighbor’s soil is said to be held not by right, whether the interdict uti possidetis is useful for the one against the other. And it is reported by Cassius that it is useless for both, because one possesses the soil, the other, along with the buildings, the superficies.

Dig. 43.17.3.6

Digest 43.17.3.6

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Labeo quoque scribit: ex aedibus meis in aedes tuas proiectum habeo: interdicis mecum, si eum locum possideamus, qui proiecto tegetur. an, quo facilius possim retinere possessionem eius proiectionis, interdico tecum sic " uti nunc possidetis eas aedes, ex quibus proiectus est?"

Labeo also writes: I have a projection thrown out from my house into your house: do you engage in an interdict with me, if we possess that place which will be covered by the projection? Or, in order that I may more easily be able to retain possession of that projection, do I proceed by interdict with you thus: "as you now possess those houses, from which the projection has been thrown out?"

Dig. 43.17.3.7

Digest 43.17.3.7

Ulpianus 69 ad ed.

Ulpian book 69 on the Edict.

Sed si supra aedes, quas possideo, cenaculum sit, in quo alius quasi dominus moretur, interdicto uti possidetis me uti posse labeo ait, non eum qui in cenaculo moretur: semper enim superficiem solo cedere. plane si cenaculum ex publico aditum habeat, ait labeo videri non ab eo aedes possideri, qui kruptas possideret, sed ab eo, cuius aedes supra kruptas essent. verum est hoc in eo, qui aditum ex publico habuit: ceterum superficiarii proprio interdicto et actionibus a praetore utetur.

But if above the aedes which I possess there is an upper-storey (cenaculum), in which another stays as if he were master, Labeo says that I, not the one who dwells in the upper-storey, can make use of the interdict uti possidetis; for the superficies always yields to the soil. Clearly, if the upper-storey has access from the public way, Labeo says it seems that the aedes are not possessed by him who possessed the crypts, but by him whose aedes were above the crypts. This is true in the case of one who had access from the public; otherwise, the holder of a superficies will use his own interdict and the actions from the praetor.

dominus autem soli tam adversus alium quam adversus superficiarium potior erit interdicto uti possidetis: sed praetor superficiarium tuebitur secundum legem locationis: et ita pomponius quoque probat.

However, the owner of the soil will be stronger by the interdict uti possidetis both against another and against the superficiary: but the praetor will protect the superficiary according to the law of the leasing: and thus Pomponius also approves.

Dig. 43.17.3.8

Digest 43.17.3.8

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Creditores missos in possessionem rei servandae causa interdicto uti possidetis uti non posse, et merito, quia non possident: idemque et in ceteris omnibus, qui custodiae causa missi sunt in possessionem, dicendum est.

Creditors who have been sent into possession for the sake of preserving the thing cannot make use of the interdict uti possidetis, and deservedly, because they do not possess; and the same must be said also of all others who have been sent into possession for the purpose of custody.

Dig. 43.17.3.9

Digest 43.17.3.9

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Si vicinus meus in parte in pariete meo tectoria habeat et in parte sua, " uti possidetis" mihi efficax est ut ea tollere compellatur.

If my neighbor has plasterwork partly on my wall and partly on his, " uti possidetis" is effective for me, so that he is compelled to remove them.

Dig. 43.17.3.10

Digest 43.17.3.10

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Non videor vi possidere, qui ab eo, quem scirem vi in possessionem esse, fundum accipiam.

I am not deemed to possess by force, I who receive an estate from one whom I knew to be in possession by force.

Dig. 43.17.3.11

Digest 43.17.3.11

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

In hoc interdicto condemnationis summa refertur ad rei ipsius aestimationem. " quanti res est" sic accipimus " quanti uniuscuiusque interest possessionem retinere". servii autem sententia est existimantis tanti possessionem aestimandam, quanti ipsa res est: sed hoc nequaquam opinandum est: longe enim aliud est rei pretium, aliud possessionis.

In this interdict the sum of the condemnation is referred to the valuation of the thing itself. " how much the thing is worth" we thus take as " how much it is in each person’s interest to retain possession". servius’s opinion, however, is that possession should be valued at as much as the thing itself is worth: but this is by no means to be thought; for the price of the thing is one thing, the price of possession another.

Dig. 43.17.4

Digest 43.17.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

In summa puto dicendum et inter fructuarios hoc interdictum reddendum: et si alter usum fructum, alter possessionem sibi defendat. idem erit probandum et si usus fructus quis sibi defendat possessionem, et ita pomponius scribit. perinde et si alter usum, alter fructum sibi tueatur, et his interdictum erit dandum.

In sum, I think it must be said that this interdict is to be granted also between usufructuaries: even if one defends for himself the usufruct, the other the possession. The same is to be held also if a usufructuary asserts possession for himself, and thus Pomponius writes. Likewise, if one maintains the use (usus), the other the fruits (fructus), the interdict is to be given to them.

Dig. 43.18.0. De superficiebus.

Dig. 43.18.0. On Superficies.

Dig. 43.18.1pr.

Digest 43.18.1, preface.

Ulpianus 70 ad ed.

Ulpian, book 70 on the Edict.

Ait praetor: " uti ex lege locationis sive conductionis superficie, qua de agitur, nec vi nec clam nec precario alter ab altero fruamini, quo minus fruamini, vim fieri veto. si qua alia actio de superficie postulabitur, causa cognita dabo".

The praetor says: "As under the law of letting or hiring (locatio conductio) of the superficies which is in question, provided that you enjoy it from one another neither by force nor stealth nor precariously, I forbid force to be used to prevent your enjoyment. If any other action concerning the superficies is requested, once the cause has been examined I will grant it."

Dig. 43.18.1.1

Digest 43.18.1.1

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Qui superficiem in alieno solo habet, civili actione subnixus est: nam si conduxit superficium, ex conducto, si emit, ex empto agere cum domino soli potest. enim si ipse eum prohibeat, quod interest agendo consequetur: sin autem ab alio prohibeatur, praestare ei actiones suas debet dominus et cedere. sed longe utile visum est, quia et incertum erat, an locati existeret, et quia melius est possidere potius quam in personam experiri, hoc interdictum proponere et quasi in rem actionem polliceri.

Whoever has a superficies on another’s soil is supported by a civil action: for if he leased the superficies, he can proceed against the owner of the soil on the lease; if he bought it, on purchase. For if the owner himself forbids him, he will obtain by action what his interest amounts to; but if he is forbidden by someone else, the owner ought to supply and assign to him his actions. But it seemed far more useful—both because it was uncertain whether an action locati would arise, and because it is better to possess rather than to proceed in personam—to put forward this interdict and to promise a quasi in rem action.

Dig. 43.18.1.2

Digest 43.18.1.2

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Proponitur autem interdictum duplex exemplo interdicti uti possidetis. tuetur itaque praetor eum, qui superficiem petit, veluti uti possidetis interdicto, neque exigit ab eo, quam causam possidendi habeat: unum tantum requirit, num forte vi clam precario ab adversario possideat. omnia quoque, quae in uti possidetis interdicto servantur, hic quoque servabuntur.

Moreover, a twofold interdict is proposed on the model of the interdict uti possidetis. Accordingly, the praetor protects the one who claims a right of superficies, as though by the interdict uti possidetis, nor does he demand from him what cause for possessing he has: he requires only one thing, whether perhaps he possesses from the adversary by force, stealth, or at-will (precario). Likewise, all the things that are observed in the interdict uti possidetis will be observed here as well.

Dig. 43.18.1.3

Digest 43.18.1.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Quod ait praetor " si actio de superficie postulabitur, causa cognita dabo", sic intellegendum est, ut, si ad tempus quis superficiem conduxerit, negetur ei in rem actio. et sane causa cognita ei, qui non ad modicum tempus conduxit superficiem, in rem actio competet.

As to what the praetor says, "if an action concerning the superficies is requested, with the cause examined I will grant it," it is to be understood thus: if someone has leased a superficies for a time, an action in rem is denied to him. And indeed, with the cause examined, to him who has leased the superficies not for a short time, an action in rem will lie.

Dig. 43.18.1.4

Digest 43.18.1.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Is autem, in cuius solo superficies est, utique non indiget utili actione, sed habet in rem, qualem habet de solo. plane si adversus superficiarium velit vindicare, dicendum est exceptione utendum in factum data: nam cui damus actionem, eidem et exceptionem competere multo magis quis dixerit.

But he, on whose soil the superficies is, of course does not need a useful action (actio utilis), but has an action in rem, such as he has concerning the soil. Clearly, if he should wish to vindicate against the superficarius, it must be said that an exceptio in factum granted is to be used; for one would say that to whom we grant an action, to the same party an exception all the more fittingly lies.

Dig. 43.18.1.5

Digest 43.18.1.5

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si soli possessori superficies evincatur, aequissimum erit subvenire ei vel ex stipulatu de evictione vel certe ex empto actione.

If the superficies is evicted from the possessor of the soil, it will be most equitable to aid him either under a stipulatio concerning eviction or, at any rate, by the action ex empto.

Dig. 43.18.1.6

Digest 43.18.1.6

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Quia autem etiam in rem actio de superficie dabitur, petitori quoque in superficiem dari et quasi usum fructum sive usum quendam eius esse et constitui posse per utiles actiones credendum est.

But since an in rem action concerning superficies will also be given, it is to be believed that to the petitioner likewise a right in the superficies can be granted, and that, as it were, a usufruct or a certain use of it can exist and be constituted through utile (analogical) actions.

Dig. 43.18.1.7

Digest 43.18.1.7

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

Sed et tradi posse intellegendum est, ut et legari et donari possit.

But it is also to be understood that it can be delivered, so that it may both be bequeathed and donated.

Dig. 43.18.1.8

Digest 43.18.1.8

Ulpianus 70 ad ed.

Ulpian Book 70 on the Edict.

Et si duobus sit communis, etiam utile communi dividundo iudicium dabimus.

And if it is common to two, we will also grant a useful action for division of the common property.

Dig. 43.18.1.9

Digest 43.18.1.9

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Servitutes quoque praetorio iure constituentur et ipsae ad exemplum earum, quae ipso iure constitutae sunt, utilibus actionibus petentur: sed et interdictum de his utile competit.

Servitudes also are constituted by praetorian law, and they too, on the model of those which are constituted by the law itself, are sought by useful actions; and moreover a useful interdict is available concerning these.

Dig. 43.18.2

Digest 43.18.2

Gaius 25 ad ed. provinc.

Gaius 25 on the provincial edict.

Superficiarias aedes appellamus, quae in conducto solo positae sunt: quarum proprietas et civili et naturali iure eius est, cuius et solum.

We call superficies-buildings those which have been set on leased soil: the proprietorship of which, by both civil and natural law, is his whose the soil is.

Dig. 43.19.0. De itinere actuque privato.

Digest 43.19.0. On the private iter and actus (rights of way and of driving).

Dig. 43.19.1pr.

Digest 43.19.1pr.

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Praetor ait: " quo itinere actuque privato, quo de agitur, vel via hoc anno nec vi nec clam nec precario ab illo usus es, quo minus ita utaris, vim fieri veto".

The praetor says: "As to the private right of way and right of driving that are in question, or as to a road, if in this year you have used it from him neither by force nor secretly nor by precarium, I forbid force to be employed to prevent you from using it so."

Dig. 43.19.1.1

Digest 43.19.1.1

Ulpianus 70 ad ed.

Ulpian 70 to the Edict.

Hoc interdictum prohibitorium est, pertinens ad tuendas rusticas tantummodo servitutes.

This interdict is prohibitory, pertaining to the protection of rustic servitudes only.

Dig. 43.19.1.2

Digest 43.19.1.2

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Hoc interdicto praetor non inquirit, utrum habuit iure servitutem impositam an non, sed hoc tantum, an itinere actuque hoc anno usus sit non vi non clam non precario, et tuetur eum, licet eo tempore, quo interdictum redditur, usus non sit. sive igitur habuit ius viae sive non habuit, in ea condicione est, ut ad tuitionem praetoris pertineat, si modo anno usus est vel modico tempore, id est non minus quam triginta diebus. neque ad praesens tempus refertur usus, quia plerumque itineribus vel via non semper utimur, nisi cum usus exegerit ita.

With this interdict the praetor does not inquire whether a servitude had been imposed by right or not, but only this: whether in this year he has used the right of way (iter) and the right of driving (actus) not by force, not secretly, not by leave (precario); and he protects him, although at the time when the interdict is delivered he has not been using it. Therefore, whether he had a right of way or did not have it, he is in such a condition as to fall under the praetor’s protection, provided only that he has used it for a year or for a modest time, that is, not less than thirty days. Nor is the use referred to the present time, because for the most part we do not always make use of journeys or the road, unless need has required it so.

Dig. 43.19.1.3

Digest 43.19.1.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Annui temporis spatio conclusit usum. annum ex die interdicti retrorsum computare debemus.

He confined the use within the span of a year. We ought to reckon the year backward from the day of the interdict.

Dig. 43.19.1.4

Digest 43.19.1.4

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Si quis hoc interdicto utatur, sufficit alterutrum probare vel iter vel actum in usu habuisse.

If anyone employs this interdict, it is sufficient to prove either one: that he had either the way or the drive in use.

Dig. 43.19.1.5

Digest 43.19.1.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Iulianus ait, quoad usque ingressus est, eo usque ei interdictum competere: quod verum est.

Julian says that, insofar as he has entered, to that extent the interdict is applicable to him: which is true.

Dig. 43.19.1.6

Digest 43.19.1.6

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Vivianus recte ait eum, qui propter incommoditatem rivi aut propterea, quia via publica interrupta erat, per proximi vicini agrum iter fecerit, quamvis id frequenter fecit, non videri omnino usum, itaque inutile esse interdictum, non quasi precario usum, sed quasi nec usum. ergo secundum hoc neutro usus videtur: multo enim minus illo usus est, per quem non ivit propter incommoditatem rivi aut propterea, quia via praerupta erat. idem erit dicendum et si non erat via publica, sed iter privatum: nam et hic eadem quaestio est.

Vivianus rightly says that one who, on account of the inconvenience of the stream or because the public road was interrupted, made his way through the field of his nearest neighbor, although he did this frequently, is not considered to have used it at all; and so the interdict is ineffectual, not as though he used it by precarium, but as though he had not used it. Therefore, according to this, he is deemed to have used neither: for much less did he use that one, along which he did not go because of the inconvenience of the stream or because the road was precipitous. The same is to be said also if it was not a public road but a private way: for here too the same question arises.

Dig. 43.19.1.7

Digest 43.19.1.7

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Is, cuius colonus aut hospes aut quis alius iter ad fundum fecit, usus videtur itinere vel actu vel via, et idcirco interdictum habebit: et haec ita pedius scribit et adicit etiamsi ignoravit, cuius fundus esset, per quem iret, retinere eum servitutem.

He, whose tenant-farmer or guest or someone else made a passage to the estate, is considered to have used the right of way, whether by path (iter) or by driving (actus) or by road (via), and for that reason he will have the interdict; and Pedius writes thus and adds that even if he did not know whose estate it was through which he went, he retains the servitude.

Dig. 43.19.1.8

Digest 43.19.1.8

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis autem, cum putaret fundum ad se pertinere, suo nomine iter fecerit amicus meus, utique sibi, non mihi interdictum adquisisse intellegitur.

But if, when he supposed the estate to pertain to himself, my friend has exercised a right of way in his own name, he is understood in any case to have acquired the interdict for himself, not for me.

Dig. 43.19.1.9

Digest 43.19.1.9

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Si quis propter inundationem usus non sit itinere actuque hoc anno, cum superiore usus sit, potest repetita die hoc interdicto uti per in integrum restitutionem ex illa parte " si qua mihi iusta causa esse videbitur". sed et si per vim hoc ei contigerit, in integrum eum restitui oportere Marcellus probat. praeterea et aliis casibus interdictum repetita die competit, ex quibus in integrum quis restitutionem impetrare solet.

If someone, on account of an inundation, has not made use this year of the right of way (iter) and of driving (actus), although he used it in the previous year, he can, on the day being repeated, employ this interdict by way of restoration in full (restitutio in integrum) under that clause, "if any just cause shall seem to me to exist." But even if this befell him through force, Marcellus holds that he ought to be restored in integrum. Moreover, in other cases too the interdict on a repeated day is available, those from which one is wont to obtain restoration in integrum.

Dig. 43.19.1.10

Digest 43.19.1.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Praeterea sciendum est, si dilatione data adversario futurum est, ut causa interdicti mei deterior fiat, aequissimum esse repetita die reddi interdictum.

Moreover, it should be known that, if, with a postponement granted to the adversary, it will come about that the cause of my interdict becomes worse, it is most equitable that, the day being repeated, the interdict be reissued.

Dig. 43.19.1.11

Digest 43.19.1.11

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Si tibi fundum precario concessero, cui via debebatur, deinde tu a domino fundi precario rogaveris, ut ea via ad eum fundum utaris: an noceat tibi exceptio, si adversus eum velis interdicere, a quo precario viam rogasti? et magis est, ut noceat, idque colligi potest ex eo, quod iulianus scribit in specie huiusmodi. quaerit enim, si ego tibi fundum precario dedero, cui via debebatur, et tu rogaveris precario, ut ea via utaris: nihilo minus utile interdictum mihi esse, quia, sicuti me precarium rei meae non tenet, ita nec per te precario possidere intellegor: quotiens enim colonus meus aut is, cui precario fundum dedi, via utitur, ego ire intellegor, propter quod et recte dico me itinere usum.

If I should concede to you a farm by precarium, to which a way was owed, and then you should ask by precarium from the owner of the estate that you use that way to that farm: does the exception harm you, if you wish to proceed by interdict against him from whom you asked the way by precarium? And it is rather the case that it does harm, and this can be gathered from what iulianus writes in a case of this sort. For he inquires: if I have given you a farm by precarium, to which a way was owed, and you have asked by precarium to use that way, nonetheless the useful interdict is available to me, because, just as a precarium of my own thing does not bind me, so neither am I understood to possess precariously through you: for whenever my tenant or the one to whom I gave the farm by precarium uses the way, I am understood to go, on account of which I also rightly say that I have used the right of way.

quae ratio, inquit, efficit, ut et, si ego viam precario rogavero et tibi fundum precario dedero, quamvis hac mente ieris, quasi fundo meo deberetur, inutile esset interdictum et precario eo itinere usus esse videar, non immerito: non enim opinio tua, sed mea quaerenda est. tu tamen, credo, poteris interdicto uti, etsi de hoc nihil scribat iulianus.

what reasoning, he says, brings it about that even if I have asked for a right of way on sufferance and have given you the estate on sufferance, although you would go with this intention, as if it were owed to my estate, the interdict would be useless, and I seem to have used that route on sufferance—not without good reason: for it is not your opinion that is to be sought, but mine. you, however, I believe, will be able to make use of the interdict, even though Julian writes nothing about this.

Dig. 43.19.1.12

Digest 43.19.1.12

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si quis supra dicto tempore anni non vi non clam non precario itinere usus sit, verum postea non sit usus, sed clam precariove, videndum est, an ei noceat. et magis est, ut nihil ei noceat, quod attinet ad interdictum:

If someone during the aforesaid time of the year has used the way not by force, not clandestinely, not precariously, but afterwards has not used it, rather used it clandestinely or by precarium, it must be considered whether this harms him. and the prevailing view is that it does him no harm at all, so far as concerns the interdict:

Dig. 43.19.2

Digest 43.19.2

Paulus 66 ad ed.

Paulus 66 on the Edict.

Nec enim corrumpi aut mutari, quod recte transactum est, superveniente delicto potest.

Nor indeed can that which has been rightly transacted be corrupted or changed by a supervening delict.

Dig. 43.19.3pr.

Digest 43.19.3, beginning.

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Inde etiam illud labeo scribit: si, cum a me recte via utebaris, fundum vendidero, per quem utebaris, deinde emptor te prohibuit: licet clam videaris ab eo uti ( nam qui prohibitus utitur, clam utitur), tamen interdictum tibi competere intra annum, quia hoc anno non vi non clam non precario usus es.

Hence also Labeo writes this: if, while you were rightly using a right of way from me, I shall have sold the estate through which you were using it, and then the purchaser prohibited you: although you may seem to be using it clandestinely as against him (for he who, being prohibited, uses, uses clandestinely), nevertheless the interdict lies for you within a year, because in this year you have used it not by force, not clandestinely, not precariously.

Dig. 43.19.3.1

Digest 43.19.3.1

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Item sciendum est non tantum eum clam via uti, qui ipse prohibitus utitur, verum eum quoque, per quem quis id ius retinebat, si eo prohibito, per quem retinebat, utatur. plane si ignoravi prohibitum et persevero uti, nihil mihi nocere dicendum est.

Likewise it must be known that not only is he using the way secretly who, having himself been prohibited, uses it, but also the person through whom someone was retaining that right, if, after that person—through whom he was retaining it—has been prohibited, he uses it. Clearly, if I was unaware of the prohibition and I persist in using it, it is to be said that it does me no harm.

Dig. 43.19.3.2

Digest 43.19.3.2

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Si quis ab auctore meo vi aut clam aut precario usus est, recte a me via uti prohibetur et interdictum ei inutile est, quia a me videtur vi vel clam vel precario possidere, qui ab auctore meo vitiose possidet. nam et pedius scribit, si vi aut clam aut precario ab eo sit usus, in cuius locum hereditate vel emptione aliove quo iure successi, idem esse dicendum: cum enim successerit quis in locum eorum, aequum non est nos noceri hoc, quod adversus eum non nocuit, in cuius locum successimus.

If anyone has used it against my author by force or stealth or on sufferance, he is rightly prohibited by me from using the way, and the interdict is useless to him, because, as against me, he is deemed to possess by force or stealth or on sufferance, who possesses defectively from my author. For Pedius also writes that, if he has used it by force or stealth or on sufferance against him into whose place I have succeeded by inheritance or purchase or by whatever other right, the same is to be said: for when someone has succeeded into their place, it is not equitable that we be harmed by that which did not harm him, against whom we have succeeded.

Dig. 43.19.3.3

Digest 43.19.3.3

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

In hoc interdicto examinatur, quanti eius interesset via non prohiberi sive itinere.

In this interdict it is examined how much his interest amounted to that he not be prohibited from the road or from the path.

Dig. 43.19.3.4

Digest 43.19.3.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Uti videmur servitutibus etiam per servos vel colonos vel amicos vel etiam hospites et fere per eos omnes, qui nobis retinent servitutes: sed enim per fructuarium quidem servitus retinetur, per fructuarium autem interdictum hoc domino non competere iulianus ait.

As we are considered to be possessors of servitudes even through slaves or tenant-farmers or friends or even guests, and generally through all those who retain servitudes for us: yet indeed through the usufructuary a servitude is retained, but Julian says that through the usufructuary this interdict does not befit the owner.

Dig. 43.19.3.5

Digest 43.19.3.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Idem iulianus scribit, si meus usus fructus in fundo tuo, proprietas vero tua fuerit et uterque nostrum per vicini fundum ierit, utile interdictum de itinere nos habere: et sive forte ab extraneo fructuarius prohibeatur, sive etiam a domino, sed et si dominus a fructuario, competet: nam et si quilibet prohibeat ire, interdictum adversus eum competit.

The same Julian writes that, if my usufruct is in your farm, while the ownership is yours, and each of us has been going across the neighbor’s farm, we have the useful interdict concerning the right of way; and whether perchance the usufructuary is prohibited by a stranger, or even by the owner, and also if the owner by the usufructuary, it will lie; for even if anyone whatsoever forbids going, the interdict lies against him.

Dig. 43.19.3.6

Digest 43.19.3.6

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc interdictum et ei competit, qui donationis causa fundi vacuam possessionem adeptus est.

This interdict likewise lies for him who has obtained vacant possession of a fundus by reason of a donation.

Dig. 43.19.3.7

Digest 43.19.3.7

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Si quis ex mandatu meo fundum emerit, aequissimum est mihi hoc interdictum dari " ut ille usus est" qui mandatu meo emit.

If someone has purchased an estate on my mandate, it is most equitable that this interdict be granted to me, " ut ille usus est"—that he used—namely, the one who bought on my mandate.

Dig. 43.19.3.8

Digest 43.19.3.8

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Sed et si quis usum fructum emit vel usum vel cui legatus est et traditus, uti hoc interdicto poterit.

But also, if anyone has bought a usufruct or a use, or to whom it has been bequeathed and delivered, he will be able to make use of this interdict.

Dig. 43.19.3.9

Digest 43.19.3.9

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Hoc amplius et is, cui dotis causa fundus traditus est, experiri hoc interdicto poterit.

Moreover, even he to whom an estate has been delivered for the sake of dowry will be able to proceed by this interdict.

Dig. 43.19.3.10

Digest 43.19.3.10

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

Et generaliter ex omnibus causis, quae instar habent venditionis vel alterius contractus, dicendum est hoc interdicto locum fore.

And, generally, in all cases which have the character of a sale or of another contract, it must be said that this interdict will apply.

Dig. 43.19.3.11

Digest 43.19.3.11

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Ait praetor: " quo itinere actuque hoc anno non vi non clam non precario ab alio usus es, quo minus id iter actumque, ut tibi ius esset, reficias, vim fieri veto. qui hoc interdicto uti volet, is adversario damni infecti, quod per eius vitium datum sit, caveat".

The praetor says: "By whichever right of way and right of driving this year you have used over another’s, not by force, not clandestinely, not by permission, I forbid force to be employed to hinder you from repairing that way and that driving-right, so that you may have the right." Whoever will wish to use this interdict shall give security to the adversary for damnum infectum, for such damage as may be caused through his fault.

Dig. 43.19.3.12

Digest 43.19.3.12

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Utilitas suasit hoc quoque interdictum proponere: namque consequens erat eum qui itinere utitur interdictum proponere, ut refici iter possit: quemadmodum enim alias uti potest itinere vel actu commode, quam si refecerit? corrupto enim itinere minus commode frui aut agi potest.

Utility urged the proposing of this interdict as well: for it was consequent to issue an interdict for one who uses a right of way, so that the way might be repaired; for how otherwise can he use the way or the right of driving conveniently than if he has repaired it? for with the way damaged, enjoyment or driving can be had less conveniently.

Dig. 43.19.3.13

Digest 43.19.3.13

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Hoc autem a superiori distat, quod illo quidem interdicto omnes uti possunt, qui hoc anno usi sunt: hoc autem interdicto eum demum uti posse, qui hoc anno usus est et ius sibi esse reficiendi oporteat. ius autem esse videtur ei, cui servitus debetur. itaque qui hoc interdicto utitur, duas res debet docere, et hoc anno se usum et ei servitutem competere: ceterum si desit alterutrum, deficit interdictum, nec immerito.

This, however, differs from the foregoing, in that under that interdict all can avail themselves who have used it in this year; but under this interdict only he can avail himself who has used it in this year and for whom it ought to be that there is a right of repairing. Now a right is thought to exist for him to whom the servitude is owed. Therefore he who employs this interdict must demonstrate two things: both that he has used it in this year and that the servitude pertains to him; otherwise, if either is lacking, the interdict fails—and not without reason.

qui enim vult ire agere, tantisper, quoad de servitute constet, non debet de iure suo docere: quid enim perdit, qui eum patitur hoc facere qui hoc anno fecit? enimvero qui vult reficere, aliquid novi facit neque debet ei in alieno permitti id moliri, nisi vere habet servitutem.

for he who wishes to go and to drive, meanwhile, until it be established about the servitude, ought not to have to show his right: for what does he lose who allows him to do this who has done it this year? but indeed he who wishes to repair does something new, nor ought he be permitted to undertake that on another’s property, unless he truly has the servitude.

Dig. 43.19.3.14

Digest 43.19.3.14

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Fieri autem potest, ut qui ius eundi habeat et agendi, reficiendi ius non habeat, quia in servitute constituenda cautum sit, ne ei reficiendi ius sit, aut sic, ut, si velit reficere, usque ad certum modum reficiendi ius sit: merito ergo ad refectionem se praetor rettulit: " ut tibi", inquit, " ius est, reficias". " uti ius est" hoc est sic uti per servitutem impositam licet.

Moreover, it can happen that one who has the right of going and of driving does not have the right of repairing, because in the establishing of the servitude it was provided that he should not have the right of repairing; or thus, that, if he wishes to repair, he has the right of repairing only up to a certain measure: with good reason, therefore, the praetor referred himself to repair: " as to you," he says, " there is a right, repair." " as there is a right to use"—that is, to use in such a way as is permitted by the servitude imposed.

Dig. 43.19.3.15

Digest 43.19.3.15

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Reficere sic accipimus ad pristinam formam iter et actum reducere, hoc est ne quis dilatet aut producat aut deprimat aut exaggeret: aliud est enim reficere, longe aliud facere.

We take “to reficere” thus: to reduce the iter and the actus to their pristine form, that is, that no one dilate or produce or depress or exaggerate; for to reficere is one thing, to facere is far another.

Dig. 43.19.3.16

Digest 43.19.3.16

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Apud labeonem quaeritur, si pontem quis novum velit facere viae muniendae causa, an ei permittatur: et ait permittendum, quasi pars sit refectionis huiusmodi munitio. et ego puto veram labeonis sententiam, si modo sine hoc commeari non possit.

It is asked in Labeo whether, if someone should wish to make a new bridge for the purpose of reinforcing the road, it is to be permitted to him; and he says it should be permitted, as though such reinforcement were part of the refection (repair). And I too think Labeo’s opinion true, provided only that without this one cannot pass.

Dig. 43.19.4pr.

Digest 43.19.4, preface.

Venonius 1 interd.

Venonius Book 1 on Interdicts.

Veteres nominatim adiciebant, ut ea quoque, quae ad refectionem utilia essent, adportanti vis non fieret: quod supervacuum est, quoniam qui adportari non patitur ea, sine quibus refici iter non possit, vim facere videtur, quo minus reficiatur.

The ancients expressly added that no violence be done to one bringing in even those things which were useful for refection; which is superfluous, since he who does not allow those things to be brought in, without which the way cannot be repaired, seems to be using violence to prevent its being repaired.

Dig. 43.19.4.1

Digest 43.19.4.1

Venonius 1 interd.

Venonius 1 Interdicts.

Si quis autem, cum posset compendiaria adportare, quae refectioni necessaria sunt longiori itinere velit adportare, ut deteriorem causam eundi faciat, impune ei vis fiet, quia ipse sibi impedimento sit, quo minus reficiat.

But if anyone, when he could bring by a short‑cut the things which are necessary for refection, should wish to bring them by a longer journey, so as to make the case for going worse, force may be used against him with impunity, because he is himself an impediment to himself, whereby he is the less able to effect refection.

Dig. 43.19.5pr.

Digest 43.19.5pr.

Ulpianus 20 ad ed.

Ulpian 20 on the Edict.

Apparet ergo eum, qui non patitur haec congeri, vim facere, quo minus quis perficiat.

Therefore it is apparent that he who does not permit these things to be heaped together is using force, so that someone is prevented from perfecting it.

Dig. 43.19.5.1

Digest 43.19.5.1

Ulpianus 20 ad ed.

Ulpian, 20 on the Edict.

Plane si quis, cum posset alia parte agri sine incommodo domini fundi impensam adportare, id egit, ut alia parte adportet, impune ei vim fieri recte placuit.

Clearly, if someone, when he could carry in by another part of the field, without inconvenience to the owner of the estate, the materials, nevertheless contrives to carry them in by some other part, it has been rightly approved that force may be used against him with impunity.

Dig. 43.19.5.2

Digest 43.19.5.2

Ulpianus 20 ad ed.

Ulpian, 20 on the Edict.

Hoc interdictum non solum ipsi, verum successoribus quoque esse dandum non est ambigendum: emptori quoque dabitur et in emptorem.

There is no doubt that this interdict must be granted not only to him himself, but also to his successors: it will also be given to the buyer and against the buyer.

Dig. 43.19.5.3

Digest 43.19.5.3

Ulpianus 20 ad ed.

Ulpian 20 on the edict.

Si quis servitutem iure impositam non habeat, habeat autem velut longae possessionis praerogativam ex eo, quod diu usus est servitute, interdicto hoc uti potest.

If anyone does not have a servitude imposed by law, but has, as it were, the prerogative of long possession from the fact that he has long used the servitude, he can make use of this interdict.

Dig. 43.19.5.4

Digest 43.19.5.4

Ulpianus 20 ad ed.

Ulpian, 20 on the Edict.

Qui hoc interdicto usurus est, de vitio operis cavere adversario debet.

He who is going to make use of this interdict ought to provide security to his adversary concerning the defect in the work.

Dig. 43.19.6

Digest 43.19.6

Paulus 66 ad ed.

Paulus 66 on the Edict.

Sicut non nocet ei, qui sine vitio usus est, quod eodem anno vitiose usus est, ita emptori heredique non nocebit, quod ipsi vitiose usi sunt, si testator venditorve recte usi sunt.

Just as it does not harm him who has used without vice, that in the same year he used with vice, so it will not harm the buyer and the heir that they themselves used with vice, if the testator or the seller used rightly.

Dig. 43.19.7

Digest 43.19.7

Celsus 25 Dig.

Celsus 25 Digest.

Si per fundum tuum nec vi nec clam nec precario commeavit aliquis, non tamen tamquam id suo iure faceret, sed, si prohiberetur, non facturus, inutile est ei interdictum de itinere actuque: nam ut hoc interdictum competat, ius fundi possedisse oportet.

If someone has traversed your estate neither by force, nor secretly, nor by revocable permission, yet not as though he were doing it by his own right, but such that, if he were forbidden, he would not do it, the interdict concerning right of way and of driving is of no use to him; for, in order that this interdict be available, one must have possessed the right over the land.

Dig. 43.20.0. De aqua cottidiana et aestiva.

Digest 43.20.0. On quotidian and summer water.

Dig. 43.20.1pr.

Digest 43.20.1 pr.

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Ait praetor: " uti hoc anno aquam, qua de agitur, non vi non clam non precario ab illo duxisti, quo minus ita ducas, vim fieri veto".

The praetor says: "As in this year you have conducted the water which is at issue from that man, not by force, not secretly, not precariously, I forbid force to be used to prevent you from conducting it thus."

Dig. 43.20.1.1

Digest 43.20.1.1

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Hoc interdictum prohibitorium et interdum restitutorium est et pertinet ad aquam cottidianam.

This interdict is prohibitory and sometimes restitutory, and pertains to the daily water.

Dig. 43.20.1.2

Digest 43.20.1.2

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Cottidiana autem aqua non illa est, quae cottidie ducitur, sed ea, qua quis cottidie uti, si vellet: quamquam cottidianam interdum hieme ducere non expediat, etsi possit duci.

Quotidian water, however, is not that which is conducted every day, but that which a person could use every day, if he wished; although to conduct the quotidian water in winter is sometimes not expedient, even if it can be conducted.

Dig. 43.20.1.3

Digest 43.20.1.3

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Duo autem genera sunt aquarum: est cottidiana, est et aestiva. cottidiana ab aestiva usu differt, non iure. cottidiana ea est, quae duci adsidue solet vel aestivo tempore vel hiberno, etiamsi aliquando ducta non est: ea quoque dicitur cottidiana, cuius servitus intermissione temporis divisa est.

There are, moreover, two kinds of waters: there is the quotidian, and there is also the aestival. The quotidian differs from the aestival in use, not in law. The quotidian is that which is accustomed to be conducted continuously either in the summer season or in winter, even if at some time it has not been conducted: that also is called quotidian, whose servitude is divided by an intermission of time.

aestiva autem ea est, qua aestate sola uti expedit, sicuti dicimus vestimenta aestiva, saltus aestivos, castra aestiva, quibus interdum etiam hieme, plerumque autem aestate utamur. ego puto probandum ex proposito utentis et ex natura locorum aquam aestivam a cottidiana discerni: nam si sit ea aqua, quae perpetuo duci possit, ego tamen aestate sola ea utar, dicendum est hanc aquam esse aestivam: rursum si ea sit aqua, quae non nisi aestate duci possit, aestiva dicetur: et si ea sint loca, quae natura non admittant aquam nisi aestate, dicendum erit recte aestivam dici.

aestival, however, is that which it is expedient to use in summer only, just as we say estival garments, estival pastures, estival camps, which we sometimes use even in winter, but for the most part in summer. I think it should be approved that, from the purpose of the user and from the nature of the places, estival water is distinguished from quotidian: for if it is water which can be conducted continuously, yet I use it only in summer, it must be said that this water is estival; again, if it is water which cannot be conducted except in summer, it will be called estival; and if the places are such as by nature do not admit water except in summer, it must be said that it is rightly called estival.

Dig. 43.20.1.4

Digest 43.20.1.4

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Quod autem scriptum est in interdicto: " uti hoc anno aquam duxisti" hoc est: non cottidie, sed hoc anno vel una die vel nocte. ergo cottidiana quidem aqua alia est, quae cottidie duci possit, vel hieme vel aestate, etsi aliquo momento temporis ducta sit, aestiva ea, quae cottidie quidem duci possit, vel sola aestate, ducatur autem aestate tantum, non et hieme, non quia non possit et hieme, sed quia non solet.

But as for what is written in the interdict: "as in this year you have conducted water," this means: not daily, but in this year—even on a single day or night. Therefore, daily water is something different, namely that which can be conducted every day, either in winter or in summer, even if it has been conducted at some moment of time; summer water is that which indeed can be conducted every day, but only in summer—it is conducted in summer only, not also in winter, not because it cannot be in winter, but because it is not customary.

Dig. 43.20.1.5

Digest 43.20.1.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Loquitur autem praetor in hoc interdicto de ea aqua sola, quae perennis est: nulla enim alia aqua duci potest, nisi quae perennis est.

But the praetor speaks in this interdict of that water alone which is perennial: for no other water can be conducted except that which is perennial.

Dig. 43.20.1.6

Digest 43.20.1.6

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Quamquam ad perennes aquas dixerimus hoc interdictum pertinere, ad eas tamen perennes pertinet, quae duci possunt. ceterum sunt quaedam, quae, etsi perennes sunt, duci tamen non possunt, ut puta puteales et quae ita sunt summersae, ut defluere extra terram et usui esse non possint. sed huiusmodi aquis, quae duci non possint, haustus servitus imponi potest.

Although we have said that this interdict pertains to perennial waters, nevertheless it pertains to those perennial ones which can be conducted. Moreover, there are certain waters which, although perennial, nevertheless cannot be conducted, for instance well-waters and those which are so submerged that they cannot flow out beyond the ground and be of use. But upon waters of this kind, which cannot be conducted, a servitude of drawing may be imposed.

Dig. 43.20.1.7

Digest 43.20.1.7

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Haec interdicta de aqua, item de fonte ad eam aquam pertinere videntur, quae a capite ducitur, non aliunde: harum enim aquarum etiam servitus iure civili constitui potest.

These interdicts concerning water, likewise concerning a spring, seem to pertain to that water which is led from its head (source), not from elsewhere: for even a servitude of these waters can be established by civil law.

Dig. 43.20.1.8

Digest 43.20.1.8

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Caput aquae illud est, unde aqua nascitur: si ex fonte nascatur, ipse fons: si ex flumine vel lacu, prima incilia vel principia fossarum, quibus aquae ex flumine vel ex lacu in primum rivum compelli solent. plane si aqua sudoribus manando in aliquem primum locum effluere atque ibi apparere incipit, eius hoc caput dicemus, ubi primum emergit.

The head of the water is that from which the water is born: if it is born from a spring, the spring itself; if from a river or a lake, the first intakes or the beginnings of the ditches by which waters from the river or from the lake are wont to be driven into the first channel. Clearly, if the water, by exudations seeping, begins to flow out into some first place and to appear there, we shall call this its head, where it first emerges.

Dig. 43.20.1.9

Digest 43.20.1.9

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Et qualiter sit constitutum ius aquae, dicendum est hoc interdictum locum habere.

And as to how the right of water is constituted, it must be said that this interdict has application.

Dig. 43.20.1.10

Digest 43.20.1.10

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Sed etsi iure aqua non debetur alicui, si tamen iure ducere se putavit, cum non in iure, sed in facto erravit, dicendum est eoque iure utimur, ut interdicto hoc uti possit: sufficit enim, si iure se ducere putavit nec vi nec clam nec precario duxit.

But even if by right water is not owed to someone, nevertheless if he supposed that he was conducting it by right, since he erred not in law but in fact, it must be said—and we proceed on that principle—that he can make use of this interdict: for it is sufficient if he thought he was conducting it by right and conducted it neither by force nor secretly nor precariously.

Dig. 43.20.1.11

Digest 43.20.1.11

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Illud quaeritur, utrum ea tantum aqua his interdictis contineatur, quae ad agrum irrigandum pertinet, an vero omnis, etiam ea, quae ad usum quoque et commodum nostrum. et hoc iure utimur, ut haec quoque contineatur. propter quod etiam si in urbana praedia quis aquam ducere velit, hoc interdictum locum habere potest.

It is inquired whether only that water is contained within these interdicts which pertains to irrigating a field, or indeed all water, even that which is also for our use and convenience. And we use this law, that this too is contained. For which reason, even if someone wishes to conduct water into urban properties, this interdict can have place.

Dig. 43.20.1.12

Digest 43.20.1.12

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Praeterea labeo scribit, etsi quidam ductus aquarum non sit fundi, quia quocumque duci possint, tamen ad hoc interdictum pertinere.

Furthermore, Labeo writes that, although certain conduits of waters are not of the estate, since they can be led wherever, nevertheless they pertain to this interdict.

Dig. 43.20.1.13

Digest 43.20.1.13

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Idem labeo scribit, etiamsi praetor hoc interdicto de aquis frigidis sentiat, tamen de calidis aquis interdicta non esse deneganda: namque harum quoque aquarum usum esse necessarium: nonnumquam enim refrigeratae usum irrigandis agris praestant. his accedit, quod in quibusdam locis et cum calidae sunt, irrigandis tamen agris necessariae sunt, ut hierapoli: constat enim apud hierapolitanos in asia agrum aqua calida rigari. et quamvis ea sit aqua, quae ad rigandos non sit necessaria, tamen nemo ambiget his interdictis locum fore.

The same Labeo writes that, even if the praetor, by this interdict, has in view cold waters, nevertheless interdicts concerning hot waters are not to be denied: for the use of these waters too is necessary; for sometimes, once cooled, they furnish a use for irrigating fields. To this is added that in certain places, even when they are hot, they are nevertheless necessary for irrigating fields, as at Hierapolis: for it is agreed that among the Hierapolitans in Asia land is irrigated with hot water. And although it be water which is not necessary for irrigating, nevertheless no one will doubt that there is room for these interdicts.

Dig. 43.20.1.14

Digest 43.20.1.14

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Sive autem intra urbem sit aqua sive extra urbem, hoc interdicto locus erit.

Whether the water is within the city or outside the city, this interdict will apply.

Dig. 43.20.1.15

Digest 43.20.1.15

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Illud tamen hic intellegendum est eodem modo praetorem duci aquam iussisse, quo ducta est hoc anno. proinde neque amplioris modi, neque alia permisisse potest videri. quare si alia aqua sit, quam quis velit ducere, quam hoc anno duxit, vel eadem, per aliam tamen regionem velit ducere, impune ei vis fiet.

Nevertheless, it must here be understood that the praetor ordered the water to be led in the same manner as it was led this year. Accordingly, he can be seen to have permitted neither a greater measure nor a different water. Wherefore, if it be other water that someone wishes to lead than he led this year, or the same water, yet wishes to lead it through another region, violence may be done to him with impunity.

Dig. 43.20.1.16

Digest 43.20.1.16

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Illud labeo dicit omnes partes illius fundi, in quem loci aqua ducitur, eiusdem numero esse. ergo et si forte actor confinem agrum emerit et ex agro, in quem hoc anno aquam duxerit, postea fundi empti nomine velit aquam ducere, ita demum eum recte hoc interdicto ( ut de itinere actuque) uti putant, ut semel in suum ingressus inde egredi qua velit possit, nisi ei nocitum sit, ex quo aquam ducit.

Labeo says this: all parts of that fund into which the local water is conducted are counted as the same. Therefore, even if by chance the plaintiff should buy a contiguous field and wishes thereafter, under the title of the purchased fund, to conduct water from the field into which this year he has conducted water, they think that he may properly use this interdict ( as about the right-of-way and the driving), to the effect that, once having made ingress into his own, from there he may egress wherever he wishes, unless harm has been done to him in that from which he conducts the water.

Dig. 43.20.1.17

Digest 43.20.1.17

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Item quaeritur, si quis aquae, quam hoc anno ducebat, aliam aquam admiscuerit, an impune prohibeatur. et extat ofilii sententia existimantis recte eum prohiberi, sed eo loci, in quo primum aquam aliam in rivum admittit: et ofilius in tota aqua recte eum prohiberi ait. ego ofilio adsentio non posse dividi, quia non potest ita in parte vis fieri, ut non in tota aqua fiat.

Likewise it is asked, if someone has admixed other water to the water which he was conducting this year, whether he is prohibited with impunity. And there exists the opinion of ofilius, thinking that he is rightly prohibited, but at that place where he first admits the other water into the rivulet; and ofilius says that he is rightly prohibited in respect to the whole water. I assent to ofilius that it cannot be divided, because force cannot be applied to a part in such a way that it is not applied to the whole water.

Dig. 43.20.1.18

Digest 43.20.1.18

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Trebatius, cum amplior numerus pecoris ad aquam appelletur, quam debet appelli, posse universum pecus impune prohiberi, quia iunctum pecus ei pecori, cui adpulsus debeatur, totum corrumpat pecoris adpulsum. Marcellus autem ait, si quis ius habens pecoris ad aquam appellendi plura pecora adpulserit, non in omnibus pecoribus eum prohibendum: quod est verum, quia pecora separari possunt.

Trebatius [holds] that, when a larger number of cattle is driven to the water than ought to be driven, the whole herd can be prohibited with impunity, because the herd joined to that herd to which the driving is owed vitiates the entire driving of the herd. Marcellus, however, says that if someone who has the right of driving cattle to the water has driven more cattle, he is not to be prohibited as to all the cattle; which is true, because the cattle can be separated.

Dig. 43.20.1.19

Digest 43.20.1.19

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Aristo putat eum demum interdictum hoc habere, qui se putat suo iure uti, non eum, qui scit se nullum ius habere et utitur.

Aristo thinks that he has this interdict only who thinks he is using his own right, not he who knows that he has no right and yet uses it.

Dig. 43.20.1.20

Digest 43.20.1.20

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Idem ait eum, qui hoc anno aquam duxerit nec vi nec clam nec precario et eodem anno vitiose usus est, recte tamen hoc interdicto usurum: quod referri ad id tempus, quod sine vitio fuerit: esse enim verum hoc anno non vi non clam non precario usum.

He likewise says that he who in this year has conducted water not by force, not by stealth, not by precarium, and in the same year has used it in a vitiated manner, will nevertheless rightly avail himself of this interdict: because it is referred to that time which was without fault; for it is true that in this year he used it not by force, not by stealth, not by precarium.

Dig. 43.20.1.21

Ulpianus 70 ad ed.

Ulpian book 70 On the Edict.

Quaesitum est, si quis ante annum aquam duxit, deinde sequenti tempore, hoc est intra annum, aqua influxerit ipsa sibi me non ducente, an hoc interdicto locus sit. et refert severus valerius competere ei hoc interdictum, quasi duxisse videatur, licet penitus prospicientibus non videtur iste duxisse.

It has been asked whether, if someone conducted water more than a year ago, and then at a subsequent time, that is, within the year, the water has flowed in to him of its own accord, without my conducting it, there is room for this interdict. And Severus Valerius reports that this interdict is available to him, as though he should be seen to have conducted it, although to those looking quite thoroughly this man does not seem to have conducted it.

Dig. 43.20.1.22

Digest 43.20.1.22

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Item quaesitum est, si quis, dum putat tertio quoque die habere se ius aquae ducendae, duxerit una die, an recte et sine captione possessoris recte duxisse videatur, ut hoc interdictum habeat: ait enim praetor: " uti hoc anno aquam duxisti" id est alternis diebus. illud autem nihil interest, utrum quinto die aqua debeatur an alternis diebus an cottidie ei, qui hoc interdicto uti velit: nam cum sufficiat vel uno die hoc anno aquam duxisse, nihil refert, qualem aquae ductum habens duxerit: dum, si quis, cum quinto quoque die uteretur, quasi alternis diebus ducens interdixerit, nihil ei prodesse videtur.

Likewise it has been asked, if someone, while he supposes that he has the right of conducting water every third day, has conducted it on a single day, whether he appears to have conducted it rightly and without captious entrapment of the possessor, so as to have this interdict: for the praetor says, “as in this year you conducted water,” that is, on alternate days. Moreover, it makes no difference whether water is owed on the fifth day, or on alternate days, or every day, to one who wishes to use this interdict: for since it is sufficient to have conducted water even on a single day in this year, it is of no moment what sort of water-conduction, having the right, he carried out; provided that, if someone, when he used it every fifth day, has proceeded to interdict as though conducting on alternate days, it seems to profit him nothing.

Dig. 43.20.1.23

Digest 43.20.1.23

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Praeterea illud sciendum est, si, cum aquam duxisses, adversarius te prohibuerit, deinde tu interim ius aquae ducendae amiseris, in restitutionem hoc venire, ut tibi praestetur per hoc interdictum quod amisisti: et hoc verum puto.

Moreover, this must be known: if, when you had conducted water, an adversary prohibited you, and then in the meantime you lost the right of conducting water, this comes into restitution, so that what you lost is afforded to you through this interdict; and I consider this true.

Dig. 43.20.1.24

Digest 43.20.1.24

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Si fundum, ad quem aquam ducebas, vendideris et tradideris, nihilo minus interdictum tibi utile est.

If you have sold and delivered the estate to which you were conducting water, nonetheless the interdict is useful to you.

Dig. 43.20.1.25

Digest 43.20.1.25

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Competit hoc interdictum adversus eum, qui prohibet me aquam ducere, et nihil interest, utrum quis dominium fundi habeat an non. idcircoque is tenetur interdicto: nam et si servitus coepit adversus quemvis posse vindicari.

This interdict is available against him who prohibits me from conducting water, and it makes no difference whether someone has ownership of the estate or not. And therefore that person is held by the interdict; for even a servitude has come to be able to be vindicated against anyone.

Dig. 43.20.1.26

Digest 43.20.1.26

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si inter rivales, id est qui per eundem rivum aquam ducunt, sit contentio de aquae usu, utroque suum usum esse contendente, duplex interdictum utrique competit.

If among rivals, that is, those who conduct water through the same rivulet, there is a dispute about the use of the water, each contending that the use is his own, a double interdict lies for each.

Dig. 43.20.1.27

Digest 43.20.1.27

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Labeo putat per hoc interdictum prohiberi quem, ne quid in illo fundo faciat fodiat serat succidat putet aedificet, quare ex re ea aqua, quam ille hoc anno per fundum tuum sine vitio duxit, inquinetur vitietur corrumpatur deteriorve fiat: et similiter de aestiva aqua debere interdici ait.

Labeo thinks that by this interdict someone is to be prohibited, so that he do nothing on that estate—dig, plant, cut down, prune, build—whereby, as a result, the water which he has this year conducted through your estate without fault be polluted, vitiated, corrupted, or made worse; and he says that similarly there ought to be an interdict concerning summer water.

Dig. 43.20.1.28

Digest 43.20.1.28

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Si quis hoc cesserit, ne liceat sibi aquam quaerere, ea cessio valet.

If anyone has made a cession to this effect—that it not be licit for him to claim water for himself—that cession is valid.

Dig. 43.20.1.29

Digest 43.20.1.29

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Deinde ait praetor: " uti priore aestate aquam, qua de agitur, nec vi nec clam nec precario ab illo duxisti, quo minus ita ducas, vim fieri veto. inter heredes emptores et bonorum possessores interdicam".

Then the praetor says: " as you did in the prior summer the water now at issue, neither by force, nor in secret, nor precariously from that man, I forbid force to be employed to prevent you from so conducting it. I will interdict between heirs, purchasers, and possessors of goods".

Dig. 43.20.1.30

Digest 43.20.1.30

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Hoc interdictum de aqua aestiva proponitur.

This interdict is propounded concerning summer water.

Dig. 43.20.1.31

Digest 43.20.1.31

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Quia autem diximus aestivam aquam aliquo distare ab aqua cottidiana, sciendum est etiam interdictis distare, quod qui de aqua cottidiana interdicit, ita interdicit: " uti hoc anno aquam duxisti", at qui de aestiva, sic: " uti priore aestate", nec immerito: nam quia hieme non utitur, referre se non ad praesentem aestatem, sed ad priorem debuit.

But since we have said that summer water differs in some respect from quotidian water, it should be known that they also differ in the interdicts, in that he who interdicts concerning quotidian water interdicts thus: "as you have conducted the water this year," but he who [interdicts] concerning summer [water], thus: "as in the prior summer," and not without reason: for since it is not used in winter, he ought to refer not to the present summer, but to the prior.

Dig. 43.20.1.32

Digest 43.20.1.32

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Aestatem incipere ( sic peritiores tradiderunt) ab aequinoctio verno et finiri aequinoctio autumnali: et ita senis mensibus aestas atque hiems dividitur.

that summer begins ( so the more expert have handed down) from the vernal equinox and is finished at the autumnal equinox: and thus summer and winter are divided into six months apiece.

Dig. 43.20.1.33

Digest 43.20.1.33

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Priorem aestatem ex comparatione duarum aestatium accipi.

The prior summer is to be understood from the comparison of the two summers.

Dig. 43.20.1.34

Digest 43.20.1.34

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Propter hoc, si aestate interdicatur, nonnumquam annum et sex menses continere: quod ita contingit, si initio verni aequinoctii ducta sit aqua et sequenti aestate pridie aequinoctium autumnale interdicatur: et proinde, si hieme interdicatur, etiam in biennium haec res extendetur.

Because of this, if it is interdicted in summer, it will sometimes comprise a year and six months: which so happens if at the beginning of the vernal equinox the water has been conducted and in the following summer, on the day before the autumnal equinox, it is interdicted: and accordingly, if it is interdicted in winter, this matter will also be extended into a biennium.

Dig. 43.20.1.35

Digest 43.20.1.35

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Si quis hieme tantum aquam solitus fuit ducere, aestate non fuit solitus, utile interdictum ei competit.

If someone was accustomed to conduct water only in winter, and was not accustomed to do so in summer, a useful interdict is available to him.

Dig. 43.20.1.36

Digest 43.20.1.36

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

Qui hac aestate duxit, non superiore, utile interdictum habet.

He who drove this summer, not the previous, has a useful interdict.

Dig. 43.20.1.37

Digest 43.20.1.37

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Ait praetor: " inter heredes et emptores et bonorum possessores interdicam". haec verba non solum ad aestivam aquam, verum etiam ad cottidianam quoque referenda esse sciendum est: nam sicuti de itinere actuque et successoribus dantur interdicta et emptori, ita haec quoque danda praetor putavit.

The praetor says: "I will issue an interdict between heirs and purchasers and possessors of the goods." It should be understood that these words are to be referred not only to summer water, but also to daily water as well: for just as, concerning right of way and of driving, and for successors, interdicts are granted to the purchaser, so too the praetor thought that these should be granted.

Dig. 43.20.1.38

Digest 43.20.1.38

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Ait praetor: " quo ex castello illi aquam ducere ab eo, cui eius rei ius fuit, permissum est, quo minus ita uti permissum est ducat, vim fieri veto. quandoque de opere faciendo interdictum erit, damni infecti caveri iubebo".

The praetor says: "From that reservoir, since it was permitted by the one who had the right in that matter to conduct water to that man, I forbid force to be used to prevent him from conducting it in the manner it was permitted. Whenever an interdict shall be issued concerning the making of the work, I will order security to be given for damage not yet done."

Dig. 43.20.1.39

Digest 43.20.1.39

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Hoc interdictum necessario propositum est. namque superiora interdicta ad eos pertinent, qui a capite ducunt vel imposita servitute vel quia putant impositam: aequissimum visum est ei quoque, qui ex castello ducit, interdictum dari. id est ex eo receptaculo, quod aquam publicam suscipit.

This interdict has been necessarily proposed. For the preceding interdicts pertain to those who draw from the head (source), either because a servitude has been imposed or because they suppose it has been imposed: it seemed most equitable that an interdict be granted also to him who draws from the castellum, that is, from that receptacle which receives public water.

castellum accipe.

take 'castellum'.

Dig. 43.20.1.40

Digest 43.20.1.40

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si ex castello permissum est, dandum erit interdictum:

If it has been permitted from the castellum, the interdict must be granted:

Dig. 43.20.1.41

Digest 43.20.1.41

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Permittitur autem aquam ex castello vel ex rivo vel ex quo alio loco publico ducere.

It is permitted, moreover, to conduct water from a castellum or from a stream or from any other public place.

Dig. 43.20.1.42

Digest 43.20.1.42

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Idque a principe conceditur: alii nulli competit ius aquae dandae.

And this is granted by the emperor: to no one else does the right of granting water belong.

Dig. 43.20.1.43

Digest 43.20.1.43

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et datur interdum praediis, interdum personis. quod praediis datur, persona extincta non extinguitur: quod datur personis, cum personis amittitur ideoque neque ad alium dominum praediorum neque ad heredem vel qualemcumque successorem transit. plane ei, ad quem dominium transit, impetrabile est: nam si docuerit praediis suis aquam debitam, etsi nomine eius fluxisse, a quo dominium ad se transiit, indubitate impetrat ius aquae ducendae, nec est hoc beneficium, sed iniuria, si quis forte non impetraverit.

And it is granted sometimes to estates, sometimes to persons. That which is granted to estates is not extinguished when the person is extinguished; that which is granted to persons is lost with the persons, and therefore passes neither to another owner of the estates nor to an heir or any sort of successor. Clearly, for him to whom the ownership passes, it is obtainable: for if he shall show that water is owed to his estates, even if it has flowed under the name of the one from whom the ownership passed to him, he undoubtedly obtains the right of conducting water; and this is not a benefice, but an injury, if someone perchance should fail to obtain it.

Dig. 43.20.1.44

Digest 43.20.1.44

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Meminisse autem debemus in hoc interdicto totam quaestionem finiri adsignationis: non enim praeparat hoc interdictum causam, ut superiora interdicta, nec ad possessionem temporariam pertinet, sed aut habet ius adsignatum sibi aut non habet, et interdictum totum finitur.

We ought, moreover, to remember that in this interdict the whole question is ended on the assignation: for this interdict does not prepare the case, as the earlier interdicts do, nor does it pertain to temporary possession, but either one has a right assigned to him or he does not, and the whole interdict is concluded.

Dig. 43.20.2

Digest 43.20.2

Pomponius 32 ad sab.

Pomponius 32 on Sabinus.

Si diurnarum aut nocturnarum horarum aquae ductum habeam, non possum alia hora ducere, quam qua ius habeam ducendi.

If I have an aqueduct for diurnal or nocturnal hours, I cannot conduct at any other hour than that at which I have the right of conducting.

Dig. 43.20.3pr.

Digest 43.20.3pr.

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Hoc iure utimur, ut etiam non ad irrigandum, sed pecoris causa vel amoenitatis aqua duci possit.

We use this law, that water may also be conducted not for irrigating, but for the sake of cattle or of amenity.

Dig. 43.20.3.1

Digest 43.20.3.1

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Ex flumine aquam ducere plures possunt, ita tamen, ut vicinis non noceant, vel, si angustus amnis sit, etiam ei, qui in alia ripa sit.

Several persons may conduct water from a river, provided, however, that they do not harm their neighbors—or, if the stream is narrow, even the person on the opposite bank.

Dig. 43.20.3.2

Digest 43.20.3.2

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Si aquam ex flumine publico duxeris et flumen recesserit, non potes subsequi flumen, quia ei loco servitus imposita non sit, quamvis is locus meus sit. sed si alluvione paulatim accesserit fundo tuo, subsequi potes, quia locus totus fluminis serviat ductioni. sed si circumfluere coeperit mutato alveo, non potes, quia medius locus non serviat interruptaque sit servitus.

If you have led water from a public river and the river has receded, you cannot follow the river, because no servitude has been imposed upon that place, even though that place is mine. But if by alluvion it has gradually acceded to your estate, you can follow, because the whole place of the river serves the duction. But if, the channel having been changed, it begins to flow around, you cannot, because the middle place does not serve and the servitude is interrupted.

Dig. 43.20.3.3

Digest 43.20.3.3

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Aqua, quae in rivo nascitur, tacite lucri fit ab eo qui ducit.

Water which comes into being in a channel is tacitly the profit of the one who conducts it.

Dig. 43.20.3.4

Digest 43.20.3.4

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Ductus aquae, cuius origo memoriam excessit, iure constituti loco habetur.

A water-duct, the origin of which has passed beyond memory, is regarded as in the position of one constituted by law.

Dig. 43.20.3.5

Digest 43.20.3.5

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Is, qui aquae cottidianae ius habet, vel fistulam in rivo ponere vel aliud quodlibet facere potest, dummodo ne fundum domino aut aquagium rivalibus deterius faciat.

He who has the right to quotidian water can either place a pipe in the rivulet or do anything else whatsoever, provided that he does not make the estate worse for the owner or the water-right worse for the rivals.

Dig. 43.20.3.6

Digest 43.20.3.6

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Si aqua ducatur, supra eam alia aqua per pontem, qui supra rivum factus sit, iure ducitur, dum inferiori rivo non noceatur.

If water is conducted, other water is lawfully conducted above it over a bridge which has been made above the stream, provided that the lower stream is not harmed.

Dig. 43.20.4

Digest 43.20.4

Iulianus 41 Dig.

Julian 41 Digest.

Lucio titio ex fonte meo ut aquam duceret, cessi: quaesitum est, an et maevio cedere possim, ut per eundem aquae ductum aquam ducat: et si putaveris posse cedi per eundem aquae ductum duobus, quemadmodum uti debeant. respondit: sicut iter actus via pluribus cedi vel simul vel separatim potest, ita aquae ducendae ius recte cedetur. sed si inter eos, quibus aqua cessa est, non convenit, quemadmodum utantur, non erit iniquum utile iudicium reddi, sicut inter eos, ad quos usus fructus pertinet, utile communi dividundo iudicium reddi plerisque placuit.

I granted to Lucius Titius that he might conduct water from my spring: it was asked whether I could also grant to Maevius that he might conduct water through the same water‑duct; and, if you think it can be granted to two through the same water‑duct, how they ought to use it. He answered: just as a path, a drive, and a road can be granted to several, either simultaneously or separately, so the right of conducting water will rightly be granted. But if among those to whom the water has been granted there is no agreement as to how they shall use it, it will not be unfair that a useful action be afforded, just as among those to whom a usufruct pertains it has pleased most to grant a useful action for dividing common property.

Dig. 43.20.5pr.

Digest 43.20.5, preface.

Iulianus 4 ex minic.

Julianus 4 from Minicius.

Cum constet non solum temporibus, sed etiam mensuris posse aquam dividi, potest eodem tempore alius cottidianam, alius aestivam aquam ducere, ita ut aestate dividatur inter eos aqua, hieme solus ducat is qui cottidianae ius habeat.

Since it is settled that water can be divided not only by times but also by measures, it is possible that at the same time one draw the quotidian (daily) water and another the estival (summer) water, such that in summer the water is divided between them, while in winter he alone draws it who has the right to the daily supply.

Dig. 43.20.5.1

Digest 43.20.5.1

Iulianus 4 ex minic.

Julian 4 from Minicius.

Inter duos, qui eodem rivo aquam certis horis separatim ducebant, convenit, ut permutatis inter se temporibus aqua uterentur: quaero, cum amplius tempore servitutibus praefinito ita duxissent, ut neuter eorum suo tempore usus esset, num ius utendi amisissent. negavit amisisse.

Between two, who at set hours separately drew water from the same channel, it was agreed that, with the times exchanged between themselves, they would use the water: I ask whether, when they had drawn it for longer than the time pre-defined by the servitudes, in such a way that neither of them used it at his own time, they had lost the right of use. He denied that they had lost it.

Dig. 43.20.6

Digest 43.20.6

Nerva 3 membr.

Nerva 3rd member.

De interdicto de aqua aestiva, item cottidiana quaerentes primum constituendum existimabamus, quae esset aqua aestiva, de qua proprium interdictum ad prioris aestatis tempus relatum reddi solet, hoc est aestiva aqua utrumne ex iure aestivo dumtaxat tempore utendi diceretur, an ex mente propositoque ducentis, quod aestate eam ducendi consilium haberet, an ex natura ipsius aquae, quod aestate tantum duci potest, an ex utilitate locorum, in quae duceretur. placebat igitur aquam ob has duas res, naturam suam utilitatemque locorum in quae deducitur, proprie appellari, ita ut, sive eius natura erit, ut nisi aestate duci non possit, etiamsi hieme quoque desideraretur, sive omni tempore anni duci eam ipsius natura permitteret, si utilitas personis, in quam ducitur, aestate dumtaxat usum eius exigeret, aestiva recte diceretur.

Concerning the interdict on summer water, likewise on daily water, as we inquired we judged that first it had to be established what “summer water” is, about which a special interdict is usually issued, referred to the time of the previous summer; that is, whether “summer water” is so called from a summer right of using it only in that season, or from the intention and proposed plan of the one conducting it, namely that he had the design of conducting it in summer, or from the nature of the water itself, namely that it can be conducted only in summer, or from the utility of the places into which it would be conducted. Accordingly it pleased us that water be properly designated on account of these two considerations, its own nature and the utility of the places into which it is led, such that, whether its nature is such that it cannot be conducted except in summer, even if it would also be desired in winter, or whether its nature would permit it to be conducted at every time of the year, if the utility for the persons for whom it is conducted demanded its use in summer only, it would rightly be called “summer.”

Dig. 43.20.7

Digest 43.20.7

Paulus 5 sent.

Paulus 5 Sentences.

Si de via itinere actu aquae ductu agatur, huiusmodi cautio praestanda est, quamdiu quis de iure suo doceat, non se impediturum agentem et aquam ducentem et iter facientem. quod si neget ius esse adversario agendi aquae ducendae, cavere sine praeiudicio amittendae servitutis debebit, donec quaestio finietur, non se usurum.

If there is litigation about a road (via), a path (iter), a drive (actus), or a water‑leading (aqueduct) (aquae ductus), such a caution is to be provided: so long as anyone is demonstrating his right, he will not hinder one who is driving, conducting water, and making a way. But if he denies that the adversary has the right of driving or of conducting water, he must give security, without prejudice to the servitude’s being lost by non‑use, that he will not use it until the question is concluded.

Dig. 43.20.8

Digest 43.20.8

Scaevola l.S. horoi

Scaevola from the single book "Horoi" (Definitions)

Cui per fundum iter aquae debetur, quacumque vult in eo rivum licet faciat, dum ne aquae ductum interverteret.

He to whom a water-way through an estate is owed may make a rivulet in it wherever he wishes, provided that he does not divert the aqueduct.

Dig. 43.21.0. De rivis.

Digest 43.21.0. On watercourses.

Dig. 43.21.1pr.

Digest 43.21.1pr.

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Praetor ait: " rivos specus septa reficere purgare aquae ducendae causa quo minus liceat illi, dum ne aliter aquam ducat, quam uti priore aestate non vi non clam non precario a te duxit, vim fieri veto".

The praetor says: " to repair, to cleanse channels, conduits, enclosures for the purpose of leading water, to prevent its being permitted to him, provided that he does not conduct the water otherwise than as in the previous summer he conducted it from you, not by force, not clandestinely, not by precarium, I forbid force to be used".

Dig. 43.21.1.1

Digest 43.21.1.1

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc interdictum utilissimum est: nam nisi permittatur alicui reficere, alia ratione usu incommodabitur.

This interdict is most useful: for unless someone is permitted to repair, his use will be inconvenienced in some other way.

Dig. 43.21.1.2

Digest 43.21.1.2

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Ait ergo praetor " rivum specus". rivus est locus per longitudinem depressus, quo aqua decurrat, cui nomen est apo tou hrein.

Therefore the praetor says “rivus, specus.” A rivus is a place depressed along its length, for water to run down, whose name is apo tou hrein (“from ‘to flow’”).

Dig. 43.21.1.3

Digest 43.21.1.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Specus autem est locus, ex quo despicitur: inde spectacula sunt dicta.

A specus, moreover, is a place from which one looks down; from this “spectacles” are so called.

Dig. 43.21.1.4

Digest 43.21.1.4

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Septa sunt, quae ad incile opponuntur aquae derivandae compellendaeve ex flumine causa, sive ea lignea sunt sive lapidea sive qualibet alia materia sint, ad continendam transmittendamque aquam excogitata.

Septa are barriers which are set against the sluice for the purpose of deriving or compelling water from the river, whether they are wooden or stone or of whatever other material, contrived for containing and transmitting water.

Dig. 43.21.1.5

Digest 43.21.1.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Incile est autem locus depressus ad latus fluminis, ex eo dictus, quod incidatur: inciditur enim vel lapis vel terra, unde primum aqua ex flumine agi possit. sed et fossae et putei hoc interdicto continentur.

An incile is, moreover, a depressed place at the side of a river, so called from the fact that it is incised: for either stone or earth is incised, whence in the first instance water can be conducted from the river. But ditches and wells also are contained under this interdict.

Dig. 43.21.1.6

Digest 43.21.1.6

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Deinde ait praetor " reficere purgare". reficere est quod corruptum est in pristinum statum restaurare. verbo reficiendi tegere substruere sarcire aedificare, item advehere adportareque ea, quae ad eandem rem opus essent. continentur.

Then the praetor says " to repair, to cleanse." To repair is to restore what has been corrupted to its former state. Under the word “repairing” are included: to cover, to underpin, to patch, to build; likewise to bring in and to carry to those things which would be needed for the same matter.

Dig. 43.21.1.7

Digest 43.21.1.7

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Purgandi verbum plerique quidem putant ad eum rivum pertinere, qui integer est: et palam est et ad eum pertinere, qui refectione indiget: plerumque enim ut refectione, et purgatione indiget.

Many indeed think that the word “of purging” pertains to that stream which is intact; and it is also plain that it pertains to one which is in need of refection: for very often it needs both refection and purgation.

Dig. 43.21.1.8

Digest 43.21.1.8

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

" aquae", inquit, " ducendae causa". merito hoc additur, ut ei demum permittatur et reficere et purgare rivum, qui aquae ducendae causa id fecit.

" of water," he says, " for the purpose of conducting". Rightly this is added, so that only to him it is permitted both to repair and to purge the stream, who did it for the purpose of conducting water.

Dig. 43.21.1.9

Digest 43.21.1.9

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Hoc interdictum competit etiam ei, qui ius aquae ducendae non habet, si modo aut priore aestate aut eodem anno aquam duxerit, cum sufficiat non vi non clam non precario duxisse.

This interdict is available even to one who does not have the right of conducting water, provided only that either in the previous summer or in the same year he has conducted the water, since it suffices to have conducted it not by force, not by stealth, not precariously.

Dig. 43.21.1.10

Digest 43.21.1.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict

Si quis terrenum rivum signinum, id est lapideum facere velit, videri eum non recte hoc interdicto uti: non enim reficit qui hoc facit: et ita ofilio videtur.

If anyone should wish to make an earthen watercourse signine, that is, stone-built, he would seem not to be using this interdict correctly; for he does not repair who does this; and thus it seems to Ofilius.

Dig. 43.21.1.11

Digest 43.21.1.11

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Proinde et si per alium locum velit ducere, impune prohibetur: sed et si eundem rivum deprimat vel adtollat aut dilatet vel extendat vel operiat apertum vel contra. ego ceteros quidem impune prohiberi puto: at enim eum, qui operiat apertum vel contra, eum non puto prohibendum, nisi si quam maiorem utilitatem suam adversarius ostendat.

Accordingly, even if he wishes to conduct it through another place, he is lawfully prohibited; and likewise if he lowers or raises the same channel, or widens or extends it, or covers what is open, or the contrary. I, for my part, think the others may indeed be prohibited with impunity: but as for the one who covers what is open or the contrary, him I do not think should be prohibited, unless the adversary should show some greater utility of his own.

Dig. 43.21.2

Digest 43.21.2

Paulus 66 ad ed.

Paulus, 66 on the Edict.

Labeo non posse ait ex aperto rivo terrenum fieri, quia commodum domino soli auferetur appellendi pecus vel hauriendi aquam: quod sibi non placere pomponius ait, quia id domino magis ex occasione quam ex iure contingeret, nisi si ab initio in imponenda servitute id actum esset.

Labeo says that from an open channel it cannot be made earthen (filled in to become ground), because the convenience to the owner of the soil of bringing in cattle or of drawing water would be taken away; which does not please Pomponius, he says, because that would befall the owner more from occasion than from right, unless from the beginning, in the imposing of the servitude, this had been provided.

Dig. 43.21.3pr.

Digest 43.21.3, beginning.

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Servius autem scribit aliter duci aquam, quae ante per specus ducta est, si nunc per apertum ducatur: nam si operis aliquid faciat quis, quo magis aquam conservet vel contineat, non impune prohiberi. ego et in specu contra, si non maior utilitas versetur adversarii.

Servius, however, writes that water is conducted otherwise, which previously was conducted through a tunnel, if now it is conducted through the open; for if someone makes some work by which he the more conserves or contains the water, he may not be prohibited with impunity. I, for my part, even in the case of a tunnel, hold the contrary, unless the adversary’s greater utility is at stake.

Dig. 43.21.3.1

Digest 43.21.3.1

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Servius et labeo scribunt, si rivum, qui ab initio terrenus fuit, quia aquam non continebat, cementicium velit facere, audiendum esse: sed et si eum rivum, qui structilis fuit, postea terrenum faciat aut partem rivi, aeque non esse prohibendum. mihi videtur urguens et necessaria refectio esse admittenda.

Servius and Labeo write that, if a watercourse, which from the beginning was earthen because it did not contain the water, one wishes to make cementitious, he ought to be heard; but also if that watercourse which was of masonry is later made earthen, or a part of the channel, likewise it is not to be prohibited. It seems to me that a pressing and necessary refectio (repair) ought to be admitted.

Dig. 43.21.3.2

Digest 43.21.3.2

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si quis novum canalem vel fistulas in rivo velit collocare, cum id numquam habuerit, utile ei hoc interdictum futurum labeo ait. nos et hic opinamur utilitatem eius qui ducit sine incommoditate eius cuius ager est spectandam.

If someone should wish to place a new canal or pipes in a stream, although he has never had that, Labeo says this interdict will be useful for him. We also here opine that the utility of him who conducts (the water) is to be considered, without inconvenience to him whose field it is.

Dig. 43.21.3.3

Digest 43.21.3.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si aqua in unum lacum conducatur et inde per plures ductus ducatur, hoc interdictum utile erit volenti reficere ipsum lacum.

If water is conducted into a single reservoir and from there is conducted through several conduits, this interdict will be useful to one wishing to repair the reservoir itself.

Dig. 43.21.3.4

Digest 43.21.3.4

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Hoc interdictum ad omnes rivos pertinet, sive in publico sive in privato sint constituti.

This interdict pertains to all rivulets, whether they are situated on public or on private property.

Dig. 43.21.3.5

Digest 43.21.3.5

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Sed et si calidae aquae rivus sit, de hoc reficiendo competit interdictum.

But also, if there is a stream of hot water, an interdict lies concerning repairing it.

Dig. 43.21.3.6

Digest 43.21.3.6

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Aristo et de cuniculo restituendo per quem vapor trahitur, in balnearis vaporibus putat utilem actionem competere: et erit dicendum utile interdictum ex hac causa competere.

Aristo also, on the restoration of the conduit (cuniculus) through which vapor is drawn, in regard to bathhouse vapors, thinks that a useful action lies; and it must be said that a useful interdict lies on this ground.

Dig. 43.21.3.7

Digest 43.21.3.7

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Isdem autem personis et in easdem interdictum hoc datur, quibus et in quas et de aqua interdicta redduntur, quae supra sunt enumerata.

But this interdict is given to the same persons and against the same persons to whom and against whom the interdicts concerning water are issued, which have been enumerated above.

Dig. 43.21.3.8

Digest 43.21.3.8

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis rivum reficienti opus novum nuntiat, belle dictum est posse contemni operis novi nuntiationem: cum enim praetor ei vim fieri vetet, absurdum est per operis novi nuntiationem eum impediri. plane per in rem actionem dicendum est posse: adversus eum vindicari " ius ei non esse" dubium non est.

If someone gives a notice of new work to one repairing a watercourse, it has been well said that the notice of new work can be contemned; for since the praetor forbids force to be done to him, it is absurd that he be impeded by a notice of new work. Clearly, it must be said that it can be done by an in rem action: that one may vindicate against him “that he has no right” is not doubtful.

Dig. 43.21.3.9

Digest 43.21.3.9

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

De damno quoque infecto cavere eum debere minime dubitari oportet.

It ought in no way to be doubted that he, too, must give security with respect to damage not yet done.

Dig. 43.21.3.10

Digest 43.21.3.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si quis eum exportare vehere, quae refectioni necessaria sunt, prohibeat, hoc interdictum ei competere ofilius putat, quod est verum.

If anyone forbids him to export or to convey the things which are necessary for refection, Ofilius thinks that this interdict is available to him, which is true.

Dig. 43.21.4

Digest 43.21.4

Venonius 1 interd.

Venonius 1 interdicts.

De rivis reficiendis ita interdicetur, ut non quaeratur, an aquam ducere actori liceret: non enim tam necessariam refectionem itinerum quam rivorum esse, quando non refectis rivis omnis usus aquae auferretur et homines siti necarentur. et sane aqua pervenire nisi refecto rivo non potest: at non refecto itinere difficultas tantum eundi agendique fieret, quae temporibus aestivis levior esset.

Concerning the repairing of watercourses an interdict will be issued thus, that it not be inquired whether it was permitted for the plaintiff to conduct water: for the refection of roads is not so necessary as that of watercourses, since, if the watercourses are not repaired, all use of water would be taken away and people would be slain by thirst. And indeed water cannot reach unless the channel is repaired; but, if the road is not repaired, only a difficulty of going and of driving would arise, which in the summer season would be lighter.

Dig. 43.22.0. De fonte.

Digest 43.22.0. On the spring.

Dig. 43.22.1pr.

Digest 43.22.1, beginning.

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Praetor ait: " uti de eo fonte, quo de agitur, hoc anno aqua nec vi nec clam nec precario ab illo usus es, quo minus ita utaris, vim fieri veto. de lacu puteo piscina item interdicam".

The Praetor says: "As to that spring which is in dispute, since this year you have used water from it neither by force, nor secretly, nor by precarium from him, I forbid force to be employed to prevent you from so using it. concerning a lake, a well, a fishpond I likewise interdict".

Dig. 43.22.1.1

Digest 43.22.1.1

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Hoc interdictum proponitur ei, qui fontana aqua uti prohibetur: servitutes enim non tantum aquae ducendae esse solent, verum etiam hauriendae, et sicut discretae sunt servitutes ductus aquae et haustus aquae, ita interdicta separatim redduntur.

This interdict is put forward for him who is prohibited from using spring water: for servitudes are wont to be not only of leading water, but also of drawing it; and just as the servitudes of a duct of water and a draught of water are distinct, so the interdicts are rendered separately.

Dig. 43.22.1.2

Digest 43.22.1.2

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc autem interdictum locum habet, si quis uti prohibeatur aqua, hoc est sive haurire prohibeatur sive etiam pecus ad aquam appellere.

But this interdict has application if anyone is prohibited from using the water, that is, whether he is prohibited from drawing it or even from driving cattle to the water.

Dig. 43.22.1.3

Digest 43.22.1.3

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Et eadem sunt hic dicenda, quae ad personam attinent, quaecumque in superioribus interdictis diximus.

And the same are to be said here that pertain to the person, whatever we have said in the preceding interdicts.

Dig. 43.22.1.4

Digest 43.22.1.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc interdictum de cisterna non competit: nam cisterna non habet perpetuam causam nec vivam aquam. ex quo apparet in his omnibus exigendum, ut viva aqua sit: cisternae autem imbribus concipiuntur. denique constat interdictum cessare, si lacus piscina puteus vivam aquam non habeat.

This interdict does not lie with respect to a cistern: for a cistern does not have a perpetual source nor living water. Whence it appears that in all these cases it must be required that there be living water: but cisterns are filled by rains. Finally, it is settled that the interdict ceases to apply if the lake, fishpond, or well does not have living water.

Dig. 43.22.1.5

Digest 43.22.1.5

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Plane si quis ire ad haustum prohibeatur, aeque interdictum sufficiet.

Plainly, if someone is prohibited from going to the drawing of water, likewise the interdict will suffice.

Dig. 43.22.1.6

Digest 43.22.1.6

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Deinde ait praetor: " quo minus fontem, quo de agitur, purges reficias, ut aquam coercere utique ea possis, dum ne aliter utaris, atque uti hoc anno non vi non clam non precario ab illo usus es, vim fieri veto".

Then the praetor says: "That you be not hindered from cleansing and repairing the spring about which the action is brought, so that you may in any case be able to restrain the water with it, provided that you do not use it otherwise than as in this year you have used it from him, not by force, not secretly, not precariously, I forbid force to be used."

Dig. 43.22.1.7

Digest 43.22.1.7

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Hoc interdictum eandem habet utilitatem, quam habet interdictum de rivis reficiendis: nisi enim purgare et reficere fontem licuerit, nullus usus eius erit.

This interdict has the same utility as the interdict concerning repairing watercourses: for unless it be permitted to purge and repair the spring, there will be no use of it.

Dig. 43.22.1.8

Digest 43.22.1.8

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Purgandus autem et reficiendus est ad aquam coercendam, ut uti quis aqua possit, dummodo non aliter utatur, quam sic uti hoc anno usus est.

But it is to be purged and repaired for the coercion of the water, so that one may be able to use the water, provided that he does not use it otherwise than as he has used it this year.

Dig. 43.22.1.9

Digest 43.22.1.9

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Coercere aquam est continere sic, ne diffluat, ne dilabatur, dummodo non permittatur cui novas quaerere vel aperire: hic enim innovat aliquid praeter id, quam praecedenti anno usus est.

To coerce water is to contain it thus, lest it flow off, lest it slip away, provided that it is not permitted to anyone to seek or to open new ones: for this man innovates something beyond that which he used in the preceding year.

Dig. 43.22.1.10

Digest 43.22.1.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Sed et de lacu puteo piscina reficiendis purgandis interdictum competit.

But also an interdict lies for repairing and cleaning a lake, a well, or a fishpond.

Dig. 43.22.1.11

Digest 43.22.1.11

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Et omnibus personis dabitur, quibus permittitur interdictum de aqua aestiva.

And it will be given to all persons to whom the interdict about summer water is permitted.

Dig. 43.23.0. De cloacis.

Digest 43.23.0. On Sewers.

Dig. 43.23.1pr.

Digest 43.23.1pr.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Praetor ait: " quo minus illi cloacam quae ex aedibus eius in tuas pertinet, qua de agitur, purgare reficere liceat, vim fieri veto. damni infecti, quod operis vitio factum sit, caveri iubebo".

The Praetor says: " to prevent that man from being allowed to clean and repair the sewer which extends from his house into yours, the one which is the subject of this action, I forbid force to be used. For threatened damage, if it has been caused by defect of the work, I will order security to be given".

Dig. 43.23.1.1

Digest 43.23.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sub hoc titulo duo interdicta praetor subiecit, unum prohibitorium, alterum restitutorium: et primum prohibitorium.

Under this title the praetor subjoined two interdicts, one prohibitory, the other restitutory: and first the prohibitory.

Dig. 43.23.1.2

Digest 43.23.1.2

Ulpianus 71 ad ed.

Ulpian Book 71 on the Edict.

Curavit autem praetor per haec interdicta, ut cloacae et purgentur et reficiantur, quorum utrumque et ad salubritatem civitatium et ad tutelam pertinet: nam et caelum pestilens et ruinas minantur immunditiae cloacarum, si non reficiantur.

Moreover, the praetor took care through these interdicts that the sewers be both cleaned and repaired, both of which pertain to the salubrity of cities and to protection: for the filth of the sewers threatens pestilential air and collapses, if they are not repaired.

Dig. 43.23.1.3

Digest 43.23.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc autem interdictum propositum est de cloacis privatis: publicae enim cloacae publicam curam merentur.

This interdict, however, is set forth concerning private sewers: for public sewers deserve public care.

Dig. 43.23.1.4

Digest 43.23.1.4

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Cloaca autem est locus cavus, per quem colluvies quaedam fluat.

A cloaca, however, is a hollow place through which some sewage flows.

Dig. 43.23.1.5

Digest 43.23.1.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum, quod primum proponitur, prohibitorium est, quo prohibetur vicinus vim facere, quo minus cloaca purgetur et reficiatur.

This interdict, which is first proposed, is prohibitory, by which the neighbor is prohibited from employing force to prevent the sewer from being cleaned and repaired.

Dig. 43.23.1.6

Digest 43.23.1.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Cloacae appellatione et tubus et fistula continetur.

Under the appellation of sewer, both tube and pipe are included.

Dig. 43.23.1.7

Digest 43.23.1.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Quia autem cloacarum refectio et purgatio ad publicam utilitatem spectare videtur, idcirco placuit non esse in interdicto addendum " quod non vi non clam non precario ab illo usus", ut, etiamsi quis talem usum habuerit, tamen non prohibeatur volens cloacam reficere vel purgare.

Because the refection and purgation of sewers appears to pertain to public utility, it has therefore been decided that there is no need to add in the interdict “that he used it not by force, not clandestinely, not by precarious leave from him,” so that, even if someone has had such a use, nevertheless he is not prohibited, being willing, to repair or cleanse the sewer.

Dig. 43.23.1.8

Digest 43.23.1.8

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Deinde ait praetor " quae ex aedibus eius in tuas pertinet". aedes hic accipere debes pro omni aedificio, hoc est ex aedificio eius in tuum aedificium. hoc amplius labeo putabat hoc interdicto locum esse et si area ab utralibet parte aedium sit et si forte, inquit, cloaca ducta sit ex urbano aedificio in proximum agrum.

then the praetor says " which from his edifice pertains into yours". aedes here you must take for every edifice, that is, from his edifice into your edifice. moreover, labeo thought that there is room for this interdict even if an open area lies on either side of the buildings, and also if by chance, he says, a sewer has been led from an urban edifice into the neighboring field.

Dig. 43.23.1.9

Digest 43.23.1.9

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Idem labeo etiam eum, qui privatam cloacam in publicam immittere velit, tuendum, ne ei vis fiat. sed et si quis velit talem cloacam facere, ut exitum habeat in publicam cloacam, non esse eum impediendum pomponius scribit.

The same Labeo also [holds] that he who wishes to discharge a private sewer into a public one is to be protected, lest violence be done to him. But also, if anyone wishes to make such a sewer that it have an outlet into the public sewer, he is not to be impeded, Pomponius writes.

Dig. 43.23.1.10

Digest 43.23.1.10

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Quod ait praetor " pertinet" hoc significat, quod ex aedibus eius in tuas pertinet, hoc est " derigitur, extenditur, pervenit".

What the praetor says " pertinet" signifies this: that from his premises into yours it pertains, that is " is directed, is extended, reaches".

Dig. 43.23.1.11

Digest 43.23.1.11

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Et tam ad proximum vicinum hoc interdictum pertinet quam adversus ulteriores, per quorum aedes cloaca currit.

And this interdict pertains as much to the nearest neighbor as against those more remote, through whose dwellings the sewer runs.

Dig. 43.23.1.12

Digest 43.23.1.12

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Unde fabius mela scribit competere hoc interdictum, ut in vicini aedes veniat et rescindat pavimenta purgandae cloacae gratia. verendum tamen esse pomponius scribit, ne eo casu damni infecti stipulatio committatur. sed haec stipulatio non committitur, si paratus sit restaurare id, quod ex necessitate reficiendae cloacae causa resciderat.

Whence fabius mela writes that this interdict is applicable, so that one may come into the neighbor’s house and tear up the flooring for the sake of cleaning the sewer. Nevertheless pomponius writes that it is to be feared lest in that case the stipulation for threatened damage (damni infecti) be incurred. But this stipulation is not incurred, if he is ready to restore that which he had cut away out of necessity for the purpose of repairing the sewer.

Dig. 43.23.1.13

Digest 43.23.1.13

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Si quis purganti mihi cloacam vel reficienti opus novum nuntiaverit, rectissime dicetur contempta nuntiatione me posse reficere id quod institueram.

If someone has given me notice of a “new work” while I am cleaning out a sewer or repairing it, it will be said most correctly that, the notice being disregarded, I am able to repair what I had undertaken.

Dig. 43.23.1.14

Digest 43.23.1.14

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Sed et damni infecti cautionem pollicetur, si quid operis vitio factum est: nam sicuti reficere cloacas et purgare permittendum fuit, ita dicendum, ne damnum aedibus alienis detur.

But he also promises a caution for damage not yet done, if anything has been done by the defect (vice) of the work; for just as it had to be permitted to repair and purge sewers, so it must be said that no damage be inflicted upon another’s buildings.

Dig. 43.23.1.15

Digest 43.23.1.15

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Deinde ait praetor: " quod in cloaca publica factum sive ea immissum habes, quo usus eius deterior sit fiat, restituas. item ne quid fiat immittaturve, interdicam".

Then the praetor says: "What in a public sewer has been done, or you have had introduced into it, whereby its use is or may be made worse, you shall restore. Likewise, I will interdict that anything be done or introduced."

Dig. 43.23.1.16

Digest 43.23.1.16

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum ad publicas cloacas pertinet, ne quid ad cloacam immittas neve facias, quo usus deterior sit neve fiat.

This interdict pertains to the public sewers, that you not discharge anything into the sewer nor do anything by which the use is made worse or becomes deteriorated.

Dig. 43.23.2

Digest 43.23.2

Venonius 1 interd.

Venonius 1 interdict.

Quamquam de reficienda cloaca, non etiam de nova facienda hoc interdicto comprehendatur, tamen aeque interdicendum labeo ait, ne facienti cloacam vis fiat, quia eadem utilitas sit: praetorem enim sic interdixisse, ne vis fieret, quo minus cloacam in publico facere liceret: idque ofilio et trebatio placuisse. ipse dicendum ait, ut ne factam cloacam purgare et restituere permittendum sit per interdictum, novam vero facere is demum concedere debeat, cui viarum publicarum cura sit.

Although by this interdict provision is understood for refashioning a sewer, not also for making a new one, nevertheless Labeo says it ought equally to be interdicted that no force be used against one making a sewer, because the same utility is at stake: for the praetor interdicted thus, that force should not be used to the effect that it would not be permitted to make a sewer in a public place; and this pleased Ofilius and Trebatius. He himself says it must be stated that it is not to be permitted through the interdict to cleanse and restore a sewer already made, whereas to make a new one ought to be granted only to him who has the care of the public roads.

Dig. 43.24.0. Quod vi aut clam.

Dig. 43.24.0. What by force or secretly.

Dig. 43.24.1pr.

Digest 43.24.1, preface.

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Praetor ait: " quod vi aut clam factum est, qua de re agitur, id cum experiendi potestas est, restituas".

The Praetor says: " what has been done by force or by stealth, the matter about which the action is being conducted, that, since there is power to try the case, you shall restore".

Dig. 43.24.1.1

Digest 43.24.1.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Hoc interdictum restitutorium est et per hoc occursum est calliditati eorum, qui vi aut clam quaedam moliuntur: iubentur enim ea restituere.

This interdict is restitutory, and by means of it the cunning of those who contrive certain things by force or by stealth has been countered: for they are ordered to restore those things.

Dig. 43.24.1.2

Digest 43.24.1.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Et parvi refert, utrum ius habuerit faciendi, an non: sive enim ius habuit sive non, tamen tenetur interdicto, propter quod vi aut clam fecit: tueri enim ius suum debuit, non iniuriam comminisci.

And it is of little account whether he had the right to do it or not: for whether he had the right or not, nevertheless he is held by the interdict, because he did it by force or stealth; for he ought to have protected his own right, not to contrive an injury.

Dig. 43.24.1.3

Digest 43.24.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Denique est quaesitum, an hoc interdicto utenti exceptionem possit obicere: " quod non iure meo receperim". et magis est, ne possit: nam adversus vim vel quod clam factum est nulla iusta exceptione se tueri potest.

Finally, it has been asked whether one using this interdict can have an exception opposed to him: “that I did not recover by my own right.” And the sounder view is that he cannot: for against violence or what has been done clandestinely he cannot defend himself by any just exception.

Dig. 43.24.1.4

Digest 43.24.1.4

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Hoc interdictum ad ea sola opera pertinet, quaecumque in solo vi aut clam fiunt.

This interdict pertains only to those works, whatever are done on land by force or secretly.

Dig. 43.24.1.5

Digest 43.24.1.5

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Quid sit vi factum vel clam factum, videamus. vi factum videri quintus mucius scripsit, si quis contra quam prohiberetur fecerit: et mihi videtur plena esse quinti mucii definitio.

Let us see what is an act done by force or an act done clandestinely. Quintus Mucius wrote that a thing is considered to have been done by force if someone has acted contrary to what he was prohibited; and to me the definition of Quintus Mucius seems complete.

Dig. 43.24.1.6

Digest 43.24.1.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Sed et si quis iactu vel minimi lapilli prohibitus facere perseveravit facere, hunc quoque vi fecisse videri pedius et pomponius scribunt, eoque iure utimur.

But also, if someone, though prohibited by the cast even of the slightest pebble, persisted in doing it, Pedius and Pomponius write that this person too is seen to have done it with force, and we make use of that law.

Dig. 43.24.1.7

Digest 43.24.1.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Sed et si contra testationem denuntiationemque fecerit, idem esse cascellius et trebatius putant: quod verum est.

But also if he has acted contrary to the attestation and the denunciation, Cascellius and Trebatius think it is the same; which is true.

Dig. 43.24.1.8

Digest 43.24.1.8

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Sed et aristo ait eum quoque vi facere, qui, cum sciret se prohibitum iri, per vim molitus est, ne prohiberi possit.

But Aristo also says that he too acts by force, who, when he knew that he would be prohibited, contrived by force that he might not be prohibited.

Dig. 43.24.1.9

Digest 43.24.1.9

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Item labeo dicit, si quem facientem prohibuero isque destiterit in praesentiarum rursusque postea facere coeperit, vi eum videri fecisse, nisi permissu meo facere coeperit vel qua alia iusta causa accedente.

Likewise Labeo says, if I have prohibited someone who is doing something and he has desisted for the present, and afterwards has begun to do it again, he is considered to have done it by force, unless he has begun to do it with my permission or with some other just cause supervening.

Dig. 43.24.1.10

Digest 43.24.1.10

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis tamen inbecillitate impeditur vel etiam, ne offenderet vel te vel eum, qui te magni faciebat, ideo non venerit ad prohibendum, non videbitur adversarius vi fecisse: et ita labeo scribit.

If, however, someone is hindered by infirmity, or even, so as not to offend either you or the one who esteemed you highly, for that reason did not come to prohibit, he will not be considered to have acted by force as an adversary: and thus Labeo writes.

Dig. 43.24.1.11

Digest 43.24.1.11

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Idem ait et si te volentem ad prohibendum venire deterruerit aliquis ( armis forte) sine ullo dolo malo meo ac propter hoc non veneris, non videri me vim fecisse,

He likewise says that if someone has deterred you, willing to come to forbid, ( perhaps by arms) without any malicious fraud on my part, and on this account you did not come, I am not considered to have committed violence,

Dig. 43.24.2

Digest 43.24.2

Venonius 2 interd.

Venonius 2 interdicts.

Ne in aliena potestate sit condicionem meam nihil delinquentis deteriorem facere.

Lest it be in another’s power to make my condition, having committed no delinquency, worse.

Dig. 43.24.3pr.

Digest 43.24.3, preface.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Prohibere autem non utique per semet ipsum necesse est, sed et si quis per servum suum vel procuratorem prohibuerit, recte videtur prohibuisse. idem etiam si mercennarius meus prohibuerit. nec quem moveat, quod per liberam personam actio adquiri non solet: nam prohibitio haec demonstrat vi te facere, quid mirum, cum et si clam tu me feceris, habeam actionem?

To prohibit, moreover, need not be done by oneself; but even if someone has prohibited through his slave or through his procurator (agent), he is rightly considered to have prohibited. The same also if my hireling has prohibited. Nor should anyone be moved by the fact that an action is not usually acquired through a free person: for this prohibition shows that you are acting with force—what wonder, since even if you should do it clandestinely against me, I have an action?

ergo facto magis tuo delinquentis quam alieno adquiritur mihi actio.

Therefore an action is acquired to me by your deed—the delinquent’s—rather than by another’s.

Dig. 43.24.3.1

Digest 43.24.3.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Illud sciendum est non omnibus momentis vim esse faciendam, sed semel inter initia facta perseverat.

It should be known that force is not to be employed at every moment, but once done at the outset, it perseveres.

Dig. 43.24.3.2

Digest 43.24.3.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sed si permiserit, adversus eum, qui utatur interdicto, exceptio erit necessaria.

But if he has permitted it, an exception will be necessary against him who makes use of the interdict.

Dig. 43.24.3.3

Digest 43.24.3.3

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Non tantum autem si ego permisero, sed et si procurator meus vel tutor qui tutelam administrat vel curator pupilli furiosi sive adulescentis, dicendum erit exceptioni locum fore.

Not only, moreover, if I have permitted, but also if my procurator, or the tutor who administers the tutela, or the curator of a pupil, of an insane person, or of an adolescent, it must be said that there will be room for the exception.

Dig. 43.24.3.4

Digest 43.24.3.4

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Plane si praeses vel curator rei publicae permiserit in publico facere, nerva scribit exceptionem locum non habere, quia etsi ei locorum, inquit, publicorum procuratio data est, concessio tamen data non est. hoc ita verum est, si non lex municipalis curatori rei publicae amplius concedat. sed et si a principe vel ab eo, cui princeps hoc ius concedendi dederit idem erit probandum.

Clearly, if the governor or the curator of the commonwealth has permitted it to be done in a public place, Nerva writes that the exception has no place, because, he says, although procuration of public places has been given to him, nevertheless a concession has not been given. This is true thus, unless the municipal law grants more to the curator of the commonwealth. But even if by the Prince, or by him to whom the Prince has given this right of granting, the same must be approved.

Dig. 43.24.3.5

Digest 43.24.3.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis paratus sit se iudicio defendere adversus eos, qui interdicendum putant, ne opus fiat: an videatur desinere vi facere? et magis est, ut desinat, si modo satis offerat et defendere paratus est, si quis agat: et ita sabinus scribit.

If someone is prepared to defend himself by a judgment against those who think an interdict should be issued, that the work not be done: is he to be seen as ceasing to act by force? And the better view is that he does cease, provided only that he offers security and is prepared to defend himself if anyone brings an action; and thus Sabinus writes.

Dig. 43.24.3.6

Digest 43.24.3.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Sed et si quis damni infecti paratus sit cavere, cum propter hoc tantum esset prohibitus, vel quia non defendebat vel damni infecti non repromittebat, consequens est dicere desinere eum vi facere.

But also, if anyone is prepared to give security for threatened damage (damnum infectum), since for this reason alone he had been prohibited—either because he was not defending or was not repromising for threatened damage—it follows to say that he ceases to do violence.

Dig. 43.24.3.7

Digest 43.24.3.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Clam facere videri cassius scribit eum, qui celavit adversarium neque ei denuntiavit, si modo timuit eius controversiam aut debuit timere.

Cassius writes that he is deemed to act clandestinely who concealed it from his adversary and did not give him notice, provided only that he either feared a controversy with him or ought to have feared it.

Dig. 43.24.3.8

Digest 43.24.3.8

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Idem aristo putat eum quoque clam facere, qui celandi animo habet eum, quem prohibiturum se intellexerit et id existimat aut existimare debet se prohibitum iri.

The same Aristo thinks that he too acts clandestinely who, with the intention of concealing, keeps it from the person whom he has understood will forbid it, and he thinks, or ought to think, that he will be prohibited from it.

Dig. 43.24.4

Digest 43.24.4

Venonius 2 interd.

Venonius 2 interdicts.

Servius etiam eum clam facere, qui existimare debeat sibi controversiam futuram, quia non opinionem cuius et resupinam existimationem esse oporteat, ne melioris condicionis sint stulti quam periti.

Servius also holds that he acts clandestinely who ought to expect a controversy will arise for himself, because the matter ought not to turn on the opinion of just anyone and on a supine estimation, lest fools be in a better condition than the skilled.

Dig. 43.24.5pr.

Digest 43.24.5 preface.

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Aut qui aliter fecit, quam denuntiavit: vel qui decepto facit eo, ad quem pertinuit non facere: vel consulto tum denuntiat adversario, cum eum scit non posse prohibere: vel tam sero pronuntiat, ut venire prohibiturus, prius quam fiat, non possit. et haec ita labeonem probare aristo ait.

Or one who has done otherwise than he gave notice: or who acts with that person deceived, to whom it pertained that it not be done: or who deliberately then gives notice to his adversary, when he knows that he is not able to prohibit: or who announces so late that one who would come to prohibit cannot do so before it is done. And Aristo says that Labeo approves these things thus.

Dig. 43.24.5.1

Digest 43.24.5.1

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Si quis se denuntiaverit opus facturum, non semper non videtur clam fecisse, si post denuntiationem fecerit: debebit enim ( et ita labeo) et diem et horam denuntiatione complecti et ubi et quod opus futurum sit: neque perfusorie aut obscure dicere aut denuntiare: neque tam artare adversarium, ut intra diem occurrere ad prohibendum non possit.

If anyone shall have given notice that he will perform a work, he is not always deemed not to have done it clandestinely, if he does it after the notice: for he ought ( et ita labeo) to include in the notice both the day and the hour, and where and what work is going to be: nor to speak or give notice perfunctorily or obscurely: nor so straiten the adversary that within the day he cannot come up to prevent.

Dig. 43.24.5.2

Digest 43.24.5.2

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et si forte non sit, cui denuntietur, neque dolo malo factum sit ne sit, amicis denique aut procuratori aut ad domum denuntiandum est.

And if by chance there is no one to whom notice may be given, and it is not by malicious fraud that there is none, then notice must be given to his friends, or to his procurator, or at his house.

Dig. 43.24.5.3

Digest 43.24.5.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Sed et servius recte ait sufficere feminae viro notum facere opus se facturum: vel denique sciente eo facere: quamquam etiam illud sufficiat celandi animum non habere.

But also servius rightly says that it suffices for a woman to make it known to her husband that she is going to do the work: or, finally, to do it with him aware: although even this suffices, to have no intention of concealment.

Dig. 43.24.5.4

Digest 43.24.5.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Item ait, si quis in publico municipii velit facere, sufficere ei, si curatori rei publicae denuntiet.

Likewise he says that, if anyone wishes to do something on the public property of the municipality, it suffices for him if he gives notice to the curator of the municipality.

Dig. 43.24.5.5

Digest 43.24.5.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis, dum putat locum tuum esse, qui est meus, celandi tui, non mei causa fecerit, mihi interdictum competere.

If someone, while he supposes the place to be yours, which is mine, has acted for the purpose of concealing you, not me, the interdict will be available to me.

Dig. 43.24.5.6

Digest 43.24.5.6

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Idem dicit et si servi mei vel procuratoris celandi causa factum sit, mihi interdictum competere.

He says the same also, that if it was done for the purpose of concealment by my slave or procurator, the interdict is available to me.

Dig. 43.24.5.7

Digest 43.24.5.7

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis, cum non denuntiasset opus se facturum eique denuntiatum esset ne faceret, fecerit, utilius puto probandum vi eum fecisse.

If someone, when he had not given notice that he was going to do the work and notice had been given to him not to do it, nevertheless did it, I think it more useful to hold that he did it by force.

Dig. 43.24.5.8

Digest 43.24.5.8

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Haec verba " quod vi aut clam factum est" ait mucius ita esse " quod tu aut tuorum quis aut tuo iussu factum est".

These words " what was done by force or secretly" mucius says are thus " what was done by you or by any of yours or by your order".

Dig. 43.24.5.9

Digest 43.24.5.9

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Labeo autem ait plures personas contineri his verbis. nam ecce primum heredes eorum, quos enumerat mucius, contineri putat.

But Labeo says that more persons are contained in these words; for behold, first, he thinks that the heirs of those whom Mucius enumerates are contained.

Dig. 43.24.5.10

Digest 43.24.5.10

Ulpianus 70 ad ed.

Ulpian, book 70 on the Edict.

Idem ait et adversus procuratorem tutorem curatorem municipumve syndicum alieno nomine interdici posse.

He likewise says that, in another’s name, an interdict can be issued against a procurator, a tutor (guardian), a curator, or the syndic of the municipes.

Dig. 43.24.5.11

Digest 43.24.5.11

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quid servus meus fecit, non ob id mecum actio est, sed si id meo nomine aut suo fecit: nam si tuum servum mercennarium habuero, quidquid ab eo factum fuerit meo nomine, ob id non tecum, sed mecum, cuius iussu aut nomine id opus a servo tuo factum fuerit, agendum erit hoc interdicto.

If my slave has done anything, there is not on that account an action against me, but if he did it in my name or in his own: for if I have had your slave as a hireling, whatever shall have been done by him in my name, on that account it will be not with you but with me—against the one at whose order or in whose name that work was done by your slave—proceeding must be had by this interdict.

Dig. 43.24.5.12

Digest 43.24.5.12

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Similiter quod iussu cuius factum erit, ob id non cum eo, sed cuius nomine iusserit, haec actio est. nam si procurator tutor curator duumvir municipii, quod eius nomine ageret, cuius negotium procuraret, fieri iusserit, ob id agendum erit cum eo, cuius nomine factum quid erit, non cum eo, qui ita iusserit. et si tibi mandavero, ut opus fieri iuberes et in ea re mihi parueris, mecum, inquit, non tecum erit actio.

Similarly, for what will have been done by the order of someone, on that account the action is not against him, but against the one in whose name he ordered. For if a procurator, tutor, curator, or duumvir of a municipium, in that which he would act in the name of him whose business he managed, should order it to be done, on that account the action will be brought against him in whose name something was done, not against him who thus ordered. And if I have mandated to you that you should order a work to be done and in that matter you have obeyed me, “with me,” he says, “not with you, will the action lie.”

Dig. 43.24.5.13

Digest 43.24.5.13

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Et cum interdictum sic sit scriptum " quod vi aut clam factum est", non ita " quod vi aut clam fecisti", latius porrigi quam ad has personas, quas supra numeravimus, labeo putat.

And since the interdict is written thus "what was done by force or stealth," not thus "what you did by force or stealth," Labeo thinks it extends more broadly than to these persons whom we enumerated above.

Dig. 43.24.5.14

Digest 43.24.5.14

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et hoc iure utimur, ut, sive ego fecissem dive fieri iussi, interdicto quod vi aut clam tenear.

And we use this law, that, whether I myself had done it or had ordered it to be done, I am held by the interdict “what was done by force or by stealth.”

Dig. 43.24.6

Digest 43.24.6

Paulus 67 ad ed.

Paulus Book 67 on the Edict.

Si ego tibi mandavero opus novum facere, tu alii, non potest videri meo iussu factum: teneberis ergo tu et ille: an et ego tenear, videamus. et magis est et me, qui initium rei praestiterim, teneri: sed uno ex his satisfaciente ceteri liberantur.

If I shall have mandated you to make a new work, and you (mandate) to another, it cannot seem to have been done by my order: you therefore will be held, and that man; whether I also am held, let us see. And it is more the case that I too, who have furnished the beginning of the matter, am held: but with one of these satisfying, the rest are released.

Dig. 43.24.7pr.

Digest 43.24.7pr.

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Si alius fecerit me invito, tenebor ad hoc, ut patientiam praestem.

If another has done it against my will, I shall be held to this, that I provide patience.

Dig. 43.24.7.1

Digest 43.24.7.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Neratius quoque scribit eum, cuius servus vi aut clam fecit, aut sua impensa ex interdicto opus restituere debere aut patientiam restituendi praestare et servum noxae dedere: plane si mortuo alienatove servo interdiceretur, patientiam dumtaxat praestare debere ait, ita ut et emptor eo interdicto possit conveniri, ut impensam praestet aut noxam det: dominoque operis sua impensa restituente aut damnato, quia non restitueret, emptorem liberari. eadem et si contra dominus servi vel opus restituisset vel litis aestimatione damnatus esset: quod si tantum noxae dedisset, adversus dominum operis utiliter interdici.

Neratius likewise writes that he, whose slave did the deed by force or clandestinely, must, under the interdict, either restore the work at his own expense or afford patience for its restoration, and surrender the slave in noxa. Clearly, if the interdict were issued after the slave had died or been alienated, he says that he need only afford patience, such that the purchaser too can be convened by that interdict to provide the expense or to give the noxa; and that, when the owner of the work restores at his own expense, or is condemned because he did not restore, the purchaser is released. The same also if, conversely, the master of the slave had either restored the work or had been condemned in the assessment of the suit; but if he had only made a noxal surrender, the interdict lies usefully against the owner of the work.

Dig. 43.24.7.2

Digest 43.24.7.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Ait iulianus: qui ante remissionem nuntiationis, contra quam prohibitus fuerit, opus fecerit, duobus interdictis tenebitur, uno, quod ex operis novi nuntiatione competit, altero quod vi aut clam. remissione autem facta intellegendus non erit vi aut clam facere, quamvis prohibeatur: licere enim debet aedificare ei, qui satisdederit, cum possessor hoc ipso constituatur: clamque facere nec ante remissionem nec postea existimandus est, cum is, qui opus novum nuntiat, non possit videri celatus et praeoccupatus, antequam controversiam faceret.

Julian says: whoever, before the remission of the notification, has done the work against which he had been prohibited, will be held by two interdicts: one which accrues from the notification of a new work, the other, the one “by force or stealth.” But once remission has been made, he is not to be understood to be acting by force or stealth, although he is prohibited: for it ought to be permitted to build to him who has given surety, since by that very act the possessor is constituted. And he is not to be deemed to act secretly either before the remission or afterwards, since he who gives notice of a new work cannot be seen to have been concealed and preempted before he raised the controversy.

Dig. 43.24.7.3

Digest 43.24.7.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Bellissime apud iulianum quaeritur, an haec exceptio noceat in hoc interdicto " quod non tu vi aut clam feceris?" ut puta utor adversus te interdicto quod vi aut clam, an possis obicere mihi eandem exceptionem: " quod non tu vi aut clam fecisti?" et ait iulianus aequissimum esse hanc exceptionem dare: nam si tu, inquit, aedificaveris vi aut clam, ego idem demolitus fuero vi aut clam et utaris adversus me interdicto, hanc exceptionem profuturam. quod non aliter procedere debet, nisi ex magna et satis necessaria causa: alioquin haec omnia officio iudicis celebrari oportet.

Most excellently it is asked in Julian whether this exception is prejudicial in this interdict, “that it was not you who did [it] by force or stealth?” For instance, if I employ against you the interdict “because by force or stealth,” can you oppose me with the same exception: “that it was not you who did [it] by force or stealth?” And Julian says it is most equitable to grant this exception: for if you, he says, have built by force or stealth, and I have demolished the same by force or stealth, and you employ the interdict against me, this exception will be of benefit. Which ought not to proceed otherwise, unless out of a great and quite necessary cause; otherwise all these matters ought to be conducted by the office of the judge.

Dig. 43.24.7.4

Digest 43.24.7.4

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Est et alia exceptio, de qua celsus dubitat, an sit obicienda: ut puta si incendii arcendi causa vicini aedes intercidi et quod vi aut clam mecum agatur aut damni iniuria. gallus enim dubitat, an excipi oporteret: " quod incendii defendendi causa factum non sit?" servius autem ait, si id magistratus fecisset, dandam esse, privato non esse idem concedendum: si tamen quid vi aut clam factum sit neque ignis usque eo pervenisset, simpli litem aestimandam: si pervenisset, absolvi eum oportere. idem ait esse, si damni iniuria actum foret, quoniam nullam iniuriam aut damnum dare videtur aeque perituris aedibus.

There is also another exception, about which Celsus doubts whether it should be opposed: for instance, if for the sake of warding off a conflagration the neighbor’s house be cut down, and an action is brought against me either “vi aut clam” (by force or by stealth) or for “damnum iniuria” (wrongful damage). For Gallus doubts whether one ought to plead the exception: “that it was not done for the purpose of defending against a fire.” Servius, however, says that, if a magistrate had done it, the exception should be granted; the same is not to be conceded to a private person. If, nevertheless, something was done “vi aut clam,” and the fire had not reached that point, the suit is to be assessed at a single value; if it had reached it, he ought to be absolved. He says the same holds if the action were for wrongful damage, since he seems to inflict no injury or damage upon buildings that were equally going to perish.

quod si nullo incendio id feceris, deinde postea incendium ortum fuerit, non idem erit dicendum, quia non ex post facto, sed ex praesenti statu, damnum factum sit nec ne, aestimari oportere labeo ait.

but if you did this when there was no fire, and then afterward a fire arose, the same is not to be said, because, as Labeo says, it ought to be assessed not ex post facto, but from the present status, whether damage was done or not.

Dig. 43.24.7.5

Digest 43.24.7.5

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Notavimus supra, quod, quamvis verba interdicti late pateant, tamen ad ea sola opera pertinere interdictum placere, quaecumque fiant in solo. eum enim, qui fructum tangit, non teneri interdicto quod vi aut clam: nullum enim opus in solo facit. at qui arbores succidit, utique tenebitur, et qui harundinem et qui salictum: terrae enim et quodammodo solo ipsi corrumpendo manus infert.

We have noted above that, although the words of the interdict range widely, nevertheless it is agreed that the interdict pertains only to those works which are done on the soil. For one who handles the fruit is not held by the interdict “quod vi aut clam,” for he does no work on the soil. But he who cuts down trees will certainly be held, and he who [cuts] the reed-bed and the willow-copse: for by damaging the earth, and in a certain manner the soil itself, he lays hands upon it.

idem et in vineis succisis. ceterum qui fructum aufert, furti debet conveniri. itaque si quid operis in solo fiat, interdictum locum habet.

the same also in the case of vines cut down. furthermore, one who carries off the fruit ought to be sued for theft. therefore, if any work is done in the soil, the interdict has its place.

in solo fieri accipimus et si quid circa arbores fiat, non si quid circa fructum arborum.

we understand “to be done on the soil” as including anything done around the trees, not anything done around the fruit of the trees.

Dig. 43.24.7.6

Digest 43.24.7.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si quis acervum stercoris circa agrum pinguem disiecerit, cum eo " quod vi aut clam factum est" agi potest: et hoc verum est, quia solo vitium adhibitum sit.

If someone has scattered a heap of dung around a fertile field, an action can be brought against him under " quod vi aut clam factum est": and this is true, because a defect has been applied to the soil.

Dig. 43.24.7.7

Digest 43.24.7.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Plane si quid agri colendi causa factum sit, interdictum quod vi aut clam locum non habet, si melior causa facta sit agri, quamvis prohibitus quis vi vel clam fecerit.

Plainly, if anything has been done for the sake of cultivating a field, the interdict 'what by force or by stealth' has no place, if the field’s condition has been made better, even though someone, though prohibited, did it by force or by stealth.

Dig. 43.24.7.8

Digest 43.24.7.8

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Praeterea si fossam feceris in silva publica et bos meus in eam inciderit, agere possum hoc interdicto, quia in publico factum est.

Moreover, if you make a ditch in a public forest and my ox falls into it, I can proceed by this interdict, because it was done in a public place.

Dig. 43.24.7.9

Digest 43.24.7.9

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Si quis aedificium demolitus fuerit, quamvis non usque ad solum, quin interdicto teneatur, dubitari desiit.

If anyone has demolished an edifice, even though not down to the ground, it has ceased to be doubted that he is held by the interdict.

Dig. 43.24.7.10

Digest 43.24.7.10

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Proinde et si tegulas de aedificio sustulerit, magis est, ut interdicto teneatur,

Accordingly, even if he has removed roof-tiles from an edifice, it is rather the case that he is held by the interdict,

Dig. 43.24.8

Digest 43.24.8

Venonius 2 interd.

Venonius 2 interdicts.

Nam origo huius rei a solo proficiscitur. ceterum per se tegulae non possidentur, sed cum universitate aedificii, nec ad rem pertinet, adfixae sunt an tantum positae.

For the origin of this matter proceeds from the soil. moreover, tiles are not possessed by themselves, but with the universality of the building, nor does it pertain to the matter whether they are affixed or only placed.

Dig. 43.24.9pr.

Digest 43.24.9pr.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Nam et si ramos quis de arboribus abstulerit, adhuc interdictum hoc admittimus. haec ita, si de aedificio tegulas sustulerit: ceterum si non de aedificio, sed seorsum positas, cessat hoc interdictum.

for even if someone has taken branches from trees, we still admit this interdict. this is so, if he has removed tiles from a building: but if not from a building, but ones set aside separately, this interdict ceases.

Dig. 43.24.9.1

Digest 43.24.9.1

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Si tamen sera vel clavis vel cancellus vel specularium sit ablatum, quod vi aut clam agi non poterit.

If, however, a bolt or a key or a lattice/grating or window-panes has been removed, this cannot be proceeded against under the action vi aut clam.

Dig. 43.24.9.2

Digest 43.24.9.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Sed si quis aliquid aedibus adfixum evellerit, statuam forte vel quid aliud, quod vi aut clam interdicto tenebitur.

But if someone tears out something affixed to a building, perhaps a statue or something else, he will be held by the interdict Quod vi aut clam.

Dig. 43.24.9.3

Digest 43.24.9.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis clam aut vi agrum intraverit vel fossam fecerit, hoc interdicto tenebitur. et si acervum succenderit vel disperserit sic, ut non ad usum agri convertat, interdicto locus non erit,

If someone has entered a field secretly or by force, or has made a ditch, he will be bound by this interdict. And if he has set fire to or dispersed a heap in such a way that he does not convert it to the use of the field, there will be no place for the interdict.

Dig. 43.24.10

Digest 43.24.10

Venonius 2 interd.

Venonius 2 interdicts.

Quia acervus solo non cohaeret, sed terra sustinetur, aedificia autem solo cohaerent.

Because a heap does not cohere with the soil, but is supported by the earth, whereas buildings do cohere with the soil.

Dig. 43.24.11pr.

Digest 43.24.11pr.

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Is qui in puteum vicini aliquid effuderit, ut hoc facto aquam corrumperet, ait labeo interdicto quod vi aut clam eum teneri: portio enim agri videtur aqua viva, quemadmodum si quid operis in aqua fecisset.

He who has poured something into a neighbor’s well, so that by this act he corrupts the water, Labeo says is held by the interdict quod vi aut clam: for living water is regarded as a portion of the field, just as if he had done some work in the water.

Dig. 43.24.11.1

Digest 43.24.11.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Quaesitum est, si statuam in municipio ex loco publico quis sustulerit vel vi vel clam, an hoc interdicto teneatur. et exstat cassii sententia eum, cuius statua in loco publico in municipio posita sit, quod vi aut clam agere posse, quia interfuerit eius eam non tolli: municipes autem etiam furti acturos, quia res eorum sit quasi publicata: si tamen deciderit, ipsi eam detrahunt: et haec sententia vera est.

It has been asked, if someone has lifted a statue in a municipality from a public place either by force or secretly, whether he is held by this interdict. And there exists the opinion of Cassius that the person whose statue has been set in a public place in a municipality can bring the action quod vi aut clam, because it was in his interest that it not be removed; but that the municipal citizens (municipes) will also bring an action of theft, because the thing is theirs as if made public; if, however, it has fallen down, they themselves remove it. And this opinion is true.

Dig. 43.24.11.2

Digest 43.24.11.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis de monumento statuam sustulerit, an ei, ad quem ius sepulchri pertineret, agere permittitur? et placet et in his interdicto locum esse. et sane dicendum est, si qua sepulchri ornandi causa adposita sint, sepulchri esse videri.

If anyone should remove a statue from a monument, is it permitted for the person to whom the right of the sepulcher pertains to bring an action? Yes; and it is held that in these cases there is room for an interdict. And indeed it must be said that, if any things have been set up for the purpose of adorning the sepulcher, they are deemed to belong to the sepulcher.

idem est et si ostium avellat vel effringat.

the same holds also if he should tear off or break open the door.

Dig. 43.24.11.3

Digest 43.24.11.3

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Si quis in vineas meas venerit et inde ridicas abstulerit, hoc interdicto tenebitur.

If anyone comes into my vineyards and from there carries off vine-stakes, he will be bound by this interdict.

Dig. 43.24.11.4

Digest 43.24.11.4

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Quod ait praetor: " quod vi aut clam factum est", ad quod tempus referatur, videamus, utrum ad praeteritum an ad praesens. quae species apud iulianum exposita est: ait enim in hoc interdicto praesentis temporis significationem accipi debere. si tamen, inquit, ex opere damnum datum fuerit aut dominus aut is, cuius fundo nocitum erit, sua impensa id sustulerit, utilius probari, quod iulianus temptat, ut et damnum sarciatur et impendia restituantur.

As the praetor says, "what has been done by force or by stealth," let us see to what time this is referred, whether to the past or to the present. This form is set out by Julian: for he says that in this interdict the signification of the present time ought to be taken. However, he says, if damage has been caused by the work, and the owner, or the one whose land has been harmed, has removed it at his own expense, it is more useful to approve what Julian attempts: that both the damage be repaired and the expenses be restored.

Dig. 43.24.11.5

Digest 43.24.11.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Interdictum complectitur id, quodcumque aut vi aut clam factum est. sed interdum evenit, ut quid et vi et clam fiat, partim et partim, in eodem opere. ut puta cum prohiberem, fundamenta posuisti: postea cum convenissem, ne reliquum opus fieret, absente et ignorante me reliquum opus perfecisti: vel contra fundamenta clam iecisti, deinde cetera prohibente me aedificasti.

The interdict encompasses whatever has been done either by force or secretly. But sometimes it happens that something is both by force and secretly done, partly one way and partly the other, in the same work. For instance, while I was prohibiting, you laid the foundations; afterwards, when I had given notice that the remaining work should not be done, you, with me absent and unaware, completed the remaining work; or, conversely, you laid the foundations secretly, and then, with me forbidding, you built the rest.

hoc iure utimur, ut et si vi et clam factum sit, interdictum hoc sufficiat.

we employ this law, that even if it has been done both by force and secretly, this interdict suffices.

Dig. 43.24.11.6

Digest 43.24.11.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Si tutoris iussu aut curatoris factum sit, cum placeat, quod cassius probat, ex dolo tutoris vel curatoris pupillum vel furiosum non teneri, eveniet, ut in ipsum tutorem curatoremque aut utilis actio competat aut etiam utile interdictum. certe ad patientiam tollendi operis utique tenebuntur pupillus et furiosus et ad noxam.

If it was done by the order of a tutor or of a curator, since it is accepted, which Cassius approves, that from the dolus of the tutor or curator the ward or the insane person is not held, it will follow that against the tutor and curator himself either a useful action will lie or even a useful interdict. Certainly, the ward and the insane person will in any case be bound to the toleration of the removal of the work and to noxal liability.

Dig. 43.24.11.7

Digest 43.24.11.7

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

An ignoscitur servo, qui obtemperavit tutori aut curatori? nam ad quaedam, quae non habent atrocitatem facinoris vel sceleris, ignoscitur servis, si vel dominis vel his, qui vice dominorum sunt, obtemperaverint. quod et in hoc casu admittendum est.

Is pardon granted to a slave who has obeyed a tutor or a curator? For in certain matters which do not have the atrocity of a crime or wickedness, slaves are pardoned if they have obeyed either their masters or those who are in the stead of masters. This, too, is to be admitted in the present case.

Dig. 43.24.11.8

Digest 43.24.11.8

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Si postea, quam vi aut clam factum est, venierit fundus, an venditor nihilo minus hoc interdicto experiri possit, videamus. et extat sententia existimantium nihilo minus competere ei interdictum nec finiri venditione: sed nec ex empto actione quicquam ei praestandum emptori ex eo opere, quod ante venditionem factum est: satis enim esse, quod utique propter hoc opus viliori praedium distraxerit. certe etsi non viliori vendidit, idem erit probandum.

If afterward, after it has been done by force or clandestinely, the estate has been sold, let us consider whether the seller can nonetheless proceed by this interdict. And there exists the view of those who think that the interdict still lies for him and is not ended by the sale; but neither by the action ex empto is anything to be rendered to the buyer on account of that work which was done before the sale: for it is sufficient that, in any case, he sold the estate at a lower price on account of this work. Certainly, even if he did not sell it at a lower price, the same is to be maintained.

Dig. 43.24.11.9

Digest 43.24.11.9

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Plane si post venditionem fundi opus factum est, etsi ipse experiatur venditor, quia nondum traditio facta est, tamen ex empto actione emptori tenebitur: omne enim et commodum et incommodum ad emptorem pertinere debet.

Plainly, if after the sale of the estate a work has been done, even though the seller himself experiences it, because delivery has not yet been made, nevertheless he will be held to the buyer by the action on purchase: for every advantage and disadvantage ought to pertain to the buyer.

Dig. 43.24.11.10

Digest 43.24.11.10

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si fundus in diem addictus sit, cui competat interdictum? et ait iulianus interdictum quod vi aut clam ei competere, cuius interfuit opus non fieri: fundo enim in diem addicto et commodum et incommodum omne ad emptorem, inquit, pertinet, antequam venditio transferatur, et ideo, si quid tunc vi aut clam factum est, quamvis melior condicio allata fuerit, ipse utile interdictum habebit: sed eam actionem sicut fructus medio tempore perceptos venditi iudicio praestare cogendum ait.

If a farm has been knocked down under an in-diem addiction, to whom does the interdict belong? And Julian says that the interdict quod vi aut clam belongs to him whose interest it was that the work not be done: for, when an estate has been knocked down in diem, every advantage and disadvantage pertains to the purchaser, he says, before the sale is transferred; and therefore, if anything was then done by force or secretly, although a better offer has been brought, he himself will have the useful interdict: but he says that he must be compelled, in the action on sale, to make over that action, just as the fruits gathered in the meantime.

Dig. 43.24.11.11

Digest 43.24.11.11

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Aristo autem scribit non possessori esse denuntiandum: nam si quis, inquit, fundum mihi vendiderit et necdum tradiderit et vicinus, cum opus facere vellet et sciret me emisse et in fundo morari, mihi denuntiaverit, esse eum tutum futurum, quod ad suspicionem clam facti operis pertineret: quod sane verum est.

Aristo, however, writes that notice need not be given to the possessor: for, says he, if someone has sold me a farm and has not yet delivered it, and a neighbor, when he wished to do a work and knew that I had bought it and that I was staying on the farm, were to give notice to me, he would be safe, inasmuch as it would pertain to the suspicion of a work done clandestinely: which indeed is true.

Dig. 43.24.11.12

Digest 43.24.11.12

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ego, si post in diem addictionem factam fundus precario traditus sit, putem emptorem interdictum quod vi aut clam habere. si vero aut nondum traditio facta est aut etiam facta est precarii rogatio, non puto dubitandum, quin venditor interdictum habeat: ei enim competere debet, etsi res ipsius periculo non sit, nec multum facit, quod res emptoris periculo est: nam et statim post venditionem contractam periculum ad emptorem spectat et tamen antequam ulla traditio fiat, nemo dixit interdictum ei competere. si tamen precario sit in possessione, videamus, ne, quia interest ipsius, qualiter qualiter possidet, iam interdicto uti possit.

I, if after an in diem addictio has been made the estate has been handed over on precarium, would think the purchaser has the interdict “quod vi aut clam.” But if either delivery has not yet been made, or even a request for a precarium has been made, I do not think there is room for doubt that the vendor has the interdict: for it ought to lie for him, even if the thing is not at his peril, nor does it make much difference that the thing is at the purchaser’s peril; for immediately after the sale is contracted the peril looks to the purchaser, and yet before any delivery is made, no one has said that the interdict lies for him. If, however, he is in possession by precarium, let us consider whether, since it is in his interest to possess in whatever way, he can now make use of the interdict.

ergo et si conduxit, multo magis: nam et colonum posse interdicto experiri in dubium non venit. plane si postea, quam melior condicio allata est, aliquid operis vi aut clam factum sit, nec iulianus dubitaret interdictum venditori competere: nam inter cassium et iulianum de illo, quod medio tempore accidit, quaestio est, non de eo opere, quod postea contigit.

therefore even if he has taken it on lease, much more so: for it does not come into doubt that even a colonus (tenant farmer) can proceed by interdict. clearly, if afterwards, after a better condition has been proffered, some work has been done by force or by stealth, not even Julian would doubt that the interdict is available to the seller: for between Cassius and Julian the question is about that which happened in the meantime, not about the work which occurred thereafter.

Dig. 43.24.11.13

Digest 43.24.11.13

Ulpianus 71 ad ed.

Ulpian 71 on the Edict

Si ita praedium venierit, ut, si displicuisset, inemptum esset, facilius admittimus interdictum emptorem habere, si modo est in possessione: et si rescissio emptionis in alterius arbitrium conferatur, idem erit probandum: idemque et si ita venisset, ut, si aliquid evenisset, inemptum esset praedium: et si forte commissoria venierit, idem dicendum est.

If an estate has been sold on the terms that, if it should displease, it shall be as not bought, we more readily admit that the purchaser has the interdict, provided only that he is in possession; and if the rescission of the purchase is referred to another’s arbitration, the same must be approved; and likewise if it has been sold on the terms that, if something should occur, the estate would be as not bought; and if perchance it has been sold with a commissory clause, the same is to be said.

Dig. 43.24.11.14

Digest 43.24.11.14

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Idem iulianus scribit interdictum hoc non solum domino praedii, sed etiam his, quorum interest opus factum non esse, competere.

The same Julian writes that this interdict lies not only for the owner of the estate, but also for those whose interest it is that the work not be done.

Dig. 43.24.12

Digest 43.24.12

Venonius 2 interd.

Venonius 2 interdicts.

Quamquam autem colonus et fructuarius fructuum nomine in hoc interdictum admittantur, tamen et domino id competet, si quid praeterea eius intersit.

Although the colonus and the usufructuary are admitted under this interdict in respect of the fruits, nevertheless it will also be available to the owner, if anything further of his interest is involved.

Dig. 43.24.13pr.

Digest 43.24.13pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Denique si arbores in fundo, cuius usus fructus ad titium pertinet, ab extraneo vel a proprietario succisae fuerint, titius et lege aquilia et interdicto quod vi aut clam cum utroque eorum recte experietur.

Finally, if trees on the estate, whose usufruct pertains to titius, have been cut down by a stranger or by the proprietor, titius will properly proceed both under the Aquilian law and by the interdict quod vi aut clam against each of them.

Dig. 43.24.13.1

Digest 43.24.13.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Labeo scribit, si filio prohibente opus factum sit, et te habere interdictum, ac si te prohibente opus factum est, et filium tuum nihilo minus.

Labeo writes that, if with your son forbidding the work has been done, you too have the interdict; and if with you forbidding the work has been done, your son none the less [has it].

Dig. 43.24.13.2

Digest 43.24.13.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Idem ait adversus filium familias in re peculiari neminem clam videri fecisse: namque, si scit eum filium familias esse, non videtur eius celandi gratia fecisse, quem certus est nullam secum actionem habere.

The same says that, against a son in the family (filius familias), in a matter of the peculium, no one is considered to have acted clandestinely; for if he knows him to be a filius familias, he does not seem to have acted for the sake of concealing it from one whom he is certain has no action against him.

Dig. 43.24.13.3

Digest 43.24.13.3

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Si ex sociis communis fundi unus arbores succiderit, socius cum eo hoc interdicto experiri potest, cum ei competat, cuius interest.

If one of the partners of a common estate has cut down trees, a partner can proceed against him by this interdict, since it is available to the one whose interest it is.

Dig. 43.24.13.4

Digest 43.24.13.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Unde apud servium amplius relatum est, si mihi concesseris, ut ex fundo tuo arbores caedam, deinde eas alius vi aut clam ceciderit, mihi hoc interdictum competere, quia ego sim cuius interest: quod facilius erit admittendum, si a te emi vel ex aliquo contractu hoc consecutus sim, ut mihi caedere liceat.

Whence it has been further related by Servius that, if you have granted me to cut trees from your estate, and then another has felled them by force or stealth, this interdict is available to me, because I am the one whose interest it is; which will be more readily admitted if I bought this from you or have obtained it by some contract, namely that it is permitted for me to cut.

Dig. 43.24.13.5

Digest 43.24.13.5

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Quaesitum est, si, cum praedium interim nullius esset, aliquid vi aut clam factum sit, an postea dominio ad aliquem devoluto interdicto locus sit: ut puta hereditas iacebat, postea adiit hereditatem titius, an ei interdictum competat? et est apud vivianum saepissime relatum heredi competere hoc interdictum eius, quod ante aditam hereditatem factum sit, nec referre labeo ait, quod non scierit, qui heredes futuri essent: hoc enim posse quem causari etiam post aditam hereditatem. ne illud quidem obstare labeo ait, quod eo tempore nemo dominus fuerit: nam et sepulchri nemo dominus fuit et tamen, si quid in eo fiat, experiri possum quod vi aut clam.

It has been asked whether, if, while in the meantime a tract was the property of no one, something was done by force or stealth, there is room later for the interdict when ownership has devolved upon someone: for instance, the inheritance was lying vacant, afterward Titius entered upon the inheritance—does the interdict lie for him? And it is very frequently reported in Vivianus that this interdict is competent to the heir for that which was done before the inheritance was entered; nor, Labeo says, does it matter that it was not known who the heirs would be: for this can be alleged even after the inheritance has been entered. Not even this, Labeo says, is an obstacle—that at that time no one was owner: for of a sepulcher no one is owner, and yet, if anything is done in it, I can proceed by the quod vi aut clam.

accedit his, quod hereditas dominae locum optinet. et recte dicetur heredi quoque competere et ceteris successoribus, sive ante, quam successerit, sive postea aliquid sit vi aut clam admissum.

In addition to these points, the inheritance holds the place of an owner. And it will rightly be said to pertain also to the heir and to the other successors, whether something has been committed by force or by stealth before he has succeeded or afterwards.

Dig. 43.24.13.6

Digest 43.24.13.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si colonus meus opus fecerit, si quidem me volente vel ratum habente, perinde est atque si procurator meus fecisset, in quo placet, sive ex voluntate mea fecerit, teneri me, sive ratum habuero, quod procurator fecit.

If my colonus (tenant-farmer) has done a work, if indeed with me willing or with me holding it ratified, it is just the same as if my procurator had done it; in which case it is the accepted view that I am bound whether he did it by my will, or whether I have ratified what the procurator did.

Dig. 43.24.13.7

Digest 43.24.13.7

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Iulianus ait: si colonus arborem, de qua controversia erat, succiderat vel quid aliud opus fecerit, si quidem iussu domini id factum sit, ambo tenebuntur, non ut patientiam praestent, sed ut impensam quoque ad restituendum praebeant: si autem dominus non iusserit, colonus quidem tenebitur, ut patientiam et impensam praestet, dominus vero nihil amplius quam patientiam praestare cogendus erit.

Julian says: if a tenant-farmer has cut down a tree about which there was a controversy, or has done some other work, if indeed this was done by the order of the owner, both will be held liable, not merely to furnish forbearance, but also to provide the expense for restoring; but if the owner did not order it, the tenant-farmer will be liable to furnish forbearance and expense, whereas the owner will be compelled to furnish nothing more than forbearance.

Dig. 43.24.14

Digest 43.24.14

Iulianus 68 Dig.

Julian 68 Dig.

Nam et si servus meus ignorante me opus fecerit eumque vendidero vel manumisero, mecum in hoc solum agi poterit, ut patiar opus tolli, cum emptore autem servi, ut aut noxae dedat aut impensam, quae in restitutione facta fuerit, praestet: sed et cum ipso manumisso recte agi poterit.

For indeed, if my slave, I being unaware, has made a work and I have sold him or manumitted him, an action can be brought against me only to the effect that I permit the work to be removed; but against the buyer of the slave, that he either make noxal surrender or pay the expense that shall have been incurred in the restitution: yet an action can also rightly be brought against the manumitted man himself.

Dig. 43.24.15pr.

Digest 43.24.15 pr.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Semper adversus possessorem operis hoc interdictum competit, idcircoque, si quilibet inscio vel etiam invito me opus in fundo meo fecerit, interdicto locus erit.

This interdict is always competent against the possessor of the work, and therefore, if anyone whatsoever, I being unaware or even unwilling, has made a work on my estate, there will be place for the interdict.

Dig. 43.24.15.1

Digest 43.24.15.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Is, cui fundum pastinandum locaveras, lapides sustulit et in vicini proiecit praedium. ait labeo te vi aut clam non teneri, nisi iussu tuo id factum sit: ego puto conductorem teneri, locatorem autem non alias, nisi aut patientiam praestare possit aut aliquam actionem habeat, quam praestet: ceterum teneri non oportere.

The man to whom you had leased out the estate for trenching removed stones and threw them onto the neighbor’s estate. Labeo says that you are not held “by force or by stealth,” unless it was done by your order; I think the lessee (conductor) is liable, but the lessor (locator) is not liable otherwise, unless either he can furnish forbearance or has some action that he can make available; otherwise, he ought not to be held.

Dig. 43.24.15.2

Digest 43.24.15.2

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Si in sepulchro alieno terra congesta fuerit iussu meo, agendum esse quod vi aut clam mecum labeo scribit. et si communi consilio plurium id factum sit, licere vel cum uno vel cum singulis experiri: opus enim, quod a pluribus pro indiviso factum est, singulos in solidum obligare. si tamen proprio quis eorum consilio hoc fecerit, cum omnibus esse agendum, scilicet in solidum: itaque alter conventus alterum non liberabit, quin immo perceptio ab altero: superiore etenim casu alterius conventio alterum liberat.

If in another’s sepulcher earth has been heaped up by my order, Labeo writes that the action “quod vi aut clam” must be brought against me. And if by the common counsel of several it was done, it is permitted to proceed either with one or with each individually: for the work which has been done by several pro indiviso binds individuals in solidum. If, however, each of them has done this by his own counsel, action must be with all, namely in solidum: and so, one person having been sued will not release the other—nay rather, even collection from the other will not; for in the former case the suing of one releases the other.

praeterea sepulchri quoque violati agi potest.

Moreover, an action can also be brought for a violated sepulcher.

Dig. 43.24.15.3

Digest 43.24.15.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum in heredem ceterosque successores datur in id quod ad eos pervenit.

This interdict is given against the heir and the other successors to the extent of what has come to them.

Dig. 43.24.15.4

Digest 43.24.15.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Et post annum non competit. annus autem cedere incipit, ex quo id opus factum perfectum est aut fieri desiit, licet perfectum non sit: alioquin si a principio operis coepti annum quis numeret, necesse est cum his, qui opus tardissime facerent, saepius agi.

And after one year it does not lie. But the year begins to run from the time when the work has been made and completed, or has ceased to be made, although it is not completed: otherwise, if someone should count the year from the beginning of the work begun, it is necessary to proceed more often against those who would do the work most slowly.

Dig. 43.24.15.5

Digest 43.24.15.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sed si is sit locus, in quo opus factum est, qui facile non adiretur, ut puta in sepulchro vi aut clam factum est vel in abdito alio loco, sed et si sub terra fieret opus vel sub aqua, vel cloaca aliquid factum sit, etiam post annum causa cognita competit interdictum de eo quod factum est: nam causa cognita annuam exceptionem remittendam, hoc est magna et iusta causa ignorantiae interveniente.

But if the place in which the work was done is such as would not easily be approached—as, for instance, it was done in a tomb by force or by stealth, or in some other hidden place; and likewise if the work were done underground or under water, or something were done in a sewer—even after a year, once the cause has been inquired into, the interdict concerning that which has been done is available: for, the cause having been examined, the one‑year exception is to be remitted, that is, when a great and just cause of ignorance has intervened.

Dig. 43.24.15.6

Digest 43.24.15.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Si quis rei publicae causa afuisset, deinde reversus interdicto quod vi aut clam uti vellet, verius est non excludi anno eum, sed reversum annum habere. nam et si minor viginti quinque annis rei publicae causa abesse coepisset, deinde maior effectus sit, dum abest rei publicae causa, futurum, ut ex quo redit annus ei computetur, non ex quo implevit vicensimum quintum annum: et ita divus pius et deinceps omnes principes rescripserunt.

If someone had been away for the sake of the republic, then on returning wished to use the interdict quod vi aut clam, it is more correct that he not be excluded by the year, but that upon his return he have the year. For also if one under twenty-five years began to be absent for the sake of the republic, and then became of age while he is away for the sake of the republic, the result will be that the year is computed for him from the time he returns, not from when he completed his twenty-fifth year; and thus the deified Pius, and thereafter all the emperors, have written by rescript.

Dig. 43.24.15.7

Digest 43.24.15.7

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdicto tanti lis aestimatur, quanti actoris interest id opus factum esse. officio autem iudicis ita oportere fieri restitutionem iudicandum est, ut in omni causa eadem condicio sit actoris, quae futura esset, si id opus, de quo actum est, neque vi neque clam factum esset.

By this interdict the dispute is assessed at as much as it is in the plaintiff’s interest that that work have been done. Moreover, by the duty of the judge it is to be adjudged that restitution ought to be made in such a way that in every case the plaintiff’s condition is the same as it would be if the work in question had been done neither by force nor clandestinely.

Dig. 43.24.15.8

Digest 43.24.15.8

Ulpianus 71 ad ed.

Ulpian, Book 71 on the Edict.

Ergo nonnumquam etiam dominii ratio habenda est, ut puta si propter hoc opus, quod factum est, servitutes amittantur aut usus fructus intereat. quod non tantum tunc eveniet, cum quis opus aedificaverit, verum etiam si diruisse opus proponatur et deteriorem condicionem fecisse vel servitutium vel usus fructus vel ipsius proprietatis.

Therefore sometimes regard must also be had to ownership, for example if, on account of this work which has been done, servitudes are lost or the usufruct perishes. Which will occur not only when someone has constructed a work, but also if it is alleged that he has demolished the work and has made the condition worse, whether of the servitudes, or of the usufruct, or of the ownership itself.

Dig. 43.24.15.9

Digest 43.24.15.9

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Sed quod interfuit, aut per iusiurandum, quod in litem actor iuraverit, aut, si iurare non possit, iudicis officio aestimandum est.

But as to what the interest amounted to, it is either by the oath which, in the action, the plaintiff shall have sworn, or, if he cannot swear, it is to be assessed by the judge’s office.

Dig. 43.24.15.10

Digest 43.24.15.10

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Eum autem, qui dolo malo fecerit, quo minus possit restituere, perinde habendum, ac si posset.

But one who has acted with malicious fraud, whereby he is less able to make restitution, is to be regarded just as if he were able to do so.

Dig. 43.24.15.11

Digest 43.24.15.11

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Culpam quoque in hoc interdicto venire erit probandum: quae tamen arbitrio iudicis aestimanda erit.

It will have to be proved that fault also comes into consideration in this interdict; which, however, will be assessed at the judge’s discretion.

Dig. 43.24.15.12

Digest 43.24.15.12

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Quia autem hoc interdictum id quod interest continet, si quis alia actione fuerit consecutus id quod interfuit opus non esse factum, consequens erit dicere ex interdicto nihil eum consequi oportere.

But since this interdict contains the amount of the interest, if someone by another action shall have obtained the amount of the interest in the work’s not having been done, it will be consequent to say that from the interdict he ought to obtain nothing.

Dig. 43.24.16pr.

Digest 43.24.16, beginning.

Paulus 67 ad ed.

Paulus 67 on the Edict.

Competit hoc interdictum etiam his qui non possident, si modo eorum interest.

This interdict is available even to those who do not possess, provided only that it concerns their interest.

Dig. 43.24.16.1

Digest 43.24.16.1

Paulus 67 ad ed.

Paulus 67 on the edict.

Si quis vi aut clam arbores non frugiferas ceciderit, veluti cupressos, domino dumtaxat competit interdictum. sed si amoenitas quaedam ex huiusmodi arboribus praestetur, potest dici et fructuarii interesse propter voluptatem et gestationem et esse huic interdicto locum.

If someone by force or secretly should fell non-fruit-bearing trees, for example cypresses, the interdict belongs only to the owner. But if a certain amenity is provided by trees of this sort, it can be said that the usufructuary also has an interest, on account of enjoyment and riding (promenade), and that there is room for this interdict in his favor.

Dig. 43.24.16.2

Digest 43.24.16.2

Paulus 67 ad ed.

Paulus 67 on the Edict.

In summa qui vi aut clam fecit, si possidet, patientiam et impensam tollendi operis: qui fecit nec possidet, impensam: qui possidet nec fecit, patientiam tantum debet.

In sum, he who has done by force or stealth, if he possesses, owes patience and the expense of removing the work: he who has done and does not possess, the expense: he who possesses and has not done, owes only patience.

Dig. 43.24.17

Digest 43.24.17

Paulus 69 ad ed.

Paulus 69 on the Edict.

Interdictum quod vi aut clam per quemvis domino adquiritur, licet per inquilinum.

The interdict vi aut clam is acquired for the owner through anyone whatsoever, even through a tenant.

Dig. 43.24.18pr.

Digest 43.24.18pr.

Celsus 25 Dig.

Celsus 25 Digest.

Si inmaturam silvam caeduam cecidit quis, interdicto quod vi aut clam tenetur: si maturam similiter caeduam neque damno dominus adfectus est, nihil praestabit.

If someone has cut down an immature coppice-wood, he is held by the interdict Quod vi aut clam: if a mature coppice likewise and the owner has not been affected with damage, he will owe nothing.

Dig. 43.24.18.1

Digest 43.24.18.1

Celsus 25 Dig.

Celsus 25 Digest.

Non absurde responsum est: si magistratum rogasses, ut adversarium tuum adesse ad iudicium iuberet, ne opus novum tibi nuntiaret, clam videris opus fecisse, quod interim feceris.

It was not absurdly answered: if you had petitioned the magistrate to order your adversary to be present at the judgment, so that he might not notify you of a “new work,” you are seen to have done the work clandestinely, whatever you did in the meantime.

Dig. 43.24.19

Digest 43.24.19

Ulpianus 57 ad ed.

Ulpian 57 on the Edict.

Interdictum quod vi aut clam competere filio familias colono arboribus succisis sabinus ait.

Sabinus says that the interdict quod vi aut clam is available to a filiusfamilias who is a tenant farmer, with trees having been cut down.

Dig. 43.24.20pr.

Digest 43.24.20pr.

Paulus 13 ad sab.

Paulus Book 13 On Sabinus.

Vi facit tam is qui prohibitus fecit quam is qui, quo minus prohibeatur, consecutus est periculo puta adversario denuntiato aut ianua puta praeclusa.

He acts by force both he who did it, though prohibited, and he who, so that he may not be prohibited, has achieved it by peril—e.g., with peril denounced to the adversary, or, say, with the door barred.

Dig. 43.24.20.1

Digest 43.24.20.1

Paulus 13 ad sab.

Paul 13 on Sabinus.

Prohibitus autem intellegitur quolibet prohibentis actu, id est vel dicentis se prohibere vel manum opponentis lapillumve iactantis prohibendi gratia.

Moreover, one is understood to be prohibited by any act of the prohibitor, that is, either by saying that he prohibits, or by opposing a hand, or by tossing a little stone for the sake of prohibiting.

Dig. 43.24.20.2

Digest 43.24.20.2

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Tamdiu autem vi facit prohibitus, quamdiu res in eodem statu permanebit: nam si postea convenerit cum adversario, desinit vi facere.

However, he acts by force while prohibited for as long as the thing remains in the same status: for if afterward he comes to an agreement with his adversary, he ceases to act by force.

Dig. 43.24.20.3

Digest 43.24.20.3

Paulus 13 ad sab.

Paulus, 13 on Sabinus.

Item si prohibiti heres vel is, qui ab eo emerit, ignorans causam praecedentem fecerit, dicendum esse pomponius ait non incidere eum in interdictum.

Likewise, if the heir of the prohibited person, or he who has bought from him, acting ignorant of the preceding cause, has done it, Pomponius says that it must be said that he does not incur the interdict.

Dig. 43.24.20.4

Digest 43.24.20.4

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Quod in nave fit vel in alia qualibet re vel amplissima, mobili tamen, non continetur hoc interdicto.

What is done on a ship, or in any other thing, even the very largest, yet movable, is not contained in this interdict.

Dig. 43.24.20.5

Digest 43.24.20.5

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Sive in privato sive in publico opus fiat sive in loco sacro sive in religioso, interdictum competit.

Whether a work is done on private or on public property, whether in a sacred place or in a religious one, the interdict is available.

Dig. 43.24.21pr.

Digest 43.24.21pr.

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Si opus, quod quis iussus est a iudice, qui ex hoc interdicto sumptus esset, restituere, alius quis vi aut clam sustulisset, nihilo minus idem ille omnimodo iubetur opus restituere.

If the work which someone was ordered by a judge, who had been appointed under this interdict, to restore had been removed by some other person by force or by stealth, nonetheless that same man is in every way ordered to restore the work.

Dig. 43.24.21.1

Digest 43.24.21.1

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Si iussero servum meum opus facere, cum, quantum ad me pertinet, in clandestini suspicionem non veniret, servus autem meus putaverit, si rescisset adversarius, prohibiturum eum, an tenear? et non puto, cum mea persona sit intuenda.

If I have ordered my slave to do a work, when, so far as concerns me, it would not fall under suspicion of clandestine construction, but my slave supposed that, if the adversary had learned of it, he would prohibit it, am I bound? And I do not think so, since my person is the one to be considered.

Dig. 43.24.21.2

Digest 43.24.21.2

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

In opere novo tam soli quam caeli mensura facienda est.

In a new work, measurement must be made both of the soil and of the sky.

Dig. 43.24.21.3

Digest 43.24.21.3

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Si quis propter opus factum ius aliquod praedii amisit, id restitui ex hoc interdicto debet.

If someone, on account of a work executed, has lost some right of a praedium, it ought to be restored under this interdict.

Dig. 43.24.22pr.

Digest 43.24.22, preface.

Venonius 2 interd.

Venonius Book 2 of Interdicts.

Si vitem meam ex fundo meo in fundum tuum deprehenderis eaque in fundo tuo coaluerit, utile est interdictum quod vi aut clam intra annum: sed si annus praeterierit, nullam remanere actionem radices, quae in fundo meo sint, tuas fieri, quia his accessiones sint.

If you should detect my vine from my estate into your estate and it has coalesced in your estate, the interdict quod vi aut clam is useful within a year: but if a year has passed, no action remains, and the roots, which are in my estate, become yours, because they are accessions to these.

Dig. 43.24.22.1

Digest 43.24.22.1

Venonius 2 interd.

Venonius 2 interdicts.

Si quis vi aut clam araverit, puto eum teneri hoc interdicto perinde atque si fossam fecisset: non enim ex qualitate operis huic interdicto locus est, sed ex opere facto, quod cohaeret solo.

If anyone has plowed by force or in secret, I think he is held by this interdict just as if he had made a ditch: for there is room for this interdict not from the quality of the work, but from the work done, which adheres to the soil.

Dig. 43.24.22.2

Digest 43.24.22.2

Venonius 2 interd.

Venonius book 2 of interdicts.

Si ad ianuam meam tabulas fixeris et ego eas, priusquam tibi denuntiarem, refixero, deinde invicem interdicto quod vi aut clam egerimus: nisi remittas mihi, ut absolvar, condemnandum te, quasi rem non restituas, quanti mea intersit, aut certe exceptionem mihi profuturam " si non vi nec clam nec precario feceris".

If you should have fastened tablets to my door, and I, before I had given you notice, should have unfastened them, and then in turn we proceeded under the interdict “what has been done by force or by stealth”: unless you grant me remission, so that I may be acquitted, you must be condemned, as if you do not restore the thing, to the extent of my interest; or at any rate an exception will be of use to me “ si non vi nec clam nec precario feceris”.

Dig. 43.24.22.3

Digest 43.24.22.3

Venonius 2 interd.

Venonius 2 Interdicts.

Si stercus per fundum meum tuleris, cum id te facere vetuissem, quamquam nihil damni feceris mihi nec fundi mei mutaveris, tamen teneri te quod vi aut clam trebatius ait. labeo contra, ne etiam is, qui dumtaxat iter per fundum meum fecerit aut avem egerit venatusve fuerit sine ullo opere, hoc interdicto teneatur.

If you should carry dung through my estate, after I had forbidden you to do this, although you have caused me no loss and have not altered my estate, nevertheless you are held liable, Trebatius says, under the interdict “what was done by force or by stealth.” Labeo, on the contrary, holds that not even one who has only made a passage through my estate or has driven a bird or has hunted without any work should be held by this interdict.

Dig. 43.24.22.4

Digest 43.24.22.4

Venonius 2 interd.

Venonius 2 Interdicts.

Si quis proiectum aut stillicidium in sepulchrum immiserit, etiamsi ipsum monumentum non tangeret, recte cum eo agi, quod in sepulchro vi aut clam factum sit, quia sepulchri sit non solum is locus, qui recipiat humationem, sed omne etiam supra id caelum: eoque nomine etiam sepulchri violati agi posse.

If anyone should let a projection or an eaves-drip into a sepulcher, even if it did not touch the monument itself, it is proper that he be sued by the action for what has been done in a sepulcher by force or by stealth, because a sepulcher comprises not only that place which receives the humation, but also the whole sky above it; and under that designation one can also bring the action for a violated sepulcher.

Dig. 43.24.22.5

Digest 43.24.22.5

Venonius 2 interd.

Venonius 2 Interdicts.

Si is, qui denuntiaverit se opus facturum, confestim opus fecerit, clam fecisse non intellegitur: nam si post tempus, videbitur clam fecisse.

If he who has given notice that he will do the work has immediately done the work, he is not understood to have done it clandestinely; for if after an interval, he will be deemed to have done it clandestinely.

Dig. 43.25.0. De remissionibus.

Dig. 43.25.0. On remissions.

Dig. 43.25.1pr.

Digest 43.25.1, preface.

Ulpianus 71 ad ed.

Ulpian, book 71 on the Edict.

Ait praetor: " quod ius sit illi prohibere, ne se invito fiat, in eo nuntiatio teneat: ceterum nuntiationem missam facio".

The praetor says: " insofar as he has the right to prohibit its being done against his will, in that the notification shall hold: for the rest, I set the notification aside".

Dig. 43.25.1.1

Digest 43.25.1.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Sub hoc titulo remissiones proponuntur.

Under this title remissions are set forth.

Dig. 43.25.1.2

Digest 43.25.1.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Et verba praetoris ostendunt remissionem ibi demum factam, ubi nuntiatio non tenet, et nuntiationem ibi demum voluisse praetorem tenere, ubi ius est nuntianti prohibere, ne se invito fiat. ceterum sive satisdatio interveniat sive non, remissio facta hoc tantum remittit, in quo non tenuit nuntiatio. plane si satisdatum est, exinde remissio facta est, non est necessaria remissio.

And the words of the praetor show that a remission is then and only then made where the notification does not hold, and that the praetor wished the notification to hold then and only then where it is the right of the notifier to prohibit that it be done against his will. Moreover, whether a suretyship intervenes or not, a remission, once made, remits only to the extent in which the notification did not hold. Clearly, if security has been furnished, a remission has thereby been made; no further remission is necessary.

Dig. 43.25.1.3

Digest 43.25.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Ius habet opus novum nuntiandi, qui aut dominium aut servitutem habet.

He has the right of giving notice of a new work who has either ownership or a servitude.

Dig. 43.25.1.4

Digest 43.25.1.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Item iuliano placet fructuario vindicandarum servitutium ius esse: secundum quod opus novum nuntiare poterit vicino et remissio utilis erit. ipsi autem domino praedii si nuntiaverit, remissio inutilis erit: neque sicut adversus vicinum, ita adversus dominum agere potest ius ei non esse invito se altius aedificare. sed si hoc facto usus fructus deterior fiat, petere usum fructum debebit.

Likewise Julian holds that the usufructuary has the right of vindicating servitudes: accordingly he will be able to announce a new work to the neighbor, and a remission will be effective. But if he gives notice to the owner of the estate himself, the remission will be ineffectual: nor, as against a neighbor, can he bring an action against the owner that he has no right to build higher against his will. But if, with this having been done, the usufruct becomes worse, he ought to sue for the usufruct.

idem iulianus dicit de ceteris, quibus aliqua servitus a vicino debetur.

The same Julian says the same about the rest, to whom some servitude is owed by a neighbor.

Dig. 43.25.1.5

Digest 43.25.1.5

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Ei quoque, qui pignori fundum acceperit, scribit iulianus non esse iniquum detentionem servitutis dari.

Julian writes that it is not inequitable that the holding (detention) of a servitude be granted to him also who has received an estate in pledge.

Dig. 43.26.0. De precario.

Digest 43.26.0. On precarium.

Dig. 43.26.1pr.

Digest 43.26.1 pr.

Ulpianus 1 inst.

Ulpian 1 Institutes.

Precarium est, quod precibus petenti utendum conceditur tamdiu, quamdiu is qui concessit patitur.

A precarium is that which is conceded for use to one who seeks it by prayers, for as long as the one who conceded it permits.

Dig. 43.26.1.1

Digest 43.26.1.1

Ulpianus 1 inst.

Ulpian 1 Institutes.

Quod genus liberalitatis ex iure gentium descendit.

Which kind of liberality descends from the law of nations.

Dig. 43.26.1.2

Digest 43.26.1.2

Ulpianus 1 inst.

Ulpian 1 inst.

Et distat a donatione eo, quod qui donat, sic dat, ne recipiat, at qui precario concedit, sic dat quasi tunc recepturus, cum sibi libuerit precarium solvere.

And it differs from a donation in this: the one who donates gives so as not to take back, but the one who grants by precarium gives as though he were then to receive it back, when it has pleased him to dissolve the precarium.

Dig. 43.26.1.3

Digest 43.26.1.3

Ulpianus 1 inst.

Ulpian 1 Institutes.

Et est simile commodato: nam et qui commodat rem, sic commodat, ut non faciat rem accipientis, sed ut ei uti re commodata permittat.

And it is similar to commodatum: for he who lends a thing lends it thus, not so as to make the thing the recipient’s, but so as to permit him to use the thing lent.

Dig. 43.26.2pr.

Digest 43.26.2pr.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Ait praetor: " quod precario ab illo habes aut dolo malo fecisti, ut desineres habere, qua de re agitur, id illi restituas".

The praetor says: "What you have from him by precarium, or what by malicious fraud you contrived so that you ceased to have, the matter at issue, that you are to restore to him."

Dig. 43.26.2.1

Digest 43.26.2.1

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Hoc interdictum restitutorium est.

This interdict is restitutory.

Dig. 43.26.2.2

Digest 43.26.2.2

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Et naturalem habet in se aequitatem, namque precarium revocare volenti competit: est enim natura aequum tamdiu te liberalitate mea uti, quamdiu ego velim, et ut possim revocare, cum mutavero voluntatem. itaque cum quid precario rogatum est, non solum hoc interdicto uti possumus, sed etiam praescriptis verbis actione, quae ex bona fide oritur.

And it has natural equity in itself, for the right belongs to one who wishes to revoke a precarium: for it is by nature equitable that you use my liberality for as long as I wish, and that I can revoke it when I have changed my intention. Therefore, when something has been requested by way of precarium, we can employ not only this interdict, but also the action with prescribed words, which arises from good faith.

Dig. 43.26.2.3

Digest 43.26.2.3

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Habere precario videtur, qui possessionem vel corporis vel iuris adeptus est ex hac solummodo causa, quod preces adhibuit et impetravit, ut sibi possidere aut uti liceat:

He is deemed to hold by precarium who has acquired possession either of the corpus or of a right for this sole cause, that he made a request and obtained it, that it be permitted to him to possess or to use:

Dig. 43.26.3

Digest 43.26.3

Gaius 25 ad ed. provinc.

Gaius 25 on the provincial edict.

Veluti si me precario rogaveris, ut per fundum meum ire vel agere tibi liceat vel ut in tectum vel in aream aedium mearum stillicidium vel tignum in parietem immissum habeas.

As, for example, if you have asked me by precarious request, that it be permitted to you to go or to drive across my estate, or that you have stillicide onto the roof or into the area (court) of my house, or a beam inserted into the wall.

Dig. 43.26.4pr.

Digest 43.26.4, opening paragraph.

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

In rebus etiam mobilibus precarii rogatio constitit.

In movable things also, the request of a precarium has been established.

Dig. 43.26.4.1

Digest 43.26.4.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Meminisse autem nos oportet eum, qui precario habet, etiam possidere.

We ought, moreover, to remember that he who holds by precarium also possesses.

Dig. 43.26.4.2

Digest 43.26.4.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Tenetur hoc interdicto non utique ille, qui precario rogavit, sed qui precario habet: etenim fieri potest, ut quis non rogaverit, sed habeat precario. ut puta servus meus rogavit: mihi adquisiit precarium: vel quis alius, qui iuri meo subiectus est.

He is held by this interdict not, to be sure, the one who asked by precarium, but the one who holds by precarium: for it can happen that someone did not ask, but holds by precarium. For instance, my slave asked: he acquired a precarium for me: or someone else who is subject to my right.

Dig. 43.26.4.3

Digest 43.26.4.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Item si rem meam precario rogavero, rogavi quidem precario, sed non habeo precario idcirco, quia receptum est rei suae precarium non esse.

Likewise, if I have asked by way of precarium for my own thing, I did indeed ask by way of precarium, but I do not have it by precarium for that reason, because it is settled that there is no precarium of one’s own property.

Dig. 43.26.4.4

Digest 43.26.4.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Item qui precario ad tempus rogavit, finito tempore, etiamsi ad hoc temporis non rogavit, tamen precario possidere videtur: intellegitur enim dominus, cum patitur eum qui precario rogaverit possidere, rursus precario concedere.

Likewise, he who has asked by precarium for a time, when the time is finished, even if he has not asked for this further time, nevertheless is deemed to possess by precarium: for the owner is understood, when he allows the one who has requested by precarium to possess, to be again granting by precarium.

Dig. 43.26.5

Digest 43.26.5

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Sed si manente adhuc precario tu in ulterius tempus rogasti, prorogatur precarium: nam nec mutatur causa possessionis et non constituitur eo modo precarium, sed in longius tempus profertur. si vero praeterita die rogas, propius est, ut soluta iam causa precarii non redintegretur, sed nova constituatur.

But if, with the precarium still remaining, you asked for a further time, the precarium is prorogated: for neither is the cause of possession changed, and in that way a precarium is not constituted, but it is carried forward to a longer time. But if indeed you ask after the day has passed, it is more proper that, with the cause of the precarium already dissolved, it not be redintegrated, but that a new one be constituted.

Dig. 43.26.6pr.

Digest 43.26.6 pr.

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Certe si interim dominus furere coeperit vel decesserit, fieri non posse Marcellus ait, ut precarium redintegretur, et hoc verum est.

Certainly, if in the meantime the owner has begun to be insane or has died, Marcellus says that it cannot be done that the precarium be reinstated, and this is true.

Dig. 43.26.6.1

Digest 43.26.6.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si procurator meus me mandante vel ratum habente precario rogaverit, ego precario habere proprie dicor.

If my procurator, at my command or with me having ratified, has requested precario, I am properly said to hold precariously.

Dig. 43.26.6.2

Digest 43.26.6.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Is qui rogavit, ut precario in fundo moretur, non possidet, sed possessio apud eum qui concessit remanet: nam et fructuarius, inquit, et colonus et inquilinus sunt in praedio et tamen non possident.

He who asked to stay by precarium on an estate does not possess, but possession remains with the one who granted it: for, he says, both the usufructuary and the colonus and the inquilinus are on the estate and yet do not possess.

Dig. 43.26.6.3

Digest 43.26.6.3

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Iulianus ait eum, qui vi alterum deiecit et ab eodem precario rogavit, desinere vi possidere et incipere precario, neque existimare sibi ipsum causam possessionis mutare, cum voluntate eius quem deiecit coeperit precario possidere: nam si ab eodem emisset, incipere etiam pro emptore posse dominium capere.

Julian says that he who has cast another out by force and then from that same person asked on precarium, ceases to possess by force and begins to possess on precarium; nor should it be thought that he himself changes for himself the cause of possession, since with the will of him whom he expelled he has begun to possess on precarium: for if he had bought it from that same person, he could even begin, as purchaser, to take dominion.

Dig. 43.26.6.4

Digest 43.26.6.4

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Quaesitum est, si quis rem suam pignori mihi dederit et precario rogaverit, an hoc interdictum locum habeat. quaestio in eo est, ut precarium consistere rei suae possit. mihi videtur verius precarium consistere in pignore, cum possessionis rogetur, non proprietatis, et est haec sententia etiam utilissima: cottidie enim precario rogantur creditores ab his, qui pignori dederunt, et debet consistere precarium.

It has been asked, if someone has given his own thing to me in pledge and has requested by precarium, whether this interdict has place. The question lies in this, whether a precarium can subsist over one’s own thing. It seems to me truer that a precarium subsists in a pledge, since what is requested is possession, not proprietorship; and this opinion is also most useful: for every day creditors are requested by precarium by those who have given in pledge, and the precarium ought to subsist.

Dig. 43.26.7

Digest 43.26.7

Venonius 3 interd.

Venonius 3 interdicts.

Sed et si eam rem, cuius possessionem per interdictum uti possidetis retinere possim, quamvis futurum esset, ut tenear de proprietate, precario tibi concesserim, teneberis hoc interdicto.

But even if I have granted to you by precarium that thing, the possession of which I could retain by the interdict uti possidetis, although it would come about that I would be held to answer concerning proprietorship, you will be bound by this interdict.

Dig. 43.26.8pr.

Digest 43.26.8 pr.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Quaesitum est, si titius me rogaverit, ut re sempronii utatur, deinde ego sempronium rogavero, ut concederet, et ille, dum mihi vult praestitum, concesserit. titius a me habet precario et ego cum eo agam interdicto de precario: sempronius autem non aget cum eo, quia haec verba " ab illo precario habes" ostendunt ei demum competere interdictum, a quo quis precario rogavit, non cuius res est, an tamen sempronius mecum, quasi a me rogatus, interdictum habeat? et magis est, ne habeat, quia non habeo precario, cum non mihi, sed alii impetravi.

It has been asked: if Titius has asked me to use the property of Sempronius, then I shall have asked Sempronius to allow it, and he, wishing to oblige me, has allowed it. Titius holds from me by precarium, and I will proceed against him by the interdict de precario: but Sempronius will not proceed against him, because these words, "you have by precarium from that man," show that the interdict belongs only to the one from whom someone asked by precarium, not to the one whose the thing is. Yet does Sempronius have the interdict against me, as though asked by me? And the sounder view is that he does not have it, because I do not have by precarium, since I obtained it not for myself but for another.

mandati tamen actionem potest adversus me habere, quia me mandante dedit tibi: aut si quis dixerit non mandatu meo, sed magis mihi credentem hoc fecisse, dicendum est in factum dandam actionem et adversus me.

nevertheless he can have an action of mandate against me, because upon my mandate he gave it to you: or if someone should say that it was not by my mandate, but rather that, trusting in me, he did this, it must be said that an in factum action is to be granted also against me.

Dig. 43.26.8.1

Digest 43.26.8.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Quod a titio precario quis rogavit, id etiam ab herede eius precario habere videtur: et ita et sabinus et celsus scribunt eoque iure utimur. ergo et a ceteris successoribus habere quis precario videtur. idem et labeo probat et adicit, etiamsi ignoret quis heredem, tamen videri eum ab herede precario habere.

What someone requested as a precarium from Titius, he is deemed to hold as a precarium also from his heir: and thus both Sabinus and Celsus write, and we use this rule. Therefore one is likewise deemed to hold it as a precarium from the other successors. The same is approved by Labeo, who adds that, even if one does not know who the heir is, nevertheless he is deemed to hold it as a precarium from the heir.

Dig. 43.26.8.2

Digest 43.26.8.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Illud tamen videamus quale sit, si a me precario rogaveris et ego eam rem alienavero, an precarium duret re ad alium translata. et magis est, ut, si ille non revocet, posse interdicere quasi ab illo precario habeas, non quasi a me: et si passus est aliquo tempore a se precario habere, recte interdicet, quasi a se precario habeas.

Let us, however, consider what the case is, if you have asked a precarium from me and I have alienated that thing, whether the precarium endures when the thing has been transferred to another. And the sounder view is that, if he does not revoke, you can interdict as if you possess it by precarium from him, not as if from me; and if he has permitted for some time that it be held by precarium from himself, he will interdict rightly, as if you possess it by precarium from himself.

Dig. 43.26.8.3

Digest 43.26.8.3

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Eum quoque precario teneri voluit praetor, qui dolo fecit, ut habere desineret. illud adnotatur, quod culpam non praestat is qui precario rogavit, sed solum dolum praestat, quamquam is, qui commodatum suscepit, non tantum dolum, sed etiam culpam praestat. nec immerito dolum solum praestat is qui precario rogavit, cum totum ex liberalitate descendat eius qui precario concessit et satis sit, si dolus tantum praestetur.

The praetor also wished him to be held liable in precarium, who by dolus contrived that he should cease to have it. It is noted that he who asked by way of precarium does not answer for culpa, but only for dolus, although he who undertook a commodatum is liable not only for dolus but also for culpa. And not without reason does he who asked by precarium answer only for dolus, since the whole descends from the liberality of him who granted by precarium, and it is sufficient if only dolus is made good.

culpam tamen dolo proximam contineri quis merito dixerit.

yet someone might with good reason say that culpa proximate to dolus is contained.

Dig. 43.26.8.4

Digest 43.26.8.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ex hoc interdicto restitui debet in pristinam causam: quod si non fuerit factum, condemnatio in tantum fiet, quanti interfuit actoris ei rem restitui ex eo tempore, ex quo interdictum editum est: ergo et fructus ex die interdicti editi praestabuntur.

Under this interdict he must be restored to the former condition: but if this shall not have been done, condemnation will be made to the extent of how much it was in the plaintiff’s interest that the thing be restored to him, from the time from which the interdict was issued: therefore the fruits also will be rendered from the day of the issuing of the interdict.

Dig. 43.26.8.5

Digest 43.26.8.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si servitute usus non fuit is qui precario rogavit ac per hoc amissa sit, videamus, an interdicto teneatur. ego arbitror non alias, quam si dolo fecerit.

If the one who requested by precarium did not make use of the servitude and through this it has been lost, let us see whether he is bound by the interdict. I am of the opinion: not otherwise than if he did it by fraud.

Dig. 43.26.8.6

Digest 43.26.8.6

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Et generaliter erit dicendum in restitutionem venire dolum et culpam latam dumtaxat, cetera non venire. plane post interdictum editum oportebit et dolum et culpam et omnem causam venire: nam ubi moram quis fecit precario, omnem causam debebit constituere.

And generally it must be said that, for restitution, only dolus and culpa lata come into play; the rest do not. Clearly, after the interdict has been issued, both dolus and culpa and every cause must come in: for where someone has made delay precario (on sufferance/by favor), he will have to establish every cause.

Dig. 43.26.8.7

Digest 43.26.8.7

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Interdictum hoc et post annum competere labeo scribit eoque iure utimur: cum enim nonnumquam in longum tempus precarium concedatur, absurdum est dicere interdictum locum non habere post annum.

Labeo writes that this interdict also is available after a year, and we use that law: since indeed sometimes a precarium is granted for a long time, it is absurd to say that the interdict has no place after a year.

Dig. 43.26.8.8

Digest 43.26.8.8

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdicto heres eius qui precario rogavit tenetur quemadmodum ipse, ut, sive habet sive dolo fecit quo minus haberet vel ad se perveniret, teneatur: ex dolo autem defuncti hactenus, quatenus ad eum pervenit.

By this interdict the heir of the one who requested by precarium is bound just as he himself is, so that, whether he has it or by fraud has brought it about that he should not have it or that it should not come to him, he is held; but for the fraud of the deceased only to this extent, insofar as it has come to him.

Dig. 43.26.9

Digest 43.26.9

Gaius 26 ad ed. provinc.

Gaius 26 on the provincial edict.

Precario possessio consisti potest vel inter praesentes vel inter absentes, veluti per epistulam vel per nuntium.

Precarium possession can be established either between those present or between those absent, for instance by letter or by messenger.

Dig. 43.26.10

Digest 43.26.10

Pomponius 5 ex plaut.

Pomponius 5 from Plautius.

Quamvis ancillam quis precario rogaverit, id actum videtur, ut etiam quod ex ancilla natum esset in eadem causa haberetur.

Although someone has requested a maidservant by way of a precarium, it is considered to have been transacted that even what was born from the maidservant be held in the same case.

Dig. 43.26.11

Digest 43.26.11

Celsus 7 Dig.

Celsus Digest 7.

Si debitor rem pigneratam precario rogaverit, soluta pecunia precarium solvitur: quippe id actum est, ut usque eo precarium teneret.

If the debtor has requested the pledged thing by way of a precarium, once the money is paid the precarium is dissolved: for indeed it was agreed that the precarium should last only up to that point.

Dig. 43.26.12pr.

Digest 43.26.12, beginning.

Celsus 25 Dig.

Celsus 25 Digest

Cum precario aliquid datur, si convenit, ut in kalendas iulias precario possideat, numquid exceptione adiuvandus est, ne ante ei possessio auferatur? sed nulla vis est huius conventionis, ut rem alienam domino invito possidere liceat.

When something is given on precarium, if it is agreed that he may possess on precarium until the Kalends of July, is he to be aided by an exception, so that possession not be taken from him beforehand? But this convention has no force such that it would be lawful to possess another’s property against the owner’s will.

Dig. 43.26.12.1

Digest 43.26.12.1

Celsus 25 Dig.

Celsus Book 25 of the Digest.

Precario rogatio et ad heredem eius qui concessit transit: ad heredem autem eius qui precario rogavit non transit, quippe ipsi dumtaxat, non etiam heredi concessa possessio est.

The precarial request also passes to the heir of him who conceded it; but it does not pass to the heir of him who requested on sufferance, since the possession was conceded to himself only, not also to his heir.

Dig. 43.26.13

Digest 43.26.13

Pomponius 33 ad q. muc.

Pomponius 33 on q. muc.

Si servus tuus tuo mandato precario rogaverit vel ratum habueris quod ille rogavit tuo nomine, teneberis, quasi precario habeas. sed si te ignorante suo nomine vel servus vel filius rogaverit, non videris tu precario habere, sed illi erit actio de peculio vel de in rem verso.

If your slave, by your mandate, has requested on a precarium, or if you have ratified what he requested in your name, you will be held, as though you yourself held it on a precarium. But if, you being unaware, either the slave or your son has requested in his own name, you are not deemed to hold on a precarium; rather, he will have an action de peculio or de in rem verso.

Dig. 43.26.14

Digest 43.26.14

Paulus 13 ad sab.

Paul 13 on Sabinus.

Interdictum de precariis merito introductum est, quia nulla eo nomine iuris civilis actio esset: magis enim ad donationes et beneficii causam, quam ad negotii contracti spectat precarii condicio.

The interdict concerning precaria was rightly introduced, because there was no civil-law action under that name: for the condition of a precarium pertains more to donations and to the cause of beneficium than to a contracted transaction.

Dig. 43.26.15pr.

Digest 43.26.15, beginning.

Pomponius 29 ad sab.

Pomponius 29 on sab.

Et habet summam aequitatem, ut eatenus quisque nostro utatur, quatenus ei tribuere velimus.

And it has the utmost equity, that each person may use what is ours only to that extent to which we are willing to grant it to him.

Dig. 43.26.15.1

Digest 43.26.15.1

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Hospites et qui gratuitam habitationem accipiunt non intelleguntur precario habitare.

Guests and those who receive free lodging are not understood to be residing by precarious leave.

Dig. 43.26.15.2

Digest 43.26.15.2

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Precario habere etiam ea quae in iure consistunt possumus, ut immissa vel protecta.

We can also hold by precarium those things which consist in law, such as immissa (“emissions”) or protecta (“overhangings”).

Dig. 43.26.15.3

Digest 43.26.15.3

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Cum quis de re sibi restituenda cautum habet, precarium interdictum ei non competit.

When someone has a security for the thing to be restored to himself, the interdict of precarium is not available to him.

Dig. 43.26.15.4

Digest 43.26.15.4

Pomponius 29 ad sab.

Pomponius 29 to Sabinus.

Eum, qui precario rogaverit, ut sibi possidere liceat, nancisci possessionem non est dubium: an is quoque possideat, qui rogatus sit, dubitatum est. placet autem penes utrumque esse eum hominem, qui precario datus esset, penes eum qui rogasset, quia possideat corpore, penes dominum, quia non discesserit animo possessione.

It is not doubtful that he who has asked by precarium that it be permitted for him to possess for himself acquires possession; whether the one who was asked also possesses has been a matter of doubt. However, it is accepted that the person who was given on precarium is under the control of both: under him who asked, because he possesses by corpus, and under the owner, because he has not departed from possession in animus.

Dig. 43.26.15.5

Digest 43.26.15.5

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Quo quis loco precario aut possideat aut coeperit possidere, nihil refert, quod ad hoc interdictum pertinet.

In whatever place anyone either possesses by precarium or has begun to possess, it makes no difference, so far as this interdict is concerned.

Dig. 43.26.16

Digest 43.26.16

Pomponius 32 ad sab.

Pomponius 32 on Sabinus.

Si adoptavero eum, qui precario rogaverit, ego quoque precario possidebo.

If I shall have adopted him who has requested by precarium, I too will possess precariously.

Dig. 43.26.17

Digest 43.26.17

Pomponius 23 ad sab.

Pomponius 23 on Sabinus.

Qui precario fundum possidet, is interdicto uti possidetis adversus omnes praeter eum, quem rogavit, uti potest.

He who possesses an estate by precarium can use the interdict uti possidetis against all, except the person whom he petitioned.

Dig. 43.26.18

Digest 43.26.18

Iulianus 13 Dig.

Julian 13 Digest.

Unusquisque potest rem suam, quamvis non possideat, precario dare ei qui possideat.

Each person can give his own property, although he does not possess it, by way of a precarium to him who does possess it.

Dig. 43.26.19pr.

Digest 43.26.19pr.

Iulianus 49 Dig.

Julianus 49 Digest.

Duo in solidum precario habere non magis possunt, quam duo in solidum vi possidere aut clam: nam neque iustae neque iniustae possessiones duae concurrere possunt.

Two cannot have on precarium in solidum any more than two can possess in solidum by force or by stealth: for two possessions, whether just or unjust, cannot concur.

Dig. 43.26.19.1

Digest 43.26.19.1

Iulianus 49 Dig.

Julian 49 Digest.

Qui servum meum precario rogat, videtur a me precario habere, si hoc ratum habuero, et ideo precario interdicto mihi tenebitur.

He who asks for my slave on a precarium is considered to have him from me on a precarium, if I have ratified this, and therefore he will be bound to me by the precarium interdict.

Dig. 43.26.19.2

Digest 43.26.19.2

Iulianus 49 Dig.

Julianus 49 Digest.

Cum quid precario rogatum est, non solum interdicto uti possumus, sed et incerti condictione, id est praescriptis verbis.

When something has been requested precariously (at sufferance), we can make use not only of the interdict, but also of the condictio incerti, that is, of an action with prescribed words.

Dig. 43.26.20

Digest 43.26.20

Ulpianus 2 resp.

Ulpian, Book 2 of Responses.

Ea, quae distracta sunt, ut precario penes emptorem essent, quoad pretium universum persolveretur: si per emptorem stetit, quo minus persolveretur, venditorem posse consequi.

Those things which have been sold, to be precariously in the buyer’s possession until the entire price be paid: if it was due to the buyer that it was not paid, the seller can recover them.

Dig. 43.26.21

Digest 43.26.21

Venonius 4 act.

Venonius Act 4.

Cum precario quis rogat, ut ipsi in eo fundo morari liceat, supervacuum est adici " ipsi suisque": nam per ipsum suis quoque permissum uti videtur.

When someone asks by precarium that it be permitted for himself to remain on that estate, it is superfluous to add " to himself and his": for by "himself" it is considered that permission is granted to his own as well to make use of it.

Dig. 43.26.22pr.

Digest 43.26.22 beginning.

Venonius 3 interd.

Venonius 3 on interdicts.

Si is, qui pro possessore possideret, precario dominum rogaverit, ut sibi retinere rem liceret, vel is, qui alienam rem emisset, dominum rogaverit: apparet eos precario possidere. nec existimandos mutare sibi causam possessionis, quibus a domino concedatur precario possidere: nam et si id quod possideas alium precario rogaveris, videri te desinere ex prima causa possidere et incipere ex precario habere: et contra si possessorem precario rogaverit qui rem avocare ei posset, teneri eum precario, quoniam aliquid ad eum per hanc precarii rogationem pervenit, id est possessio, quae aliena sit.

If one who was possessing as a possessor should ask the owner on precarium that it be permitted to him to retain the thing, or if one who had bought another’s thing should ask the owner: it is apparent that they possess by precarium. Nor are those to whom it is conceded by the owner to possess by precarium to be thought to change for themselves the cause of possession: for even if, for that which you possess, you have asked someone else on precarium, you are deemed to cease to possess from the first cause and to begin to have by precarium; and conversely, if the one who could withdraw the thing from him should ask the possessor on precarium, he is held by precarium, since something has come to him through this asking by precarium, that is, possession, which is another’s.

Dig. 43.26.22.1

Digest 43.26.22.1

Venonius 3 interd.

Venonius 3 interdicts.

Si pupillus sine tutoris auctoritate precario rogaverit, labeo ait habere eum precariam possessionem et hoc interdicto teneri. nam quo magis naturaliter possideretur, nullum locum esse tutoris auctoritati: recteque dici " quod precario habes", quia quod possideat ex ea causa possideat, ex qua rogaverit: nihilque novi per praetorem constituendum, quoniam, sive habeat rem, officio iudicis teneretur, sive non habeat, non teneatur.

If a ward, without the authority of his guardian, has requested on a precarium basis, Labeo says that he has a precarious possession and is held by this interdict. For, inasmuch as it is possessed more naturally, there is no place for the guardian’s authority; and it is rightly said “what you hold by precarium,” because he possesses on that ground on which he asked. And nothing new needs to be established by the praetor, since, whether he has the thing, he would be bound by the judge’s office, or, if he does not have it, he would not be bound.

Dig. 43.27.0. De arboribus caedendis.

Digest 43.27.0. On cutting down trees.

Dig. 43.27.1pr.

Digest 43.27.1pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ait praetor: " quae arbor ex aedibus tuis in aedes illius impendet, si per te stat, quo minus eam adimas, tunc, quo minus illi eam arborem adimere sibique habere liceat, vim fieri veto".

The praetor says: " any tree which from your premises overhangs into his premises, if it depends on you to remove it, then I forbid force to be used to prevent his removing that tree and having it for himself".

Dig. 43.27.1.1

Digest 43.27.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the edict

Hoc interdictum prohibitorium est.

This interdict is prohibitory.

Dig. 43.27.1.2

Digest 43.27.1.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si arbor aedibus alienis impendeat, utrum totam arborem iubeat praetor adimi an vero id solum, quod superexcurrit, quaeritur. et rutilius ait a stirpe excidendam idque plerisque videtur verius: et nisi adimet dominus arborem, labeo ait permitti ei, cui arbor officeret, ut si vellet succideret eam lignaque tolleret.

If a tree overhangs another’s buildings, the question is whether the praetor should order the whole tree to be removed, or rather only that part which projects over. And Rutilius says it ought to be cut down from the root, and this seems truer to most; and unless the owner removes the tree, Labeo says it is permitted to the one whom the tree obstructs, that, if he wishes, he may cut it down and carry off the wood.

Dig. 43.27.1.3

Digest 43.27.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Arboris appellatione etiam vites continentur.

Under the appellation "tree," vines also are included.

Dig. 43.27.1.4

Digest 43.27.1.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Non solum autem domino aedium, sed etiam ei qui usumfructum habet competit hoc interdictum, quia et ipsius interest arborem istam non impendere.

Not only the owner of the premises, but also the one who has the usufruct, is entitled to this interdict, because it is in his interest too that that tree not overhang.

Dig. 43.27.1.5

Digest 43.27.1.5

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Praeterea probandum est, si arbor communibus aedibus impendeat, singulos dominos habere hoc interdictum et quidem in solidum, quia et servitutium vindicationem singuli habeant.

Moreover, it must be established that, if a tree overhangs premises held in common, each owner has this interdict, and indeed in solidum, because each likewise has the vindication of servitudes.

Dig. 43.27.1.6

Digest 43.27.1.6

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Ait praetor: " si per te stat, quo minus eam adimas, quo minus illi eam arborem adimere liceat, vim fieri veto". prius itaque tibi datur adimendi facultas: si tu non facias, tunc vicino prohibet vim fieri adimere volenti.

The praetor says: "If it is within your power, and you fail to remove it, I forbid force to be used to prevent that man from removing that tree." Therefore the faculty of removing is first given to you: if you do not do it, then he forbids force to be done to the neighbor who wishes to remove it.

Dig. 43.27.1.7

Digest 43.27.1.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Deinde ait praetor: " quae arbor ex agro tuo in agrum illius impendet, si per te stat, quo minus pedes quindecim a terra eam altius coerceas, tunc, quo minus illi ita coercere lignaque sibi habere liceat, vim fieri veto".

Then the praetor says: "As to any tree which overhangs from your field into his field, if it lies with you to restrain it higher, fifteen feet from the ground, then I forbid force to be used to prevent him from thus restraining it and from having the wood for himself."

Dig. 43.27.1.8

Digest 43.27.1.8

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Quod ait praetor, et lex duodecim tabularum efficere voluit, ut quindecim pedes altius rami arboris circumcidantur: et hoc idcirco effectum est, ne umbra arboris vicino praedio noceret.

What the praetor says, and what the Law of the Twelve Tables wished to effect, is that the branches of a tree be cut back to a height of fifteen feet; and this was therefore brought about, lest the shade of the tree harm the neighboring estate.

Dig. 43.27.1.9

Digest 43.27.1.9

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Differentia duorum capitum interdicti haec est: si quidem arbor aedibus impendeat, succidi eam praecipitur, si vero agro impendeat, tantum usque ad quindecim pedes a terra coerceri.

The difference of the two chapters of the interdict is this: if indeed a tree overhangs buildings, it is ordered to be cut down; but if it overhangs a field, it is only to be restrained to 15 feet from the ground.

Dig. 43.27.2

Digest 43.27.2

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Si arbor ex vicini fundo vento inclinata in tuum fundum sit, ex lege duodecim tabularum de adimenda ea recte agere potes ius ei non esse ita arborem habere.

If a tree from the neighbor’s estate, inclined by the wind, leans over into your estate, under the law of the Twelve Tables you can properly bring an action for its removal, on the ground that he has no right to have a tree in that manner.

Dig. 43.28.0. De glande legenda.

Dig. 43.28.0. On gathering acorns.

Dig. 43.28.1pr.

Digest 43.28.1 preface.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ait praetor: " glandem, quae ex illius agro in tuum cadat, quo minus illi tertio quoque die legere auferre liceat, vim fieri veto".

The praetor says: "I forbid force to be used to prevent his being allowed, every third day, to gather and carry off the acorn that falls from his field into yours."

Dig. 43.28.1.1

Digest 43.28.1.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Glandis nomine omnes fructus continentur.

Under the name ‘mast’, all fruits are contained.

Dig. 43.29.0. De homine libero exhibendo.

Digest 43.29.0. On exhibiting a free person.

Dig. 43.29.1pr.

Digest 43.29.1 pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ait praetor: " quem liberum dolo malo retines, exhibeas".

The praetor says: " exhibit the free person whom you are detaining by malicious fraud"

Dig. 43.29.1.1

Digest 43.29.1.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Hoc interdictum proponitur tuendae libertatis causa, videlicet ne homines liberi retineantur a quoquam:

This interdict is proposed for the sake of safeguarding liberty, namely, that free persons not be retained by anyone:

Dig. 43.29.2

Digest 43.29.2

Venonius 4 interd.

Venonius 4 interdicts.

( nihil enim multum a specie servientium differunt, quibus facultas non datur recedendi):

( for they differ not much from the condition of those serving, for whom the faculty of withdrawing is not given):

Dig. 43.29.3pr.

Digest 43.29.3 pr.

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Quod et lex fabia prospexit. neque hoc interdictum aufert legis fabiae exsecutionem: nam et hoc interdicto agi poterit et nihilo minus accusatio legis fabiae institui: et versa vice qui egit fabia, poterit nihilo minus etiam hoc interdictum habere, praesertim cum alius interdictum, alius fabiae actionem habere possit.

Which also the Lex Fabia has provided for. Nor does this interdict take away the execution of the Lex Fabia: for both it will be possible to proceed by this interdict and nonetheless to institute an accusation under the Lex Fabia; and conversely, he who has proceeded under the Fabia will nonetheless also be able to have this interdict, especially since one person can have the interdict, another the Fabia action.

Dig. 43.29.3.1

Digest 43.29.3.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Haec verba " quem liberum" ad omnem liberum pertinent, sive pubes sit sive impubes, sive masculus sive femina, sive unus sive plures, sive sui iuris sit sive alieni: hoc enim tantum spectamus, an liber sit.

These words " whom free" pertain to every free person, whether pubescent or impubescent, whether male or female, whether one or more, whether sui juris or alieni juris: for this alone do we look to, whether he be free.

Dig. 43.29.3.2

Digest 43.29.3.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Is tamen, qui in potestate habet, hoc interdicto non tenebitur, quia dolo malo non videtur habere qui suo iure utitur.

Nevertheless, he who has it in his power will not be held by this interdict, since he who exercises his own right is not considered to be holding by malicious deceit.

Dig. 43.29.3.3

Digest 43.29.3.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis eum, quem ab hostibus redemit, retineat, in ea causa est, ut interdicto non teneatur: non enim dolo malo facit. plane si offertur pretium, interdictum locum habet. sed et si eum remisit pretio non accepto, dicendum est interdicto locum fore, si, posteaquam semel remisit, velit retinere.

If anyone retains the one whom he redeemed from the enemy, he is in such a case that he is not held by the interdict; for he does not act with malicious fraud. Plainly, if the price is offered, the interdict has place. But also, if he has released him with the price not accepted, it must be said that the interdict will have place, if, after he has once released him, he wishes to retain him.

Dig. 43.29.3.4

Digest 43.29.3.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si eum quis retineat filium, quem non habet in potestate, plerumque sine dolo malo facere videbitur: pietas enim genuina efficit sine dolo malo retineri, nisi si evidens dolus malus intercedat. proinde et si libertum suum vel alumnum vel noxae deditum adhuc impuberem, idem erit dicendum. et generaliter qui iustam causam habet hominis liberi apud se retinendi, non videtur dolo malo facere.

If someone should detain a son whom he does not have in his power, he will for the most part be seen to act without malicious deceit: for genuine piety brings it about that he is detained without malicious deceit, unless evident malicious deceit intervenes. Accordingly, if it be his freedman or alumnus (foster-child), or one noxally surrendered who is still under age, the same must be said. And, generally, he who has a just cause for retaining a free person with himself is not seen to act with malicious deceit.

Dig. 43.29.3.5

Digest 43.29.3.5

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Si quis volentem retineat, non videtur dolo malo retinere. sed quid si volentem quidem retineat, non tamen sine calliditate circumventum vel seductum vel sollicitatum, neque bona vel probabili ratione hoc facit? recte dicetur dolo malo retinere.

If anyone retains a willing person, he does not seem to retain by malicious deceit. But what if he does retain one who is willing, yet not without cunning—one who has been circumvented or seduced or solicited—and he does not do this on a good or probable reason? It will rightly be said that he retains by malicious deceit.

Dig. 43.29.3.6

Digest 43.29.3.6

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Is, qui nescit apud se esse hominem liberum, dolo malo caret; sed ubi certioratus retinet, dolo malo non caret.

He who does not know that a free man is in his possession is without malicious fraud; but when, once informed, he retains him, he is not without malicious fraud.

Dig. 43.29.3.7

Digest 43.29.3.7

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Plane si dubitat, utrum liber an servus sit, vel facit status controversiam, recedendum erit ab hoc interdicto et agenda causa libertatis. etenim recte placuit tunc demum hoc interdictum locum habere, quotiens quis pro certo liber est: ceterum si quaeratur de statu, non oportet praeiudicium fieri alienae cognitioni.

Clearly, if there is doubt whether he is free or a slave, or a controversy of status is being made, one must withdraw from this interdict and the cause of liberty must be prosecuted. For it has been rightly decided that only then does this interdict have place, whenever someone is certainly free; but if there is inquiry about status, no prejudgment ought to be made to another’s cognition.

Dig. 43.29.3.8

Digest 43.29.3.8

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Ait praetor " exhibeas". exhibere est in publicum producere et videndi tangendique hominis facultatem praebere: proprie autem exhibere est extra secretum habere.

The praetor says " you shall exhibit". To exhibit is to produce into the public and to provide the faculty of seeing and touching the person: properly, however, to exhibit is to have [him] outside of seclusion.

Dig. 43.29.3.9

Digest 43.29.3.9

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Hoc interdictum omnibus competit: nemo enim prohibendus est libertati favere.

This interdict appertains to all: for no one is to be prohibited from favoring liberty.

Dig. 43.29.3.10

Digest 43.29.3.10

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Plane ex causa suspectae personae removendae sunt, si forte talis persona sit, quam verisimile est colludere vel calumniari.

Plainly, they must be removed on the ground of a suspect person, if perchance there is such a person as it is likely will collude or calumniate.

Dig. 43.29.3.11

Digest 43.29.3.11

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sed et si mulier vel pupillus hoc interdictum desiderent pro cognato vel parente vel adfine suo solliciti, dandum esse eis interdictum dicendum est: nam et publico iudicio reos facere possunt, dum suas suorumque iniurias exsequuntur.

But also, if a woman or a ward, solicitous on behalf of her cognate or parent or affine, should desire this interdict, it must be said that the interdict is to be given to them: for they can also make persons defendants by a public action, while they pursue the injuries of themselves and of their own.

Dig. 43.29.3.12

Digest 43.29.3.12

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si tamen plures sunt, qui experiri volent, eligendus est a praetore, ad quem maxime res pertinet vel is qui idoneior est: et est optimum ex coniunctione, ex fide, ex dignitate actorem hoc interdicto eligendum.

If, however, there are several who wish to make trial, one is to be chosen by the praetor—either the one to whom the matter most pertains or the one who is more idoneous; and it is best that, on the basis of connection, of good faith, and of dignity, the plaintiff be chosen for this interdict.

Dig. 43.29.3.13

Digest 43.29.3.13

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si tamen, posteaquam hoc interdicto actum est, alius hoc interdicto agere desideret, palam erit postea alii non facile dandum, nisi si de perfidia prioris potuerit aliquid dici. itaque causa cognita amplius quam semel interdictum hoc erit movendum. nam nec in publicis iudiciis permittitur amplius agi quam semel actum est quam si praevaricationis fuerit damnatus prior accusator.

If, however, after action has been taken under this interdict, another should desire to proceed under this interdict, it will be clear that thereafter it is not readily to be granted to another, unless something can be alleged about the bad faith (perfidy) of the former. Therefore, the case having been examined, this interdict is to be moved no more than once. For neither in public prosecutions is it permitted that the matter be proceeded with more than once after it has once been acted upon, except if the prior accuser has been condemned of prevarication (collusion).

si tamen reus condemnatus malit litis aestimationem sufferre quam hominem exhibere, non est iniquum saepius in eum interdicto experiri vel eidem sine exceptione vel alii.

if, however, the defendant, having been condemned, prefers to suffer the assessment of the suit rather than to produce the man, it is not inequitable to try against him more often by the interdict, either by the same person without exception or by another.

Dig. 43.29.3.14

Digest 43.29.3.14

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum et in absentem esse rogandum labeo scribit, sed si non defendatur, in bona eius eundum ait.

labeo writes that this interdict is also to be requested against an absent person; but if it is not defended, he says one must proceed against his goods.

Dig. 43.29.3.15

Digest 43.29.3.15

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Hoc interdictum perpetuum est.

This interdict is perpetual.

Dig. 43.29.4pr.

Digest 43.29.4, preface.

Venonius 4 interd.

Venonius 4 interdicts.

Si quis liberum hominem ignorantem suum statum retineat, tamen si dolo malo retinet, cogitur exhibere.

If someone retains a free man who is ignorant of his own status, nevertheless, if he retains him by malicious fraud, he is compelled to exhibit him.

Dig. 43.29.4.1

Digest 43.29.4.1

Venonius 4 interd.

Venonius 4 interdicts.

Trebatius quoque ait non teneri eum, qui liberum hominem pro servo bona fide emerit et retineat.

Trebatius also says that he is not held liable, who has in good faith bought a free man as a slave and retains him.

Dig. 43.29.4.2

Digest 43.29.4.2

Venonius 4 interd.

Venonius 4 On Interdicts.

Nullo tempore dolo malo retineri homo liber debet, adeo ut quidam putaverint nec modicum tempus ad eum exhibendum dandum, quoniam praeteriti facti poena praestanda est.

At no time ought a free man to be detained by malicious fraud, to such an extent that some have thought that not even a small span of time should be granted for producing him, since the penalty for the past deed must be rendered.

Dig. 43.29.4.3

Digest 43.29.4.3

Venonius 4 interd.

Venonius 4 Interdicts.

Creditori non competit interdictum, ut debitor exhiberetur: nec enim debitorem latitantem exhibere quisquam cogitur, sed in bona eius ex edicto praetoris itur.

An interdict does not belong to the creditor, that the debtor be produced: for no one is compelled to produce a debtor in hiding, but one proceeds against his goods under the praetor’s edict.

Dig. 43.30.0. De liberis exhibendis, item ducendis.

Dig. 43.30.0. On exhibiting children, likewise on leading them away.

Dig. 43.30.1pr.

Digest 43.30.1pr.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Ait praetor: " qui quaeve in potestate lucii titii est, si is eave apud te est dolove malo tuo factum est, quo minus apud te esset, ita eum eamve exhibeas".

The praetor says: "whoever, male or female, is in the power of Lucius Titius, if he or she is with you, or it has been brought about by your malicious fraud that he or she is not with you, thus produce him or her."

Dig. 43.30.1.1

Digest 43.30.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum proponitur adversus eum, quem quis exhibere desiderat eum, quem in potestate sua esse dicit. et ex verbis apparet ei, cuius in potestate est, hoc interdictum competere.

This interdict is propounded against the one whom a person desires to have produce him whom he says is in his power; and from the words it appears that this interdict lies for him in whose power he is.

Dig. 43.30.1.2

Digest 43.30.1.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

In hoc interdicto praetor non admittit causam, cur apud eum sit is, qui exhiberi debet, quemadmodum in superiore interdicto, sed omnimodo restituendum putavit, si in potestate est.

In this interdict the praetor does not admit a cause why the one who ought to be exhibited is with him, as in the prior interdict; but he thought that in every way he must be restored, if he is in his power.

Dig. 43.30.1.3

Digest 43.30.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si vero mater sit, quae retinet, apud quam interdum magis quam apud patrem morari filium debere ( ex iustissima scilicet causa) et divus pius decrevit et a marco et a severo rescriptum est, aeque subveniendum ei erit per exceptionem.

But if it is the mother who retains him, with whom at times the son ought to stay rather than with the father ( clearly for a most just cause), both the deified Pius decreed and it was rescripted by Marcus and by Severus; she likewise must be aided by means of an exception.

Dig. 43.30.1.4

Digest 43.30.1.4

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Pari modo si iudicatum fuerit non esse eum in potestate, etsi per iniuriam iudicatum sit, agenti hoc interdicto obicienda erit exceptio rei iudicatae, ne de hoc quaeratur, an sit in potestate, sed an sit iudicatum.

In a like manner, if it has been adjudged that he is not in potestate, even if it has been adjudged unjustly, to the one proceeding under this interdict the exception of res judicata must be opposed, so that the inquiry is not whether he is in potestate, but whether there has been a judgment.

Dig. 43.30.1.5

Digest 43.30.1.5

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Si quis filiam suam, quae mihi nupta sit, velit abducere vel exhiberi sibi desideret, an adversus interdictum exceptio danda sit, si forte pater concordans matrimonium, forte et liberis subnixum, velit dissolvere? et certo iure utimur, ne bene concordantia matrimonia iure patriae potestatis turbentur. quod tamen sic erit adhibendum, ut patri persuadeatur, ne acerbe patriam potestatem exerceat.

If someone should wish to carry off his daughter, who is married to me, or should desire that she be produced before him, is an exception to be granted against the interdict, if perchance the father wishes to dissolve a harmonious marriage, perhaps also supported by children? And we employ a settled rule of law, lest well-concordant marriages be disturbed by the right of paternal power. Which, however, must be applied thus, that the father be persuaded not to exercise paternal power harshly.

Dig. 43.30.2

Digest 43.30.2

Hermogenianus 6 iuris epit.

Hermogenianus 6 of the Epitome of Law.

Immo magis de uxore exhibenda ac ducenda pater, etiam qui filiam in potestate habet, a marito recte convenitur.

Nay rather, for the wife to be produced and led away, the father—even one who has his daughter in his power—is rightly sued by the husband.

Dig. 43.30.3pr.

Digest 43.30.3, beginning.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Deinde ait praetor: " si lucius titius in potestate lucii titii est, quo minus eum lucio titio ducere liceat, vim fieri veto".

Then the praetor says: " if Lucius Titius is in the power of Lucius Titius, I forbid force to be done, by which it would be less permitted to lead him to Lucius Titius".

Dig. 43.30.3.1

Digest 43.30.3.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Superiora interdicta exhibitoria sunt, hoc est pertinent ad exhibitionem liberorum ceterorumque, de quibus supra diximus: hoc autem interdictum pertinet ad ductionem, ut ducere quis possit eos, in quos habet ius ductionis. itaque prius interdictum, quod est de liberis exhibendis, praeparatorium est huius interdicti: quo magis enim quis duci possit, exhibendus fuit.

The foregoing interdicts are exhibitory, that is, they pertain to the exhibition of children and of others, about whom we spoke above: but this interdict pertains to duction, so that one may lead away those over whom he has the right of duction. And so the prior interdict, which is about children to be exhibited, is preparatory to this interdict: for, the more that someone might be able to be led away, he had to be exhibited.

Dig. 43.30.3.2

Digest 43.30.3.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Ex iisdem causis hoc interdictum tribuendum est, ex quibus causis de exhibendis liberis competere diximus: itaque quaecumque ibi diximus, eadem hic quoque dicta accipienda sunt.

On the same grounds this interdict is to be granted as those on which we said the proceeding concerning the production of children is available: accordingly, whatever we said there is likewise to be taken as said here.

Dig. 43.30.3.3

Digest 43.30.3.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc autem interdictum competit non adversus ipsum filium, quem quis ducere vult, sed utique esse debet is qui eum interdicto defendat: ceterum cessat interdictum, et succedere poterit notio praetoris, ut apud eum disceptetur, utrum quis in potestate sit an non sit.

But this interdict is available not against the son himself whom someone wishes to lead away, but there must, of course, be someone to defend him by the interdict; otherwise the interdict ceases, and the praetor’s cognition can succeed, so that it may be disputed before him whether someone is under power or is not.

Dig. 43.30.3.4

Digest 43.30.3.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Iulianus ait, quotiens id interdictum movetur de filio ducendo vel cognitio et is de quo agitur impubes est, alias differri oportere rem in tempus pubertatis, alias repraesentari: idque ex persona eorum, inter quos controversia erit, et ex genere causae constituendum est. nam si is, qui se patrem dicit, auctoritatis prudentiae fidei exploratae esset, usque in diem litis impuberem apud se habebit: is vero, qui controversiam facit, humilis calumniator notae nequitiae, repraesentanda cognitio est. item si is, qui impuberem negat in aliena potestate esse, vir omnibus modis probatus, tutor vel testamento vel a praetore datus pupillum, quem in diem litis apud se habuit, tuetur, is vero, qui patrem se dicit, suspectus est quasi calumniator, differri litem non oportebit.

Julian says that whenever that interdict is set in motion about leading off a son, or a judicial inquiry is held, and the one about whom the matter is conducted is underage, sometimes the matter ought to be deferred to the time of puberty, sometimes to be brought on at once; and this must be determined from the character of the persons between whom the controversy will be, and from the kind of cause. For if the one who says he is the father is of tested authority, prudence, and good faith, he will keep the underage person with himself until the day of trial; but if the one who raises the controversy is a man of low standing, a calumniator of notorious wickedness, the inquiry must be held forthwith. Likewise, if the one who denies that the underage person is in another’s power is a man approved in every way, a tutor appointed either by testament or by the praetor, who protects the pupil (ward) whom he has had with himself until the day of trial, but the one who says he is the father is suspect as a calumniator, the suit ought not to be deferred.

si vero utraque persona suspecta est aut tamquam infirma aut tamquam turpis, non erit alienum, inquit, disponi, apud quem interim puer educeretur et controversiam in tempus pubertatis differri, ne per collusionem vel imperitiam alterutrius contendentium aut alienae potestati pater familias addicatur aut filius alienus patris familiae loco constituatur.

but if both persons are suspect, either as infirm or as base, “it will not be out of place,” he says, to arrange with whom in the meantime the boy should be reared, and that the controversy be deferred to the time of puberty, lest through collusion or the inexperience of either of the contestants either the paterfamilias be adjudged to another’s power, or an alien son be constituted in the place of a paterfamilias.

Dig. 43.30.3.5

Digest 43.30.3.5

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Etiamsi maxime autem probet filium pater in sua potestate esse, tamen causa cognita mater in retinendo eo potior erit, idque decretis divi pii quibusdam continetur: optinuit enim mater ob nequitiam patris, ut sine deminutione patriae potestatis apud eam filius moretur.

Even if the father most emphatically proves that the son is under his own power, nevertheless, once the case has been examined, the mother will be preferable in retaining him, and this is contained in certain decrees of the deified Pius: for the mother obtained, on account of the father’s depravity, that the son might remain with her without any diminution of paternal power.

Dig. 43.30.3.6

Digest 43.30.3.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

In hoc interdicto, donec res iudicetur, feminam, praetextatum eumque, qui proxime praetextati aetatem accedet, interim apud matrem familias deponi praetor iubet. proxime aetatem praetextati accedere eum dicimus, qui puberem aetatem nunc ingressus est. cum audis matrem familias, accipe notae auctoritatis feminam.

In this interdict, until the matter is adjudicated, the praetor orders that a woman, a praetextatus (a boy wearing the praetexta), and also him who most nearly approaches the age of the praetextatus, be in the meantime placed with a materfamilias. We say that he most nearly approaches the age of the praetextatus who has now entered the age of puberty. When you hear “materfamilias,” take it as a woman of noted authority.

Dig. 43.30.4

Digest 43.30.4

Africanus 4 quaest.

Africanus Book 4 of the Questions.

Si eum, qui se patrem familias dicat, ego in mea potestate esse et iussu meo adisse hereditatem dicam, tam de hereditate agi oportere quam ad interdictum de filio ducendo iri debere ait.

If, as to him who claims himself to be a paterfamilias, I assert that he is under my power and that, by my order, he has entered upon an inheritance, he says that both an action concerning the inheritance ought to be brought and that there ought to be resort to the interdict de filio ducendo.

Dig. 43.30.5

Digest 43.30.5

Venonius 4 interd.

Venonius 4 interdicts.

Si filius sua sponte apud aliquem est, inutile hoc interdictum erit, quia filius magis apud se quam apud eum est, in quem interdicetur, cum liberam facultatem abeundi vel remanendi haberet: nisi si inter duos, qui se patres dicerent, controversia esset et alter ab altero exhiberi eum desideraret.

If a son is with someone of his own accord, this interdict will be useless, because the son is more with himself than with him against whom the interdict would be issued, since he would have the free faculty of departing or remaining: unless there were a controversy between two who claimed themselves to be fathers, and one desired that he be exhibited by the other.

Dig. 43.31.0. Utrubi.

Digest 43.31.0. Which of the two.

Dig. 43.31.1pr.

Digest 43.31.1 preface.

Ulpianus 72 ad ed.

Ulpian 72 on the edict.

Praetor ait: " utrubi hic homo, quo de agitur, maiore parte huiusce anni fuit, quo minus is eum ducat, vim fieri veto".

The praetor says: "whichever of the two places this man, about whom the matter is in question, was in for the greater part of this year, I forbid force to be used to prevent that person from leading him away".

Dig. 43.31.1.1

Digest 43.31.1.1

Ulpianus 72 ad ed.

Ulpian 72 on the edict.

Hoc interdictum de possessione rerum mobilium locum habet: sed optinuit vim eius exaequatam fuisse uti possidetis interdicto, quod de rebus soli competit, ut is et in hoc interdicto vincat, qui nec vi nec clam nec precario, dum super hoc ab adversario inquietatur, possessionem habet.

This interdict has application concerning the possession of movable things; but it has been established that its force has been equalized to the uti possidetis interdict, which pertains to things of the soil, so that he also in this interdict prevails who, while he is being disturbed in this matter by his adversary, holds possession neither by force nor by stealth nor by precarium (by permission revocable at will).

Dig. 43.32.0. De migrando.

Dig. 43.32.0. On moving out.

Dig. 43.32.1pr.

Digest 43.32.1, preface.

Ulpianus 73 ad ed.

Ulpian, 73 on the Edict.

Praetor ait: " si is homo, quo de agitur, non est ex his rebus, de quibus inter te et actorem convenit, ut, quae in eam habitationem qua de agitur introducta importata ibi nata factave essent, ea pignori tibi pro mercede eius habitationis essent, sive ex his rebus est et ea merces tibi soluta eove nomine satisfactum est aut per te stat, quo minus solvatur: ita, quo minus ei, qui eum pignoris nomine induxit, inde abducere liceat, vim fieri veto".

The praetor says: "If the person who is at issue is not among those things concerning which it was agreed between you and the plaintiff that whatever had been introduced into that dwelling which is at issue, brought in, born there, or made there, should be in pledge to you for the rent of that dwelling; or if he is among those things, and that rent has been paid to you or satisfaction has been rendered under that heading, or it is by you that it stands that it is not paid: then, so that it may not be lawful the less for him who brought him in under the title of pledge to lead him away from there, I forbid force to be employed."

Dig. 43.32.1.1

Digest 43.32.1.1

Ulpianus 73 ad ed.

Ulpian 73 on the edict.

Hoc interdictum proponitur inquilino, qui soluta pensione vult migrare: nam colono non competit.

This interdict is proposed for the tenant who, the rent having been paid, wishes to move; for it does not pertain to the colonus.

Dig. 43.32.1.2

Digest 43.32.1.2

Ulpianus 73 ad ed.

Ulpian 73 on the Edict.

Cui rei etiam extra ordinem subveniri potest: ergo infrequens est hoc interdictum.

Relief can also be afforded to this matter even by extraordinary procedure: therefore this interdict is infrequent.

Dig. 43.32.1.3

Digest 43.32.1.3

Ulpianus 73 ad ed.

Ulpian 73 on the Edict.

Si tamen gratuitam quis habitationem habeat, hoc interdictum utile ei competet.

If, however, someone has a gratuitous habitation, this interdict will be useful to him.

Dig. 43.32.1.4

Digest 43.32.1.4

Ulpianus 73 ad ed.

Ulpian 73 on the Edict.

Si pensio nondum debeatur, ait labeo interdictum hoc cessare, nisi paratus sit eam pensionem solvere. proinde si semenstrem solvit, sexmenstris debeatur, inutiliter interdicet, nisi solverit et sequentis sexmenstris, ita tamen, si conventio specialis facta est in conductione domus, ut non liceat ante finitum annum vel certum tempus migrare. idem est et si quis in plures annos conduxerit et nondum praeterierit tempus.

If the installment is not yet due, Labeo says this interdict is inoperative, unless he is ready to pay that installment. Accordingly, if he has paid a half-yearly installment, but a six-monthly is owed, he will interdict to no effect unless he also pays the following six-monthly, provided, however, that a special agreement has been made in the leasing of the house that it is not permitted to move before the year is completed or a fixed term. The same is so also if someone has leased for several years and the time has not yet passed.

nam cum in universam conductionem pignora sunt obligata, consequens erit dicere interdicto locum non fore, nisi liberata fuerint.

for since pledges are bound for the entire lease, it will follow to say that the interdict will have no place unless they have been released.

Dig. 43.32.1.5

Digest 43.32.1.5

Ulpianus 73 ad ed.

Ulpian, 73 On the Edict.

Illud notandum est praetorem hic non exegisse, ut in bonis fuerit conductoris, nec ut esset pignori res illata, sed si pignoris nomine inducta sit. proinde et si aliena sint et si talia, quae pignoris nomine teneri non potuerint, pignoris tamen nomine introducta sint, interdicto hoc locus erit: quod si nec pignoris nomine inducta sint, nec retineri poterunt a locatore.

It is to be noted that the praetor here did not require that it be among the goods of the lessee (conductor), nor that the thing be brought in as a pledge, but only that it have been introduced under the name of pledge. Accordingly, even if they are another’s and even if such as could not be held under the name of pledge, nevertheless if they have been introduced under the name of pledge, there will be room for this interdict; but if they have not been introduced under the name of pledge, they cannot be retained by the lessor (locator).

Dig. 43.32.1.6

Digest 43.32.1.6

Ulpianus 73 ad ed.

Ulpian 73 on the Edict.

Hoc interdictum perpetuum est et in successores et successoribus dabitur.

This interdict is perpetual and will be granted both against successors and to successors.

Dig. 43.32.2

Digest 43.32.2

Gaius 26 ad ed. provinc.

Gaius 26 on the provincial edict.

Hoc interdictum inquilino etiam de his rebus, quae non ipsius sint, sed forte commodatae ei vel locatae vel apud eum depositae sunt, utile esse non dubitatur.

There is no doubt that this interdict is useful to the tenant even concerning those things which are not his own, but perhaps have been loaned for use to him, or leased, or deposited with him.

Dig. 43.33.0. De salviano interdicto.

Digest 43.33.0. On the Salvian interdict.

Dig. 43.33.1pr.

Digest 43.33.1, preface.

Iulianus 49 Dig.

Julianus 49 Digest.

Si colonus ancillam in fundo pignoris nomine duxerit et eam vendiderit, quod apud emptorem ex ea natum est, eius adprehendendi gratia utile interdictum reddi oportet.

If a tenant-farmer has brought a handmaid onto the estate by way of pledge and has sold her, as to what has been born from her while in the purchaser’s possession, a useful interdict ought to be granted for the purpose of apprehending it.

Dig. 43.33.1.1

Digest 43.33.1.1

Iulianus 49 Dig.

Julian 49 Dig.

Si colonus res in fundum duorum pignoris nomine intulerit, ita ut utrique in solidum obligatae essent, singuli adversus extraneum salviano interdicto recte experientur: inter ipsos vero si reddatur hoc interdictum, possidentis condicio melior erit. at si id actum fuerit, ut pro partibus res obligaretur, utilis actio et adversus extraneos et inter ipsos dari debebit, per quam dimidias partes possessionis singuli adprehendent.

If a tenant-farmer has brought goods onto the estate of two [co-owners] in the name of a pledge, in such a way that they are obligated to each for the whole (in solidum), each individual will rightly proceed against an outsider by the Salvian interdict; but as between themselves, if this interdict is applied, the condition of the possessor will be the better. But if it has been agreed that the goods be obligated according to shares (pro partibus), a useful action (utilis actio) ought to be granted both against outsiders and between themselves, by which each will take hold of half shares of the possession.

Dig. 43.33.1.2

Digest 43.33.1.2

Iulianus 49 Dig.

Julian 49 Digest.

Idem servari conveniet et si colonus rem, quam cum alio communem habebat, pignoris nomine induxerit, scilicet ut pro parte dimidia pignoris persecutio detur.

It will be fitting that the same be observed even if the colonus has subjected to pledge a thing which he held in common with another, namely that pursuit of the pledge be afforded for the half share.

Dig. 43.33.2

Digest 43.33.2

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

In salviano interdicto, si in fundum communem duorum pignera sint ab aliquo invecta, possessor vincet et erit eis descendendum ad servianum iudicium.

In the Salvian interdict, if pledges have been brought by someone onto an estate common to two, the possessor will prevail, and it will be for them to resort to the Servian action.

Dig. 43.1.0. De interdictis sive extraordinariis actionibus, quae pro his competunt.

Dig. 43.1.0. On interdicts or extraordinary actions, which are competent in lieu of them.

Dig. 43.1.1pr.

Digest 43.1.1, beginning.

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Videamus, de quibus rebus interdicta competunt. et sciendum est interdicta aut de divinis rebus aut de humanis competere. divinis, ut de locis sacris vel de locis religiosis.

Let us see, concerning which matters interdicts are competent. and it must be known that interdicts are competent either concerning divine things or concerning human. divine, as about sacred places or about religious places.

concerning the things of men, interdicts are rendered either about those which are someone’s, or about those which are no one’s. those which are no one’s are these: free persons, concerning the producing and leading of whom interdicts are competent. those which are someone’s are either public or of individuals.

public: about public places, about roads and about public rivers. but those which are of individuals, either pertain to a universality, as the interdict quorum bonorum, or to single things, as is the interdict uti possidetis, about right-of-way and cattle-drive.

Dig. 43.1.1.1

Digest 43.1.1.1

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Interdictorum autem tres species sunt, exhibitoria prohibitoria restitutoria: sunt tamen quaedam interdicta et mixta, quae et prohibitoria sunt et exhibitoria.

Of interdicts, however, there are three species: exhibitory, prohibitory, restitutory; yet there are certain interdicts also mixed, which are both prohibitory and exhibitory.

Dig. 43.1.1.2

Digest 43.1.1.2

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Interdictorum quaedam in praesens, quaedam in praeteritum referuntur: in praesens, ut uti possidetis: in praeteritum, ut de itinere actuque, de aqua aestiva.

Of interdicts, some are referred to the present, some to the past: to the present, as uti possidetis: to the past, as concerning the way and the drive, and concerning summer water.

Dig. 43.1.1.3

Digest 43.1.1.3

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Interdicta omnia licet in rem videantur concepta, vi tamen ipsa personalia sunt.

All interdicts, although they may seem conceived in rem, nevertheless by their very force are personal.

Dig. 43.1.1.4

Digest 43.1.1.4

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Interdictorum quaedam annalia sunt, quaedam perpetua.

Of interdicts, some are annual, some are perpetual.

Dig. 43.1.2pr.

Digest 43.1.2, preface.

Paulus 63 ad ed.

Paulus 63 on the Edict.

Some interdicts are double, some simple. They are called double, as uti possidetis; simple are those, for example exhibitory and restitutory, likewise prohibitory concerning trees to be cut, and concerning right of way and of driving.

Dig. 43.1.2.1

Digest 43.1.2.1

Paulus 63 ad ed.

Paulus 63 on the Edict.

Interdicts, moreover, are available either for the sake of persons or of divine law or concerning religion, such as "that nothing be done in a sacred place" or "that what has been done be restored," and concerning conveying a dead person for burial or building a sepulcher. For the sake of persons they are available either as pertaining to public utility, or for the purpose of protecting one’s own right, or of protecting an office, or of the family estate. For the sake of public utility the interdict is available "that it be permitted to use a public way" and "concerning a public river" and "that nothing be done on a public way": for the sake of defending one’s own right, "for exhibiting children," likewise "for exhibiting a freedman": for the sake of office, "for exhibiting a free man": the remaining interdicts are given for the sake of family property.

Dig. 43.1.2.2

Digest 43.1.2.2

Paulus 63 ad ed.

Paulus 63 On the Edict.

Certain interdicts comprise prosecution in rem, for example about a private way and cattle‑drive; for this interdict contains a proprietary cause. But those interdicts too which are put forward concerning sacred places and religious places, as it were, contain a proprietary cause, likewise those for exhibiting children, which we have said are available for the sake of defending right; so that it is not surprising if the interdicts which pertain to the family estate have the cause of ownership, not of possession.

Dig. 43.1.2.3

Digest 43.1.2.3

Paulus 63 ad ed.

Paulus Book 63 on the Edict.

these interdicts, moreover, which pertain to the household property/estate, are either for acquiring possession or for recovering it or for retaining it. interdicts for acquiring possession are those which are available to persons who have not previously gotten possession. now the interdicts for acquiring possession are “of whose goods”; the salvian interdict too, which is about pledges, is of this kind; and “as to the way which the seller used, I forbid force to be used to the extent that the buyer be hindered from using it.” interdicts for the sake of recovering possession are set forth under the rubric “whence by force”: for certain interdicts are under this title.

retinendae possessionis sunt interdicta uti possidetis. sunt interdicta ut diximus, duplicia tam reciperandae quam apiscendae possessionis.

For retaining possession there are the interdicts uti possidetis. There are, as we said, double interdicts, both for recovering and for acquiring possession.

Dig. 43.1.3

Digest 43.1.3

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

In interdictis exinde ratio habetur fructuum, ex quo edita sunt, non retro.

In interdicts, a reckoning is had of the fruits from then on, from the time they were issued, not retroactively.

Dig. 43.1.4

Digest 43.1.4

Paulus 67 ad ed.

Paulus 67 on the edict.

Ex quibus causis annua interdicta sunt, ex his de eo, quod ad eum cum quo agitur pervenit, post annum iudicium dandum sabinus respondit.

From the causes for which interdicts are annual, Sabinus replied that, among these, as to that which has come to the defendant, an action is to be granted after a year.

Dig. 43.1.5

Digest 43.1.5

Paulus 13 ad sab.

Paul 13 on Sabinus.

Noxal interdicts are those which are granted on account of the delict of those whom we have in our power, for example when they have cast someone out by force or have made a work by force or by stealth. But it is contained in the judge’s duty that he acquit the master who restores the situation at his own expense; that he order the one who provides leave for removing the work to surrender the wrongdoer noxally and acquit him; if he does not surrender, let him condemn him in as much as was expended in removing the work; if he neither provides leave nor removes it himself, though he can, let him condemn him to the extent that the judge shall assess, as if he himself had done it.

Dig. 43.2.0. Quorum bonorum.

Dig. 43.2.0. Of whose goods.

Dig. 43.2.1pr.

Digest 43.2.1pr.

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

The praetor says: "For those goods, by my edict, possession has been given to that man: whatever of these goods you possess, or would be possessing, as heir or as possessor, if nothing had been acquired by usucapion—which indeed you effected by malicious fraud so that you might cease to possess—restore that to him."

Dig. 43.2.1.1

Digest 43.2.1.1

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Hoc interdictum restitutorium est et ad universitatem bonorum, non ad singulas res pertinet et appellatur " quorum bonorum" et est apiscendae possessionis universorum bonorum.

This interdict is restitutory and pertains to the universality of the goods, not to individual things; and it is called " quorum bonorum" and is for the acquiring of possession of the entire estate.

Dig. 43.2.2

Digest 43.2.2

Paulus 20 ad ed.

Paulus 20 on the Edict.

Interdicto quorum bonorum debitores hereditarii non tenentur, sed tantum corporum possessores.

By the interdict Quorum Bonorum, the debtors of the inheritance are not held, but only the possessors of the corporeals.

Dig. 43.3.0. Quod legatorum.

Digest 43.3.0. The "Quod legatorum."

Dig. 43.3.1pr.

Digest 43.3.1pr.

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Dig. 43.3.1.1

Digest 43.3.1.1

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

Hoc interdictum volgo " quod legatorum" appellatur.

This interdict is commonly called " quod legatorum".

Dig. 43.3.1.2

Digest 43.3.1.2

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Now there is also that same interdict for acquiring possession, and it includes this case: that what someone has occupied in the name of legacies not by the will of the heir, he must restore to the heir. For it seemed most equitable to the praetor that each person should not declare the right for himself by legacies he has occupied, but should seek it from the heir. He therefore brings back to the heirs through this interdict those things which are possessed in the name of legacies, so that in like manner the legatees may be able to proceed against him.

Dig. 43.3.1.3

Digest 43.3.1.3

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Hoc interdictum et heredem heredis bonorumque possessoris habere propter utilitatem huius dicendum est, nec non ceteros quoque successores.

It must be said that this interdict is also available to the heir of an heir and of a bonorum possessor, on account of its utility, and likewise to other successors as well.

Dig. 43.3.1.4

Digest 43.3.1.4

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Because, however, it is sometimes uncertain whether someone possesses as legatee or as heir or as possessor, Arrianus most excellently writes that a petition of inheritance should be instituted and that this interdict should be rendered, so that, whether someone possesses as heir or as possessor or as legatee, he is held by this interdict: just as we are accustomed to do whenever it is uncertain which action rather lies; for we dictate two, having protested that by the one we wish to obtain what pertains to us.

Dig. 43.3.1.5

Digest 43.3.1.5

Ulpianus 67 ad ed.

Ulpian Book 67 on the Edict.

Si quis ex mortis causa donatione possideat, utique cessabit interdictum, quia portio legis falcidiae apud heredem ipso iure remanet, etsi corporaliter res in solidum translatae sunt:

If anyone possesses by a donation mortis causa, the interdict will in any case cease, because the share under the Lex Falcidia remains with the heir ipso iure, even if the things have been transferred corporeally in solidum:

Dig. 43.3.1.6

Digest 43.3.1.6

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

But he who, on the ground of praeception (preemption), is of course bound by this interdict, is bound only for that share which he has by the right of the legacy, not also for that which he has as heir. And the same must be said even if by another kind of legacy something has been bequeathed to one of the heirs: for here too it must be said that, for the share in which he is heir, the interdict ceases.

Dig. 43.3.1.7

Digest 43.3.1.7

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Quod ait praetor " aut dolo desiit possidere", sic accipere debemus " desiit facultatem habere restituendi".

What the praetor says, " or by fraud he ceased to possess", we ought to understand thus: " he ceased to have the faculty of making restitution".

Dig. 43.3.1.8

Digest 43.3.1.8

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Whence the question has been raised, if a usufruct or a use has been bequeathed to someone and he has taken possession of it, whether by this interdict he is to be compelled to restore. What moves the discussion is that neither usufruct nor use is possessed, but rather is held; nevertheless it can be defended that the interdict lies. The same must be said also in the case of a servitude bequeathed.

Dig. 43.3.1.9

Digest 43.3.1.9

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

It has been asked whether, if someone has been sent into possession for the sake of preserving the legacies, he is held by this interdict to restitution. What moves us first is that he who is sent into possession for the sake of legacies does not possess but rather guards, and next that he has the praetor as the author of this action. Nevertheless, it will be safer to say that this interdict is applicable, especially if surety has already been given in the name of the legacies and he does not withdraw: for then he is even seen to possess.

Dig. 43.3.1.10

Digest 43.3.1.10

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Legatorum nomine non tantum ipsum possidere dicemus cui legatum est, verum heredem quoque eius ceterosque successores.

Under the designation of legacies we will say that not only he himself may possess to whom the legacy has been left, but his heir also and his other successors.

Dig. 43.3.1.11

Digest 43.3.1.11

Ulpianus 67 ad ed.

Ulpian 67 on the edict.

What the praetor says, " voluntate eius, ad quem ea res pertinet," is to be interpreted thus: if, after the inheritance has been entered upon or the bonorum possessio has been acknowledged, consent has been accommodated to the legatee so that he might possess, the interdict ceases; but if this was done before the inheritance was entered upon or the bonorum possessio was acknowledged, it will be more correct to say that that consent ought not to harm.

Dig. 43.3.1.12

Digest 43.3.1.12

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

If two things have been bequeathed, and one has been occupied with consent, the other not with consent, it will ensue that the one can be recalled, the other not. And the same must be approved also in the case of a single thing, part of which has been occupied with consent, another part not with consent: for only the part will be removed through the interdict.

Dig. 43.3.1.13

Digest 43.3.1.13

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

That must be maintained: whether by you or by him into whose place you have succeeded something has begun to be possessed, this interdict will have place. in our usage we take “to have succeeded into the place” whether the succession is by universality or in respect of the thing.

Dig. 43.3.1.14

Digest 43.3.1.14

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

It is profitable, moreover, to have possessed, whenever possession was begun by the will of him to whom the thing pertains; and even if afterwards the will of him to whom the thing pertained was added, nevertheless it ought to profit the possessor. Whence, if someone did indeed begin to possess by the will of him to whom the thing pertains, but afterwards the will does not persist, it does no harm, because possession was once begun with will.

Dig. 43.3.1.15

Digest 43.3.1.15

Ulpianus 67 ad ed.

Ulpian, 67 on the Edict.

Si alter ex heredibus iisve, ad quos ea res pertinet, voluerit rem a legatario possideri, alter non, ei, qui noluit, interdictum competet: ei, qui voluit, non competere palam est.

If one of the heirs, or of those to whom that matter pertains, should wish the thing to be possessed by the legatee, and the other not, an interdict will lie for him who did not wish it; for him who did wish it, it is clear that it does not lie.

Dig. 43.3.1.16

Digest 43.3.1.16

Ulpianus 67 ad ed.

Ulpian, 67 on the edict.

Quod ait praetor " nisi satisdatum sit", accipere debemus " si perseveret satisdatum", scilicet ut, si non perseveret cautum, mittatur in possessionem legatorum servandorum causa.

What the praetor says, “unless security be given,” we ought to take as “if the security persevere,” namely, that, if the security (cautio) does not persevere, he is to be sent into possession for the sake of preserving the legacies.

Dig. 43.3.1.17

Digest 43.3.1.17

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Satisdatum sic arbitror, si sic satisdatum sit, ut legatario vel ipso iure adquisita sit idonea cautio vel per mandati actionem adquiri possit, et tunc interdicto locum fore.

I judge that security has been sufficiently given thus: if it has been so furnished that suitable security has been acquired to the legatee either by the law itself or can be acquired through the action of mandate, and then the interdict will have place.

Dig. 43.3.1.18

Digest 43.3.1.18

Ulpianus 67 ad ed.

Ulpian 67 on the Edict.

Si quarundam rerum nomine satisdatum sit, quarundam non sit satisdatum, earum rerum nomine sine impedimento agi poterit, de quibus satisdatum est, ceterarum non poterit.

If, in respect of certain things, satisdation has been given, and in respect of others it has not, one may proceed without impediment regarding those things for which satisdation has been given; regarding the rest, one may not.

Dig. 43.3.2pr.

Digest 43.3.2pr.

Paulus 63 ad ed.

Paulus 63 on the Edict.

Diversum est, si postea pars legato adcreverit: nam hoc nomine tenentur fideiussores in totum.

It is otherwise, if thereafter a share accrues to the legacy: for under this head the fidejussors are liable for the whole.

Dig. 43.3.2.1

Digest 43.3.2.1

Paulus 63 ad ed.

Paulus 63 on the Edict.

Quod ait praetor " si per bonorum possessorem non stat, ut satisdetur", sic accipimus, si paratus sit satisdare: non ergo offerre debet satisdationem, sed petenti satis moram non facere.

What the praetor says, "if it does not depend on the bonorum possessor that security be given," we take thus: if he is prepared to furnish security; therefore he need not offer the security of his own accord, but must not cause delay to the one demanding it.

Dig. 43.3.2.2

Digest 43.3.2.2

Paulus 63 ad ed.

Paulus 63 on the Edict.

Ex hoc interdicto qui non restituit, in id quod interest debet condemnari.

By this interdict, he who does not restore is to be condemned in the amount of the interest.

Dig. 43.3.2.3

Digest 43.3.2.3

Paulus 63 ad ed.

Paulus 63 on the Edict.

Si legatarius repromissione contentus fuit, dandum est interdictum. idem dicendum est, si legatarius pignoribus noluit sibi caveri.

If the legatee was content with a repromission, the interdict must be given. The same must be said if the legatee did not wish to have himself secured by pledges.

Dig. 43.3.2.4

Digest 43.3.2.4

Paulus 63 ad ed.

Paulus, 63 on the Edict.

If by the act of the legatee it has come about that surety is not furnished (quo minus satisdetur), although no caution has been stipulated, he is bound by the interdict. But if it has happened through the legatee that surety was not furnished, yet at the time when the interdict is issued he is ready to accept surety (satis accipere paratus), the interdict does not lie unless surety has been furnished (nisi satisdatum sit). Likewise, if it was through the possessor of the goods (bonorum possessor) that he failed to furnish surety (quo minus satisdaret), but now he is prepared to give caution (paratus est cavere), the interdict holds: for the time that is considered is that at which the interdict is issued.

Dig. 43.4.0. Ne vis fiat ei, qui in possessionem missus erit.

Digest 43.4.0. Let no force be done to him who has been sent into possession.

Dig. 43.4.1pr.

Digest 43.4.1 pr.

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

The praetor says: " if anyone has acted by malicious deceit, whereby someone is hindered, by my permission or by that of him whose jurisdiction that was, from being put into possession of the estate, I will grant against him an action on the facts, for as much as the matter was worth on account of which he will have been sent into possession".

Dig. 43.4.1.1

Digest 43.4.1.1

Ulpianus 72 ad ed.

Ulpian 72 On the Edict.

Hoc edictum summa providentia praetor proposuit: frustra enim in possessionem mitteret rei servandae causa, nisi missos tueretur et prohibentes venire in possessionem coerceret.

The praetor set forth this edict with the highest providence: for he would send into possession in vain for the sake of preserving the thing, unless he protected those sent and restrained those preventing them from coming into possession.

Dig. 43.4.1.2

Digest 43.4.1.2

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

Moreover, this edict is general: for it pertains to all who have been sent into possession by the praetor; for it befits the praetor to protect all whom he himself has sent into possession. But whether they have been sent into possession for the sake of preserving the thing, or in the name of legacies, or in the name of the womb (i.e., the unborn child), they have from this edict an action in factum, if they have been prohibited, whether by fraud or otherwise.

Dig. 43.4.1.3

Digest 43.4.1.3

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

Haec actio non tantum eum tenet, qui prohibuit quem venire in possessionem, sed etiam eum, qui possessione pulsus est, cum venisset in possessionem: nec exigitur, ut vi fecerit qui prohibuit.

This action holds not only him who prohibited someone from coming into possession, but also him who, after he had come into possession, drove him from possession; nor is it required that the one who prohibited acted with force.

Dig. 43.4.1.4

Digest 43.4.1.4

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

Si quis ideo possessione arcuerit, quia rem suam putabat vel sibi nexam vel certe non esse debitoris, consequens est, ut hoc edicto non teneatur.

If someone for that reason has excluded [another] from possession, because he thought the thing was his own, or bound to himself, or at any rate not the debtor’s, it follows that he is not held by this edict.

Dig. 43.4.1.5

Digest 43.4.1.5

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

These words, "for how much that thing will be, on account of which he will have been sent into possession," contain the utility of the creditor, so that, to the extent it is of his interest to have possession, to that extent the one who prohibited is to be condemned. Accordingly, if he was sent into possession on account of a false credit-claim or a false petition, or if he could have been removed by an exception, this edict ought to profit him nothing, because he was sent into possession for no cause.

Dig. 43.4.1.6

Digest 43.4.1.6

Ulpianus 72 ad ed.

Ulpian 72 on the edict.

By this edict neither a pupil nor a madman is held, because they lack intent. But we ought to understand as a pupil one who is not capable of dolus; however, if he is already capable of dolus, the contrary must be said. Therefore even if the tutor acted with dolus, we will give an action against the pupil, provided only that the tutor is solvent; but Julian also writes that the tutor himself can be sued.

Dig. 43.4.1.7

Digest 43.4.1.7

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

Si domini vel patris voluntate prohibitus quis sit a possessione, in ipsos dabitur actio, quasi per alios hoc fecerint.

If someone is prohibited from possession by the will of an owner or of a father, an action will be given against those very persons, as if they had done this through others.

Dig. 43.4.1.8

Digest 43.4.1.8

Ulpianus 72 ad ed.

Ulpian 72 on the Edict.

It should be understood that this action, except in the case of the delivery of legacies, lies within one year and not thereafter, since it is penal; nor will it be granted against heirs and similar persons, except to the extent that something has come to them: but it will be granted to the heir and to similar persons. For when someone has been prohibited, for the sake of legacies or fideicommissa, from acquiring possession, then the action is both perpetual and will be given against the heir, because it is in the power of the successors to avoid the interdict by the offer of satisdation (security).

Dig. 43.4.2pr.

Digest 43.4.2pr.

Paulus 59 ad ed.

Paulus 59 on the Edict.

Suo quis an alieno nomine prohibitus sit, nihil interest: haec enim verba " quanti ea res est" referenda sunt ad personam domini.

Whether one has been prohibited in his own name or in another’s name, it makes no difference: for these words " how much that thing is worth" are to be referred to the person of the owner.

Dig. 43.4.2.1

Digest 43.4.2.1

Paulus 59 ad ed.

Paulus 59 on the edict.

Item tam is tenetur, qui suo nomine, quam qui alieno nomine prohibuit.

Likewise, he is liable, both the one who prohibited in his own name and the one who prohibited in another’s name.

Dig. 43.4.3pr.

Digest 43.4.3 pr.

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

If someone has been sent into possession for the sake of preserving a fideicommissum and is not admitted, he must be brought into possession by the authority of the one who sent him; or, if someone wishes to make use of an interdict, it will be consequent to say that the interdict has place. But it will be better to say that, extra ordinem, they themselves ought, by the right of their own power, to execute their decree, sometimes even by the military hand.

Dig. 43.4.3.1

Digest 43.4.3.1

Ulpianus 68 ad ed.

Ulpian, Book 68 on the Edict.

It has been established by Antoninus that someone may also be admitted into the heir’s goods in certain modes. If, therefore, one is not admitted into these goods, it must be said that this utile action lies; moreover, he can also make use of extraordinary execution.

Dig. 43.4.3.2

Digest 43.4.3.2

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

The praetor sends the womb into possession, and this interdict is both prohibitory and restitutory. But if the woman should wish to use an action on the facts, after the example of creditors, rather than the interdict, it must be understood that she can proceed.

Dig. 43.4.3.3

Digest 43.4.3.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

If it is said that a woman has come into possession for the sake of calumny, on the ground that she is not pregnant or not pregnant by him, or if anything is said about the status of the woman: on the basis of a letter of the deified Hadrian, after the example of the presumption of the Carbonian Edict, the praetor promises possession to the womb.

Dig. 43.4.4pr.

Digest 43.4.4pr.

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Per interdictum etiam ei subvenit praetor, qui damni infecti ab eo in possessionem missus est, ne ei vis fiat.

By an interdict the praetor also comes to the aid of him who, for damage not yet done (damnum infectum), has been sent by him into possession, so that no violence be done to him.

Dig. 43.4.4.1

Digest 43.4.4.1

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

The penalty, moreover, for him who does not promise or does not give security is this: that the adversary is sent into possession. Therefore, whether he does promise, or it does not come about through him that he does not promise, the interdict will not hold, with the one who brings suit repelled by an exception.

Dig. 43.4.4.2

Digest 43.4.4.2

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Praetor in eum, qui neque cavit neque possidere passus est eum qui missus est, iudicium pollicetur in tantum, quantum praestare eum oporteret, si de ea re cautum fuerat.

The praetor promises an action against the one who neither furnished a cautio nor allowed the one who was sent to possess, for as much as it would be proper for him to make good, if a cautio had been given concerning that matter.

Dig. 43.4.4.3

Digest 43.4.4.3

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

But also for another cause he proposed this action, if at the time when he desired to be sent into possession there was no power of approaching the praetor, namely that, if, when there was no power of approaching the praetor, damage was in the meantime inflicted, he who suffered the damage would have an action.

Dig. 43.4.4.4

Digest 43.4.4.4

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Item subiectum, si ex alia causa in possessionem missus prohibitus esse dicetur, habere in factum actionem.

Likewise it is added that, if it is said that, having been sent into possession on another ground, he was prohibited, he has an action in factum.

Dig. 43.5.0. De tabulis exhibendis.

Dig. 43.5.0. On producing documents.

Dig. 43.5.1pr.

Digest 43.5.1, pr.

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

The praetor says: "as to the tablets which Lucius Titius shall be said to have left, pertaining to the cause of his testament, if these are in your possession, or it has been brought about by your malicious fraud that they ceased to exist, so you shall exhibit them to him. Likewise, if a little book or anything else shall be said to have been left, I will comprehend it in a decree".

Dig. 43.5.1.1

Digest 43.5.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

If anyone by chance confesses that a testament is in his possession, he is to be ordered to exhibit it; and time is to be given to him to exhibit it, if he cannot exhibit it at present. But if he denies that he can or ought to exhibit it, this interdict is available.

Dig. 43.5.1.2

Digest 43.5.1.2

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum pertinet non tantum ad testamenti tabulas, verum ad omnia, quae ad causam testamenti pertinent: ut puta et ad codicillos pertinet.

This interdict pertains not only to the testamentary tablets, but indeed to all things which pertain to the cause of the testament: for instance, it pertains also to codicils.

Dig. 43.5.1.3

Digest 43.5.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Whether, moreover, the testament is valid or not, whether one made ineffectually from the beginning, or whether it has been broken (revoked) or is affected by some other vice, and even if it is said to be false or made by one who did not have testamentary capacity: it must be said that the interdict prevails.

Dig. 43.5.1.4

Digest 43.5.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sive supremae tabulae sint sive non sint, sed priores, dicendum interdictum hoc locum habere.

Whether the last tablets exist or do not, but earlier ones, it must be said that this interdict has place.

Dig. 43.5.1.5

Digest 43.5.1.5

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Itaque dicendum est ad omnem omnino scripturam testamenti, sive perfectam sive imperfectam, interdictum hoc pertinere.

Therefore it must be said that this interdict pertains to absolutely every writing of a testament, whether perfect or imperfect.

Dig. 43.5.1.6

Digest 43.5.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Proinde et si plures tabulae sint testamenti, quia saepius fecerat, dicendum est interdicto locum fore: est enim quod ad causam testamenti pertineat, quidquid quoquo tempore factum exhiberi debeat.

Accordingly, even if there are several tablets of the testament, because he had made it more than once, it must be said that there is room for the interdict: for whatever pertains to the cause of the testament—whatever has been made at whatever time—ought to be exhibited.

Dig. 43.5.1.7

Digest 43.5.1.7

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et si de statu disceptetur, si testator filius familias vel servus hoc fecisse dicatur, et hoc exhibebitur.

But also, if there is a dispute about status, if it is said that the testator, a filius familias, or a slave did this, this too will be exhibited.

Dig. 43.5.1.8

Digest 43.5.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Item si filius familias fecerit testamentum, qui de castrensi peculio testabatur, habet locum interdictum.

Likewise, if a filius familias has made a testament, disposing of his castrense peculium, the interdict has place.

Dig. 43.5.1.9

Digest 43.5.1.9

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Idem est et si is, qui testamentum fecit, apud hostes decessit.

The same holds also if the one who made the will has died among the enemy.

Dig. 43.5.1.10

Digest 43.5.1.10

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum ad vivi tabulas non pertinet, quia verba praetoris " reliquerit" fecerunt mentionem.

This interdict does not pertain to the tablets of a living person, because the words of the praetor made mention of " reliquerit".

Dig. 43.5.1.11

Digest 43.5.1.11

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et si deletum sine dolo sit testamentum.

But even if the testament has been destroyed without fraud.

Dig. 43.5.2

Digest 43.5.2

Paulus 64 ad ed.

Paulus 64 on the Edict.

Vel totum vel pars eius,

Either the whole or a part of it,

Dig. 43.5.3pr.

Digest 43.5.3, preface.

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Locum habet hoc interdictum.

This interdict applies.

Dig. 43.5.3.1

Digest 43.5.3.1

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si tabulae in pluribus codicibus scriptae sint, omnes interdicto isto continentur, quia unum testamentum est.

If the tablets have been written in several codices, all are contained under that interdict, because there is one testament.

Dig. 43.5.3.2

Digest 43.5.3.2

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Si tabulae testamenti apud aliquem depositae sunt a titio, hoc interdicto agendum est et cum eo qui detinet et cum eo qui deposuit.

If the testamentary tablets have been deposited by Titius with someone, one must proceed by this interdict both against the one who detains them and against the one who deposited them.

Dig. 43.5.3.3

Digest 43.5.3.3

Ulpianus 68 ad ed.

Ulpian, book 68 on the Edict.

Proinde et si custodiam tabularum aedituus vel tabularius suscepit, dicendum est teneri eum interdicto.

Accordingly, even if the temple-warden or the record-keeper has undertaken the custody of the tablets, it must be said that he is held by the interdict.

Dig. 43.5.3.4

Digest 43.5.3.4

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si penes servum tabulae fuerint, dominus interdicto tenebitur.

If the tablets have been in the slave’s custody, the master will be held by the interdict.

Dig. 43.5.3.5

Digest 43.5.3.5

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

If the testator himself, while alive, says that the tablets are his and desires that they be exhibited, this interdict will have no place; rather, one must proceed by an action ad exhibendum, so that, once exhibited, he may vindicate them. And this must be proved in all cases by those who assert that the physical bodies of the instruments are theirs.

Dig. 43.5.3.6

Digest 43.5.3.6

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

If anyone has acted with malicious deceit so that the tablets should not be in his keeping, nonetheless he will be held by this interdict; nor is anything prejudged against the Cornelian testamentary law, as though he had suppressed the testament by malicious deceit. For no one therefore retains the tablets with impunity because he has committed a greater crime, since, when the tablets are produced, his offense is made the more manifest. And it can happen that someone acts with malicious deceit and yet does not fall under that law—for instance, if he has neither removed nor concealed the tablets, but for that very reason has delivered them to another, so as not to produce them to the party issuing the interdict; that is, if he did it not with the purpose or plan of suppressing them, but so as not to produce them to this man.

Dig. 43.5.3.7

Digest 43.5.3.7

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdictum exhibitorium est.

This interdict is exhibitory.

Dig. 43.5.3.8

Digest 43.5.3.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Quid sit exhibere, videamus. exhibere hoc est materiae ipsius adprehendendae copiam facere.

What it is to exhibit, let us see. To exhibit is this: to afford the opportunity for the matter itself to be apprehended.

Dig. 43.5.3.9

Digest 43.5.3.9

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Exhibere autem apud praetorem oportet, ut ex auctoritate eius signatores admoniti venirent ad recognoscenda signa: et si forte non optemperent testes, labeo scribit coerceri eos a praetore debere.

Moreover, it must be produced before the praetor, so that by his authority the signatories, having been admonished, might come to recognize the seals; and if perchance the witnesses do not comply, Labeo writes that they ought to be coerced by the praetor.

Dig. 43.5.3.10

Digest 43.5.3.10

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Solent autem exhiberi tabulas desiderare omnes omnino, qui quid in testamento adscriptum habent.

But all without exception who have anything entered in the testament are wont to desire the tablets to be exhibited.

Dig. 43.5.3.11

Digest 43.5.3.11

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Condemnatio autem huius iudicii quanti interfuit aestimari debet.

But the condemnation of this action ought to be assessed at how much it was of interest.

Dig. 43.5.3.12

Digest 43.5.3.12

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Quare si heres scriptus hoc interdicto experiatur, ad hereditatem referenda est aestimatio:

Therefore, if the heir instituted makes trial under this interdict, the valuation is to be referred to the inheritance:

Dig. 43.5.3.13

Digest 43.5.3.13

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Et si legatum sit, tantum venit in aestimationem, quantum sit in legato:

And if a legacy has been left, only so much comes into the estimation as there is in the legacy:

Dig. 43.5.3.14

Digest 43.5.3.14

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

And even if the legacy is under a condition, it is to be assessed as if the condition existed; nor ought he to be compelled to give security, to the effect that he will restore whatever he has obtained if the condition should fail, since the penalty for contumacy is exacted from the one who does not produce.

Dig. 43.5.3.15

Digest 43.5.3.15

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Thence the question is asked whether, if by this means the legatee has obtained the valuation and afterwards seeks the legacy, he should be heard. And I think that, if it was the heir who paid the same, he is to be repelled by the defense of fraud (exceptio doli); if it was another, he ought not to be repelled. And therefore, even if it is the heir who, having used the interdict, has obtained the valuation, the same distinction applies.

Dig. 43.5.3.16

Digest 43.5.3.16

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Interdictum hoc et post annum competere constat. sed et heredi ceterisque successoribus competit.

It is established that this interdict is available even after a year. But it is also available to the heir and the other successors.

Dig. 43.5.4

Digest 43.5.4

Paulus 69 ad ed.

Paulus 69 on the Edict.

Si sint tabulae apud pupillum et dolo tutoris desierint esse, in ipsum tutorem competit interdictum: aequum enim est ipsum ex delicto suo teneri, non pupillum.

If the tablets are with the ward and have ceased to be through the fraud of the guardian, the interdict lies against the guardian himself: for it is equitable that he himself be held on account of his own delict, not the ward.

Dig. 43.5.5

Digest 43.5.5

Iavolenus 13 ex cass.

Iavolenus 13 from Cassius.

The interdict for producing tablets ought not to be competent if an inheritance controversy depends on them or if it pertains to a public investigation; therefore, in the interim they are to be deposited in a sacred temple or with a suitable man.

Dig. 43.6.0. Ne quid in loco sacro fiat.

Dig. 43.6.0. That nothing be done in a sacred place.

Dig. 43.6.1pr.

Digest 43.6.1pr.

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Ait praetor: " in loco sacro facere inve eum immittere quid veto".

The praetor says: " in a sacred place I forbid to do anything, or to send anything into it".

Dig. 43.6.1.1

Digest 43.6.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum de sacro loco, non de sacrario competit.

This interdict concerns a sacred place, not a sacrarium.

Dig. 43.6.1.2

Digest 43.6.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Quod ait praetor, ne quid in loco sacro fiat, non ad hoc pertinet, quod ornamenti causa fit, sed quod deformitatis vel incommodi.

What the praetor says, “that nothing be done in a sacred place,” does not pertain to what is done for the sake of ornament, but to what is of deformity or inconvenience.

Dig. 43.6.1.3

Digest 43.6.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et cura aedium locorumque sacrorum mandata est his, qui aedes sacras curant.

But also the care of temples and sacred places has been entrusted to those who care for sacred buildings.

Dig. 43.6.2

Digest 43.6.2

Hermogenianus 3 iuris epit.

Hermogenianus 3 Epitome of Law.

In muris itemque portis et aliis sanctis locis aliquid facere, ex quo damnum aut incommodum irrogetur, non permittitur.

It is not permitted to do anything on the walls and likewise the gates and other sacred places, whereby damage or inconvenience is imposed.

Dig. 43.6.3

Digest 43.6.3

Paulus 5 sent.

Paulus Book 5 of the Sentences.

Neque muri neque portae habitari sine permissu principis propter fortuita incendia possunt.

Neither walls nor gates can be inhabited without the permission of the emperor, on account of fortuitous conflagrations.

Dig. 43.7.0. De locis et itineribus publicis.

Dig. 43.7.0. On public places and public ways.

Dig. 43.7.1

Digest 43.7.1

Pomponius 30 ad sab.

Pomponius 30 on Sabinus.

Cuilibet in publicum petere permittendum est id, quod ad usum omnium pertineat, veluti vias publicas, itinera publica: et ideo quolibet postulante de his interdicitur.

It ought to be permitted to anyone to petition in the public interest for that which pertains to the use of all, for example public roads and public ways; and therefore, upon anyone requesting, an interdict is issued concerning these.

Dig. 43.7.2

Digest 43.7.2

Iulianus 48 Dig.

Julianus 48 Digest

Nemini licet in via publica monumentum exstruere.

No one is permitted to erect a monument in a public way.

Dig. 43.7.3pr.

Digest 43.7.3, preface.

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

Viae vicinales, quae ex agris privatorum collatis factae sunt, quarum memoria non exstat, publicarum viarum numero sunt.

Vicinal roads, which were made from the contributed fields of private persons, of which no record exists, are numbered among public roads.

Dig. 43.7.3.1

Digest 43.7.3.1

Ulpianus 33 ad sab.

Ulpian 33 on Sabinus.

But between these and the other military roads this is the difference: that military roads have an outlet to the sea, or into cities, or into public rivers, or to another military road; but the condition of these vicinal roads is dissimilar: for some of them have an outlet into military roads, some die out without any outlet.

Dig. 43.8.0. Ne quid in loco publico vel itinere fiat.

Digest 43.8.0. That nothing be done in a public place or on a highway.

Dig. 43.8.1

Digest 43.8.1

Paulus 64 ad ed.

Paulus 64 on the Edict.

In loco publico praetor prohibet aedificare et interdictum proponit.

In a public place the praetor prohibits building and issues an interdict.

Dig. 43.8.2pr.

Digest 43.8.2, preface.

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

The praetor says: "Do not do anything in a public place, nor introduce into that place anything from which any damage would be caused to it, except what has been granted to you by law, by senatorial decree, by edict, or by decree of the emperors. As to what will have been done, I will not grant an interdict".

Dig. 43.8.2.1

Digest 43.8.2.1

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum prohibitorium est.

This interdict is prohibitory.

Dig. 43.8.2.2

Digest 43.8.2.2

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

And provision is hereby made both for public utilities and for the interests of private persons. For public places certainly serve the uses of private persons, namely by the right of the civitas, not as though they were the property of each individual; and we have so much right to obtain/hold as anyone from the populace has to prohibit. Wherefore, if by chance some work is done in a public place which redounds to the damage of a private person, one can be proceeded against by the prohibitory interdict, for which matter this interdict has been proposed.

Dig. 43.8.2.3

Digest 43.8.2.3

Ulpianus 68 ad ed.

Ulpian 68 on the edict

Publici loci appellatio quemadmodum accipiatur, labeo definit, ut et ad areas et ad insulas et ad agros et ad vias publicas itineraque publica pertineat.

How the appellation of a public place is to be understood, Labeo defines, namely that it pertains both to areas, to blocks, to fields, and to public roads and public thoroughfares.

Dig. 43.8.2.4

Digest 43.8.2.4

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

I do not think this interdict pertains to those places which are in the patrimony of the fisc: for in these a private person can neither do anything nor prohibit; for fiscal things are as though they were the emperor’s own and private. Therefore, if anyone does anything in these, by no means will this interdict have place; but if perchance there is a controversy about these, their prefects are the judges.

Dig. 43.8.2.5

Digest 43.8.2.5

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Ad ea igitur loca hoc interdictum pertinet, quae publico usui destinata sunt, ut, si quid illic fiat, quod privato noceret, praetor intercederet interdicto suo.

Therefore this interdict pertains to those places which are destined for public use, so that, if anything should be done there which would injure a private party, the praetor would intercede by his own interdict.

Dig. 43.8.2.6

Digest 43.8.2.6

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Cum quidam velum in maeniano immissum haberet, qui vicini luminibus officiebat, utile interdictum competit: " ne quid in publico immittas, qua ex re luminibus gaii seii officias".

When someone had an awning let down from a balcony, which was obstructing the neighbor’s lights, a useful interdict is applicable: " do not let anything into the public place, by which you obstruct the lights of gaius seius".

Dig. 43.8.2.7

Digest 43.8.2.7

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Si quis quod in publico loco positum habuit, reficere voluit, hoc interdicto locum esse aristo ait ad prohibendum eum reficere.

If someone had something placed in a public place and wished to repair it, Aristo says that this interdict has scope to prohibit him from repairing it.

Dig. 43.8.2.8

Digest 43.8.2.8

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Adversus eum, qui molem in mare proiecit, interdictum utile competit ei, cui forte haec res nocitura sit: si autem nemo damnum sentit, tuendus est is, qui in litore aedificat vel molem in mare iacit.

Against the one who has cast a mole into the sea, a useful interdict is available to him to whom perhaps this thing is going to be harmful; but if no one suffers damage, he is to be protected who builds on the shore or casts a mole into the sea.

Dig. 43.8.2.9

Digest 43.8.2.9

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

If anyone is prohibited from fishing or sailing on the sea, he will not have an interdict, just as neither will he who is prevented from playing in a public field or from washing in a public balneum or from spectating in the theatre: but in all these cases the action for injuries must be employed.

Dig. 43.8.2.10

Digest 43.8.2.10

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Rightly the praetor says, "from which matter what damage is given to him": for whenever something is permitted to be done in public, it ought to be permitted in such a way that it be done without injury to anyone. And thus the princeps is accustomed, whenever the instituting of some new work is requested, to permit it.

Dig. 43.8.2.11

Digest 43.8.2.11

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Damnum autem pati videtur, qui commodum amittit, quod ex publico consequebatur, qualequale sit.

Moreover, he is deemed to suffer damage who loses a benefit which he was obtaining from the public, whatever sort it may be.

Dig. 43.8.2.12

Digest 43.8.2.12

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Proinde si cui prospectus, si cui aditus sit deterior aut angustior, interdicto opus est.

Accordingly, if anyone’s prospect, if anyone’s access, be worse or narrower, an interdict is needed.

Dig. 43.8.2.13

Digest 43.8.2.13

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si quid in loco publico aedificavero, ut ea, quae ex meo ad te nullo iure defluebant, desinant fluere, interdicto me non teneri labeo putat.

If I build anything in a public place, so that those things which were flowing from my property to yours with no right may cease to flow, Labeo thinks that I am not held by the interdict.

Dig. 43.8.2.14

Digest 43.8.2.14

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Plane si aedificium hoc effecerit, ut minus luminis insula tua habeat, interdictum hoc competit.

Plainly, if this building has brought it about that your tenement has less light, this interdict is available.

Dig. 43.8.2.15

Digest 43.8.2.15

Ulpianus 68 ad ed.

Ulpian 68 on the ed.

The same says that, if I build in a public place, and then this building obstructs that which you had built in a public place, this interdict ceases, since you too built unlawfully, unless perhaps you had built under a right granted to you.

Dig. 43.8.2.16

Digest 43.8.2.16

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si quis a principe simpliciter impetraverit, ut in publico loco aedificet, non est credendus sic aedificare, ut cum incommodo alicuius id fiat, neque sic conceditur: nisi forte quis hoc impetraverit.

If anyone has simply obtained from the emperor permission to build in a public place, he is not to be understood to build in such a way that this be done to anyone’s incommodum, nor is it conceded on such terms—unless perhaps someone has obtained this very thing.

Dig. 43.8.2.17

Digest 43.8.2.17

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

If someone, no one forbidding, has built in a public place, he is not to be compelled to remove it, lest the city be disfigured by ruins, and because the interdict is prohibitory, not restitutory. if, however, that building obstructs public use, certainly the one who has charge of public works ought to take it down; or, if it does not obstruct, to impose upon him a solarium (ground-rent): for this vectigal is thus called “solarium” from the fact that it is paid for the soil.

Dig. 43.8.2.18

Digest 43.8.2.18

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Si tamen adhuc nullum opus factum fuerit, officio iudicis continetur, uti caveatur non fieri: et ea omnia etiam in persona heredum ceterorumque successorum erunt cavenda.

If, however, no work has yet been done, it lies within the office of the judge to see that security is taken that it not be done; and all these things shall likewise be secured in the person of the heirs and the other successors.

Dig. 43.8.2.19

Digest 43.8.2.19

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Locorum sacrorum diversa causa est: in loco enim sacro non solum facere vetamur, sed et factum restituere iubemur: hoc propter religionem.

The case of sacred places is different: for in a sacred place we are not only forbidden to do it, but are also commanded to restore what has been done: this on account of religion.

Dig. 43.8.2.20

Digest 43.8.2.20

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Ait praetor: " in via publica itinereve publico facere immittere quid, quo ea via idve iter deterius sit fiat, veto".

The praetor says: " on a public way or on a public road to do or to let in anything, by which that way or that road would be or become worse, I forbid".

Dig. 43.8.2.21

Digest 43.8.2.21

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

We call that a public road whose very ground is public: for we do not take a public road in the same way as a private road; the ground of a private road is another’s, only the right of going and of driving accrues to us; but the ground of a public road is public, left in straight alignment with fixed limits of width by him who had the right of publicating, so that it might be gone upon and trafficked upon publicly.

Dig. 43.8.2.22

Digest 43.8.2.22

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Of roads, some are public, some private, some vicinal. we call roads public, which the Greeks call basilic, our people praetorian, others call consular roads. private are those which some call agrarian.

Vicinal are the roads which are in villages or which lead into villages: some also say that these too are public: which is true thus, if this thoroughfare has not been established by a contribution of private persons. Otherwise, as when it is repaired by a contribution of private persons: for if it is repaired by a contribution of private persons, it is not necessarily private: for the repair is therefore made from a common fund, because it has a common use and utility.

Dig. 43.8.2.23

Digest 43.8.2.23

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Private roads can be taken in a twofold way: either those which are in the fields, upon which a servitude has been imposed, so that they lead to another’s field; or those which lead to the fields, along which it is permitted for all to travel, into which one goes out from the consular road, and thus after that there follows a via or iter or actus leading to a villa. Therefore those which, after the consular road, are taken up, leading into villas or into other colonies, I think that even these themselves are public.

Dig. 43.8.2.24

Digest 43.8.2.24

Ulpianus 68 ad ed.

Ulpian 68 on the Edict

Hoc interdictum tantum ad vias rusticas pertinet, ad urbicas vero non: harum enim cura pertinet ad magistratus.

This interdict pertains only to rustic roads, but not to urban ones: for the care of these pertains to the magistrates.

Dig. 43.8.2.25

Digest 43.8.2.25

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si viae publicae exemptus commeatus sit vel via coartata, interveniunt magistratus.

If the passage of the public way has been taken away, or the way has been contracted, the magistrates intervene.

Dig. 43.8.2.26

Digest 43.8.2.26

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Si quis cloacam in viam publicam immitteret exque ea re minus habilis via per cloacam fiat, teneri eum labeo scribit: immisisse enim eum videri.

If someone were to let a sewer into the public road, and on that account the road becomes less serviceable by reason of the sewer, Labeo writes that he is held liable: for he is deemed to have discharged it.

Dig. 43.8.2.27

Digest 43.8.2.27

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Proinde et si fossam quis in fundo suo fecerit, ut ibi aqua collecta in viam decurrat, hoc interdicto tenebitur: immissum enim habere etiam hunc videri.

Accordingly, even if someone has made a ditch on his own estate, so that water collected there runs down into the road, he will be held by this interdict: for this man too is deemed to “have an immission” (immissum habere).

Dig. 43.8.2.28

Digest 43.8.2.28

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

The same Labeo writes that, if someone has built on his own in such a way that water collected in the road pools, he is not held by the interdict, because he does not send water in, but does not receive it; however, Nerva writes better that each is held. Clearly, if an estate touches a public road and water derived from it makes the road worse, which water, however, comes into yours from a neighbor’s estate: if indeed you must receive that water, the interdict will have place against your neighbor; but if it is not necessary, the neighbor is not held, yet you are held—for he is seen to have done the deed who has the use of that water. The same Nerva writes that, if one proceeds against you by interdict, you are to be compelled to do nothing beyond this: that, at the discretion of the one who is litigating with you, you litigate with your neighbor; otherwise, if people observe differently, it will come about that you are held even if you have already dealt with your neighbor in good faith and it is not through you that it fails to happen that, at the plaintiff’s discretion, you litigate with your neighbor.

Dig. 43.8.2.29

Digest 43.8.2.29

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Idem ait, si odore solo locus pestilentiosus fiat, non esse ab re de re ea interdicto uti.

He likewise says that, if by odor alone a place becomes pestilential, it is not out of place to use an interdict concerning that matter.

Dig. 43.8.2.30

Digest 43.8.2.30

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdictum etiam ad ea, quae pascuntur in via publica itinereve publico et deteriorem faciant viam, locum habet.

This interdict also applies to those [animals] that are pastured on a public road or a public right of way and deteriorate the road.

Dig. 43.8.2.31

Digest 43.8.2.31

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Then the praetor says: "whereby that road and that right‑of‑way may be, and be made, worse." This applies whether the road is made worse at once or later; for to this the words "so be it made" pertain: indeed, some things are such that they harm immediately by the deed itself, while others are such that, for the present, they do no harm, but in the future must cause harm.

Dig. 43.8.2.32

Digest 43.8.2.32

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

But that a road becomes worse is to be taken thus: if its use for passage is corrupted, that is, for going or for driving, so that, when it had been level, it becomes sloping, or from soft becomes rough, or narrower from broader, or marshy from dry.

Dig. 43.8.2.33

Digest 43.8.2.33

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Scio tractatum, an permittendum sit specus et pontem per viam publicam facere: et plerique probant interdicto eum teneri: non enim oportere eum deteriorem viam facere.

I know it has been discussed whether it should be permitted to make a conduit and a bridge through a public road; and most approve that he is bound by the interdict: for he ought not to make the road worse.

Dig. 43.8.2.34

Digest 43.8.2.34

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdictum perpetuum et populare est condemnatioque ex eo facienda est, quanti actoris intersit.

This interdict is perpetual and popular, and the condemnation under it must be made for as much as it is to the plaintiff’s interest.

Dig. 43.8.2.35

Digest 43.8.2.35

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Praetor ait: " quod in via publica itinereve publico factum immissum habes, quo ea via idve iter deterius sit fiat, restituas".

The praetor says: " what in a public road or public right-of-way has been done or you have had introduced, whereby that road or that right-of-way is or becomes worse, you shall restore".

Dig. 43.8.2.36

Digest 43.8.2.36

Ulpianus 68 ad ed.

Ulpian book 68 on the Edict.

Hoc interdictum ex eadem causa proficiscitur, ex qua et superius: et tantum interest, quod hoc restitutorium, illud prohibitorium est.

This interdict arises from the same cause as the one above: and the only difference is that this one is restitutory, that one prohibitory.

Dig. 43.8.2.37

Digest 43.8.2.37

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

By this interdict, he is not held who did something on the public way, but he who has the deed. Accordingly, if one person did it and another has the deed, he is held who has the deed; and this is more useful, because he can restore who has the introduced deed.

Dig. 43.8.2.38

Digest 43.8.2.38

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Habere eum dicimus, qui utitur et iure possessionis fruitur, sive ipse opus fecit sive ex causa emptionis vel conductionis vel legato vel hereditate vel quo alio modo adquisiit.

We say that he has it who uses and enjoys the right of possession, whether he himself made the work or acquired it on the ground of purchase or lease or by legacy or by inheritance or by some other mode.

Dig. 43.8.2.39

Digest 43.8.2.39

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Whence ofilius thinks that he who has left as derelict the work which he made, if he corrupted a public road and left it, is not held by this interdict: for he does not have what he made. But whether an action ought to be given against him, we shall see. And I think a useful interdict is applicable, that he restore what he built on the public road.

Dig. 43.8.2.40

Digest 43.8.2.40

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

If from your estate a tree should so fall into the public road that it is an impediment to travel, and you regard it as abandoned, Labeo writes that you are not liable: however, he says, if the plaintiff is prepared to remove the tree at his own expense, he will proceed rightly against you by the interdict for restoring the public road. But if you do not regard it as abandoned, it is proper that you be proceeded against by this interdict.

Dig. 43.8.2.41

Digest 43.8.2.41

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Likewise Labeo writes that, if my neighbor has damaged the road by a work, although the work which he did is as useful to me as to himself, nevertheless, if that neighbor did it for the sake of his own estate, I cannot be proceeded against under this interdict: but if we have taken care that this work be done jointly, each of us is liable.

Dig. 43.8.2.42

Digest 43.8.2.42

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

This interdict has place also against him who acted with malicious fraud to the effect that another was prevented from possessing or holding: for it is proper that the condition be equal for him who does possess or have something and for him by whose malicious fraud it has come about that he did not possess or have; and to me Labeo’s opinion seems true.

Dig. 43.8.2.43

Digest 43.8.2.43

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

" restore," he says. He is deemed to restore who brings back into the pristine state: which is done whether someone removes what has been done or replaces what has been taken away. And sometimes at his own expense: for if he himself, on whose account the one who interdicted acted, has done it, or another by his order, or what he did has been ratified, he himself ought to restore at his own expense: but if none of these have intervened, but he has what was done, then we will say that he need only furnish forbearance.

Dig. 43.8.2.44

Digest 43.8.2.44

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Interdictum hoc non esse temporarium sciendum est: pertinet enim ad publicam utilitatem: condemnatioque ex eo facienda est, quanti actoris intersit tolli quod factum est.

It must be known that this interdict is not temporary: for it pertains to the public utility: and a condemnation is to be made therefrom, to the amount of how much it is in the plaintiff’s interest that what has been done be removed.

Dig. 43.8.2.45

Digest 43.8.2.45

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Praetor ait: " quo minus illi via publica itinereve publico ire agere liceat, vim fieri veto".

The praetor says: "I forbid force to be used, whereby it would be less permitted to him to go or to drive on a public road or on a public right-of-way."

Dig. 43.8.3pr.

Digest 43.8.3pr.

Celsus 39 Dig.

Celsus 39 Digest.

Litora, in quae populus romanus imperium habet, populi romani esse arbitror:

Shores, over which the Roman people holds imperium, I judge to belong to the Roman people:

Dig. 43.8.3.1

Digest 43.8.3.1

Celsus 39 Dig.

Celsus 39 Digest.

Maris communem usum omnibus hominibus, ut aeris, iactasque in id pilas eius esse qui iecerit: sed id concedendum non esse, si deterior litoris marisve usus eo modo futurus sit.

The common use of the sea is for all men, as of the air, and the piles cast into it belong to him who cast them: but this is not to be conceded, if in that way the use of the shore or of the sea would be made worse.

Dig. 43.8.4

Digest 43.8.4

Scaevola 5 resp.

Scaevola 5 responses.

Respondit in litore iure gentium aedificare licere, nisi usus publicus impediretur.

He answered that on the seashore it is permitted by the law of nations to build, unless the public use were impeded.

Dig. 43.8.5

Digest 43.8.5

Paulus 16 ad sab.

Paulus 16 on Sabinus.

Si per publicum locum rivus aquae ductus privato nocebit, erit actio privato ex lege duodecim tabularum, ut noxa domino sarciatur.

If a watercourse conducted through a public place will harm a private person, there will be an action for the private person under the Law of the Twelve Tables, that the harm be made good to the owner.

Dig. 43.8.6

Digest 43.8.6

Iulianus 43 Dig.

Julian 43 Digest.

Ei, qui hoc interdicto experitur " ne quid in loco publico fiat, quo damnum privato detur", quamvis de loco publico interdicat, nihilo minus procuratoris dandi facultas est.

For him who proceeds by this interdict, "that nothing be done in a public place whereby damage is given to a private person," although it interdicts concerning a public place, nonetheless there is the faculty of appointing a procurator.

Dig. 43.8.7

Digest 43.8.7

Iulianus 48 Dig.

Julian 48 Dig.

Just as he who has built in a public place with no one prohibiting is not to be compelled to demolish, lest the city be disfigured by ruins, so he who has built against the praetor’s edict ought to remove the building; otherwise the praetor’s authority will be empty and a mere plaything.

Dig. 43.9.0. De loco publico fruendo.

Digest 43.9.0. On enjoying a public place.

Dig. 43.9.1pr.

Digest 43.9.1 preface.

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Praetor ait: " quo minus loco publico, quem is, cui locandi ius fuerit, fruendum alicui locavit, ei qui conduxit sociove eius e lege locationis frui liceat, vim fieri veto".

The praetor says: "I forbid force to be used to prevent, in a public place which the one to whom the right of letting has belonged has leased to someone for enjoyment, the one who has hired or his partner, according to the law of the letting, from enjoying."

Dig. 43.9.1.1

Digest 43.9.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Interdictum hoc publicae utilitatis causa proponi palam est: tuetur enim vectigalia publica, dum prohibetur quis vim facere ei, qui id fruendum conduxit.

It is manifest that this interdict is put forward for the sake of public utility: for it protects the public revenues, since a person is prohibited from using force against him who has leased it for enjoyment.

Dig. 43.9.1.2

Digest 43.9.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed si simul veniant ad interdictum movendum ipse qui conduxerit et socius eius, magis est, ut ipse conductor praeferatur.

But if both the one who has leased and his associate come at the same time to set the interdict in motion, the more correct view is that the lessee himself be preferred.

Dig. 43.9.1.3

Digest 43.9.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Ait praetor " quo minus e lege locationis frui liceat". merito ait " e lege locationis": ultra legem enim vel contra legem non debet audiri, qui frui desiderat.

The praetor says, " to prevent his being permitted to enjoy under the law of the lease". rightly he says " under the law of the lease": for beyond the law or against the law he who desires to enjoy ought not to be heard.

Dig. 43.9.2

Digest 43.9.2

Paulus 5 sent.

Paulus 5 sentences.

Concedi solet, ut imagines et statuae, quae ornamenta rei publicae sunt futurae, in publicum ponantur.

It is usually granted that images and statues, which are to be ornaments of the republic, be placed in public.

Dig. 43.10.0. De via publica et si quid in ea factum esse dicatur.

Dig. 43.10.0. On the public road and if anything is alleged to have been done in it.

Dig. 43.10.1pr.

Digest 43.10.1, preface.

Papinianus lib. de cura urb.

Papinian, book on the care of the city.

Ohi astunomikoi epimeleisvwsan twn kata tyn polin hodwn, hopws an homalisvwsin kai ta hreumata my blapty tas oikias kai gefurai wsin ohu an dey.

Let the city-wardens take care of the roads throughout the city, so that they may be leveled, and that the flows of water not harm the houses, and that there be bridges wherever there is need.

Dig. 43.10.1.1

Digest 43.10.1.1

Papinianus lib. de cura urb.

Papinian, book On the Care of the City.

Let them take care that their own walls, or those of others—those around the houses that face the road—be not unstable, in order that, as is proper, the masters of the houses may clear and repair them. But if they neither clear nor repair them, let them be fined until they make them safe.

Dig. 43.10.1.2

Digest 43.10.1.2

Papinianus lib. de cura urb.

Papinian, book On the Care of the City.

Let them take care that no one dig up the roads, nor dump, nor build anything into the roads: but if someone does otherwise, let the slave be flogged by whoever encounters him, while the free man is to be denounced to the astynomoi; and let the astynomoi exact penalty according to the law and remove what has been done.

Dig. 43.10.1.3

Digest 43.10.1.3

Papinianus lib. de cura urb.

Papinian, book on the care of the city.

Let each person repair the public roads along his own house-front and cleanse the watercourses from the open-air court, and repair them in such a way that a wagon be not hindered from passing. But as many as live there under lease, if the owner does not repair, let them, having repaired it themselves, reckon the expense against the rent.

Dig. 43.10.1.4

Digest 43.10.1.4

Papinianus lib. de cura urb.

Papinianus book on the care of the city.

Epimeleisvwsan de kai hopws pro twn ergastyriwn myden prokeimenon y, plyn ean knafeus himatia qugy y tektwn troxous ecw tivy: tivesvwsan de kai ohutoi, hwste my kwluein hamacan badizein.

Let them also take care that in front of the workshops nothing be set out, except if a fuller set out garments or a carpenter wheels outside: and let even these be set in such a way as not to hinder a wagon from passing.

Dig. 43.10.1.5

Digest 43.10.1.5

Papinianus lib. de cura urb.

Papinian book On the Care of the City.

My eatwsan de myde maxesvai en tais hodois myde kopron ekballein myde nekra myde dermata hriptein.

And let them not permit even fighting in the streets, nor to cast out dung, nor to throw corpses or hides.

Dig. 43.11.0. De via publica et itinere publico reficiendo.

Digest 43.11.0. On repairing the public road and the public way.

Dig. 43.11.1pr.

Digest 43.11.1, preface.

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Praetor ait: " quo minus illi viam publicam iterve publicum aperire reficere liceat, dum ne ea via idve iter deterius fiat, vim fieri veto".

The praetor says: "I forbid force to be used to prevent that man from being permitted to open or repair a public way or a public path, provided that that way or that path be not made worse."

Dig. 43.11.1.1

Digest 43.11.1.1

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

To open a road is to restore it to its former height and width. But also to cleanse is a portion of refection; moreover “to cleanse” is properly said to bring it back to its proper level, with what lay upon it removed. For he too “repairs” both who opens and who cleanses, and absolutely all who bring things back into their pristine state.

Dig. 43.11.1.2

Digest 43.11.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

If anyone, under the guise of refection, makes the road worse, he will suffer force with impunity. On account of which, he who intercidit cannot, under the name of refection, make the road either wider or longer or higher or lower, or throw gravel upon an earthen road or strew a road with stone which is earthen, or, conversely, make earthen a road paved with stone.

Dig. 43.11.1.3

Digest 43.11.1.3

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Interdictum hoc perpetuo dabitur et omnibus et in omnes, et habet condemnationem in id quod actoris intererit.

This interdict will be granted in perpetuity, both to everyone and against everyone, and it carries a condemnation to the extent of the plaintiff’s interest.

Dig. 43.11.2

Digest 43.11.2

Iavolenus 10 ex cass.

Javolenus 10 from Cassius.

Viam publicam populus non utendo amittere non potest.

The people cannot lose a public road by not using it.

Dig. 43.11.3pr.

Digest 43.11.3, beginning.

Paulus 1 sent.

Paulus Sentences 1.

Si in agrum vicini viam publicam quis reiecerit, tantum in eum viae receptae actio dabitur, quanti eius interest, cuius fundo iniuria irrogata est.

If someone has shifted a public road into a neighbor’s field, an action for the way recovered will be granted against him to the amount of the interest of the one whose estate the injury has been inflicted upon.

Dig. 43.11.3.1

Digest 43.11.3.1

Paulus 1 sent.

Paulus 1 Sentences.

Qui viam publicam exaraverit, ad munitionem eius solus compellitur.

Whoever has ploughed up a public road is compelled alone to its maintenance.

Dig. 43.12.0. De fluminibus. ne quid in flumine publico ripave eius fiat, quo peius navigetur.

Dig. 43.12.0. On rivers. that nothing be done in a public river or on its bank, whereby navigation is made worse.

Dig. 43.12.1pr.

Digest 43.12.1 preface.

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Ait praetor: " ne quid in flumine publico ripave eius facias neve quid in flumine publico neve in ripa eius immittas, quo statio iterve navigio deterior sit fiat".

The praetor says: "Do not do anything in a public river or on its bank, nor let anything into a public river nor onto its bank, whereby the station or the journey for a vessel be made worse."

Dig. 43.12.1.1

Digest 43.12.1.1

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Flumen a rivo magnitudine discernendum est aut existimatione circumcolentium.

A river is to be discerned from a rivulet by magnitude, or by the estimation of the surrounding inhabitants.

Dig. 43.12.1.2

Digest 43.12.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Likewise, of rivers, some are perennial, some torrential. perennial is that which always flows, aenaos, torrent ho xeimarrous: if, however, in some summer it has dried up, that which otherwise flowed perennially, it is not on that account any less perennial.

Dig. 43.12.1.3

Digest 43.12.1.3

Ulpianus 68 ad ed.

Ulpian 68 to the edict.

Fluminum quaedam publica sunt, quaedam non. publicum flumen esse cassius definit, quod perenne sit: haec sententia cassii, quam et celsus probat, videtur esse probabilis.

Some rivers are public, some are not. Cassius defines a river as public if it is perennial: this opinion of Cassius, which Celsus also approves, seems to be probable.

Dig. 43.12.1.4

Digest 43.12.1.4

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Hoc interdictum ad flumina publica pertinet: si autem flumen privatum sit, cessabit interdictum: nihil enim differt a ceteris locis privatis flumen privatum.

This interdict pertains to public rivers: but if a river is private, the interdict will cease; for a private river does not differ from other private places.

Dig. 43.12.1.5

Digest 43.12.1.5

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

The bank, moreover, will be rightly defined as that which contains the river, keeping the natural rigor of its course: but if at any time it has swelled for a time either by rains or by the sea or by some other cause, it does not change its banks: no one, in fine, has said that the Nile, which by its increment covers Egypt, changes or amplifies its banks. For when it has returned to its perpetual measure, the banks of its channel are to be maintained. If, however, it has naturally increased so that it has obtained a perpetual increment, whether by another river being admixed or by some other cause, it is, without doubt, to be said that it has changed its banks as well, just as if, the channel having been changed, it has begun to run in another course.

Dig. 43.12.1.6

Digest 43.12.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

If an island has been born in a public river, and something is done upon it, it is not seen as being done in public. For that island is either the occupier’s, if the fields have been delimited by boundary lines, or it is his whose bank it touches; or, if it was born in the middle of the channel, it belongs to those who possess near both banks.

Dig. 43.12.1.7

Digest 43.12.1.7

Ulpianus 68 ad ed.

Ulpian, book 68 on the Edict.

In a similar manner, if a river has left its own channel and has begun to flow elsewhere, whatever has been done in the old channel does not pertain to this interdict: for it will not have been done in a public river; rather that channel becomes that of both neighbors, or, if the field is delimited, the bed will be that of the occupier: certainly it ceases to be public. That channel too which the river has made for itself, even if it was previously private, nevertheless begins to be public, because it is impossible that the channel of a public river not be public.

Dig. 43.12.1.8

Digest 43.12.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si fossa manu facta sit, per quam fluit publicum flumen, nihilo minus publica fit: et ideo si quid ibi fiat, in flumine publico factum videtur.

If a ditch made by hand is one through which a public river flows, nonetheless it becomes public; and therefore, if anything is done there, it is deemed to have been done in a public river.

Dig. 43.12.1.9

Digest 43.12.1.9

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Aliter atque si flumen aliquam terram inundaverit, non alveum sibi fecerit: tunc enim non fit publicum, quod aqua opertum est.

Otherwise than if a river has inundated some land and has not made a channel for itself: for then what is covered by water does not become public.

Dig. 43.12.1.10

Digest 43.12.1.10

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Likewise, if a river should go around something, it must be understood to remain his whose it was: if, therefore, anything has been done there, it has not been done in a public river. Nor does this interdict pertain to what is done on private property, not even if it be done in a private river; for what is done in a private river is just the same as if it were done in some other private place.

Dig. 43.12.1.11

Digest 43.12.1.11

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

In flumine publico factum accipere debemus, quidquid in aqua fiat: nam si quid extra factum sit, non est in flumine factum: et quod in ripa fiat, non videtur in flumine factum.

We ought to accept as done “in a public river” whatever is done in the water: for if something is done outside, it is not done in the river; and what is done on the bank is not considered to have been done in the river.

Dig. 43.12.1.12

Digest 43.12.1.12

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

The praetor does not restrain everything that is done in a public river or on its bank, but only if something is done whereby the anchorage and navigation become worse. Therefore this interdict pertains only to those public rivers which are navigable; it does not pertain to the rest. But Labeo writes that it is not inequitable that even if something is done in a river which is not navigable, such that it dries up or the course of the water is impeded, a useful interdict should be available: "that no force be done to him, whereby he be hindered from being able to remove, demolish, clear, or restore, at the judgment of a good man, that work which has been made in the channel of the river or on the bank in such a way that the route of the river’s course be made worse."

Dig. 43.12.1.13

Digest 43.12.1.13

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Stationem dicimus a stando: is igitur locus demonstratur, ubicumque naves tuto stare possunt.

We call a station from “standing”: therefore that place is designated, wherever ships can safely stand.

Dig. 43.12.1.14

Digest 43.12.1.14

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

The praetor says: "and that the journey of a vessel be made worse." This is set in place for navigation: indeed we are accustomed to call navigium even the ship itself; therefore the journey may also be taken with respect to the navigium, thus, "that the journey for a ship be made worse." Under the appellation of navigium rafts too are contained, because often even the use of a raft is necessary. If the pedestrian way is impeded, for that reason the journey for a vessel is not made any the less worse.

Dig. 43.12.1.15

Digest 43.12.1.15

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

A station, and likewise the passage for a vessel, is deemed to have been made worse if its use is corrupted or becomes more difficult, or reduced or more infrequent, or if it is taken away altogether. Accordingly, whether the water be diverted, so that, made more scant, it is less navigable; or if it be dilated, or, being diffused, makes shallow water; or, conversely, if it be so coarcted as to make the river more rapid; or if anything else be done which incommodes navigation, or makes it more difficult, or altogether impedes it, there will be ground for the interdict.

Dig. 43.12.1.16

Digest 43.12.1.16

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Labeo writes that an exception is not to be given to him who is proceeded against by interdict: " or unless it was done for the sake of defending the bank," but he says it should be excepted thus: " except in so far as anything was done in such a way as it was permitted by law to be done."

Dig. 43.12.1.17

Digest 43.12.1.17

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Si in mari aliquid fiat, labeo competere tale interdictum: " ne quid in mari inve litore" " quo portus, statio iterve navigio deterius fiat".

If something is done in the sea, Labeo says that such an interdict applies: " that nothing be done in the sea or on the shore" " by which the port, anchorage, or route for a vessel becomes worse".

Dig. 43.12.1.18

Digest 43.12.1.18

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Sed et si in flumine publico, non tamen navigabili fiat, idem putat.

But also, if it is made in a public river, yet not a navigable one, he thinks the same.

Dig. 43.12.1.19

Digest 43.12.1.19

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Deinde ait praetor: " quod in flumine publico ripave eius fiat sive quid in id flumen ripamve eius immissum habes, quo statio iterve navigio deterior sit fiat, restituas".

Then the praetor says: " quod in a public river or on its bank is done, or if you have anything introduced into that river or onto its bank, whereby the station or the passage for a vessel is or becomes worse, you shall restore."

Dig. 43.12.1.20

Digest 43.12.1.20

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Superius interdictum prohibitorium est, hoc restitutorium, ad eandem causam pertinens.

The interdict above is prohibitory; this one is restitutory, pertaining to the same cause.

Dig. 43.12.1.21

Digest 43.12.1.21

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Iubetur autem is, qui factum vel immissum habet, restituere quod habet, si modo id quod habet stationem vel navigium deterius faciat.

Moreover, he who has a thing done or an emission is ordered to restore what he has, provided that what he has makes the station or the vessel worse.

Dig. 43.12.1.22

Digest 43.12.1.22

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

These words " you have a thing done" or " you have an immission" show that the one held is not he who did or introduced it, but he who has the thing done, who has the immission. Finally, labeo writes that, if your auctor has diverted water, you are liable under this interdict if you make use of it.

Dig. 43.12.2

Digest 43.12.2

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

There is nothing to prevent water from being led off from a public river ( unless the emperor or the senate forbids), provided only that that water will not be in public use: but if either it is navigable or from it another becomes navigable, it is not permitted to do that.

Dig. 43.12.3pr.

Digest 43.12.3, preface.

Paulus 16 ad sab.

Paulus 16 on Sabinus.

Flumina publica quae fluunt ripaeque eorum publicae sunt.

Rivers that flow are public, and their banks are public.

Dig. 43.12.3.1

Digest 43.12.3.1

Paulus 16 ad sab.

Paulus 16 on Sabinus.

Ripa ea putatur esse, quae plenissimum flumen continet.

The bank is considered to be that which contains the river at its fullest.

Dig. 43.12.3.2

Digest 43.12.3.2

Paulus 16 ad sab.

Paul 16 to Sabinus.

Secundum ripas fluminum loca non omnia publica sunt, cum ripae cedant, ex quo primum a plano vergere incipit usque ad aquam.

Along the banks of rivers, not all places are public, since the banks give way, from the point where they first begin to slope from the level ground down to the water.

Dig. 43.12.4

Digest 43.12.4

Scaevola 5 resp.

Scaevola 5 responses.

Quaesitum est, an is, qui in utraque ripa fluminis publici domus habeat, pontem privati iuris facere potest. respondit non posse.

It was asked whether one who has houses on both banks of a public river can make a bridge of private right. respondit that he could not.

Dig. 43.13.0. Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit.

Dig. 43.13.0. That nothing be done in a public river, whereby the water may flow otherwise than as it flowed in the prior summer.

Dig. 43.13.1pr.

Digest 43.13.1pr.

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Ait praetor: " in flumine publico inve ripa eius facere aut in id flumen ripamve eius immittere, quo aliter aqua fluat, quam priore aestate fluxit, veto".

The praetor says: " to make in a public river or on its bank, or to throw into that river or its bank, whereby the water would flow otherwise than it flowed in the previous summer, I forbid".

Dig. 43.13.1.1

Digest 43.13.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Hoc interdicto prospexit praetor, ne derivationibus minus concessis flumina excrescant vel mutatus alveus vicinis iniuriam aliquam adferat.

By this interdict the praetor made provision, lest by diversions less permitted the rivers should swell, or a changed channel should bring some injury to the neighbors.

Dig. 43.13.1.2

Digest 43.13.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Pertinet autem ad flumina publica, sive navigabilia sunt sive non sunt.

It pertains, moreover, to public rivers, whether they are navigable or are not.

Dig. 43.13.1.3

Digest 43.13.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

The praetor says: " whereby the water flow otherwise than it flowed in the previous summer": not everyone therefore who has let it in or who has done something is held, but he who by doing or by letting in brings it about that the water flows otherwise than it flowed in the previous summer. But as to what he says " that it flow otherwise", this does not pertain to the quantity of the water flowing, but should be referred to the mode and to the rigor of the course of the water. And generally it must be said that only then is someone held by the interdict, if the course of the water is changed through what has been done, in that the water is made either lower or narrower and by this becomes more rapid, to the disadvantage of the neighbors: and if the neighbors sense any other defect from the act of him who is convened, there will be room for the interdict.

Dig. 43.13.1.4

Digest 43.13.1.4

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Si quis ex rivo tecto per apertum ducere velit vel contra qui ante aperto duxit, nunc operto velit, interdicto teneri placuit, si modo hoc factum eius incommodum circa colentibus adferat.

If someone should wish to conduct from a covered channel through an open one, or conversely he who previously conducted by an open one now should wish [to conduct] by a covered one, it has been ruled that he is held by the interdict, provided only that this act of his brings inconvenience to those cultivating in the vicinity.

Dig. 43.13.1.5

Digest 43.13.1.5

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Simili modo et si incile ducat aut alio loco faciat aut si alveum fluminis mutet, hoc interdicto tenebitur.

In a similar manner, if he draws a channel or makes it in another place, or if he alters the river’s bed, he will be bound by this interdict.

Dig. 43.13.1.6

Digest 43.13.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

There are those who think that in this interdict an exception should be made, “that which will be done for the sake of fortifying its bank will not be [prohibited],” namely, that if anything is done by which the water would flow otherwise, yet if it is done for the purpose of fortifying the bank, the interdict should have no place. But this does not please some, either: for the banks are not to be fortified with the detriment of the neighboring residents. Nevertheless we use this rule of law, that the praetor, according to the circumstances, assess whether he ought to grant this exception: for utility for the most part counsels that that exception be given.

Dig. 43.13.1.7

Digest 43.13.1.7

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

But also, if some other utility accrues to him who has done something in a public river (suppose, for instance, the river was wont to inflict great damage on him, to devastate his estates), if perchance he applied embankments or some other fortification to protect his field, and this altered the course of the river in some respect, why should he not be given consideration? I know that very many have outright diverted rivers and changed their channels, while they look after their estates. For in matters of this kind the utility and safeguarding of the doer ought to be regarded, without injury, of course, to the neighbors.

Dig. 43.13.1.8

Digest 43.13.1.8

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

But he is held by this interdict who has made it flow otherwise than it flowed in the previous summer. And therefore they say that the praetor included the previous summer, because the natural course of rivers is always more certain in summer rather than in winter. And this interdict is referred not to the present summer, but to the prior one, because the flow of that summer is more indubitable.

aestas ad aequinoctium autumnale refertur. et si forte aestate interdicetur, proxima superior aestas erit intuenda: si vero hieme, tunc non proxima hieme aestas, sed superior erit inspicienda.

summer is reckoned up to the autumnal equinox. and if perchance an interdict is issued in summer, the nearest prior summer is to be considered: but if in winter, then it is not the summer next to that winter, but the earlier that must be examined.

Dig. 43.13.1.9

Digest 43.13.1.9

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Hoc interdictum cuivis ex populo competit, sed non adversus omnes, verum adversus eum, qui deneget, ut aliter aqua flueret, cum ius non haberet.

This interdict lies for anyone of the people, but not against everyone; rather against the one who refuses to allow the water to flow otherwise, although he has no right.

Dig. 43.13.1.10

Digest 43.13.1.10

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

Hoc interdictum et in heredes competit.

This interdict also lies against heirs.

Dig. 43.13.1.11

Digest 43.13.1.11

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Deinde ait praetor: " quod in flumine publico ripave eius factum sive quid in flumen ripamve eius immissum habes, si ob id aliter aqua fluit atque uti priore aestate fluxit, restituas".

Then the praetor says: " whatever has been done in a public river or on its bank, or if you have anything introduced into the river or onto its bank, if on account of that the water flows otherwise than as it flowed in the previous summer, you shall restore it".

Dig. 43.13.1.12

Digest 43.13.1.12

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

This interdict is restitutory and is set forth: for the one above is prohibitory and pertains to things not yet done. If therefore anything has already been done, it will be restored by this interdict; if provision is made that something not be done, the superior interdict must be used; and if anything has been done after the interdict has been issued, it will be coerced.

Dig. 43.13.1.13

Digest 43.13.1.13

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

In hoc interdicto restitutorio non est iniquum, ut labeo ait, venire etiam, quod dolo factum est quo minus haberes.

In this restitutory interdict it is not inequitable, as Labeo says, to include also what was done by fraud, whereby you were prevented from having it.

Dig. 43.14.0. Ut in flumine publico navigare liceat.

Digest 43.14.0. That it be permitted to navigate on a public river.

Dig. 43.14.1pr.

Digest 43.14.1pr.

Ulpianus 68 ad ed.

Ulpian 68 On the Edict.

The Praetor says: " so that he be not hindered from plying a ship or raft on a public river, nor from loading or unloading along the bank, I forbid force to be used. likewise, that it be permitted to navigate through a public lake, ditch, or pond, I will interdict".

Dig. 43.14.1.1

Digest 43.14.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

By this interdict it is provided that no one be prohibited from navigating on a public river: for just as, for him who is prohibited from using a public road, an interdict has been set forth above, so the praetor thought that this one too should be proposed.

Dig. 43.14.1.2

Digest 43.14.1.2

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Si privata sunt supra scripta, interdictum cessat.

If the above-written are private, the interdict ceases.

Dig. 43.14.1.3

Digest 43.14.1.3

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Lacus est, quod perpetuam habet aquam.

A lake is that which has perpetual water.

Dig. 43.14.1.4

Digest 43.14.1.4

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Stagnum est, quod temporalem contineat aquam ibidem stagnantem, quae quidem aqua plerumque hieme cogitur.

A pool is that which contains temporal water stagnating in that same place; and this water for the most part is collected in winter.

Dig. 43.14.1.5

Digest 43.14.1.5

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Fossa est receptaculum aquae manu facta.

A ditch is a receptacle of water made by hand.

Dig. 43.14.1.6

Digest 43.14.1.6

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Possunt autem etiam haec esse publica.

But these too can be public.

Dig. 43.14.1.7

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Clearly, for a publican who has leased a lake or a pond, if he is forbidden to fish, Sabinus agrees that a useful interdict is competent: and so Labeo. Therefore, even if he has it leased from the municipality, it will be most equitable, in favor of the revenue (vectigal), to protect him by interdict.

Dig. 43.14.1.8

Digest 43.14.1.8

Ulpianus 68 ad ed.

Ulpian, 68 On the Edict.

Si quis velit interdictum tale movere, ut locus deprimatur pecoris appellendi gratia, non debet audiri: et ita mela scribit.

If anyone wishes to move such an interdict, namely that a place be lowered for the sake of driving cattle, he ought not to be heard; and thus Mela writes.

Dig. 43.14.1.9

Digest 43.14.1.9

Ulpianus 68 ad ed.

Ulpian Book 68 on the Edict.

Idem ait tale interdictum competere, ne cui vis fiat, quo minus pecus ad flumen publicum ripamve fluminis publici appellatur.

The same says that such an interdict is available, that no violence be done to anyone to prevent his driving his herd to a public river or to the bank of a public river.

Dig. 43.15.0. De ripa munienda.

Digest 43.15.0. On fortifying the riverbank.

Dig. 43.15.1pr.

Digest 43.15.1, preface.

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

The praetor says: "I forbid force to be used, to the effect that it be not permitted to him to make a work in a public river or on its bank, for the sake of protecting the bank or the land which is around the bank, provided that navigation is not thereby made worse, if for you, for damage not yet done, for ten years, at the arbitration of a good man either security has been provided or surety given, or it is not owing to him that, at the arbitration of a good man, security be provided or surety be given."

Dig. 43.15.1.1

Digest 43.15.1.1

Ulpianus 68 ad ed.

Ulpian 68 on the edict.

Ripas fluminum publicorum reficere munire utilissimum est. sicuti igitur de via publica reficienda interdictum propositum est, ita etiam de ripa fluminis munienda proponendum fuit.

It is most useful to repair and fortify the banks of public rivers. Accordingly, just as an interdict has been put forward concerning the repairing of a public road, so also concerning the fortifying of a riverbank it had to be put forward.

Dig. 43.15.1.2

Digest 43.15.1.2

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Merito adicit " dum ne ob id navigatio deterior fiat": illa enim sola refectio toleranda est, quae navigio non est impedimento.

He rightly adds "provided that on account of this the navigation does not become worse": for only that refitting is to be tolerated, which is not an impediment to the vessel.

Dig. 43.15.1.3

Digest 43.15.1.3

Ulpianus 68 ad ed.

Ulpian 68 on the Edict.

Moreover, he who wishes to fortify the bank ought, for future damage, either to give security or to furnish surety, according to the quality of the person: and this has been expressed by the interdict, that for ten years, in a case of damage not yet done (damnum infectum), by the arbitration of a good man, either security be given or surety be furnished.

Dig. 43.15.1.4

Digest 43.15.1.4

Ulpianus 68 ad ed.

Ulpian, 68 on the Edict.

Dabitur autem satis vicinis: sed et his, qui trans flumen possidebunt.

But security will be given to the neighbors: and also to those who will possess across the river.

Dig. 43.15.1.5

Digest 43.15.1.5

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Indeed, it had to be seen to that security be provided to them before the work was done: for after the work is done no faculty remains of pursuing by this interdict, even if some damage has afterwards been inflicted, but one must proceed under the Lex Aquilia.

Dig. 43.15.1.6

Digest 43.15.1.6

Ulpianus 68 ad ed.

Ulpian, 68 on the edict.

Illud notandum est, quod ripae lacus fossae stagni muniendi nihil praetor hic cavit: sed idem erit observandum, quod in ripa fluminis munienda.

It should be noted that the praetor here made no provision for the fortification of the bank of a lake, a ditch, or a pond; but the same is to be observed as in fortifying the bank of a river.

Dig. 43.16.0. De vi et de vi armata.

Digest 43.16.0. On force and on armed force.

Dig. 43.16.1pr.

Digest 43.16.1, preface.

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Praetor ait: " unde tu illum vi deiecisti aut familia tua deiecit, de eo quaeque ille tunc ibi habuit tantummodo intra annum, post annum de eo, quod ad eum qui vi deiecit pervenerit, iudicium dabo".

The praetor says: " whence you ejected him by force or your household ejected [him], concerning that and whatever he then had there, only within a year; after a year, concerning that which has come to him who ejected by force, I will grant an action".

Dig. 43.16.1.1

Digest 43.16.1.1

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Hoc interdictum proponitur ei, qui vi deiectus est: etenim fuit aequissimum vi deiecto subvenire: propter quod ad reciperandam possessionem interdictum hoc proponitur.

This interdict is propounded for him who has been ejected by force: indeed, it was most equitable to come to the aid of one ejected by force; on account of which this interdict is propounded for recovering possession.

Dig. 43.16.1.2

Digest 43.16.1.2

Ulpianus 69 ad ed.

Ulpian 69 On the Edict

Ne quid autem per vim admittatur, etiam legibus iuliis prospicitur publicorum et privatorum nec non et constitutionibus principum.

Moreover, lest anything be committed by force, provision is also made by the Julian laws on public and on private violence, and likewise by the constitutions of the emperors.

Dig. 43.16.1.3

Digest 43.16.1.3

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

This interdict does not pertain to every kind of force, but to those who are cast out of possession. Moreover, this interdict pertains only to atrocious (grave) force, and only to those who are cast out from the soil, as, for example, from a farm or a building: it does not pertain to any other case.

Dig. 43.16.1.4

Digest 43.16.1.4

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

And if anyone has been cast down from an area, without doubt there is room for the interdict; and generally this interdict pertains to all who are cast down from a thing cohering to the soil: for whatever sort the place may have been from which someone was cast down by force, there will be room for the interdict.

Dig. 43.16.1.5

Digest 43.16.1.5

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Proinde et si superficiaria insula fuerit, qua quis deiectus est, apparet interdicto fore locum.

Accordingly, even if it was a superficiary tenement, from which someone has been thrown out, it appears that there will be room for the interdict.

Dig. 43.16.1.6

Digest 43.16.1.6

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

That, of course, does not come into doubt: this interdict does not pertain to movable things; for on the ground of theft or of goods seized by force (rapine) an action lies, and one can also proceed for producing (ad exhibendum). Clearly, if there are any things on the estate or in the house from which someone has been ejected, it is not to be doubted that the interdict is available also in respect of them.

Dig. 43.16.1.7

Digest 43.16.1.7

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Si quis de nave vi deiectus est, hoc interdicto locus non est, argumento eius, qui de vehiculo detractus est, quem nemo dixit interdicto hoc uti posse.

If someone has been cast down from a ship by force, there is no place for this interdict, by the argument from the one who has been dragged from a vehicle, whom no one has said can make use of this interdict.

Dig. 43.16.1.8

Digest 43.16.1.8

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Plane si quis de ligneis aedibus deiectus fuerit, nemo ambigit interdicto locum fore, quia qualequale sit quod solo cohaereat, inde qui vi deiectus est habet interdictum.

Plainly, if someone has been thrown out from wooden buildings, no one doubts that there will be place for the interdict, because whatever it may be that adheres to the soil, from there the one who has been ejected by force has the interdict.

Dig. 43.16.1.9

Digest 43.16.1.9

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Deicitur is qui possidet, sive civiliter sive naturaliter possideat: nam et naturalis possessio ad hoc interdictum pertinet.

He is said to be ejected who possesses, whether he possesses civilly or naturally: for natural possession also pertains to this interdict.

Dig. 43.16.1.10

Digest 43.16.1.10

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Denique et si maritus uxori donavit eaque deiecta sit, poterit interdicto uti: non tamen si colonus.

Finally, even if a husband has donated to his wife and she has been ejected, she will be able to use the interdict; not, however, if the donee is a colonus (tenant-farmer).

Dig. 43.16.1.11

Digest 43.16.1.11

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

The praetor says: " you have ejected or the household has ejected". Mention of the household was rightly made: for since the word " you have ejected" is referred to the person who has ejected and does not pertain to him whose household has ejected (for indeed I do not seem to have ejected, if my household has ejected), it was consequent to add " or your household has ejected".

Dig. 43.16.1.12

Digest 43.16.1.12

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Moreover, he too is considered to have ejected who has mandated or ordered that someone be ejected: for it has seemed to matter little whether one ejects with his own hands or rather through another; wherefore, even if my household, in accordance with my will, has ejected, I am deemed to have ejected.

Dig. 43.16.1.13

Digest 43.16.1.13

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Whenever a true procurator has ejected, Sabinus says that one can sue either of them, that is, either the owner or the procurator, and that in the name of the one the other is released—provided, however, that the assessment of the suit has been satisfied by either of them ( for he is not excused who ejected by someone’s order, any more than if he killed by someone’s order): but when the procurator is false, the interdict ought to be directed against the procurator alone. Sabinus’s opinion is true.

Dig. 43.16.1.14

Digest 43.16.1.14

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

But also, if I have ratified what another has thrown down, there are those who think, following Sabinus and Cassius, who compare ratification to a mandate, that I am deemed to have thrown it down and am held by that interdict; and this is true: for it is more correct to say that, in a malefaction, ratification is compared to a mandate.

Dig. 43.16.1.15

Digest 43.16.1.15

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

What, therefore, is added—“or your household ejected”—is rightly written for the case in which my household ejected someone by force. But if he ordered it, he himself ejected; nor ought the master who did not order it to be burdened, if he were to make good the act of his slaves, even though they ejected without his order: for he will not be burdened under this head, since either something has come to him and he will restore it, or nothing has come to him and, by surrendering those very slaves for the wrongdoing by way of noxal surrender, he will be held harmless; for what he is compelled to surrender noxally he ought not to reckon as loss, since by this the slave can make the master’s condition worse.

Dig. 43.16.1.16

Digest 43.16.1.16

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Familiae autem appellatio servos continet:

The appellation “family” includes slaves:

Dig. 43.16.1.17

Digest 43.16.1.17

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Sed quaeritur, quem numerum servorum contineat, utrum plurium an vero et duum vel trium. sed verius est in hoc interdicto, etiamsi unus servus vi deiecerit, familiam videri deiecisse.

But it is asked what number of slaves it comprises, whether of several, or indeed even of two or three. But the sounder view in this interdict is that, even if a single slave has ejected by force, it is deemed that the family has ejected.

Dig. 43.16.1.18

Digest 43.16.1.18

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Familiae appellatione et eos, quos loco servorum habemus, contineri oportere dicendum est.

Under the appellation “family” it ought to be said that there are contained also those whom we have in the place of slaves.

Dig. 43.16.1.19

Digest 43.16.1.19

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si quis tamen neget se servum vel familiam defendere, cogendus est pati hoc interdictum, ad hoc scilicet, ut quod ad eum pervenit restituat.

If anyone, however, denies that he is defending a slave or the household, he must be compelled to suffer this interdict, namely to this end: that he restore what has come to him.

Dig. 43.16.1.20

Digest 43.16.1.20

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si filius familias vel mercennarius vi deiecerit, utile interdictum competit.

If a son of the household or a hireling has ejected someone by force, a useful interdict lies.

Dig. 43.16.1.21

Digest 43.16.1.21

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

If, against him who is sought into freedom from slavery—or the contrary—after the liberal action has been initiated I make use of an interdict, and he has been adjudged free, and it has appeared that, he being unaware, I was ejected by force by his slaves, I shall be restored into possession.

Dig. 43.16.1.22

Digest 43.16.1.22

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

What a slave or a procurator or a colonus hold, the owner is deemed to possess; and therefore, with these persons ejected, he himself is considered to be ejected from possession, even if he is unaware that those, through whom he was possessing, have been ejected. And if, therefore, any other person through whom I was possessing should be ejected, it is doubtful to no one that the interdict is available to me.

Dig. 43.16.1.23

Digest 43.16.1.23

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Interdictum autem hoc nulli competit nisi ei, qui tunc cum deiceretur possidebat, nec alius deici visus est quam qui possidet.

But this interdict is competent to no one except to him who at the time when he was being ejected was in possession, nor is anyone deemed to have been ejected other than the one who possesses.

Dig. 43.16.1.24

Digest 43.16.1.24

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Whether someone possessing in body or in mind has been cast out, it is clear that he appears to have been ejected by force. And therefore, if someone had gone out from his field or from his house, leaving none of his people behind, and on soon returning is prevented from entering either the estate itself; or if someone detained him in mid-journey and himself took possession, he is deemed to have been ejected by force: for you have taken from him the possession which he was retaining in mind, even if not in body.

Dig. 43.16.1.25

Digest 43.16.1.25

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

What is commonly said, that of summer and winter forest-pastures we retain possession by intention, I have learned that Proculus states for the sake of example: for it is the same with all estates, from which we do not withdraw with this mind, namely, to have wished to have abandoned possession.

Dig. 43.16.1.26

Digest 43.16.1.26

Ulpianus 69 ad ed.

Ulpian, book 69 on the Edict.

Eum, qui neque animo neque corpore possidebat, ingredi autem et incipere possidere prohibeatur, non videri deiectum verius est: deicitur enim qui amittit possessionem, non qui non accipitur.

One who possessed neither in mind nor in body, but is forbidden to enter and to begin to possess, is more truly not considered to have been ejected: for he is ejected who loses possession, not he who is not admitted.

Dig. 43.16.1.27

Digest 43.16.1.27

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Vim vi repellere licere cassius scribit idque ius natura comparatur: apparet autem, inquit, ex eo arma armis repellere licere.

Cassius writes that it is licit to repel force by force, and that this right is provided by nature; moreover, he says, from this it is apparent that it is licit to repel arms with arms.

Dig. 43.16.1.28

Digest 43.16.1.28

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

To possess by force is to be defined as one who, the former possessor having been expelled, holds a possession acquired through force, or one who has come fitted and prepared for this very thing and, against good morals, by assistance acts so that, entering into possession, he cannot be prevented. But one who has retained his own possession by force, Labeo says, does not possess by force.

Dig. 43.16.1.29

Digest 43.16.1.29

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

The same Labeo says that one who has fled, panic-stricken by fear of a mob, is considered to have been ejected by force. But Pomponius says that force has no place without corporal force; therefore even one who has been put to flight by certain supervening persons, if they have occupied the possession by force, is deemed to have been ejected by force.

Dig. 43.16.1.30

Digest 43.16.1.30

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Qui a me vi possidebat, si ab alio deiciatur, habet interdictum.

He who possessed from me by force, if he is ejected by another, has the interdict.

Dig. 43.16.1.31

Digest 43.16.1.31

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Qui vi deiectus est, quidquid damni senserit ob hoc quod deiectus est, reciperare debet: pristina enim causa restitui debet, quam habiturus erat, si non fuisset deiectus.

He who has been ejected by force ought to recover whatever loss he has suffered on account of his being ejected: for his former condition must be restored—the condition which he would have had, if he had not been ejected.

Dig. 43.16.1.32

Digest 43.16.1.32

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

If the estate from which I was expelled by force were restored to me, but the other things which were taken away by force are not restored, here it must be said that the interdict nonetheless holds, because it is true that he was ejected by force. Clearly, if someone wishes to proceed as to the possession of real property by this interdict, but as to movable things by the action ad exhibendum, he can have it so at his own discretion, and thus Julianus writes: he writes the same also if someone wishes to proceed concerning matters of this kind by the action vi bonorum raptorum.

Dig. 43.16.1.33

Digest 43.16.1.33

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

But as for the praetor’s statement: "and whatever he had there," we take it thus, that all things are encompassed— not only those which were his own proper goods, but also any that were deposited with him, or loaned to him for use (commodated), or pledged, and any of which he had use, or usufruct, or custody, or if any were leased to him: for since the praetor says "he had," all these are contained under the verb "to have."

Dig. 43.16.1.34

Digest 43.16.1.34

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Most rightly, moreover, the praetor added " then he had it there". We take " then" thus: " when he was being ejected"; and therefore, even if anything afterwards ceased to be there, it must be said to come under the interdict. Thus it comes about that, even if men or cattle have died after the ejection, there is place for the interdict.

Dig. 43.16.1.35

Digest 43.16.1.35

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Finally, Julianus writes that it is more appropriate that the one who by force ejected from that estate on which there had been persons should be obliged, even if the persons died without his fault, to restore their valuation through the interdict, just as the thief of a person is held liable even when that person has died. He says that consequent to this he should also be compelled to restore the price of a villa and of buildings consumed by fire: for where someone has ejected, it is deemed to have been through him that restitution did not take place.

Dig. 43.16.1.36

Digest 43.16.1.36

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Idcirco constare ait eum, qui vi deiecit quique vi sine dolo malo desierit possidere, interdicto teneri.

Therefore he says it is established that a person—both he who has ejected by force and he who, by force and without fraudulent intent, has ceased to possess—is held by the interdict.

Dig. 43.16.1.37

Digest 43.16.1.37

Ulpianus 69 ad ed.

Ulpian, Book 69 on the Edict.

" ibi" autem ait praetor, ut ne quis et quae illic non habuit, complectatur.

" there," moreover, says the praetor, so that no one may include also those things which he did not have there.

Dig. 43.16.1.38

Digest 43.16.1.38

Ulpianus 69 ad ed.

Ulpian, 69, on the Edict.

Indeed, as to what the praetor says “there,” how do we take it? whether in that place from which someone was cast down by force, or rather in the whole possession? and it will be better said that it is not to be referred to a single angle or the spot in which he was, but also to every part of the possession of which he was deprived when he is cast out.

Dig. 43.16.1.39

Digest 43.16.1.39

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Annus in hoc interdicto utilis est.

In this interdict, the year is useful.

Dig. 43.16.1.40

Digest 43.16.1.40

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

From the day on which someone is cast out, an account of the fruits is had, although in the other interdicts they are computed from the time when they were issued, not retroactively. The same holds also for movable things which were there: for the fruits of those too are to be computed from the time from which someone was ejected by force.

Dig. 43.16.1.41

Digest 43.16.1.41

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Not only, moreover, is account taken of the fruits in this interdict, but account must also be taken of the other utilities; for Vivianus reports that under this interdict everything whatsoever which the person who has been ejected would have had or would have attained, if he had not been ejected by force, must be restored, or a suit concerning them must be assessed by the judge, and that he will recover only so much as the amount of his interest in not having been ejected by force.

Dig. 43.16.1.42

Digest 43.16.1.42

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Ex interdicto unde vi etiam is qui non possidet restituere cogetur.

From the interdict "whence by force," even one who does not possess will be compelled to restitute.

Dig. 43.16.1.43

Digest 43.16.1.43

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

This interdict, because it contains the atrocity of the crime in itself, has given rise to the question whether it is available to a freedman against his patron or to children against their parents. And the truer view is that it should be given neither to a freedman against a patron nor to children against parents, and it will be better that an action in factum be available to them. It is otherwise if the patron has used armed force against the freedman or the parent against the children: for in this case the interdict lies.

Dig. 43.16.1.44

Digest 43.16.1.44

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc interdictum et heredi et ceteris successoribus competit.

This interdict lies to the heir and to the other successors as well.

Dig. 43.16.1.45

Digest 43.16.1.45

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

An argument, reported by Vivianus, shows that the interdict “unde vi” is competent to no one other than to him who possesses: if someone has ejected me by force but has not ejected my men, I cannot proceed under this interdict, because I retain possession through those who have not been ejected.

Dig. 43.16.1.46

Digest 43.16.1.46

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

The same Vivianus reports: he drove off certain slaves by force, retained others and bound them, or even gave orders to them; you are understood to have been ejected by force, for you have ceased to possess, since the slaves are possessed by another. And what has been said with respect to part of the slaves, he says the same is to be said with respect to all, if perchance no one had been driven off, but they had begun to be possessed by him who had entered into possession.

Dig. 43.16.1.47

Digest 43.16.1.47

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

He treats what we would say, if, with someone being in possession, I too have entered into the possession and do not eject the possessor, but compel him, bound, to do work: to what extent, he says, would the matter stand? I think it more true that he too is to be regarded as ejected who is bound there.

Dig. 43.16.1.48

Digest 43.16.1.48

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Ex causa huius interdicti in heredem et bonorum possessorem ceterosque successores in factum actio competit in id quod ad eos pervenit.

From the ground of this interdict, an action in factum lies against the heir, the bonorum possessor, and the other successors, for so much as has come to them.

Dig. 43.16.2

Digest 43.16.2

Paulus 65 ad ed.

Paulus 65 on the Edict.

Dolove malo eorum factum est, quo minus perveniret.

Or was it by their malicious fraud that it came about, that he did not arrive.

Dig. 43.16.3pr.

Digest 43.16.3, beginning.

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Quod est et si quis armis deiectus est, quia ex facinoribus defunctorum de eo, quod ad heredem pervenit, actio datur: sufficit enim non in lucro versari eum heredem, non etiam damnum subire.

Which holds also if someone has been ejected by arms, because for the misdeeds of the deceased an action is granted concerning that which has come to the heir: for it suffices that the heir not be in profit, not also to undergo loss.

Dig. 43.16.3.1

Digest 43.16.3.1

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Haec actio, quae adversus heredem ceterosque successores pertinet, perpetuo competit, quia in ea rei persecutio continetur.

This action, which pertains against the heir and the other successors, is available perpetually, because in it the pursuit of the thing (rei persecutio) is contained.

Dig. 43.16.3.2

Digest 43.16.3.2

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Armis deiectum quomodo accipimus? arma sunt omnia tela, hoc est et fustes et lapides, non solum gladii hastae frameae, id est rhomphaeae.

How do we understand “cast down by arms”? Arms are all weapons, that is, also cudgels and stones, not only swords, spears, frameae, that is, rhomphaeae.

Dig. 43.16.3.3

Digest 43.16.3.3

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Plane et si unus vel alter fustem vel gladium tenuit, armis deiectus possessor videtur.

Plainly, even if one or another held a cudgel or a sword, the possessor is deemed to have been ejected by arms.

Dig. 43.16.3.4

Digest 43.16.3.4

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Plus dicitur, et si inermes venerant, si in ipsa concertatione qui inermes venerant eo processerunt, ut fustes aut lapides sumerent, vis erit armata.

Further it is said that, even if they had come unarmed, if in the very contest those who had come unarmed proceeded to the point of taking up clubs or stones, the force will be armed.

Dig. 43.16.3.5

Digest 43.16.3.5

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Qui armati venerunt et si armis non sunt usi ad deiciendum, sed deiecerunt, armata vis facta esse videtur: sufficit enim terror armorum, ut videantur armis deiecisse.

Those who came armed, and even if they did not use their weapons to effect the ejection, but did eject, an armed force appears to have been committed: for the terror of arms suffices, so that they are deemed to have ejected by arms.

Dig. 43.16.3.6

Digest 43.16.3.6

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Si quis autem visis armatis, qui alibi tendebant, metu hoc deterritus profugerit, non videtur deiectus, quia non hoc animo fuerunt qui armati erant, sed alio tendebant.

If, however, someone, on seeing armed men who were pitching camp elsewhere, being deterred by this fear fled, he is not considered ejected, because those who were armed did not have this intention, but were making for another place.

Dig. 43.16.3.7

Digest 43.16.3.7

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Proinde et si, cum armatos audisset venire, metu decesserit de possessione, sive verum sive falsum audisset, dicendum est non esse eum armis deiectum, nisi possessio ab his fuerit occupata.

Accordingly, even if, upon hearing that armed men were coming, he withdrew from the possession out of fear, whether what he heard was true or false, it must be said that he was not cast out by arms, unless the possession has been occupied by them.

Dig. 43.16.3.8

Digest 43.16.3.8

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Si autem, cum dominus veniret in possessionem, armati eum prohibuerunt qui invaserant possessionem, videri eum armis deiectum.

But if, when the owner was coming into possession, the armed men who had invaded the possession prevented him, he is deemed to have been ejected by arms.

Dig. 43.16.3.9

Digest 43.16.3.9

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Therefore, him who comes with arms we can repel with arms; but this forthwith, not after an interval, provided we understand that it is permitted not only to resist, lest he be cast down, but also, if someone has been cast down, to cast down that same man, not after an interval, but on the spot.

Dig. 43.16.3.10

Digest 43.16.3.10

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Cum procurator armatus venit, et ipse dominus deiecisse videtur, sive mandavit sive, ut iulianus ait, ratum habuit.

When an armed procurator comes, even the owner himself is seen to have ejected, whether he ordered it or, as julian says, ratified it.

Dig. 43.16.3.11

Digest 43.16.3.11

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc et in familia dicendum est: nam cum familia sine me armata venit, ego non videor venisse, sed familia, nisi iussi vel ratum habui.

This too must be said concerning the household: for when the household comes armed without me, I am not deemed to have come, but the household is, unless I ordered it or approved it.

Dig. 43.16.3.12

Digest 43.16.3.12

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Hoc interdictum etiam adversus eum proponitur, qui dolo malo fecit, quo quis armis deiceretur: et post annum reddetur in id, quod pervenit ad eum qui prohibuit unde vi.

This interdict is also brought against one who, by malicious fraud, contrived that someone be cast down by arms; and after a year it will be rendered to the extent of that which has accrued to the one who barred him by force from that place.

Dig. 43.16.3.13

Digest 43.16.3.13

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Interdictum necessarium fuisse fructuario apparet " si prohibeatur uti frui usu fructu fundi".

It appears that an interdict was necessary for the usufructuary " if he be prohibited to use and enjoy the usufruct of the estate".

Dig. 43.16.3.14

Digest 43.16.3.14

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

He is seen to have prohibited use and enjoyment who by force cast out the one using and enjoying, or did not admit him when he had gone out from the estate not for the purpose of abandoning the usufruct. But if someone from the beginning prohibited a person willing to begin to use and enjoy, this interdict has no place. What then is the case?

debet fructuarius usum fructum vindicare.

the usufructuary ought to vindicate the usufruct.

Dig. 43.16.3.15

Digest 43.16.3.15

Ulpianus 69 ad ed.

Ulpian, 69 on the edict

This interdict pertains to one who has been prohibited from using and enjoying a landed estate; but it will also pertain to one who is prohibited from using and enjoying buildings. Consequently we say that this interdict does not pertain to movable things, if someone is prohibited from using and enjoying a movable thing, unless the movable things were appurtenant to the realty: if therefore they were there, it must be said that this interdict ought also to be extended to them.

Dig. 43.16.3.16

Digest 43.16.3.16

Ulpianus 69 ad ed.

Ulpian, book 69 on the Edict.

Item si non usus fructus, sed usus sit relictus, competit hoc interdictum. ex quacumque enim causa constitutus est usus fructus vel usus, hoc interdictum locum habebit.

Likewise, if not the usufruct but the use has been left, this interdict is available. For from whatever cause the usufruct or the use has been constituted, this interdict will have place.

Dig. 43.16.3.17

Digest 43.16.3.17

Ulpianus 69 ad ed.

Ulpian, 69, on the Edict.

He who, under the name of usufruct, was, in whatever manner, as if in possession, will make use of this interdict. But if someone, after he has been prohibited, has been reduced in civil status or has died, it is rightly said that this interdict is available to his heirs and successors, not so that the usufruct be constituted for the future, but so that the past cause and the past damage may be repaired.

Dig. 43.16.3.18

Digest 43.16.3.18

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Heres quoque simili modo debebit in factum actionem suscipere in id quod ad se pervenit.

The heir too, in a similar manner, ought to bring an action on the facts for the amount that has come to him.

Dig. 43.16.4

Digest 43.16.4

Ulpianus 10 ad ed.

Ulpian 10 on the Edict.

Si vi me deiecerit quis nomine municipum, in municipes mihi interdictum reddendum pomponius scribit, si quid ad eos pervenit.

If someone has cast me down by force in the name of the municipes (municipal citizens), Pomponius writes that the interdict must be granted by me against the municipes, if anything has come to them.

Dig. 43.16.5

Digest 43.16.5

Ulpianus 11 ad ed.

Ulpian, 11 on the Edict.

Si per vim tibi possessionem tradidero, dicit pomponius unde vi interdictum cessare, quoniam non est deiectus, qui compulsus est in possessionem inducere.

If I have delivered possession to you by force, Pomponius says that the interdict unde vi ceases, since he is not ejected who has been compelled to induce another into possession.

Dig. 43.16.6

Digest 43.16.6

Paulus 17 ad ed.

Paulus 17 on the edict.

In the interdict unde vi, the condemnation must be made for as much as it is in one’s interest to possess; and we employ this law, as Pomponius writes—namely, that the thing is considered to be worth as much as it concerns the plaintiff; which is sometimes less, sometimes more. For often it is of greater concern to the plaintiff to retain a man than the amount he is worth, as when it is in his interest that he possess him for the sake of holding an investigation, or proving a matter, or entering upon an inheritance.

Dig. 43.16.7

Digest 43.16.7

Paulus 24 ad ed.

Paulus 24 on the Edict.

Cum a te vi deiectus sim, si titius eandem rem possidere coeperit, non possum cum alio quam tecum interdicto experiri.

When I have been ejected by force by you, if titius has begun to possess the same thing, I cannot proceed by interdict against anyone other than you.

Dig. 43.16.8

Digest 43.16.8

Paulus 54 ad ed.

Paulus 54 to the Edict.

Fulcinius dicebat vi possideri, quotiens vel non dominus, cum tamen possideret, vi deiectus est.

Fulcinius said that possession is by force, whenever even one who is not the owner, although he was in possession, has been ejected by force.

Dig. 43.16.9pr.

Digest 43.16.9, beginning.

Paulus 65 ad ed.

Paulus 65 to the edict.

Si plures heredes sunt, unusquisque non in amplius, quam ad eum pervenerit, tenetur. qua de causa interdum in solidum tenebitur is ad quem totum pervenerit, quamvis ex parte heres sit.

If there are several heirs, each is not liable beyond what has come to him. For which cause, sometimes the one to whom the whole has come will be held for the whole (in solidum), although he is an heir only in part.

Dig. 43.16.9.1

Digest 43.16.9.1

Paulus 65 ad ed.

Paul 65 on the Edict.

The praetor orders that one cast out from a usufruct be restored into the same condition, that is, in which he would be if he had not been cast out. itaque and so, if by lapse of time the usufruct shall have ended after he was ejected by the owner, nonetheless he will be compelled to restore, that is, to constitute the usufruct again.

Dig. 43.16.10

Digest 43.16.10

Gaius 2 ad ed. pu. de liberali c.

Gaius 2 on the edict of the Urban Praetor, on the case concerning liberty.

If a robber has expelled the proprietor and the usufructuary from a farm, and on that account the usufructuary, for failure to use within the time set, has lost his right, no one doubts that the owner—whether he brings suit with the usufructuary against the robber or does not bring suit—ought to retain the usufruct reverted to himself; and that what the usufructuary lost is to be counted as the damage of him by whose act it perished.

Dig. 43.16.11

Digest 43.16.11

Pomponius 6 ex plaut.

Pomponius 6 from Plautius.

He commits violence who does not allow the possessor, in respect of that which he possesses, to use it at his own discretion—whether by planting or by digging or by plowing or by building something, or by doing anything at all—through which he does not leave the adversary free possession.

Dig. 43.16.12

Digest 43.16.12

Marcellus 19 Dig.

Marcellus 19 Digest.

A colonus did not admit the person to whom the locator had sold the estate, when that person had been put into possession; then the colonus was by force cast out by another. It was asked who would have the interdict unde vi. I said it makes no difference whether the colonus had prevented the dominus, wishing to enter, or did not admit the buyer to whom the dominus had ordered that possession be delivered. Therefore the interdict unde vi will be competent to the colonus, and the locator himself will be bound by a similar interdict, as one who would then seem to have ejected, when he did not deliver possession to the buyer—unless perhaps he did this on account of a just and probable cause.

Dig. 43.16.13

Digest 43.16.13

Ulpianus 8 ad sab.

Ulpian 8 on Sabinus.

Neque unde vi neque aliud interdictum famosum est.

Neither the unde vi nor any other interdict is infamous.

Dig. 43.16.14

Digest 43.16.14

Pomponius 29 ad sab.

Pomponius 29 to Sabinus.

Sed si vi armata deiectus es, sicut ipsum fundum recipis, etiamsi vi aut clam aut precario eum possideres, ita res quoque mobiles omnimodo recipies.

But if you were ejected by armed force, just as you recover the estate itself, even if you possessed it by force or secretly or precariously, so too you will in every way recover the movable things as well.

Dig. 43.16.15

Digest 43.16.15

Paulus 13 ad sab.

Paul 13 on Sabinus.

If you have thrown me down by force, or have acted by force or clandestinely, although you lost possession without fraud or fault, nevertheless you are to be condemned for as much as my interest amounts to, because in that very matter your fault preceded, in that you altogether ejected by force, or acted by force or secretly.

Dig. 43.16.16

Digest 43.16.16

Ulpianus 29 ad ed.

Ulpian, 29 on the Edict.

In interdicto unde vi dicendum est, ut eius causa, quod ad patrem pervenit, ipse teneatur.

In the interdict unde vi it must be said that, on his account, the father himself is held liable for whatever came to the father.

Dig. 43.16.17

Digest 43.16.17

Iulianus 48 Dig.

Julian 48 Dig.

He who has recovered, by force and in the very encounter, the possession snatched away by force is to be understood to have reverted to his former position rather than to be possessing by force: and therefore, if I have ejected you, immediately you me, then I you, whereupon the interdict unde vi will be useful to you.

Dig. 43.16.18pr.

Digest 43.16.18, preface.

Papinianus 26 quaest.

Papinian 26 Questions.

When the man who had leased out a farm had sold it, he ordered the purchaser to go into vacant possession, whom the tenant forbade to enter: afterwards the purchaser by force expelled the tenant: the question was raised concerning the interdicts unde vi. It was the prevailing view that the tenant was liable to the vendor under the interdict, because it made no difference whether he prohibited him himself or another sent by his will from entering: nor indeed was he considered to have let go of possession before it had been delivered to the purchaser, because no one would be of a mind to relinquish possession on account of the purchaser before the purchaser had acquired it. The purchaser also, who afterwards employed force, was himself liable under the interdict to the tenant: for it was not by him, but by the vendor, that the farm was possessed by force, from whom possession had been taken away.

quaesitum est, an emptori succurri debeat, si voluntate venditoris colonum postea vi expulisset. dixi non esse iuvandum, qui mandatum illicitum susceperit.

It was asked whether relief should be afforded to the buyer, if, by the seller’s will, he had afterwards expelled the tenant by force. I said that he who has undertaken an illicit mandate is not to be aided.

Dig. 43.16.18.1

Digest 43.16.18.1

Papinianus 26 quaest.

Papinian 26 Questions.

Eum, qui fundum vindicavit ab eo, cum quo interdicto unde vi potuit experiri, pendente iudicio nihilo minus interdicto recte agere placuit.

It has been decided that one who has vindicated an estate from a person, against whom he could have proceeded by the interdict unde vi, may, while the suit is pending, nonetheless proceed rightly by interdict.

Dig. 43.16.19

Digest 43.16.19

Tryphonus 15 disp.

Tryphonus book 15 of Disputations.

Rightly Julian answered: if you have ejected me by force from a farm, on which there were movable things, since by the interdict unde vi you ought to restore to me not only the possession of the soil but also the things that were there, although I myself have delayed, so that I did not proceed against you by the interdict, yet—with slaves removed by mortality, or cattle, or other things perishing by chance being deducted—your burden is nonetheless no less in restoring them, because from the very time of the delict you have been constituted a debtor rather than a mere frustrator.

Dig. 43.16.20

Digest 43.16.20

Labeo 3 pith. a paulo epit.

Labeo 3 Pithana, epitomized by paul.

Si colonus tuus vi deiectus est, ages unde vi interdicto. idem si inquilinus tuus vi deiectus fuerit. paulus: idem dici potest de coloni colono, item inquilini inquilino.

If your colonus (tenant-farmer) has been ejected by force, you will proceed by the interdict unde vi. The same if your inquilinus (lodger) has been ejected by force. paulus: the same can be said of the colonus of a colonus, likewise of the inquilinus of an inquilinus.

Dig. 43.17.0. Uti possidetis.

Digest 43.17.0. As you possess.

Dig. 43.17.1pr.

Digest 43.17.1pr.

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

The praetor says: "As you possess those buildings which are at issue, neither by force nor stealth nor by precarium (at-will leave) one from the other, I forbid force to be used to prevent you from possessing thus. About sewers I will not give this interdict. Nor for more than the amount for which the thing will be worth: within a year, from when there shall first have been the power of making trial, I will permit suit to be brought".

Dig. 43.17.1.1

Digest 43.17.1.1

Ulpianus 69 ad ed.

Ulpian, book 69 on the Edict.

Hoc interdictum de soli possessore scriptum est, quem potiorem praetor in soli possessione habeat, et est prohibitorium ad retinendam possessionem.

This interdict is written concerning the possessor of the soil, whom the praetor is to hold as the preferable one in possession of the soil, and it is prohibitory for retaining possession.

Dig. 43.17.1.2

Digest 43.17.1.2

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Moreover, the cause for proposing this interdict was this: that possession ought to be separate from property; for it can happen that one is a possessor and is not an owner, another indeed is an owner and is not a possessor; it can happen that the same person is both possessor and owner.

Dig. 43.17.1.3

Digest 43.17.1.3

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Among litigants, therefore, whenever there is a controversy over proprietorship, either it is agreed among the litigants which is the possessor and which the petitioner, or it is not agreed. If it is agreed, it is settled: he will enjoy the possessor’s advantage whom it is agreed to possess; the other will bear the petitioner’s burden. But if between them it is contested which one possesses, because each of the two affirms that he possesses more, then, if the thing be of the soil, as to whose possession there is contention, they will be remitted to this interdict.

Dig. 43.17.1.4

Digest 43.17.1.4

Ulpianus 69 ad ed.

Ulpian, Book 69 on the Edict.

Therefore this interdict, which is commonly called uti possidetis, is for the retaining of possession (for the cause of this is given, that force not be done to him who possesses), and consequently it is proposed after the interdict unde vi. For that one restores possession lost by force; this interdict protects, lest possession be lost; finally the praetor forbids that force be done to the possessor: and indeed that interdict attacks the possessor, this one protects. And as Pedius says, every controversy about possession tends either to this, that what we do not possess be restored to us, or to this, that it be permitted to us to retain what we possess. The order of restored possession is either expedited by interdict or through an action: therefore for retaining possession the route is twofold, either an exception or an interdict.

exceptio datur ex multis causis ei qui possidet.

An exception is granted on many grounds to the one who possesses.

Dig. 43.17.1.5

Digest 43.17.1.5

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Perpetuo autem hoc interdicto insunt haec: " quod nec vi nec clam nec precario ab illo possides".

Moreover, in this perpetual interdict the following are contained: " that you do not possess from him either by force, or secretly, or by leave at will (precario)"

Dig. 43.17.1.6

Digest 43.17.1.6

Ulpianus 69 ad ed.

Ulpian, 69 on the edict.

Interdictum autem possessorem praedii tuetur, quod est uti possidetis. actio enim numquam ultro possessori datur, quippe sufficit ei quod possideat.

However, the interdict protects the possessor of the estate, namely uti possidetis. action, in fact, is never granted to the possessor to proceed as plaintiff, since it suffices for him that he possesses.

Dig. 43.17.1.7

Digest 43.17.1.7

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Hoc interdictum locum habet, sive quis totum fundum possidere se dicat, sive pro certa parte, sive pro indiviso possideat.

This interdict applies, whether someone claims to possess the whole estate, or for a determinate share, or possesses in undivided co-ownership.

Dig. 43.17.1.8

Digest 43.17.1.8

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Hoc interdictum in omnibus etiam possessionibus, quae sunt soli, sine dubio locum habebit, dummodo possideri possit.

This interdict will, without doubt, have place in all possessions, even those which are of the soil, provided that it can be possessed.

Dig. 43.17.1.9

Digest 43.17.1.9

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

What the praetor says in the interdict: "neither by force nor by stealth nor by precarium does the one possess from the other," pertains to this: that if someone possesses by force or by stealth or by precarium, if indeed from another, the possession profits him; but if from his adversary, he ought not, on account of this fact that he possesses from him, to prevail: for it is clear that these kinds of possession ought not to avail.

Dig. 43.17.2

Digest 43.17.2

Paulus 65 ad ed.

Paulus 65 on the edict.

Usta enim an iniusta adversus ceteros possessio sit, in hoc interdicto nihil refert: qualiscumque enim possessor hoc ipso, quod possessor est, plus iuris habet quam ille qui non possidet.

For whether the possession be just or unjust against the others, in this interdict it makes no difference: for the possessor of whatever kind, by this very fact that he is a possessor, has more right than he who does not possess.

Dig. 43.17.3pr.

Digest 43.17.3 pr.

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

If two possess as to the whole, let us see what is to be said. And let us treat how this proceeds, if someone were to posit a just possession and an unjust one. I possess from a just cause, you by force or clandestinely: if you possess from me, I am superior by the interdict; but if not from me, neither of us will be defeated: for both you possess and I.

Dig. 43.17.3.1

Digest 43.17.3.1

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Hoc interdictum duplex est et hi, quibus competit, et actores et rei sunt.

This interdict is double, and those to whom it is competent are both plaintiffs and defendants.

Dig. 43.17.3.2

Digest 43.17.3.2

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Hoc interdictum sufficit ei, qui aedificare in suo prohibetur: etenim videris mihi possessionis controversiam facere, qui prohibes me uti mea possessione.

This interdict is sufficient for him who is prohibited from building on his own; for indeed you seem to me to be making a controversy of possession, you who prohibit me from using my possession.

Dig. 43.17.3.3

Digest 43.17.3.3

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

Cum inquilinus dominum aedes reficere volentem prohiberet, aeque competere interdictum uti possidetis placuit testarique dominum non prohibere inquilinum, ne habitaret, sed ne possideret.

When a tenant was preventing the owner, who wished to repair the house, it was decided that the interdict uti possidetis likewise lay, and that the owner should declare that he was not forbidding the tenant to inhabit, but to possess.

Dig. 43.17.3.4

Digest 43.17.3.4

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Likewise let us see, if the agent of your neighbor has led vines across from your farm into his own trees, what the law is. And Pomponius says that you can give him formal notice and cut the vines; and Labeo also writes this; or that you ought to use the interdict uti possidetis with respect to that place in which the roots of the vines are contained: for if he has used force against you, so that you are hindered from either cutting or leading back those vines, he seems to be using force against you to prevent you from possessing: indeed, he who is prohibited from cultivating a farm is prohibited from possessing, says Pomponius.

Dig. 43.17.3.5

Digest 43.17.3.5

Ulpianus 69 ad ed.

Ulpian 69 on the Edict.

Likewise let us see, if a projection above the neighbor’s soil is said to be held without right, whether the interdict uti possidetis is useful to the one against the other. And it is reported by Cassius that it is useless to both, because the one possesses the soil, the other, together with the buildings, the superficies.

Dig. 43.17.3.6

Digest 43.17.3.6

Ulpianus 69 ad ed.

Ulpian 69 On the Edict.

Labeo also writes: I have a projection from my house into your house: do you interdict with me, if we are to possess that place which will be covered by the projection? Or, in order that I may more easily retain possession of that projection, shall I interdict with you thus, "as you now possess those premises, from which the projection has been thrown out?"

Dig. 43.17.3.7

Digest 43.17.3.7

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

But if above the house (aedes) which I possess there is an upper room (cenaculum), in which another stays as if owner, Labeo says that I can use the interdict uti possidetis, not he who dwells in the upper room: for the surface always yields to the soil. Clearly, if the upper room has access from the public, Labeo says it seems that the house is not possessed by him who possessed the crypts, but by him whose house was above the crypts. This is true in the case of one who had access from the public; otherwise, the holder of a right of superficies (superficiarius) will use his own interdict and the actions from the praetor.

but the owner of the soil will be superior in the interdict uti possidetis both against another and against the superficiary; but the praetor will protect the superficiary in accordance with the law of leasing; and thus Pomponius also approves.

Dig. 43.17.3.8

Digest 43.17.3.8

Ulpianus 69 ad ed.

Ulpian, 69 on the Edict.

Creditors who have been sent into possession for the sake of preserving the thing cannot use the interdict uti possidetis, and deservedly, because they do not possess; and the same must be said also in all other cases of those who have been sent into possession for the sake of custody.

Dig. 43.17.3.9

Digest 43.17.3.9

Ulpianus 69 ad ed.

Ulpian Book 69 on the Edict.

Si vicinus meus in parte in pariete meo tectoria habeat et in parte sua, " uti possidetis" mihi efficax est ut ea tollere compellatur.

If my neighbor has plasterings partly on my wall and partly on his own, " uti possidetis" is effective for me, so that he is compelled to remove them.

Dig. 43.17.3.10

Digest 43.17.3.10

Ulpianus 69 ad ed.

Ulpian, 69 On the Edict.

Non videor vi possidere, qui ab eo, quem scirem vi in possessionem esse, fundum accipiam.

I am not considered to possess by force, I who receive an estate from one whom I knew to be in possession by force.

Dig. 43.17.3.11

Digest 43.17.3.11

Ulpianus 69 ad ed.

Ulpian 69 on the edict.

In this interdict the sum of the condemnation is referred to the appraisal of the thing itself. " how much the thing is worth" we thus take as " how much it is of interest to each individual to retain possession". But the opinion of Servius is that possession ought to be valued at as much as the thing itself is: but this is by no means to be thought; for the price of the thing is one thing, the price of possession another.

Dig. 43.17.4

Digest 43.17.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

In sum I think it must be said that this interdict also is to be granted among usufructuaries: namely, if one defends for himself the usufruct, and the other the possession. The same must be held also if someone, on the score of the usufruct, defends possession for himself, and thus Pomponius writes. Likewise also if one maintains the use, the other the fruits, to these the interdict is to be given.

Dig. 43.18.0. De superficiebus.

Digest 43.18.0. On superficies.

Dig. 43.18.1pr.

Digest 43.18.1, preface.

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

The praetor says: "That, under the law of letting or hiring, as to the superficies in question, neither by force nor by stealth nor by precarium should the one enjoy against the other; I forbid force to be employed to prevent your enjoying. If any other action concerning the superficies shall be requested, with the cause known I will grant it."

Dig. 43.18.1.1

Digest 43.18.1.1

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

He who has a superficies on another’s soil is supported by a civil action: for if he has leased the superficies, he can proceed against the owner of the soil by the action on lease (ex conducto), if he has bought it, by the action on purchase (ex empto). For if the owner himself prevents him, he will obtain by suing what his interest amounts to; but if he is prevented by someone else, the owner ought to furnish and assign to him his actions. But it seemed far more useful, both because it was uncertain whether an actio locati would lie, and because it is better to possess rather than to proceed in personam, to set forth this interdict and to promise, as it were, an action in rem.

Dig. 43.18.1.2

Digest 43.18.1.2

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

A twofold interdict is moreover proposed on the example of the interdict uti possidetis. Thus the praetor protects the one who claims the superficies, as though by the interdict uti possidetis, and he does not demand from him what cause of possessing he has: he requires only one thing—whether perchance he possesses from the adversary by force, clandestinely, or precariously. All the things also that are observed in the interdict uti possidetis will likewise be observed here.

Dig. 43.18.1.3

Digest 43.18.1.3

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

What the praetor says, "if an action concerning a superficies is requested, I will grant it after the cause has been examined," is to be understood thus: if someone has leased a superficies for a term, an action in rem is to be denied to him. And indeed, after the cause has been examined, an action in rem will be competent for him who has not leased the superficies for only a modest time.

Dig. 43.18.1.4

Digest 43.18.1.4

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

But he, on whose soil the superficies is, certainly does not need a useful action, but has an in rem action, such as he has concerning the soil. Clearly, if he should wish to vindicate against the superficiarius, it must be said that an exceptio in factum granted is to be used; for one would say that to whom we grant an action, to that same person an exception is competent all the more.

Dig. 43.18.1.5

Digest 43.18.1.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si soli possessori superficies evincatur, aequissimum erit subvenire ei vel ex stipulatu de evictione vel certe ex empto actione.

If the superficies is evicted from the possessor of the soil, it will be most equitable to come to his aid either by a stipulation concerning eviction or at any rate by the action ex empto.

Dig. 43.18.1.6

Digest 43.18.1.6

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Quia autem etiam in rem actio de superficie dabitur, petitori quoque in superficiem dari et quasi usum fructum sive usum quendam eius esse et constitui posse per utiles actiones credendum est.

Because moreover an action in rem concerning a superficies will be granted, it must also be believed that an action is given to the claimant in respect of the superficies, and that there is, as it were, a usufruct or a certain use of it, and that it can be constituted through useful actions.

Dig. 43.18.1.7

Digest 43.18.1.7

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Sed et tradi posse intellegendum est, ut et legari et donari possit.

But it is also to be understood that it can be delivered, so that it can both be bequeathed and donated.

Dig. 43.18.1.8

Digest 43.18.1.8

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Et si duobus sit communis, etiam utile communi dividundo iudicium dabimus.

And if it is common to two persons, we will also grant the useful action for dividing the common property.

Dig. 43.18.1.9

Digest 43.18.1.9

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Servitutes quoque praetorio iure constituentur et ipsae ad exemplum earum, quae ipso iure constitutae sunt, utilibus actionibus petentur: sed et interdictum de his utile competit.

Servitudes also are constituted by praetorian law, and they themselves, on the model of those which are constituted by the law itself, are sought by useful actions: but an interdict concerning these also lies in a useful form.

Dig. 43.18.2

Digest 43.18.2

Gaius 25 ad ed. provinc.

Gaius 25 on the provincial edict.

Superficiarias aedes appellamus, quae in conducto solo positae sunt: quarum proprietas et civili et naturali iure eius est, cuius et solum.

We call superficiary buildings those which are set upon leased soil: the ownership of which, by both civil and natural law, is his whose the soil likewise is.

Dig. 43.19.0. De itinere actuque privato.

Digest 43.19.0. On the private right of way and of driving.

Dig. 43.19.1pr.

Digest 43.19.1, preface.

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Praetor ait: " quo itinere actuque privato, quo de agitur, vel via hoc anno nec vi nec clam nec precario ab illo usus es, quo minus ita utaris, vim fieri veto".

The praetor says: "As to the private path and drive about which the matter is in issue, or the road, which in this year you have used from him neither by force nor by stealth nor by precarious leave, I forbid force to be employed to prevent you from using it thus."

Dig. 43.19.1.1

Digest 43.19.1.1

Ulpianus 70 ad ed.

Ulpian, 70, On the Edict.

Hoc interdictum prohibitorium est, pertinens ad tuendas rusticas tantummodo servitutes.

This interdict is prohibitory, pertaining to the protection of rural servitudes only.

Dig. 43.19.1.2

Digest 43.19.1.2

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

By this interdict the praetor does not inquire whether the servitude was imposed by right or not, but only this: whether he has used the path (iter) and the drive (actus) in this year, not by force, not clandestinely, not by permission revocable at will; and he protects him, even though at the time when the interdict is delivered he has not been using it. Therefore, whether he had the right of way (ius viae) or did not, he is in such a condition as to fall under the praetor’s protection, provided only that he has used it for a year or for a modest period, that is, not less than thirty days. Nor is the use referred to the present time, because for the most part we do not always use routes or a road, unless need has thus required.

Dig. 43.19.1.3

Digest 43.19.1.3

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Annui temporis spatio conclusit usum. annum ex die interdicti retrorsum computare debemus.

He has limited the use to the space of a year. We must compute the year backward from the day of the interdict.

Dig. 43.19.1.4

Digest 43.19.1.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis hoc interdicto utatur, sufficit alterutrum probare vel iter vel actum in usu habuisse.

If anyone employs this interdict, it suffices to prove either one—that he has had either the right of way (iter) or the drive (actus) in use.

Dig. 43.19.1.5

Digest 43.19.1.5

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Iulianus ait, quoad usque ingressus est, eo usque ei interdictum competere: quod verum est.

Julian says, as far as he has entered, so far the interdict is available to him: which is true.

Dig. 43.19.1.6

Digest 43.19.1.6

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Vivianus rightly says that he who, on account of the inconvenience of the stream, or because the public road was interrupted, made a passage through the nearest neighbor’s field, although he did this frequently, is not seen to have made use at all; and thus the interdict is ineffective, not as though he used by precarium, but as though he did not use. Therefore, according to this, he seems to have used neither of the two ways: for much less did he use that one along which he did not go, because of the inconvenience of the stream, or because the road was precipitous. The same must be said even if it was not a public road, but a private right-of-way; for here too the same question arises.

Dig. 43.19.1.7

Digest 43.19.1.7

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

He, whose colonus (tenant-farmer) or guest or someone else made a journey to the estate, is considered to have used the right-of-way, whether by iter or by actus or by via; and therefore he will have the interdict: and Pedius writes thus and adds that, even if he did not know whose estate it was through which he went, he retains the servitude.

Dig. 43.19.1.8

Digest 43.19.1.8

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si quis autem, cum putaret fundum ad se pertinere, suo nomine iter fecerit amicus meus, utique sibi, non mihi interdictum adquisisse intellegitur.

If, however, my friend, when he thought the fundus pertained to himself, has proceeded in his own name, he is of course understood to have acquired the interdict for himself, not for me.

Dig. 43.19.1.9

Digest 43.19.1.9

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

If someone, on account of an inundation, has not had the use of the right of way and of driving this year, although he used it the previous year, he can, with the day repeated, use this interdict by restoration in integrum, from that clause " si qua mihi iusta causa esse videbitur". But even if this has happened to him through force, Marcellus approves that he ought to be restored in integrum. Moreover, in other cases too the interdict, with the day repeated, is available, from which one is accustomed to obtain restoration in integrum.

Dig. 43.19.1.10

Digest 43.19.1.10

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Praeterea sciendum est, si dilatione data adversario futurum est, ut causa interdicti mei deterior fiat, aequissimum esse repetita die reddi interdictum.

Moreover it must be known that, if by a delay granted to the adversary it will come about that the case of my interdict becomes worse, it is most equitable that on the repeated day the interdict be restored.

Dig. 43.19.1.11

Digest 43.19.1.11

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

If I have granted you an estate by precarium, to which a way was owed, and then you have asked the owner of the estate by precarium that you use that way to that estate: does the exception bar you, if you wish to seek an interdict against him from whom you asked the way by precarium? And the better view is that it does bar, and this can be gathered from what Julianus writes in a case of this sort. For he asks: if I have given you by precarium an estate to which a way was owed, and you have asked by precarium that you use that way, nonetheless a useful interdict is available to me, because, just as a precarium concerning my own thing does not bind me, so neither am I understood to possess by precarium through you: for whenever my colonus or the one to whom I gave the estate by precarium uses the way, I am understood to go, for which reason I also rightly say that I have used the right of way.

what rationale, he says, has the effect that also, if I shall have requested a way by sufferance (precario) and shall have given you the estate (fundus) by sufferance, although you go with this intention, as if it were owed to my estate, the interdict would be useless and I would seem to have used that route by sufferance (precario), not without merit: for it is not your opinion that is to be looked to, but mine. You, however, I believe, will be able to use the interdict, even though Julian writes nothing about this.

Dig. 43.19.1.12

Digest 43.19.1.12

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

If someone, during the aforesaid time of the year, has used the way not by force, not in secret, not by precarious license, but afterwards has either not used it, or has used it in secret or by precarious leave, it must be considered whether this harms him. And the more cogent view is that nothing harms him, so far as concerns the interdict:

Dig. 43.19.2

Digest 43.19.2

Paulus 66 ad ed.

Paulus 66 on the Edict.

Nec enim corrumpi aut mutari, quod recte transactum est, superveniente delicto potest.

Nor indeed can that which has been rightly transacted be corrupted or changed by a supervening delict.

Dig. 43.19.3pr.

Digest 43.19.3, proem.

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

From this also Labeo writes the following: if, when you were rightly using a right‑of‑way from me, I were to sell the estate through which you were using it, and then the buyer prohibited you, although you may seem to be using it clandestinely as against him (for he who uses when prohibited uses clandestinely), nevertheless the interdict is available to you within a year, because in this year you have used it not by force, not clandestinely, not precariously.

Dig. 43.19.3.1

Digest 43.19.3.1

Ulpianus 70 ad ed.

Ulpian, book 70 On the Edict.

Likewise it must be known that not only is he using the way clandestinely who, although he himself has been prohibited, uses it, but also he through whom someone was retaining that right, if, that person—through whom he was retaining it—having been prohibited, he should use it. Plainly, if I was ignorant of the prohibition and I persist in using it, it is to be said that nothing harms me.

Dig. 43.19.3.2

Digest 43.19.3.2

Ulpianus 70 ad ed.

Ulpian Book 70 on the Edict.

If someone has made use from my auctor by force or stealth or precariously, he is rightly prohibited by me from using the road, and the interdict is useless to him, because, as against me, he is deemed to possess by force or stealth or precariously, who possesses wrongfully from my auctor. For Pedius also writes that, if he has used by force or stealth or precariously against him into whose place I have succeeded by inheritance or purchase or by some other right, the same is to be said: for when one has succeeded into their place, it is not equitable that we be harmed by that which did not harm the person into whose place we have succeeded.

Dig. 43.19.3.3

Digest 43.19.3.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

In hoc interdicto examinatur, quanti eius interesset via non prohiberi sive itinere.

In this interdict it is examined for how much it was in his interest that he not be prohibited from the road or the path.

Dig. 43.19.3.4

Digest 43.19.3.4

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

It appears that servitudes are even retained for us through slaves, or tenant-farmers, or friends, or even guests, and generally through all those who retain servitudes for us; but indeed, through a usufructuary a servitude is retained, yet Julian says that through the usufructuary this interdict does not lie for the owner.

Dig. 43.19.3.5

Digest 43.19.3.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

The same Julian writes: if my usufruct is in your estate, but the proprietorship is yours, and each of us has gone through the neighbor’s estate, we have the useful interdict concerning the right of way; and whether perhaps the fructuary is prohibited by a stranger, or even by the owner, and likewise if the owner by the fructuary, it will lie; for even if anyone whatsoever prohibits going, the interdict lies against him.

Dig. 43.19.3.6

Digest 43.19.3.6

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Hoc interdictum et ei competit, qui donationis causa fundi vacuam possessionem adeptus est.

This interdict also is available to him who has acquired vacant possession of a landed estate by reason of a donation.

Dig. 43.19.3.7

Digest 43.19.3.7

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

Si quis ex mandatu meo fundum emerit, aequissimum est mihi hoc interdictum dari " ut ille usus est" qui mandatu meo emit.

If anyone has purchased an estate by my mandate, it is most equitable that this interdict be granted to me, "as he used it," who purchased by my mandate.

Dig. 43.19.3.8

Digest 43.19.3.8

Ulpianus 70 ad ed.

Ulpian Book 70 on the Edict.

Sed et si quis usum fructum emit vel usum vel cui legatus est et traditus, uti hoc interdicto poterit.

But also, if anyone buys a usufruct or a use, or to whom it has been bequeathed and delivered, he will be able to make use of this interdict.

Dig. 43.19.3.9

Digest 43.19.3.9

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Hoc amplius et is, cui dotis causa fundus traditus est, experiri hoc interdicto poterit.

Moreover, he too, to whom a landed estate was delivered by way of dowry, will be able to proceed under this interdict.

Dig. 43.19.3.10

Digest 43.19.3.10

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et generaliter ex omnibus causis, quae instar habent venditionis vel alterius contractus, dicendum est hoc interdicto locum fore.

And generally, from all causes which have the likeness of vendition or of another contract, it must be said that this interdict will have place.

Dig. 43.19.3.11

Digest 43.19.3.11

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

The praetor says: "As to whatever right-of-way and cattle-drive you have used this year from another, not by force, not by stealth, not precariously, I forbid force to be employed to prevent your renewing that way and drive, so that you may have the right. Whoever will wish to use this interdict must give security to the adversary for damage not yet done, in so far as it may have been caused through his fault."

Dig. 43.19.3.12

Digest 43.19.3.12

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Utility persuaded that this interdict too be proposed: for it was consequent to propose an interdict for one who uses a right of way, so that the way might be repaired; for how otherwise can he use the way or the cattle-drive conveniently, unless he has repaired it? for when the way is corrupted, it can be enjoyed or driven upon less conveniently.

Dig. 43.19.3.13

Digest 43.19.3.13

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

But this differs from the preceding, in that by that interdict indeed all can make use who have used in this year; but by this interdict only he can make use who has used in this year and for whom it ought to be that he has a right of repairing. Now the right seems to exist for him to whom the servitude is owed. Therefore he who uses this interdict ought to demonstrate two things: both that he has used in this year and that the servitude pertains to him; but if either is lacking, the interdict fails—and not without good reason.

for he who wishes to go or to drive, meanwhile, until it is established concerning the servitude, ought not to have to demonstrate his right: for what does he lose, who allows him to do this, who has done it this year? but indeed he who wishes to repair does something new, nor ought he to be permitted to undertake that on another’s property, unless he truly has the servitude.

Dig. 43.19.3.14

Digest 43.19.3.14

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

However, it can happen that he who has the right of going and of driving does not have the right of repairing, because in establishing the servitude it has been provided that he is not to have the right of repairing, or thus, that, if he should wish to repair, he has the right of repairing only up to a certain limit: with good reason, therefore, the praetor referred himself to refection: " as your right is", he says, " repair". " as is the right" this is: to use thus as it is permitted by the servitude imposed.

Dig. 43.19.3.15

Digest 43.19.3.15

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Reficere sic accipimus ad pristinam formam iter et actum reducere, hoc est ne quis dilatet aut producat aut deprimat aut exaggeret: aliud est enim reficere, longe aliud facere.

We thus take “to refashion” as to reduce the way and the drive to their pristine form, that is, that no one should dilate or prolong or depress or exaggerate: for to refashion is one thing, to make is far another.

Dig. 43.19.3.16

Digest 43.19.3.16

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

With Labeo the question is raised, whether, if someone should wish to build a new bridge for the sake of paving the road, it is permitted to him; and he says it should be permitted, as though such a munitio were a part of the refection. And I too think Labeo’s opinion true, provided only that without this one cannot travel to and fro.

Dig. 43.19.4pr.

Digest 43.19.4, beginning.

Venonius 1 interd.

Venonius Book 1, Interdicts.

The ancients expressly added that no force be done to one bringing even those things which were useful for refection; which is superfluous, since he who does not permit to be brought those things without which the road cannot be refected seems to be using force to prevent its being refected.

Dig. 43.19.4.1

Digest 43.19.4.1

Venonius 1 interd.

Venonius 1 On Interdicts.

If, however, when he could bring by the shorter way the things which are necessary for refection, he wishes to bring them by a longer journey, so as to make a worse cause for going, force will be used against him with impunity, because he is himself an impediment to himself, whereby he is the less able to refit.

Dig. 43.19.5pr.

Digest 43.19.5, beginning.

Ulpianus 20 ad ed.

Ulpian 20 on the Edict.

Apparet ergo eum, qui non patitur haec congeri, vim facere, quo minus quis perficiat.

It appears, therefore, that he who does not allow these things to be piled together is committing force, whereby someone is hindered from accomplishing it.

Dig. 43.19.5.1

Digest 43.19.5.1

Ulpianus 20 ad ed.

Ulpian 20 on the Edict.

Plane si quis, cum posset alia parte agri sine incommodo domini fundi impensam adportare, id egit, ut alia parte adportet, impune ei vim fieri recte placuit.

Clearly, if someone, when he could bring the outlay/materials by another part of the field without inconvenience to the owner of the estate, nevertheless contrived to bring them by a different part, it was rightly decided that violence may be done to him with impunity.

Dig. 43.19.5.2

Digest 43.19.5.2

Ulpianus 20 ad ed.

Ulpian, 20 On the Edict.

Hoc interdictum non solum ipsi, verum successoribus quoque esse dandum non est ambigendum: emptori quoque dabitur et in emptorem.

There is no doubting that this interdict must be given not only to the person himself, but also to his successors: it will likewise be given to the purchaser and against the purchaser.

Dig. 43.19.5.3

Digest 43.19.5.3

Ulpianus 20 ad ed.

Ulpian 20 on the edict.

Si quis servitutem iure impositam non habeat, habeat autem velut longae possessionis praerogativam ex eo, quod diu usus est servitute, interdicto hoc uti potest.

If someone does not have a servitude imposed by law, but does have, as it were, the prerogative of long possession from the fact that he has long used the servitude, he can make use of this interdict.

Dig. 43.19.5.4

Digest 43.19.5.4

Ulpianus 20 ad ed.

Ulpian 20 on the edict.

Qui hoc interdicto usurus est, de vitio operis cavere adversario debet.

He who is going to make use of this interdict must give security to his adversary concerning the defect of the work.

Dig. 43.19.6

Digest 43.19.6

Paulus 66 ad ed.

Paulus 66 on the edict.

Sicut non nocet ei, qui sine vitio usus est, quod eodem anno vitiose usus est, ita emptori heredique non nocebit, quod ipsi vitiose usi sunt, si testator venditorve recte usi sunt.

Just as it does not harm him who has used without vice that in the same year he used viciously, so it will not harm the buyer and the heir that they themselves used viciously, if the testator or the seller used rightly.

Dig. 43.19.7

Digest 43.19.7

Celsus 25 Dig.

Celsus 25 Digest.

If someone has passed through your estate neither by force, nor in secret, nor by precarium, yet not as though he were doing this by his own right, but such that, if he were prohibited, he would not do it, the interdict concerning right-of-way and driving is useless to him; for, in order that this interdict should be available, one must have possessed the right over the land.

Dig. 43.20.0. De aqua cottidiana et aestiva.

Digest 43.20.0. On the quotidian and estival water.

Dig. 43.20.1pr.

Digest 43.20.1, preface.

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Ait praetor: " uti hoc anno aquam, qua de agitur, non vi non clam non precario ab illo duxisti, quo minus ita ducas, vim fieri veto".

The praetor says: "As in this year you have conducted the water that is in question, not by force, not secretly, and not by revocable permission, from that man, I forbid force to be done to prevent you from so conducting it."

Dig. 43.20.1.1

Digest 43.20.1.1

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc interdictum prohibitorium et interdum restitutorium est et pertinet ad aquam cottidianam.

This interdict is prohibitory and sometimes restitutory, and pertains to daily water.

Dig. 43.20.1.2

Digest 43.20.1.2

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Cottidiana autem aqua non illa est, quae cottidie ducitur, sed ea, qua quis cottidie uti, si vellet: quamquam cottidianam interdum hieme ducere non expediat, etsi possit duci.

The quotidian (daily) water, however, is not that which is conducted every day, but that of which a person might make use every day, if he wished; although to conduct the quotidian water in winter is sometimes not expedient, even if it can be conducted.

Dig. 43.20.1.3

Digest 43.20.1.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

there are two kinds of waters: there is the quotidian, and there is also the estival. the quotidian differs from the estival in use, not in law. quotidian is that which is accustomed to be led continuously either in summer time or in winter, even if at some time it has not been led; that too is called quotidian, whose servitude is divided by an intermission of time.

aestival, however, is that which it is expedient to use in summer alone, just as we say summer garments, summer pastures, summer camps, which we sometimes use even in winter, but for the most part in summer. I think it should be approved that the aestival water be distinguished from the quotidian by the intention of the user and by the nature of the places: for if it is water that can be conducted perpetually, yet I use it only in summer, it must be said that this water is aestival; again, if it is water that cannot be conducted except in summer, it will be called aestival; and if there are places which by nature do not admit water except in summer, it will have to be said that it is rightly called aestival.

Dig. 43.20.1.4

Digest 43.20.1.4

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

But as for what is written in the interdict: "as you have led water this year," this means: not every day, but in this year, even for a single day or night. Therefore daily water is something else, which can be led every day, whether in winter or in summer, even if it has been led at some moment of time; “summer” water is that which indeed can be led every day, albeit only in summer; however, it is led in summer only, not also in winter, not because it cannot be also in winter, but because it is not customary.

Dig. 43.20.1.5

Digest 43.20.1.5

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Loquitur autem praetor in hoc interdicto de ea aqua sola, quae perennis est: nulla enim alia aqua duci potest, nisi quae perennis est.

The praetor, however, in this interdict speaks only of that water which is perennial: for no other water can be conducted, except that which is perennial.

Dig. 43.20.1.6

Digest 43.20.1.6

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Although we have said that this interdict pertains to perennial waters, nevertheless it pertains to those perennial waters which can be led (channeled). Moreover, there are certain waters which, although perennial, nevertheless cannot be led, for instance well-waters and those which are so submerged that they cannot flow out beyond the earth and be of use. But upon waters of this kind, which cannot be led, a servitude of drawing (haustus) can be imposed.

Dig. 43.20.1.7

Digest 43.20.1.7

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Haec interdicta de aqua, item de fonte ad eam aquam pertinere videntur, quae a capite ducitur, non aliunde: harum enim aquarum etiam servitus iure civili constitui potest.

These interdicts concerning water, likewise concerning a spring, seem to pertain to that water which is drawn from its head (source), not from elsewhere: for over these waters even a servitude can be established by civil law.

Dig. 43.20.1.8

Digest 43.20.1.8

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

The head of the water is that from which the water is born: if it is born from a spring, the spring itself; if from a river or a lake, the first intakes or the beginnings of the ditches, by which the waters from the river or from the lake are accustomed to be driven into the first rill. Clearly, if the water, by seepages as it trickles, begins to flow out into some first place and to appear there, we shall call this its head, where it first emerges.

Dig. 43.20.1.9

Digest 43.20.1.9

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

Et qualiter sit constitutum ius aquae, dicendum est hoc interdictum locum habere.

And in whatever manner the right of water has been constituted, it must be said that this interdict has place.

Dig. 43.20.1.10

Digest 43.20.1.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

But even if by law water is not owed to someone, nevertheless if he supposed that he was conducting it by right, since he erred not in law but in fact, it must be said—and we use that law—that he can make use of this interdict: for it suffices if he thought he was conducting it by right and did not conduct it by force, nor secretly, nor by precarium.

Dig. 43.20.1.11

Digest 43.20.1.11

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

The question is whether only that water is encompassed by these interdicts which pertains to irrigating a field, or rather all water, even that which pertains also to our use and convenience. And we follow this law, that this too is included. Wherefore, even if someone should wish to conduct water into urban estates, this interdict can have application.

Dig. 43.20.1.12

Digest 43.20.1.12

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Praeterea labeo scribit, etsi quidam ductus aquarum non sit fundi, quia quocumque duci possint, tamen ad hoc interdictum pertinere.

Moreover, Labeo writes that, although certain water-ducts are not of the estate, because they can be conducted whithersoever, nevertheless they pertain to this interdict.

Dig. 43.20.1.13

Digest 43.20.1.13

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

The same Labeo writes that, even if the praetor, by this interdict, has in view cold waters, nevertheless interdicts concerning hot waters are not to be denied; for the use of these waters also is necessary: sometimes, indeed, when cooled, they provide a use for irrigating fields. To this is added that in certain places, even when they are hot, they are nevertheless necessary for irrigating fields, as at Hierapolis; for it is established that among the Hierapolitans in Asia a field is irrigated with hot water. And although it be water which is not necessary for irrigating, nevertheless no one will doubt that these interdicts will find application.

Dig. 43.20.1.14

Digest 43.20.1.14

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Sive autem intra urbem sit aqua sive extra urbem, hoc interdicto locus erit.

Whether the water is inside the city or outside the city, this interdict will apply.

Dig. 43.20.1.15

Digest 43.20.1.15

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

It must, however, be understood here that the praetor ordered the water to be conducted in the same manner in which it was conducted this year. Accordingly, he can be seen to have permitted neither a greater measure nor anything different. Therefore, if it be other water that someone wishes to conduct than he conducted this year, or the same water, yet wishes to conduct it through another region, force may with impunity be used against him.

Dig. 43.20.1.16

Digest 43.20.1.16

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Labeo says this: all parts of that estate into which water is conducted from a place are of the same kind. Therefore, even if perhaps the plaintiff has bought a bordering field and, from the field into which he has led water this year, afterwards wishes to lead water under the name of the purchased estate, they think that he then and only then rightly uses this interdict ( ut de itinere actuque), on this condition: that, having once entered into his own, he may from there go out by whatever way he wishes, provided that no harm is done to him from whom he draws the water.

Dig. 43.20.1.17

Digest 43.20.1.17

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Likewise it is asked, if someone has admixed other water to the water which he was conducting this year, whether he may be lawfully prohibited. And there exists the opinion of ofilius, thinking that he is rightly prohibited, but at that place where he first admits the other water into the channel; and ofilius says that he is rightly prohibited in respect to the whole water. I agree with ofilius that it cannot be divided, because force cannot be applied to a part in such a way that it is not applied to the whole water.

Dig. 43.20.1.18

Digest 43.20.1.18

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Trebatius says that, when a larger number of cattle is driven to the water than ought to be driven, the entire herd can be prohibited with impunity, because the herd joined to that herd to which the driving is owed corrupts the whole driving of the herd. Marcellus, however, says that, if someone who has the right of driving cattle to the water has driven more cattle, he is not to be prohibited as to all the cattle; which is true, because the cattle can be separated.

Dig. 43.20.1.19

Digest 43.20.1.19

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Aristo putat eum demum interdictum hoc habere, qui se putat suo iure uti, non eum, qui scit se nullum ius habere et utitur.

Aristo thinks that only he has this interdict who thinks he is using his own right, not the one who knows he has no right and yet uses it.

Dig. 43.20.1.20

Digest 43.20.1.20

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

He likewise says that he who in this year has conducted water neither by force nor in secret nor by precarious leave, and in the same year has used it in a faulty manner, will nevertheless rightly avail himself of this interdict: because it is to be referred to that time which was without fault: for it is true that in this year he used it not by force, not in secret, not by precarious leave.

Dig. 43.20.1.21

Digest 43.20.1.21

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

It has been asked whether, if someone conducted water before the year, then at a subsequent time, that is within the year, the water has flowed in of itself to him, I not conducting it, there is room for this interdict. And Severus Valerius reports that this interdict is competent for him, as though he should be seen to have conducted it, although, to those looking thoroughly into it, this man does not seem to have conducted it.

Dig. 43.20.1.22

Digest 43.20.1.22

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Likewise it has been asked, if someone, while thinking that he has the right of conducting water every third day, has conducted it on a single day, whether he seems to have conducted it rightly and without chicanery against the possessor, so that he may have the benefit of this interdict; for the praetor says: "as in this year you have conducted the water," that is, on alternate days. But this makes no difference—whether the water is owed every fifth day or on alternate days or daily—to the one who wishes to use this interdict; for since it suffices to have conducted the water on even one day in this year, it does not matter what sort of right of water-conduct (aquae ductus) he had when he conducted it; provided that, if someone, while he was using it every fifth day, proceeds by interdict as though conducting it on alternate days, it seems to profit him nothing.

Dig. 43.20.1.23

Digest 43.20.1.23

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Furthermore, this is to be known: if, when you had conducted water, your adversary prohibited you, and thereafter in the meantime you lost the right of conducting water, this falls under restitution, namely that there be made good to you through this interdict what you lost; and I consider this true.

Dig. 43.20.1.24

Digest 43.20.1.24

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

Si fundum, ad quem aquam ducebas, vendideris et tradideris, nihilo minus interdictum tibi utile est.

If you have sold and delivered the estate to which you were conducting water, nonetheless a useful interdict is available to you.

Dig. 43.20.1.25

Digest 43.20.1.25

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

This interdict lies against him who prohibits me from conducting water, and it makes no difference whether anyone has ownership (dominium) of the estate (fundus) or not. And for that reason he is held by the interdict: for indeed a servitude has come to be capable of being vindicated against anyone whatsoever.

Dig. 43.20.1.26

Digest 43.20.1.26

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si inter rivales, id est qui per eundem rivum aquam ducunt, sit contentio de aquae usu, utroque suum usum esse contendente, duplex interdictum utrique competit.

If between rivals, that is, those who conduct water through the same channel, there is a dispute about the use of the water, each asserting his own use, a double interdict lies for each.

Dig. 43.20.1.27

Digest 43.20.1.27

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Labeo thinks that by this interdict a person is prohibited, that he do nothing on that estate—dig, sow, cut down, prune, build—by reason of which the water which he this year conducted through your estate without fault may be polluted, vitiated, corrupted, or become worse; and he says that similarly there ought to be an interdict concerning the summer water.

Dig. 43.20.1.28

Digest 43.20.1.28

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Si quis hoc cesserit, ne liceat sibi aquam quaerere, ea cessio valet.

If anyone has ceded this, that it is not permitted to him to seek water, that cession is valid.

Dig. 43.20.1.29

Digest 43.20.1.29

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Then the praetor says: "as last summer you led the water which is in question, neither by force nor by stealth nor by precarious leave from that man, I forbid force to be used to prevent you from leading it thus. I will interdict between heirs, purchasers, and possessors of goods."

Dig. 43.20.1.30

Digest 43.20.1.30

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc interdictum de aqua aestiva proponitur.

This interdict is proposed concerning summer water.

Dig. 43.20.1.31

Digest 43.20.1.31

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Because we have said that summer water differs somewhat from daily water, it should be known also to differ in the interdicts: for he who interdicts concerning daily water interdicts thus: " as you have led water this year," but he who [interdicts] concerning summer [water], thus: " as in the prior summer," and not without reason: for since he does not use it in winter, he ought to refer not to the present summer, but to the prior one.

Dig. 43.20.1.32

Digest 43.20.1.32

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Aestatem incipere ( sic peritiores tradiderunt) ab aequinoctio verno et finiri aequinoctio autumnali: et ita senis mensibus aestas atque hiems dividitur.

Summer begins (thus the more skilled have handed down) from the vernal equinox and ends at the autumnal equinox: and thus summer and winter are divided into six months each.

Dig. 43.20.1.33

Digest 43.20.1.33

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Priorem aestatem ex comparatione duarum aestatium accipi.

The earlier summer is to be taken from the comparison of two summers.

Dig. 43.20.1.34

Digest 43.20.1.34

Ulpianus 70 ad ed.

Ulpian, book 70 on the edict.

Because of this, if it is interdicted in summer, it may sometimes comprise a year and six months: this so happens if at the beginning of the vernal equinox the water has been led, and in the following summer, on the day before the autumnal equinox, it is interdicted; and accordingly, if it is interdicted in winter, this matter will be extended even to a biennium.

Dig. 43.20.1.35

Digest 43.20.1.35

Ulpianus 70 ad ed.

Ulpian Book 70 on the edict.

Si quis hieme tantum aquam solitus fuit ducere, aestate non fuit solitus, utile interdictum ei competit.

If someone has been accustomed in winter only to conduct water, and has not been accustomed in summer, a useful interdict is available to him.

Dig. 43.20.1.36

Digest 43.20.1.36

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Qui hac aestate duxit, non superiore, utile interdictum habet.

He who led it this summer, not the earlier, has a useful interdict.

Dig. 43.20.1.37

Digest 43.20.1.37

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

The praetor says: " I will interdict between heirs and purchasers and possessors of goods". It should be known that these words are to be referred not only to summer water, but also to daily water as well: for just as interdicts are given concerning the right of way and of driving and to successors and to the purchaser, so the praetor thought that these too should be given.

Dig. 43.20.1.38

Digest 43.20.1.38

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

The praetor says: "From whatever reservoir it has been permitted for that man to conduct water, by the one who had the right in that matter, I forbid force to be used to prevent him from leading it as it has been permitted. Whenever there shall be an interdict concerning the making of the work, I will order security to be given for damnum infectum (damage not yet done)."

Dig. 43.20.1.39

Digest 43.20.1.39

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

This interdict has been set forth of necessity. For the preceding interdicts pertain to those who draw from the head-source, either with a servitude imposed or because they think it has been imposed: it seemed most equitable that an interdict be given also to one who draws from the castellum, that is, from that receptacle which receives the public water.

castellum accipe.

take "castellum."

Dig. 43.20.1.40

Digest 43.20.1.40

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si ex castello permissum est, dandum erit interdictum:

If permission has been given from the reservoir, the interdict will have to be granted:

Dig. 43.20.1.41

Digest 43.20.1.41

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Permittitur autem aquam ex castello vel ex rivo vel ex quo alio loco publico ducere.

But it is permitted to conduct water from a reservoir or from a rivulet or from any other public place.

Dig. 43.20.1.42

Digest 43.20.1.42

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Idque a principe conceditur: alii nulli competit ius aquae dandae.

And this is conceded by the emperor: the right of granting water belongs to no one else.

Dig. 43.20.1.43

Digest 43.20.1.43

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

And it is granted sometimes to estates, sometimes to persons. What is granted to estates is not extinguished upon the extinction of the person; what is granted to persons is lost with the persons, and therefore passes neither to another owner of the estates nor to an heir or any successor whatsoever. Plainly, for him to whom the ownership passes, it is obtainable: for if he shall prove that water was due to his estates, even if it flowed under the name of him from whom the ownership passed to himself, he undoubtedly obtains the right of conducting the water; nor is it a beneficium, but an injury, if someone perchance does not obtain it.

Dig. 43.20.1.44

Digest 43.20.1.44

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

We must, however, remember that in this interdict the whole question of assignation is ended: for this interdict does not prepare the cause, like the preceding interdicts, nor does it pertain to temporary possession, but either he has a right assigned to him or he does not, and the interdict is wholly concluded.

Dig. 43.20.2

Digest 43.20.2

Pomponius 32 ad sab.

Pomponius 32 on Sabinus.

Si diurnarum aut nocturnarum horarum aquae ductum habeam, non possum alia hora ducere, quam qua ius habeam ducendi.

If I have a water-duct for hours of the day or of the night, I cannot conduct at any other hour than that in which I have the right of conducting.

Dig. 43.20.3pr.

Digest 43.20.3, preface.

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Hoc iure utimur, ut etiam non ad irrigandum, sed pecoris causa vel amoenitatis aqua duci possit.

We make use of this law, that water can be conducted even not for irrigating, but for the sake of livestock or of amenity.

Dig. 43.20.3.1

Digest 43.20.3.1

Pomponius 34 ad sab.

Pomponius 34 on sab.

Ex flumine aquam ducere plures possunt, ita tamen, ut vicinis non noceant, vel, si angustus amnis sit, etiam ei, qui in alia ripa sit.

Several may conduct water from a river, provided, however, that they do not harm their neighbors—or, if the stream is narrow, not even the one who is on the other bank.

Dig. 43.20.3.2

Digest 43.20.3.2

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

If you have led water from a public river and the river has receded, you cannot follow the river, because a servitude has not been imposed upon that place, although that place is mine. But if by alluvion it has gradually been added to your estate, you can follow, because the whole place of the river serves the conduction. But if, with the channel (alveus) changed, it has begun to flow around, you cannot, because the middle place does not serve and the servitude has been interrupted.

Dig. 43.20.3.3

Digest 43.20.3.3

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Aqua, quae in rivo nascitur, tacite lucri fit ab eo qui ducit.

Water which arises in a rivulet becomes, tacitly, the property of the one who conducts it.

Dig. 43.20.3.4

Digest 43.20.3.4

Pomponius 34 ad sab.

Pomponius, book 34 on Sabinus.

Ductus aquae, cuius origo memoriam excessit, iure constituti loco habetur.

A water-conduit, whose origin has passed beyond memory, is held as though constituted by law.

Dig. 43.20.3.5

Digest 43.20.3.5

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Is, qui aquae cottidianae ius habet, vel fistulam in rivo ponere vel aliud quodlibet facere potest, dummodo ne fundum domino aut aquagium rivalibus deterius faciat.

He who has the right of daily water may either place a pipe in the channel or do whatever else he wishes, provided that he does not make the owner’s estate worse, nor the water-right of the rivals worse.

Dig. 43.20.3.6

Digest 43.20.3.6

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Si aqua ducatur, supra eam alia aqua per pontem, qui supra rivum factus sit, iure ducitur, dum inferiori rivo non noceatur.

If water is conducted, other water may by right be conducted above it over a bridge which has been made above the channel, provided that the lower channel is not harmed.

Dig. 43.20.4

Digest 43.20.4

Iulianus 41 Dig.

Julian 41 Dig.

I ceded to Lucius Titius, from my spring, that he might conduct water: the question was raised whether I can also cede to Maevias, that he may conduct water through the same aqueduct; and if you think it can be ceded to two through the same aqueduct, how they ought to use it. He responded: just as a right of way (iter), a driving-right (actus), and a road (via) can be ceded to several, either simultaneously or separately, so the right of leading water will rightly be ceded. But if among those to whom the water has been ceded it is not agreed how they shall use it, it will not be inequitable that a useful action be afforded, just as among those to whom the usufruct pertains it has pleased most that a useful action for partition of common property (actio communi dividundo) be afforded.

Dig. 43.20.5pr.

Digest 43.20.5 pr.

Iulianus 4 ex minic.

Julian 4 from Minicius.

Since it is established that water can be divided not only by times but also by measures, it is possible that at the same time one may conduct daily (quotidian) water, another summer water, such that in summer the water is divided between them, in winter he alone conducts it who has the right to the daily (quotidian) water.

Dig. 43.20.5.1

Digest 43.20.5.1

Iulianus 4 ex minic.

Julian 4 from Minicius.

Between two, who at fixed hours were separately drawing water from the same stream, it was agreed that, with their times exchanged between themselves, they should use the water: I ask, since for longer than the period fixed for servitudes they had so drawn it that neither of them had used it at his own time, whether they had lost the right of using. He denied that they had lost it.

Dig. 43.20.6

Digest 43.20.6

Nerva 3 membr.

Nerva 3 membranes.

Concerning the interdict about summer water, likewise about daily water, when inquiring we judged that first it must be established what summer water is, for which a specific interdict is wont to be issued, referred back to the time of the previous summer; that is, whether it is called summer water from the right of using it only in the summer season, or from the intention and plan of those conducting it, because they had the design of conducting it in summer, or from the nature of the water itself, because it can be conducted only in summer, or from the utility of the places into which it would be conducted. It therefore pleased us that water should be properly so called on account of these two factors, its own nature and the utility of the places into which it is led, so that, whether its nature is such that it cannot be conducted except in summer, even if it were desired also in winter, or its nature would permit it to be conducted at every time of the year, if the utility for the persons for whom it is led demanded its use in summer only, it would rightly be called summer water.

Dig. 43.20.7

Digest 43.20.7

Paulus 5 sent.

Paul 5 sentences.

If there is litigation about a road (via), a right of way (iter), a driving-way (actus), or a water-duct (aquae ductus), such a caution is to be furnished: that, so long as one is demonstrating his right, he will not hinder the person driving, leading the water, or making the journey. But if he denies that the adversary has the right of driving or of leading water, he must give security, without prejudice to the servitude’s being lost, that he will not use it until the question is concluded.

Dig. 43.20.8

Digest 43.20.8

Scaevola l.S. horoi

Scaevola in the single book, definitions

Cui per fundum iter aquae debetur, quacumque vult in eo rivum licet faciat, dum ne aquae ductum interverteret.

He to whom a right of passage for water across the estate is owed may, wherever he wishes in it, make a rivulet, provided that he does not divert the aqueduct (watercourse).

Dig. 43.21.0. De rivis.

Dig. 43.21.0. On watercourses.

Dig. 43.21.1pr.

Digest 43.21.1, beginning.

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

The praetor says: " I forbid force to be used to prevent him from repairing or cleansing channels, specuses (tunnels/conduits), and enclosures for the sake of leading water, provided that he does not conduct the water otherwise than as in the previous summer he led it from you, not by force, not by stealth, not by precarium, I forbid force to be used".

Dig. 43.21.1.1

Digest 43.21.1.1

Ulpianus 70 ad ed.

Ulpian book 70 on the edict.

Hoc interdictum utilissimum est: nam nisi permittatur alicui reficere, alia ratione usu incommodabitur.

This interdict is most useful: for unless someone is permitted to repair, in some other way the use will be incommoded.

Dig. 43.21.1.2

Digest 43.21.1.2

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Ait ergo praetor " rivum specus". rivus est locus per longitudinem depressus, quo aqua decurrat, cui nomen est apo tou hrein.

Therefore the praetor says " rivulet conduit". A rivulet is a place depressed along its length, along which water runs down, whose name is from "to flow".

Dig. 43.21.1.3

Digest 43.21.1.3

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Specus autem est locus, ex quo despicitur: inde spectacula sunt dicta.

A specus, however, is a place from which one looks down; from this spectacles are so called.

Dig. 43.21.1.4

Digest 43.21.1.4

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Septa are barriers that are set opposite the sluice-head for the purpose of diverting or compelling water from the river, whether they are wooden or stone or of any other material, devised for containing and transmitting the water.

Dig. 43.21.1.5

Digest 43.21.1.5

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

An incile is, moreover, a depressed place at the side of a river, so called because it is cut: for either stone or earth is cut, whence at first water can be conducted from the river. But both ditches and wells are contained by this interdict.

Dig. 43.21.1.6

Digest 43.21.1.6

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Then the praetor says " reficere purgare". to repair is to restore what has been corrupted to its former state. Under the term “repairing” are contained: to cover, to underbuild (underpin), to patch, to build, likewise to bring in and to carry in those things which would be needed for the same matter.

Dig. 43.21.1.7

Digest 43.21.1.7

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Purgandi verbum plerique quidem putant ad eum rivum pertinere, qui integer est: et palam est et ad eum pertinere, qui refectione indiget: plerumque enim ut refectione, et purgatione indiget.

The term “purgandi” most indeed think pertains to that stream which is intact; and it is clear that it also pertains to one which needs refection; for most often it needs both refection and purgation.

Dig. 43.21.1.8

Digest 43.21.1.8

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

" aquae", inquit, " ducendae causa". merito hoc additur, ut ei demum permittatur et reficere et purgare rivum, qui aquae ducendae causa id fecit.

" of water," he says, " for the purpose of conducting." Rightly is this added, so that only to him is it permitted both to repair and to purge the watercourse, who did it for the purpose of conducting water.

Dig. 43.21.1.9

Digest 43.21.1.9

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Hoc interdictum competit etiam ei, qui ius aquae ducendae non habet, si modo aut priore aestate aut eodem anno aquam duxerit, cum sufficiat non vi non clam non precario duxisse.

This interdict is competent even to one who does not have the right of conducting water, provided only that either in the previous summer or in the same year he has conducted water, since it suffices to have conducted it not by force, not clandestinely, not by precarious leave.

Dig. 43.21.1.10

Digest 43.21.1.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si quis terrenum rivum signinum, id est lapideum facere velit, videri eum non recte hoc interdicto uti: non enim reficit qui hoc facit: et ita ofilio videtur.

If someone should wish to make an earthen channel signine, that is, stone‑built, he appears not to be using this interdict rightly: for he who does this does not refit; and thus it seems to Ofilius.

Dig. 43.21.1.11

Digest 43.21.1.11

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Accordingly, even if he should wish to lead it through another place, he is prohibited with impunity; and likewise if he should depress or raise the same stream, or dilate it or extend it, or cover one that is open, or conversely. I for my part think that the others may indeed be prohibited with impunity; but as for him who covers one that is open, or conversely, I do not think he should be prohibited, unless the adversary shows some greater utility of his own.

Dig. 43.21.2

Digest 43.21.2

Paulus 66 ad ed.

Paulus 66 on the Edict.

Labeo says that from an open stream it cannot be made ground (i.e., covered and filled in), because the convenience to the owner of the soil of driving the herd to it or of drawing water would be taken away: which does not please Pomponius, because that would befall the owner more from occasion than from right, unless from the beginning, in the imposing of the servitude, that had been agreed.

Dig. 43.21.3pr.

Digest 43.21.3, preface.

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Servius, moreover, writes that water is led otherwise, which previously was conducted through a tunnel, if now it is conducted through the open: for if someone makes any work by which he conserves or contains the water more, he is not to be prohibited with impunity. I also [hold] conversely in the case of a tunnel, unless the adversary’s greater utility is at stake.

Dig. 43.21.3.1

Digest 43.21.3.1

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Servius and Labeo write that, if a rivulet which from the beginning was earthen, because it did not contain the water, he should wish to make cementitious, he ought to be heard: but also if he should thereafter make that rivulet which was built (structile) earthen, or a part of the rivulet, likewise it ought not to be prohibited. It seems to me that an urgent and necessary refection ought to be admitted.

Dig. 43.21.3.2

Digest 43.21.3.2

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

If anyone should wish to collocate a new canal or pipes in a rivulet, although he has never had this, Labeo says this interdict will be useful to him. We also here are of the opinion that the utility of the one who conducts (the water) is to be regarded, without inconvenience to the one whose field it is.

Dig. 43.21.3.3

Digest 43.21.3.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Si aqua in unum lacum conducatur et inde per plures ductus ducatur, hoc interdictum utile erit volenti reficere ipsum lacum.

If water is conducted into a single basin and thence is conducted through several ducts, this interdict will be useful to one wishing to repair the basin itself.

Dig. 43.21.3.4

Digest 43.21.3.4

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Hoc interdictum ad omnes rivos pertinet, sive in publico sive in privato sint constituti.

This interdict pertains to all channels, whether they are constituted on public or on private property.

Dig. 43.21.3.5

Digest 43.21.3.5

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Sed et si calidae aquae rivus sit, de hoc reficiendo competit interdictum.

But also, if there is a stream of hot water, an interdict is available for restoring it.

Dig. 43.21.3.6

Digest 43.21.3.6

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Aristo et de cuniculo restituendo per quem vapor trahitur, in balnearis vaporibus putat utilem actionem competere: et erit dicendum utile interdictum ex hac causa competere.

Aristo also, concerning the restoration of the conduit (cuniculus) through which steam is drawn, with respect to bathhouse steam, thinks that a useful action (actio utilis) lies; and it will have to be said that a useful interdict (interdictum utile) is available in this matter.

Dig. 43.21.3.7

Digest 43.21.3.7

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Isdem autem personis et in easdem interdictum hoc datur, quibus et in quas et de aqua interdicta redduntur, quae supra sunt enumerata.

But this interdict is given to the same persons and against the same, to whom and against whom the interdicts concerning water are issued, which have been enumerated above.

Dig. 43.21.3.8

Digest 43.21.3.8

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

If someone serves a notice of new work upon a person repairing a watercourse, it has been well said that the notice of new work can be disregarded: for since the praetor forbids force to be used against him, it is absurd that he be hindered through a notice of new work. Clearly it must be said that it can be done by an action in rem: it is not doubtful that one may vindicate against him " that he has no right."

Dig. 43.21.3.9

Digest 43.21.3.9

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

De damno quoque infecto cavere eum debere minime dubitari oportet.

It ought not to be doubted in the least that he also must provide security for damage not yet done.

Dig. 43.21.3.10

Digest 43.21.3.10

Ulpianus 70 ad ed.

Ulpian 70 On the Edict.

Si quis eum exportare vehere, quae refectioni necessaria sunt, prohibeat, hoc interdictum ei competere ofilius putat, quod est verum.

If anyone should prohibit him from exporting or conveying the things that are necessary for repair, ofilius thinks that this interdict is competent to him—which is true.

Dig. 43.21.4

Digest 43.21.4

Venonius 1 interd.

Venonius 1 interdicts.

Concerning the repairing of channels, an interdict shall be issued thus, that it not be inquired whether it was permitted to the plaintiff to conduct water: for the refection of roads is not so necessary as that of channels, since, if the channels are not repaired, all use of water would be taken away and men would be slain by thirst. And indeed water cannot arrive unless the channel is repaired; but if the road is not repaired, there would only be a difficulty of going and of driving, which would be lighter in the summer season.

Dig. 43.22.0. De fonte.

Digest 43.22.0. On a spring.

Dig. 43.22.1pr.

Digest 43.22.1 preface.

Ulpianus 70 ad ed.

Ulpian book 70 on the Edict.

Praetor ait: " uti de eo fonte, quo de agitur, hoc anno aqua nec vi nec clam nec precario ab illo usus es, quo minus ita utaris, vim fieri veto. de lacu puteo piscina item interdicam".

The praetor says: "As this year you have used water from the spring in question, neither by force nor secretly nor at sufferance from him, I forbid force to be used to prevent you from so using it. Concerning a lake, a well, or a fishpond, I will likewise interdict."

Dig. 43.22.1.1

Digest 43.22.1.1

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

This interdict is issued to him who is forbidden to use spring water: for servitudes are wont to be not only for conducting water, but also for drawing it; and just as the servitudes of water-conduit and of water-drawing are distinct, so the interdicts are granted separately.

Dig. 43.22.1.2

Digest 43.22.1.2

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Hoc autem interdictum locum habet, si quis uti prohibeatur aqua, hoc est sive haurire prohibeatur sive etiam pecus ad aquam appellere.

But this interdict has application if someone be prohibited from using water, that is, whether he be prohibited to draw it or also to drive cattle to the water.

Dig. 43.22.1.3

Digest 43.22.1.3

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et eadem sunt hic dicenda, quae ad personam attinent, quaecumque in superioribus interdictis diximus.

And the same things must be said here concerning the person, whatever we have said in the preceding interdicts.

Dig. 43.22.1.4

Digest 43.22.1.4

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

This interdict does not apply concerning a cistern: for a cistern does not have a perpetual cause nor living water. Whence it appears that in all these cases it must be required that the water be living: cisterns, however, are filled by rain-showers. Finally, it is agreed that the interdict ceases, if a lake, pool, or well does not have living water.

Dig. 43.22.1.5

Digest 43.22.1.5

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Plane si quis ire ad haustum prohibeatur, aeque interdictum sufficiet.

Clearly, if anyone is prohibited from going to draw water, likewise the interdict will suffice.

Dig. 43.22.1.6

Digest 43.22.1.6

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Then the praetor says: "I forbid force to be used to the end that you be hindered the less from cleansing or repairing the spring which is in question, so that by it you may in any case be able to restrain the water, provided that you do not use it otherwise, and that you use it as in this year you have used it from him, not by force, not secretly, not by precarious permission."

Dig. 43.22.1.7

Digest 43.22.1.7

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Hoc interdictum eandem habet utilitatem, quam habet interdictum de rivis reficiendis: nisi enim purgare et reficere fontem licuerit, nullus usus eius erit.

This interdict has the same utility as the interdict concerning repairing watercourses: for unless it is permitted to cleanse and repair the spring, there will be no use of it.

Dig. 43.22.1.8

Digest 43.22.1.8

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Purgandus autem et reficiendus est ad aquam coercendam, ut uti quis aqua possit, dummodo non aliter utatur, quam sic uti hoc anno usus est.

But it must be purged and repaired to restrain the water, so that one may be able to use the water, provided that he does not use it otherwise than as he has used it this year.

Dig. 43.22.1.9

Digest 43.22.1.9

Ulpianus 70 ad ed.

Ulpian, 70 On the Edict.

Coercere aquam est continere sic, ne diffluat, ne dilabatur, dummodo non permittatur cui novas quaerere vel aperire: hic enim innovat aliquid praeter id, quam praecedenti anno usus est.

To coerce water is to contain it thus, lest it flow off, lest it slip away, provided that it is not permitted to someone to seek or to open new [channels]: for such a one innovates something beyond that which he made use of in the preceding year.

Dig. 43.22.1.10

Digest 43.22.1.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Sed et de lacu puteo piscina reficiendis purgandis interdictum competit.

But also an interdict is available concerning the repairing and cleansing of a lake, a well, and a fishpond.

Dig. 43.22.1.11

Digest 43.22.1.11

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Et omnibus personis dabitur, quibus permittitur interdictum de aqua aestiva.

And it will be given to all persons to whom the interdict concerning summer water is permitted.

Dig. 43.23.0. De cloacis.

Dig. 43.23.0. On sewers.

Dig. 43.23.1pr.

Digest 43.23.1, Preface.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Praetor ait: " quo minus illi cloacam quae ex aedibus eius in tuas pertinet, qua de agitur, purgare reficere liceat, vim fieri veto. damni infecti, quod operis vitio factum sit, caveri iubebo".

The praetor says: " to prevent it from being less permitted to him to cleanse and to repair the sewer which, from his house, extends into yours, which is the subject of the action, I forbid force to be used. For damage not yet done, if it should be caused by a defect in the work, I will order security to be given".

Dig. 43.23.1.1

Digest 43.23.1.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Sub hoc titulo duo interdicta praetor subiecit, unum prohibitorium, alterum restitutorium: et primum prohibitorium.

Under this title the praetor has subjoined two interdicts, one prohibitory, the other restitutory: and first, the prohibitory.

Dig. 43.23.1.2

Digest 43.23.1.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Moreover, the praetor took care through these interdicts that the sewers be both cleansed and repaired, both of which pertain to the salubrity of the cities and to their protection: for the uncleanness of the sewers threatens both pestilential air and collapses, if they are not repaired.

Dig. 43.23.1.3

Digest 43.23.1.3

Ulpianus 71 ad ed.

Ulpian 71 to the edict.

Hoc autem interdictum propositum est de cloacis privatis: publicae enim cloacae publicam curam merentur.

But this interdict is set forth concerning private sewers: for public sewers merit public care.

Dig. 43.23.1.4

Digest 43.23.1.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Cloaca autem est locus cavus, per quem colluvies quaedam fluat.

However, a sewer is a hollow place through which a certain colluvies flows.

Dig. 43.23.1.5

Digest 43.23.1.5

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Hoc interdictum, quod primum proponitur, prohibitorium est, quo prohibetur vicinus vim facere, quo minus cloaca purgetur et reficiatur.

This interdict, which is set forth first, is prohibitory: by it the neighbor is forbidden to use force to prevent the sewer from being cleaned and repaired.

Dig. 43.23.1.6

Digest 43.23.1.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Cloacae appellatione et tubus et fistula continetur.

Under the appellation “sewer” both a tube and a pipe are contained.

Dig. 43.23.1.7

Digest 43.23.1.7

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

But because the refection and purgation of sewers seems to look to the public utility, therefore it has pleased (the jurists) that there be no addition in the interdict of “that he has used it neither by force, nor clandestinely, nor by precarium,” so that, even if someone has had such a use, nevertheless he is not prohibited, being willing, to repair or cleanse the sewer.

Dig. 43.23.1.8

Digest 43.23.1.8

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Then the praetor says, "what from his edifice pertains into yours." Here you must take aedes as any edifice, that is, from his edifice into your edifice. Moreover, Labeo thought that this interdict has a place even if an area lies on either side of the edifices, and, he says, if perchance a sewer has been conducted from an urban edifice into the neighboring field.

Dig. 43.23.1.9

Digest 43.23.1.9

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Likewise Labeo [holds] that even the one who wishes to discharge a private cloaca (sewer) into the public cloaca is to be protected, lest violence be done to him. But Pomponius also writes that, if anyone wishes to construct such a cloaca, so that it may have an outlet into the public cloaca, he is not to be impeded.

Dig. 43.23.1.10

Digest 43.23.1.10

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Quod ait praetor " pertinet" hoc significat, quod ex aedibus eius in tuas pertinet, hoc est " derigitur, extenditur, pervenit".

That the praetor says " pertains" signifies this: that what from his house into yours pertains, that is, " is directed, is extended, reaches".

Dig. 43.23.1.11

Digest 43.23.1.11

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Et tam ad proximum vicinum hoc interdictum pertinet quam adversus ulteriores, per quorum aedes cloaca currit.

And this interdict pertains as much to the nearest neighbor as against those farther off, through whose houses the sewer runs.

Dig. 43.23.1.12

Digest 43.23.1.12

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Whence Fabius Mela writes that this interdict lies, to the effect that one may come into a neighbor’s house and cut through the pavements for the sake of cleansing the sewer. Nevertheless, Pomponius writes that it is to be feared lest in that case the stipulation for damage not yet done be incurred. But this stipulation is not incurred, if he is ready to restore that which he had cut away out of the necessity of repairing the sewer.

Dig. 43.23.1.13

Digest 43.23.1.13

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Si quis purganti mihi cloacam vel reficienti opus novum nuntiaverit, rectissime dicetur contempta nuntiatione me posse reficere id quod institueram.

If someone gives notice of a new work to me while I am cleansing a sewer or making repairs, it will be said most correctly that, the notification being disregarded, I can repair that which I had undertaken.

Dig. 43.23.1.14

Digest 43.23.1.14

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Sed et damni infecti cautionem pollicetur, si quid operis vitio factum est: nam sicuti reficere cloacas et purgare permittendum fuit, ita dicendum, ne damnum aedibus alienis detur.

But he also promises the cautio damni infecti, if anything has been done through a defect in the work: for just as it had to be permitted to repair and to cleanse the sewers, so it must be said that damage is not to be caused to another’s buildings.

Dig. 43.23.1.15

Digest 43.23.1.15

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Deinde ait praetor: " quod in cloaca publica factum sive ea immissum habes, quo usus eius deterior sit fiat, restituas. item ne quid fiat immittaturve, interdicam".

Then the praetor says: "Whatever has been done in the public sewer, or which you have introduced into it, by which its use is or becomes worse, you shall restore. Likewise I will interdict that anything be done or be introduced."

Dig. 43.23.1.16

Digest 43.23.1.16

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Hoc interdictum ad publicas cloacas pertinet, ne quid ad cloacam immittas neve facias, quo usus deterior sit neve fiat.

This interdict pertains to the public sewers, that you are not to admit anything into the sewer nor to do anything by which its use is made worse or may become so.

Dig. 43.23.2

Digest 43.23.2

Venonius 1 interd.

Venonius 1 interdict.

Although this interdict is understood to cover the repairing of a sewer, not also the making of a new one, nevertheless Labeo says an interdict ought equally to be issued, that no force be used against one making a sewer, because the utility is the same: for the praetor has thus interdicted, that no force be used to prevent one from being allowed to make a sewer in a public place; and this pleased Ofilius and Trebatius. He himself says it should be stated that by the interdict it is permitted to cleanse and restore an existing sewer, but that to make a new one ought to be granted only to the person who has the care of the public roads.

Dig. 43.24.0. Quod vi aut clam.

Digest 43.24.0. What by force or clandestinely.

Dig. 43.24.1pr.

Digest 43.24.1, beginning.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Praetor ait: " quod vi aut clam factum est, qua de re agitur, id cum experiendi potestas est, restituas".

The Praetor says: "what has been done by force or clandestinely, in the matter in issue, that—provided there is the power of proceeding at law—you must restore".

Dig. 43.24.1.1

Digest 43.24.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum restitutorium est et per hoc occursum est calliditati eorum, qui vi aut clam quaedam moliuntur: iubentur enim ea restituere.

This interdict is restitutory, and by it the cunning of those who contrive certain things by force or by stealth has been countered: for they are ordered to restore them.

Dig. 43.24.1.2

Digest 43.24.1.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Et parvi refert, utrum ius habuerit faciendi, an non: sive enim ius habuit sive non, tamen tenetur interdicto, propter quod vi aut clam fecit: tueri enim ius suum debuit, non iniuriam comminisci.

And it matters little whether he had the right of doing so or not: for whether he had the right or not, nevertheless he is bound by the interdict, because he did it by force or clandestinely: for he ought to have defended his right, not to contrive an injury.

Dig. 43.24.1.3

Digest 43.24.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Finally it has been asked whether to one employing this interdict an exception can be opposed: "that I did not receive it by my own right." And the more correct view is that he cannot: for against force or what has been done clandestinely he can defend himself by no just exception.

Dig. 43.24.1.4

Digest 43.24.1.4

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Hoc interdictum ad ea sola opera pertinet, quaecumque in solo vi aut clam fiunt.

This interdict pertains only to those works, whatsoever are done on land either by force or by stealth.

Dig. 43.24.1.5

Digest 43.24.1.5

Ulpianus 71 ad ed.

Ulpian book 71 on the Edict.

Quid sit vi factum vel clam factum, videamus. vi factum videri quintus mucius scripsit, si quis contra quam prohiberetur fecerit: et mihi videtur plena esse quinti mucii definitio.

What a thing done by force or a thing done secretly is, let us see. A thing done by force is considered to exist, quintus mucius wrote, if anyone has done something contrary to what he was prohibited; and it seems to me that the definition of quintus mucius is complete.

Dig. 43.24.1.6

Digest 43.24.1.6

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sed et si quis iactu vel minimi lapilli prohibitus facere perseveravit facere, hunc quoque vi fecisse videri pedius et pomponius scribunt, eoque iure utimur.

But also, if anyone, though prevented by the casting even of the smallest pebble, persisted in doing it, pedius and pomponius write that this person too is deemed to have acted with force, and we use that rule of law.

Dig. 43.24.1.7

Digest 43.24.1.7

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Sed et si contra testationem denuntiationemque fecerit, idem esse cascellius et trebatius putant: quod verum est.

But even if he has acted contrary to the attestation and the denunciation, Cascellius and Trebatius think it is the same: which is true.

Dig. 43.24.1.8

Digest 43.24.1.8

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Sed et aristo ait eum quoque vi facere, qui, cum sciret se prohibitum iri, per vim molitus est, ne prohiberi possit.

But Aristo also says that he too commits violence who, when he knew that he would be prohibited, contrived by force that he could not be prohibited.

Dig. 43.24.1.9

Digest 43.24.1.9

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Likewise Labeo says, if I have prohibited someone who is doing, and he has desisted for the present, and afterward has begun again to do, he is seen to have acted by force, unless he has begun to act by my permission or with some other just cause supervening.

Dig. 43.24.1.10

Digest 43.24.1.10

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Si quis tamen inbecillitate impeditur vel etiam, ne offenderet vel te vel eum, qui te magni faciebat, ideo non venerit ad prohibendum, non videbitur adversarius vi fecisse: et ita labeo scribit.

If anyone, however, is impeded by infirmity, or even, so as not to offend either you or him who esteemed you greatly, for that reason did not come to prohibit, the adversary will not be seen to have acted by force: and thus Labeo writes.

Dig. 43.24.1.11

Digest 43.24.1.11

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Idem ait et si te volentem ad prohibendum venire deterruerit aliquis ( armis forte) sine ullo dolo malo meo ac propter hoc non veneris, non videri me vim fecisse,

He likewise says that, if someone has deterred you, being willing, from coming to prohibit ( armis forte), without any malice or fraud on my part, and on this account you have not come, I am not considered to have committed violence,

Dig. 43.24.2

Digest 43.24.2

Venonius 2 interd.

Venonius Book 2, Interdicts.

Ne in aliena potestate sit condicionem meam nihil delinquentis deteriorem facere.

Let it not be in another’s power to make worse my condition, being no delinquent.

Dig. 43.24.3pr.

Digest 43.24.3pr.

Ulpianus 71 ad ed.

Ulpian, book 71 on the edict.

To prohibit, moreover, is not necessarily to be done by oneself alone; but even if someone has prohibited through his slave or through his procurator, he is rightly deemed to have prohibited. The same also if my hireling has prohibited. Nor should anyone be troubled by the fact that an action is not usually acquired through a free person: for this prohibition shows that you are acting by force; what wonder, since even if you should do it secretly (clam) against me, I would have an action?

ergo facto magis tuo delinquentis quam alieno adquiritur mihi actio.

therefore, the action is acquired to me rather by your act—the delinquent’s—than by another’s.

Dig. 43.24.3.1

Digest 43.24.3.1

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Illud sciendum est non omnibus momentis vim esse faciendam, sed semel inter initia facta perseverat.

It should be known that force is not to be applied at every moment, but, once done at the outset, it perseveres.

Dig. 43.24.3.2

Digest 43.24.3.2

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Sed si permiserit, adversus eum, qui utatur interdicto, exceptio erit necessaria.

But if he has permitted it, against him who uses the interdict, an exception will be necessary.

Dig. 43.24.3.3

Digest 43.24.3.3

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Non tantum autem si ego permisero, sed et si procurator meus vel tutor qui tutelam administrat vel curator pupilli furiosi sive adulescentis, dicendum erit exceptioni locum fore.

Not only, however, if I have permitted, but also if my procurator or the tutor who administers the tutelage or the curator of a ward, of a madman, or of a young man, it will have to be said that there will be room for the exception.

Dig. 43.24.3.4

Digest 43.24.3.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Plainly, if the governor or the curator of the municipality has permitted something to be done in a public place, Nerva writes that the exception has no place, because although the procuration of public places has been given to him, nevertheless a concession has not been given. This is true thus, if the municipal law does not grant more to the curator of the municipality. But also if by the emperor, or by him to whom the emperor has given this right of granting, the same is to be approved.

Dig. 43.24.3.5

Digest 43.24.3.5

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

If someone is prepared to defend himself by judicial action against those who think an interdict should be issued, that the work not be done: is he to be regarded as ceasing to use force? And the better view is that he does cease, provided only that he offers security and is prepared to defend if anyone brings an action: and thus sabinus writes.

Dig. 43.24.3.6

Digest 43.24.3.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Sed et si quis damni infecti paratus sit cavere, cum propter hoc tantum esset prohibitus, vel quia non defendebat vel damni infecti non repromittebat, consequens est dicere desinere eum vi facere.

But also, if someone is prepared to give security for threatened damage, since for this reason alone he had been prohibited—either because he was not defending or was not promising for threatened damage—it is consequent to say that he ceases to be acting with force.

Dig. 43.24.3.7

Digest 43.24.3.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Clam facere videri cassius scribit eum, qui celavit adversarium neque ei denuntiavit, si modo timuit eius controversiam aut debuit timere.

Cassius writes that he is considered to act clandestinely who has concealed it from his adversary and has not given him notice, provided only that he feared a controversy with him or ought to have feared it.

Dig. 43.24.3.8

Digest 43.24.3.8

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Idem aristo putat eum quoque clam facere, qui celandi animo habet eum, quem prohibiturum se intellexerit et id existimat aut existimare debet se prohibitum iri.

The same Aristo thinks that he too acts clandestinely who, with a purpose of concealing, keeps the person whom he has understood would prohibit it, and who thinks, or ought to think, that he will be prohibited.

Dig. 43.24.4

Digest 43.24.4

Venonius 2 interd.

Venonius 2 interdicts.

Servius etiam eum clam facere, qui existimare debeat sibi controversiam futuram, quia non opinionem cuius et resupinam existimationem esse oporteat, ne melioris condicionis sint stulti quam periti.

Servius also holds that he acts “secretly” who ought to suppose that a controversy is going to arise for himself, because it ought not to be a matter of just anyone’s opinion and a supine estimation, lest fools be in a better condition than experts.

Dig. 43.24.5pr.

Digest 43.24.5 preface.

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Or one who did otherwise than he had given notice; or who does it with that person deceived, to whom it pertained not to do it; or who purposely then gives notice to the adversary when he knows that he cannot prohibit; or gives notice so late that the one who would come to prohibit cannot arrive before it is done. And Aristo says that Labeo approves these things thus.

Dig. 43.24.5.1

Digest 43.24.5.1

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

If someone has given notice that he will make a work, it is not always the case that, if he does it after the notice, he is not deemed to have done it clandestinely: for he ought ( and so Labeo) to include in the notice both the day and the hour, and where and what work is going to be: nor to speak or to give notice perfunctorily or obscurely: nor to hem in the adversary so much that he cannot within the day come up to prohibit.

Dig. 43.24.5.2

Digest 43.24.5.2

Ulpianus 70 ad ed.

Ulpian, book 70 on the Edict.

Et si forte non sit, cui denuntietur, neque dolo malo factum sit ne sit, amicis denique aut procuratori aut ad domum denuntiandum est.

And if by chance there is no one to whom notice may be given, and it has not been brought about by malicious fraud that there is not, then, finally, notice must be given to the friends, or to the procurator, or at the house.

Dig. 43.24.5.3

Digest 43.24.5.3

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Sed et servius recte ait sufficere feminae viro notum facere opus se facturum: vel denique sciente eo facere: quamquam etiam illud sufficiat celandi animum non habere.

But Servius also rightly says that it suffices for a woman to make it known to her husband that she is going to do the work: or, finally, to do it with him knowing: although this too suffices—to have no intention of concealing.

Dig. 43.24.5.4

Digest 43.24.5.4

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Item ait, si quis in publico municipii velit facere, sufficere ei, si curatori rei publicae denuntiet.

Likewise he says that, if anyone wishes to do something in the public place of the municipality, it suffices for him if he gives notice to the curator of the commonwealth.

Dig. 43.24.5.5

Digest 43.24.5.5

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis, dum putat locum tuum esse, qui est meus, celandi tui, non mei causa fecerit, mihi interdictum competere.

If someone, while thinking the place to be yours, which is mine, has acted for the sake of concealing you, not me, the interdict is available to me.

Dig. 43.24.5.6

Digest 43.24.5.6

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Idem dicit et si servi mei vel procuratoris celandi causa factum sit, mihi interdictum competere.

He says the same, too: that if it was done for the sake of hiding my slave or my procurator, the interdict is available to me.

Dig. 43.24.5.7

Digest 43.24.5.7

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Si quis, cum non denuntiasset opus se facturum eique denuntiatum esset ne faceret, fecerit, utilius puto probandum vi eum fecisse.

If someone, when he had not given notice that he would do the work and notice had been given to him not to do it, has done it, I think it more expedient to hold that he did it by force.

Dig. 43.24.5.8

Digest 43.24.5.8

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Haec verba " quod vi aut clam factum est" ait mucius ita esse " quod tu aut tuorum quis aut tuo iussu factum est".

These words " that which has been done by force or secretly" mucius says to be thus: " that which either you or any one of yours, or by your order, has been done".

Dig. 43.24.5.9

Digest 43.24.5.9

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Labeo autem ait plures personas contineri his verbis. nam ecce primum heredes eorum, quos enumerat mucius, contineri putat.

But Labeo says that more persons are contained by these words. For behold, first he thinks that the heirs of those whom Mucius enumerates are contained.

Dig. 43.24.5.10

Digest 43.24.5.10

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

Idem ait et adversus procuratorem tutorem curatorem municipumve syndicum alieno nomine interdici posse.

The same says that an interdict can also be issued against a procurator, a tutor, a curator, or the syndic of the municipes, in another’s name.

Dig. 43.24.5.11

Digest 43.24.5.11

Ulpianus 70 ad ed.

Ulpian, 70 on the edict.

If my slave has done anything, there is not on that account an action against me—except if he did it in my name or in his own; for if I have had your slave as a mercenary (hired hand), whatever shall have been done by him in my name, on that account one must proceed, not with you, but with me—at whose order or in whose name that work was done by your slave—by this interdict.

Dig. 43.24.5.12

Digest 43.24.5.12

Ulpianus 70 ad ed.

Ulpian 70 on the edict.

Similarly, for what shall have been done by the order of someone, for that the action is not with him, but with the one in whose name he shall have ordered. For if a procurator, tutor, curator, or a duumvir of a municipality, as to what he was acting in the name of him whose business he was managing, shall have ordered it to be done, on that account the suit will be with the one in whose name something shall have been done, not with the one who so ordered. And if I shall have mandated to you that you should order the work to be done, and in that matter you have obeyed me, “with me,” he says, “not with you will the action be.”

Dig. 43.24.5.13

Digest 43.24.5.13

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et cum interdictum sic sit scriptum " quod vi aut clam factum est", non ita " quod vi aut clam fecisti", latius porrigi quam ad has personas, quas supra numeravimus, labeo putat.

And since the interdict is written thus " what was done by force or stealth", not thus " what you did by force or stealth", Labeo thinks it is extended more broadly than to those persons whom we have enumerated above.

Dig. 43.24.5.14

Digest 43.24.5.14

Ulpianus 70 ad ed.

Ulpian 70 on the Edict.

Et hoc iure utimur, ut, sive ego fecissem dive fieri iussi, interdicto quod vi aut clam tenear.

And we make use of this law, that, whether I myself did it or ordered it to be done, I am bound by the interdict “what was done by force or by stealth.”

Dig. 43.24.6

Digest 43.24.6

Paulus 67 ad ed.

Paulus 67 on the Edict.

If I have mandated you to make a new work, and you to another, it cannot appear to have been done by my order: you, therefore, and that man will be liable; whether I also am liable, let us see. And it is more the case that I too, who have provided the inception of the matter, am held: but upon one of these giving satisfaction, the others are released.

Dig. 43.24.7pr.

Digest 43.24.7pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si alius fecerit me invito, tenebor ad hoc, ut patientiam praestem.

If another has done it with me unwilling, I shall be held to this: that I afford patience.

Dig. 43.24.7.1

Digest 43.24.7.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Neratius likewise writes that the person whose slave did something by force or by stealth must, under the interdict, either restore the work at his own expense, or provide sufferance for restoring and surrender the slave by noxal surrender. Clearly, if the interdict were issued when the slave had died or had been alienated, he says that he need only provide sufferance, with the result that the buyer too can be proceeded against by that interdict, to the end that he provide the expense or give the noxa; and if the master of the work restores at his own expense, or is condemned because he did not restore, the buyer is released. The same holds also if, conversely, the master of the slave either restored the work or was condemned by the assessment of the suit; but if he had only made the noxal surrender, the interdict would lie usefully against the master of the work.

Dig. 43.24.7.2

Digest 43.24.7.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Julian says: he who, before the remission of the notice, has done the work contrary to what he was forbidden, will be held by two interdicts: one which arises from the notice of a new work, the other the interdict quod vi aut clam. But once remission has been made, he is not to be understood to act by force or by stealth, although he is prohibited: for the one who has given security ought to be allowed to build, since by that very act he is constituted possessor; nor is he to be thought to act stealthily either before the remission or thereafter, since the person who gives notice of a new work cannot be seen as having been concealed from and forestalled before he instituted the controversy.

Dig. 43.24.7.3

Digest 43.24.7.3

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Most excellently it is asked in iulianus whether this exception has effect in this interdict, “that you did not do it by force or stealth?” For instance, I use against you the interdict “quod vi aut clam”: can you oppose to me the same exception, “that you did not do it by force or stealth?” And iulianus says it is most equitable to grant this exception: for, says he, if you have built by force or stealth, and I likewise have demolished by force or stealth, and you employ the interdict against me, this exception will be of benefit. A course which ought not to be undertaken otherwise than for a great and sufficiently necessary cause; otherwise all these matters ought to be conducted by the office of the judge.

Dig. 43.24.7.4

Digest 43.24.7.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

There is also another exception (exceptio), about which Celsus doubts whether it should be raised: for instance, if for the sake of warding off a fire the neighbor’s house were cut down, and a suit is brought against me under “vi aut clam” or “damni iniuria.” For Gallus doubts whether one ought to plead the exception: “that it was not done for the purpose of defending against a fire?” Servius, however, says that if a magistrate had done it, the exception should be granted, but the same is not to be conceded to a private person: nevertheless, if something was done “vi aut clam” and the fire had not reached that point, the suit is to be assessed at the single amount; if it had reached it, he ought to be acquitted. He says the same would be the case if the action were under “damni iniuria,” since he seems to inflict no wrong or damage upon buildings that were equally going to perish.

But if, when there was no conflagration, you did that, and then afterwards a fire arose, the same is not to be said, because, not ex post facto, but from the present state, it ought to be assessed whether damage has been done or not, says Labeo.

Dig. 43.24.7.5

Digest 43.24.7.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

We have noted above that, although the words of the interdict range widely, nevertheless it is held that the interdict pertains only to those works which are done on the soil. For he who touches (i.e., gathers) the fruit is not bound by the interdict quod vi aut clam: for he does no work on the soil. But he who cuts down trees will certainly be held, and he who [cuts] reed and who [cuts] a willow-bed: for by corrupting the earth, and in a certain manner the soil itself, he lays hands upon it.

idem et in vineis succisis. ceterum qui fructum aufert, furti debet conveniri. itaque si quid operis in solo fiat, interdictum locum habet.

the same also in the case of vines cut down. moreover, he who carries off the fruit ought to be sued for theft. and so, if any work is done on the soil, the interdict has its place.

in solo fieri accipimus et si quid circa arbores fiat, non si quid circa fructum arborum.

we take “to be done on the soil” to include also if anything is done around trees, not if anything is done around the fruit of the trees.

Dig. 43.24.7.6

Digest 43.24.7.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Si quis acervum stercoris circa agrum pinguem disiecerit, cum eo " quod vi aut clam factum est" agi potest: et hoc verum est, quia solo vitium adhibitum sit.

If someone has scattered a heap of dung around a fertile field, one can proceed against him by the action " what was done by force or secretly": and this is correct, because a defect has been applied to the soil.

Dig. 43.24.7.7

Digest 43.24.7.7

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Plane si quid agri colendi causa factum sit, interdictum quod vi aut clam locum non habet, si melior causa facta sit agri, quamvis prohibitus quis vi vel clam fecerit.

Clearly, if anything has been done for the sake of cultivating the field, the interdict for what was done by force or in secret has no place, if the condition of the land has been made better, although someone, despite prohibition, did it by force or in secret.

Dig. 43.24.7.8

Digest 43.24.7.8

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Praeterea si fossam feceris in silva publica et bos meus in eam inciderit, agere possum hoc interdicto, quia in publico factum est.

Moreover, if you have made a ditch in a public forest and my ox has fallen into it, I can bring an action under this interdict, because it was done in a public place.

Dig. 43.24.7.9

Digest 43.24.7.9

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis aedificium demolitus fuerit, quamvis non usque ad solum, quin interdicto teneatur, dubitari desiit.

If anyone has demolished a building, even if not down to the ground, it has ceased to be doubted that he is held by the interdict.

Dig. 43.24.7.10

Digest 43.24.7.10

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Proinde et si tegulas de aedificio sustulerit, magis est, ut interdicto teneatur,

Accordingly, even if he has removed tiles from a building, the stronger view is that he is held by the interdict,

Dig. 43.24.8

Digest 43.24.8

Venonius 2 interd.

Venonius 2 Interdicts.

Nam origo huius rei a solo proficiscitur. ceterum per se tegulae non possidentur, sed cum universitate aedificii, nec ad rem pertinet, adfixae sunt an tantum positae.

For the origin of this matter proceeds from the soil. moreover, roof-tiles are not possessed by themselves, but with the universality of the building, nor does it pertain to the matter whether they are affixed or only placed.

Dig. 43.24.9pr.

Digest 43.24.9pr.

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Nam et si ramos quis de arboribus abstulerit, adhuc interdictum hoc admittimus. haec ita, si de aedificio tegulas sustulerit: ceterum si non de aedificio, sed seorsum positas, cessat hoc interdictum.

For even if someone has taken away branches from trees, we still admit this interdict. this is so, if he has removed tiles from an edifice: but if not from an edifice, but tiles placed separately, this interdict ceases.

Dig. 43.24.9.1

Digest 43.24.9.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si tamen sera vel clavis vel cancellus vel specularium sit ablatum, quod vi aut clam agi non poterit.

If, however, a bolt or a key or a lattice or a windowpane has been taken away, the action vi aut clam cannot be brought for it.

Dig. 43.24.9.2

Digest 43.24.9.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sed si quis aliquid aedibus adfixum evellerit, statuam forte vel quid aliud, quod vi aut clam interdicto tenebitur.

But if someone should tear out something affixed to the premises, a statue perhaps or something else, he will be held under the interdict “by force or secretly.”

Dig. 43.24.9.3

Digest 43.24.9.3

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Si quis clam aut vi agrum intraverit vel fossam fecerit, hoc interdicto tenebitur. et si acervum succenderit vel disperserit sic, ut non ad usum agri convertat, interdicto locus non erit,

If anyone has entered a field stealthily or by force or has made a fosse, he will be held by this interdict. And if he has set fire to or scattered a heap in such a way that he does not convert it to the use of the field, there will be no place for the interdict,

Dig. 43.24.10

Digest 43.24.10

Venonius 2 interd.

Venonius 2 interdicts.

Quia acervus solo non cohaeret, sed terra sustinetur, aedificia autem solo cohaerent.

Because a heap does not cohere with the soil, but is supported by the earth, whereas edifices cohere with the soil.

Dig. 43.24.11pr.

Digest 43.24.11pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

He who has poured something into a neighbor’s well, so that by this act he might corrupt the water, Labeo says is held by the interdict quod vi aut clam: for living water is seen as a portion of the field, just as if he had done some work in the water.

Dig. 43.24.11.1

Digest 43.24.11.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

It has been asked whether, if someone has taken up a statue in a municipality from a public place either by force or by stealth, he is bound by this interdict. And there exists the opinion of Cassius that he, whose statue has been set up in a public place in a municipality, can bring the action quod vi aut clam, because it was his concern that it not be removed; but the townsmen will also bring an action of theft, because the thing is theirs as if made public; if, however, it has fallen down, they themselves remove it; and this opinion is true.

Dig. 43.24.11.2

Digest 43.24.11.2

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

If someone should remove a statue from a monument, is it permitted for the one to whom the right of the sepulcher pertains to bring an action? And the opinion is yes, and that in these matters there is room for an interdict. And indeed it must be said that, if any things have been set in place for the purpose of adorning the sepulcher, they are considered to belong to the sepulcher.

idem est et si ostium avellat vel effringat.

the same is [the case] also if he wrenches off the door or breaks it open.

Dig. 43.24.11.3

Digest 43.24.11.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si quis in vineas meas venerit et inde ridicas abstulerit, hoc interdicto tenebitur.

If anyone comes into my vineyards and carries off vine-props from there, he will be held by this interdict.

Dig. 43.24.11.4

Digest 43.24.11.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

As the praetor says: " what has been done by force or clandestinely," let us see to what time this is referred, whether to the past or to the present. This type is set out with Julian: for he says that in this interdict the signification of the present time ought to be taken. Nevertheless, he says, if from the work damage shall have been caused, and either the owner or the one whose land will have been harmed has removed it at his own expense, it is more expedient to approve, as Julian attempts, that both the damage be repaired and the expenses be reimbursed.

Dig. 43.24.11.5

Digest 43.24.11.5

Ulpianus 71 ad ed.

Ulpian 71 to the edict.

The interdict embraces whatever has been done either by force or secretly. But sometimes it happens that something is done both by force and secretly, partly and partly, in the same work. For example, while I was forbidding, you laid the foundations; afterwards, when I had agreed that the remaining work not be done, with me absent and unaware you completed the remaining work; or conversely, you laid the foundations secretly, and then, while I was forbidding, you built the rest.

hoc iure utimur, ut et si vi et clam factum sit, interdictum hoc sufficiat.

we employ this law, that even if it has been done both by force and secretly, this interdict suffices.

Dig. 43.24.11.6

Digest 43.24.11.6

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

If it has been done by order of a tutor or of a curator, since it is accepted, as Cassius approves, that by reason of the tutor’s or curator’s fraud the ward or the insane person is not held liable, it will follow that against the tutor or curator himself either a useful action lies or even a useful interdict. Certainly, for the toleration of taking down the work the ward and the insane person will in any case be bound, and to noxal liability as well.

Dig. 43.24.11.7

Digest 43.24.11.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Is forgiveness granted to a slave who has obeyed a guardian or a curator? For, in regard to certain matters which do not have the atrocity of a criminal deed or wickedness, forgiveness is granted to slaves if they have obeyed either their masters or those who are in the place of masters. This is to be admitted in this case as well.

Dig. 43.24.11.8

Digest 43.24.11.8

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

If after a thing has been done by force or by stealth, the estate has been sold, let us see whether the seller can nonetheless proceed by this interdict. And there exists the opinion of those who think that the interdict nonetheless lies for him and is not ended by the sale; but neither by the action ex empto is anything to be rendered by him to the buyer on account of that work which was done before the sale: for it is sufficient that in any case on account of this work he sold the praedium at a cheaper price. Certainly, even if he did not sell it for a cheaper price, the same must be held.

Dig. 43.24.11.9

Digest 43.24.11.9

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Clearly, if after the sale of the estate a work has been made, even if the seller himself brings suit, because delivery has not yet been made, nevertheless he will be liable to the buyer by the action ex empto: for every advantage and disadvantage ought to pertain to the buyer.

Dig. 43.24.11.10

Digest 43.24.11.10

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

If a farm has been knocked down on condition until a day (in diem addictus), to whom does the interdict belong? And Julianus says that the interdict “because by force or by stealth” (quod vi aut clam) belongs to him whose concern it was that the work not be done: for when a farm has been in diem addictus, both all the advantage and all the disadvantage pertain to the buyer, he says, before the conveyance is transferred; and therefore, if at that time something was done by force or by stealth, although a better offer has been brought, he himself will have the utile interdict. But he says that he must be compelled by the seller’s action (actio venditi) to make over that action, just as he must make good the fruits gathered in the meantime.

Dig. 43.24.11.11

Digest 43.24.11.11

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Aristo, however, writes that notice is to be given to a non-possessor: for if someone, he says, has sold me an estate and has not yet delivered it, and the neighbor, when he wished to do a work and knew that I had bought it and was staying on the estate, has given notice to me, he will be safe, so far as it pertains to the suspicion of a work done clandestinely: which indeed is true.

Dig. 43.24.11.12

Digest 43.24.11.12

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

I, if after an in diem addictio has been made the estate has been delivered on precarium, think that the buyer has the interdict quod vi aut clam. But if either delivery has not yet been made or even a request for precarium has been made, I do not think there is any doubt that the seller has the interdict: for it ought to be competent to him, even if the thing is not at his risk, nor does it matter much that the thing is at the buyer’s risk: for immediately after the sale is contracted the risk looks to the buyer, and yet before any delivery is made, no one has said that the interdict is competent to him. If, however, he is in possession on precarium, let us consider whether, since it is to his interest to possess in whatever way, he may now be able to use the interdict.

therefore even if he leased it, much more so: for it does not come into doubt that even a colonus can pursue relief by interdict. plainly, if after a better condition has been brought forward, some work has been done by force or by stealth, neither would Julian doubt that the interdict is competent to the seller: for between Cassius and Julian the question is about that which happened in the meantime, not about that work which occurred afterwards.

Dig. 43.24.11.13

Digest 43.24.11.13

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

If a praedium has been sold on the terms that, if it displeased, it would be as unbought, we more readily admit that the purchaser has the interdict, provided only that he is in possession; and if rescission of the purchase is referred to another’s arbitration, the same must be held; and the same likewise if it was sold on the terms that, if something should occur, the praedium would be as unbought; and if perchance it has been sold with a commissory clause, the same is to be said.

Dig. 43.24.11.14

Digest 43.24.11.14

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Idem iulianus scribit interdictum hoc non solum domino praedii, sed etiam his, quorum interest opus factum non esse, competere.

The same Julianus writes that this interdict is available not only to the owner of the praedium, but also to those whose interest it is that the work not be done.

Dig. 43.24.12

Digest 43.24.12

Venonius 2 interd.

Venonius Interdicts, Book 2.

Quamquam autem colonus et fructuarius fructuum nomine in hoc interdictum admittantur, tamen et domino id competet, si quid praeterea eius intersit.

Although the colonus and the fructuary are admitted under this interdict in the name of the fruits, nevertheless it will also lie for the owner, if he has any further interest in it.

Dig. 43.24.13pr.

Digest 43.24.13, preface.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Finally, if the trees on an estate, the usufruct of which pertains to Titius, have been cut down by an outsider or by the proprietor, Titius may properly proceed both under the Aquilian Law and by the interdict quod vi aut clam against each of them.

Dig. 43.24.13.1

Digest 43.24.13.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Labeo scribit, si filio prohibente opus factum sit, et te habere interdictum, ac si te prohibente opus factum est, et filium tuum nihilo minus.

Labeo writes that, if the work has been done with your son prohibiting, you have the interdict, just as if the work has been done with you prohibiting—and your son none the less.

Dig. 43.24.13.2

Digest 43.24.13.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

The same says that, against a filius familias, in a peculium matter, no one is considered to have acted secretly; for if he knows him to be a filius familias, he does not seem to have done it for the sake of concealing it from one whom he is certain has no action against him.

Dig. 43.24.13.3

Digest 43.24.13.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Si ex sociis communis fundi unus arbores succiderit, socius cum eo hoc interdicto experiri potest, cum ei competat, cuius interest.

If, from among the partners of a common estate, one has cut down trees, a partner can proceed against him by this interdict, since it is competent to him whose interest is concerned.

Dig. 43.24.13.4

Digest 43.24.13.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Whence it has been further reported by Servius that, if you have granted me to cut trees from your estate, and then someone else has felled them by force or secretly, this interdict is available to me, because I am the one whose interest it is; which will be more readily admitted if I bought this from you or obtained it from some contract, namely that it is permitted to me to cut.

Dig. 43.24.13.5

Digest 43.24.13.5

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

It has been asked, if, when a praedium meanwhile belonged to no one, something was done by force or by stealth, whether afterwards, when ownership has devolved to someone, there is room for the interdict: for instance, the inheritance was lying unclaimed, afterwards Titius entered upon the inheritance—does the interdict befit him? And it is most frequently reported by Vivianus that this interdict is competent to the heir for that which was done before the inheritance was entered; nor, Labeo says, does it matter that it was not known who the heirs would be: for one can allege this even after the inheritance has been entered. Nor, Labeo says, does even this stand in the way, that at that time no one was owner: for of a sepulchre no one is owner, and yet, if anything is done in it, I can proceed by the “what was done by force or by stealth” interdict.

accedit his, quod hereditas dominae locum optinet. et recte dicetur heredi quoque competere et ceteris successoribus, sive ante, quam successerit, sive postea aliquid sit vi aut clam admissum.

There is added to these points that the inheritance holds the place of the mistress (owner). And it will rightly be said that the interdict also is competent to the heir and to the other successors, whether before he has succeeded or afterwards something has been committed by force or by stealth.

Dig. 43.24.13.6

Digest 43.24.13.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

If my tenant farmer has performed a work, if indeed with me willing or with me having ratified it, it is the same as if my procurator had done it; and in such a case it is settled that I am bound, whether he did it by my will or I have ratified what the procurator did.

Dig. 43.24.13.7

Digest 43.24.13.7

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Julian says: if a colonus (tenant) has cut down a tree about which there was a controversy, or has done some other work, if indeed this was done by the order of the owner, both will be held liable, not to furnish mere toleration, but also to supply the expense for restoring; but if the owner did not order it, the colonus will be liable to furnish toleration and expense, whereas the owner will be compelled to furnish nothing more than toleration.

Dig. 43.24.14

Digest 43.24.14

Iulianus 68 Dig.

Julian 68 Digest.

For if my slave, without my knowledge, has made a work, and I have sold or manumitted him, an action can be brought against me only to this extent: that I allow the work to be removed; but against the purchaser of the slave, that he either surrender him noxally or pay the expense which shall have been made in the restitution: and an action can also properly be brought against the manumitted man himself.

Dig. 43.24.15pr.

Digest 43.24.15pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Semper adversus possessorem operis hoc interdictum competit, idcircoque, si quilibet inscio vel etiam invito me opus in fundo meo fecerit, interdicto locus erit.

This interdict is always competent against the possessor of the work, and therefore, if anyone, without my knowledge or even against my will, should make a work on my land, there will be place for the interdict.

Dig. 43.24.15.1

Digest 43.24.15.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

He, to whom you had leased the farm (fundus) for trenching (pastination), removed stones and threw them onto the neighbor’s praedium. Labeo says that you are not held under the interdict vi aut clam, unless it was done by your order: I for my part think the conductor is liable, but the locator is not otherwise, unless either he can provide sufferance or has some action which he can furnish; otherwise, he ought not to be held.

Dig. 43.24.15.2

Digest 43.24.15.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

If in another’s sepulcher earth has been heaped by my order, Labeo writes that the action “quod vi aut clam” must be brought against me. And if this was done by the common counsel of several, it is permitted to try the suit either against one or against each singly: for the work which has been done by several pro indiviso binds the individuals in solidum. If, however, any one of them did this by his own counsel, one must proceed against all, namely in solidum: and so the convening of the one will not free the other—nay rather, not even receipt from the other—whereas in the former case the convening of the one frees the other.

praeterea sepulchri quoque violati agi potest.

furthermore, an action can also be brought for a violated sepulcher.

Dig. 43.24.15.3

Digest 43.24.15.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum in heredem ceterosque successores datur in id quod ad eos pervenit.

This interdict is granted against the heir and the other successors to the extent of what has come to them.

Dig. 43.24.15.4

Digest 43.24.15.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

And after a year it does not lie. The year, however, begins to run from the time when that work has been made and completed, or when it has ceased to be carried on, even if it is not completed: otherwise, if one were to count the year from the beginning of the work once commenced, it would be necessary to proceed more often against those who would do the work most slowly.

Dig. 43.24.15.5

Digest 43.24.15.5

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

But if it be a place in which the work was done that is not easily accessible, as, for instance, it was done in a tomb by force or by stealth, or in some other hidden spot, and likewise if the work were done underground or under water, or something were done in a sewer, then even after a year, once the matter has been inquired into, the interdict concerning that which has been done lies: for, the matter having been inquired into, the annual exception is to be remitted—that is, when a great and just cause of ignorance has intervened.

Dig. 43.24.15.6

Digest 43.24.15.6

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

If someone had been away for the sake of the commonwealth, then upon returning wished to employ the interdict “quod vi aut clam,” the truer view is that he is not excluded by the year, but that, on returning, he has a year. For even if a person under twenty‑five years began to be absent for the sake of the commonwealth, and then became of full age while he is absent on public business, it will come about that a year is computed to him from the time he returns, not from the time he completed his twenty‑fifth year: and thus the deified Pius, and thereafter all the princes, have written in rescripts.

Dig. 43.24.15.7

Digest 43.24.15.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

By this interdict the suit is appraised at as much as the plaintiff’s interest is that that work have been done. And by the duty of the judge it must be adjudged that restitution be made in such a way that in every case the condition of the plaintiff be the same as it would be if the work, about which there has been suit, had been done neither by force nor by stealth.

Dig. 43.24.15.8

Digest 43.24.15.8

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Therefore, sometimes consideration must also be had for ownership, for example if, on account of this work which has been done, servitudes are lost or a usufruct perishes. This will occur not only when someone has built a work, but even if it is alleged that he has demolished the work and has made the condition worse, whether of the servitudes or of the usufruct or of the ownership itself.

Dig. 43.24.15.9

Digest 43.24.15.9

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Sed quod interfuit, aut per iusiurandum, quod in litem actor iuraverit, aut, si iurare non possit, iudicis officio aestimandum est.

But the amount of the interest is to be assessed either by an oath which the plaintiff has sworn in the suit, or, if he cannot swear, by the judge’s office.

Dig. 43.24.15.10

Digest 43.24.15.10

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Eum autem, qui dolo malo fecerit, quo minus possit restituere, perinde habendum, ac si posset.

However, one who by malicious fraud has brought it about that he cannot make restitution is to be regarded the same as if he could.

Dig. 43.24.15.11

Digest 43.24.15.11

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Culpam quoque in hoc interdicto venire erit probandum: quae tamen arbitrio iudicis aestimanda erit.

It will have to be proven that culpability also comes within this interdict; which, however, will have to be assessed by the judge’s discretion.

Dig. 43.24.15.12

Digest 43.24.15.12

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Quia autem hoc interdictum id quod interest continet, si quis alia actione fuerit consecutus id quod interfuit opus non esse factum, consequens erit dicere ex interdicto nihil eum consequi oportere.

But since this interdict contains the amount of the interest, if anyone shall have obtained by another action what his interest was that the work not be done, it will follow to say that he ought to recover nothing under the interdict.

Dig. 43.24.16pr.

Digest 43.24.16 pr.

Paulus 67 ad ed.

Paulus 67 on the Edict.

Competit hoc interdictum etiam his qui non possident, si modo eorum interest.

This interdict is available even to those who do not possess, provided that it is in their interest.

Dig. 43.24.16.1

Digest 43.24.16.1

Paulus 67 ad ed.

Paulus 67 on the edict.

If anyone has felled trees not fruit-bearing by force or by stealth, such as cypresses, the interdict belongs only to the owner. But if a certain amenity is afforded by trees of this kind, it can be said that the usufructuary also has an interest, on account of pleasure and carriage‑riding, and that there is room for this interdict.

Dig. 43.24.16.2

Digest 43.24.16.2

Paulus 67 ad ed.

Paulus 67 on the Edict.

In summa qui vi aut clam fecit, si possidet, patientiam et impensam tollendi operis: qui fecit nec possidet, impensam: qui possidet nec fecit, patientiam tantum debet.

In sum, one who has done it by violence or clandestinely, if he is in possession, owes sufferance and the expense of removing the work; one who has done it and is not in possession, the expense; one who is in possession and has not done it, only sufferance.

Dig. 43.24.17

Digest 43.24.17

Paulus 69 ad ed.

Paulus 69 on the Edict.

Interdictum quod vi aut clam per quemvis domino adquiritur, licet per inquilinum.

The interdict “vi aut clam” is acquired for the owner through anyone whatsoever, even through a tenant.

Dig. 43.24.18pr.

Digest 43.24.18, preface.

Celsus 25 Dig.

Celsus 25 Digest.

Si inmaturam silvam caeduam cecidit quis, interdicto quod vi aut clam tenetur: si maturam similiter caeduam neque damno dominus adfectus est, nihil praestabit.

If someone has cut down immature coppice-wood, he is held under the interdict “because by force or secretly”; if likewise he has cut mature coppice-wood and the owner has not been affected by damage, he will render nothing.

Dig. 43.24.18.1

Digest 43.24.18.1

Celsus 25 Dig.

Celsus 25 Digest.

Non absurde responsum est: si magistratum rogasses, ut adversarium tuum adesse ad iudicium iuberet, ne opus novum tibi nuntiaret, clam videris opus fecisse, quod interim feceris.

It has been not absurdly answered: if you had asked the magistrate to order your adversary to be present at the trial, so that he would not notify you of a new work, you seem to have made the work clandestinely as to whatever you have done in the meantime.

Dig. 43.24.19

Digest 43.24.19

Ulpianus 57 ad ed.

Ulpian 57 on the Edict.

Interdictum quod vi aut clam competere filio familias colono arboribus succisis sabinus ait.

Sabinus says that the interdict “quod vi aut clam” lies for a filius familias who is a tenant-farmer, when trees have been cut down.

Dig. 43.24.20pr.

Digest 43.24.20, beginning.

Paulus 13 ad sab.

Paulus 13 to Sabinus.

Vi facit tam is qui prohibitus fecit quam is qui, quo minus prohibeatur, consecutus est periculo puta adversario denuntiato aut ianua puta praeclusa.

He acts with force both he who, though prohibited, has done it, and he who, in order that he be the less prevented, has achieved it by creating a peril—say, with notice served upon the adversary, or, say, with the door barred.

Dig. 43.24.20.1

Digest 43.24.20.1

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Prohibitus autem intellegitur quolibet prohibentis actu, id est vel dicentis se prohibere vel manum opponentis lapillumve iactantis prohibendi gratia.

He is understood, however, to be prohibited by any act of the one prohibiting, that is, either by one saying that he prohibits, or by putting forth a hand, or by one throwing a little stone for the sake of prohibiting.

Dig. 43.24.20.2

Digest 43.24.20.2

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Tamdiu autem vi facit prohibitus, quamdiu res in eodem statu permanebit: nam si postea convenerit cum adversario, desinit vi facere.

Moreover, he acts with force, though prohibited, for so long as the thing remains in the same status: for if afterward he comes to an agreement with his adversary, he ceases to act with force.

Dig. 43.24.20.3

Digest 43.24.20.3

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Item si prohibiti heres vel is, qui ab eo emerit, ignorans causam praecedentem fecerit, dicendum esse pomponius ait non incidere eum in interdictum.

Likewise, if the heir of the prohibited person, or he who has bought from him, has acted in ignorance of the preceding cause, Pomponius says it must be said that he does not fall under the interdict.

Dig. 43.24.20.4

Digest 43.24.20.4

Paulus 13 ad sab.

Paul 13 on Sabinus.

Quod in nave fit vel in alia qualibet re vel amplissima, mobili tamen, non continetur hoc interdicto.

What is done on a ship, or on any other thing—however very ample—yet movable, is not contained under this interdict.

Dig. 43.24.20.5

Digest 43.24.20.5

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Sive in privato sive in publico opus fiat sive in loco sacro sive in religioso, interdictum competit.

Whether the work be done on private or on public [property], whether in a sacred place or in a religious one, the interdict is available.

Dig. 43.24.21pr.

Digest 43.24.21, beginning.

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Si opus, quod quis iussus est a iudice, qui ex hoc interdicto sumptus esset, restituere, alius quis vi aut clam sustulisset, nihilo minus idem ille omnimodo iubetur opus restituere.

If the work which someone was ordered by a judge—who had been appointed under this interdict—to restore, had been taken away by someone else by force or stealth, nonetheless that same person is in every way ordered to restore the work.

Dig. 43.24.21.1

Digest 43.24.21.1

Pomponius 29 ad sab.

Pomponius book 29 on Sabinus.

If I should order my slave to do a work, when, so far as it pertains to me, it would not come under suspicion of being clandestine, but my slave supposed that, if the adversary had found out, he would forbid it, am I liable? And I do not think so, since my person is the one to be considered.

Dig. 43.24.21.2

Digest 43.24.21.2

Pomponius 29 ad sab.

Pomponius 29 to Sabinus.

In opere novo tam soli quam caeli mensura facienda est.

In new work, measurement must be made both of the soil and of the sky.

Dig. 43.24.21.3

Digest 43.24.21.3

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Si quis propter opus factum ius aliquod praedii amisit, id restitui ex hoc interdicto debet.

If anyone, on account of a work done, has lost some right of an estate, it ought to be restored by this interdict.

Dig. 43.24.22pr.

Digest 43.24.22, beginning.

Venonius 2 interd.

Venonius 2 interdicts.

If you should discover my vine from my estate into your estate and it has taken root on your estate, the interdict quod vi aut clam is available within a year; but if a year has elapsed, no action remains: the roots which are on my estate become yours, because they are accessions to the vine there.

Dig. 43.24.22.1

Digest 43.24.22.1

Venonius 2 interd.

Venonius Interdicts 2.

Si quis vi aut clam araverit, puto eum teneri hoc interdicto perinde atque si fossam fecisset: non enim ex qualitate operis huic interdicto locus est, sed ex opere facto, quod cohaeret solo.

If someone has plowed by force or secretly, I think he is held by this interdict just as if he had made a ditch: for the application of this interdict is not from the quality of the work, but from the work done, which is attached to the soil.

Dig. 43.24.22.2

Digest 43.24.22.2

Venonius 2 interd.

Venonius 2 interdicts.

If you should fasten tablets at my door, and I, before I had given you notice, should unfasten them, then in turn we have proceeded under the interdict “what was done by force or by stealth”: unless you grant me a remission so that I may be absolved, you are to be condemned, as though you did not restore the thing, to the amount of how much it is in my interest; or at any rate an exception will profit me, “if you did not do it by force nor by stealth nor by precarium (revocable leave).”

Dig. 43.24.22.3

Digest 43.24.22.3

Venonius 2 interd.

Venonius 2 interdicts.

If you carry dung through my estate, when I had forbidden you to do this, although you have done me no damage nor altered my estate, nevertheless you are held under the interdict “quod vi aut clam,” so Trebatius says. Labeo, on the contrary, [holds] that not even one who has only made a passage through my estate, or has driven a bird, or has hunted without any work, is held by this interdict.

Dig. 43.24.22.4

Digest 43.24.22.4

Venonius 2 interd.

Venonius Interdicts 2.

If anyone has introduced a projection or a stillicide into a sepulcher, even if he does not touch the monument itself, it is proper to proceed against him for what has been done in a sepulcher by force or stealth (vi aut clam), because a sepulcher comprises not only the place that receives inhumation but also all the sky above it; and under that title as well it is possible to bring an action for a violated sepulcher.

Dig. 43.24.22.5

Digest 43.24.22.5

Venonius 2 interd.

Venonius 2 Interdicts.

Si is, qui denuntiaverit se opus facturum, confestim opus fecerit, clam fecisse non intellegitur: nam si post tempus, videbitur clam fecisse.

If he who has given notice that he will execute the work has immediately executed the work, he is not deemed to have done it clandestinely; for if he does it after a lapse of time, he will be deemed to have done it clandestinely.

Dig. 43.25.0. De remissionibus.

Digest 43.25.0. On remissions.

Dig. 43.25.1pr.

Digest 43.25.1, preface.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Ait praetor: " quod ius sit illi prohibere, ne se invito fiat, in eo nuntiatio teneat: ceterum nuntiationem missam facio".

The praetor says: "In so far as he has the right to prohibit, that it not be done against his will, in that the notification shall hold; but for the rest, I dismiss the notification."

Dig. 43.25.1.1

Digest 43.25.1.1

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Sub hoc titulo remissiones proponuntur.

Under this title remissions are set forth.

Dig. 43.25.1.2

Digest 43.25.1.2

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

And the praetor’s words show that a remission was made only there where the nuntiation does not take effect, and that the praetor wished the nuntiation to hold only there where it is the right of the one giving notice to prohibit that it be done against his will. Moreover, whether satisdation intervenes or not, a remission made remits only to the extent in which the nuntiation did not hold. Clearly, if security has been furnished, from then a remission is deemed to have been made; a remission is not necessary.

Dig. 43.25.1.3

Digest 43.25.1.3

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Ius habet opus novum nuntiandi, qui aut dominium aut servitutem habet.

He who has either dominium or a servitude has the right of giving notice of a new work.

Dig. 43.25.1.4

Digest 43.25.1.4

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Likewise it pleases Julian that the usufructuary has the right of vindicating servitudes: according to which he will be able to announce a new work to a neighbor, and a withdrawal (remission) will be effective. But if he gives notice to the owner of the estate himself, the withdrawal will be ineffectual: nor, as against a neighbor, can he in the same way bring an action against the owner that he has no right, he himself being unwilling, to build higher. But if by this act the usufruct becomes worse, he ought to claim the usufruct.

idem iulianus dicit de ceteris, quibus aliqua servitus a vicino debetur.

the same Julian says concerning the others, to whom some servitude is owed by a neighbor.

Dig. 43.25.1.5

Digest 43.25.1.5

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Ei quoque, qui pignori fundum acceperit, scribit iulianus non esse iniquum detentionem servitutis dari.

To him also who has received an estate in pledge, julian writes that it is not inequitable that the holding of the servitude be granted.

Dig. 43.26.0. De precario.

Digest 43.26.0. On precarium.

Dig. 43.26.1pr.

Digest 43.26.1pr.

Ulpianus 1 inst.

Ulpian 1 inst.

Precarium est, quod precibus petenti utendum conceditur tamdiu, quamdiu is qui concessit patitur.

A precarium is that which is conceded for use to one petitioning by entreaty for as long as he who conceded it permits.

Dig. 43.26.1.1

Digest 43.26.1.1

Ulpianus 1 inst.

Ulpian 1 institutes.

Quod genus liberalitatis ex iure gentium descendit.

This kind of liberality derives from the law of nations.

Dig. 43.26.1.2

Digest 43.26.1.2

Ulpianus 1 inst.

Ulpian 1 inst.

Et distat a donatione eo, quod qui donat, sic dat, ne recipiat, at qui precario concedit, sic dat quasi tunc recepturus, cum sibi libuerit precarium solvere.

And it differs from a donation in this: the one who donates gives in such a way as not to take back; but the one who grants by precarium gives in such a way as if then to receive it back, when it shall please him to dissolve the precarium.

Dig. 43.26.1.3

Digest 43.26.1.3

Ulpianus 1 inst.

Ulpian 1 Institutes.

Et est simile commodato: nam et qui commodat rem, sic commodat, ut non faciat rem accipientis, sed ut ei uti re commodata permittat.

And it is similar to commodatum: for even he who commodates a thing thus commodates it, not so as to make the thing the recipient’s, but so as to permit him to use the thing commodated.

Dig. 43.26.2pr.

Digest 43.26.2, preface.

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Ait praetor: " quod precario ab illo habes aut dolo malo fecisti, ut desineres habere, qua de re agitur, id illi restituas".

The praetor says: "What you have from him by precarium, or what by malicious fraud you contrived so that you ceased to have it—the matter at issue—you shall restore to him."

Dig. 43.26.2.1

Digest 43.26.2.1

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Hoc interdictum restitutorium est.

This interdict is restitutory.

Dig. 43.26.2.2

Digest 43.26.2.2

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

And it has in itself a natural equity, for it is competent to one who wishes to recall a precarium: for it is naturally equitable that you use my liberality as long as I wish, and that I be able to recall it when I have changed my will. And so, when something has been asked by precarium, we can employ not only this interdict, but also the action with prescribed words, which arises from good faith.

Dig. 43.26.2.3

Digest 43.26.2.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Habere precario videtur, qui possessionem vel corporis vel iuris adeptus est ex hac solummodo causa, quod preces adhibuit et impetravit, ut sibi possidere aut uti liceat:

He is deemed to hold by precarium, who has obtained possession, whether of a corporeal thing or of a right, for this sole cause: that he employed prayers and obtained that it be permitted to him to possess or to use for himself:

Dig. 43.26.3

Digest 43.26.3

Gaius 25 ad ed. provinc.

Gaius 25 on the provincial edict.

Veluti si me precario rogaveris, ut per fundum meum ire vel agere tibi liceat vel ut in tectum vel in aream aedium mearum stillicidium vel tignum in parietem immissum habeas.

As if, for example, you had asked me by precarium that it be permitted for you to go or to drive across my farm, or that you may have an eaves-drip either onto the roof or into the area (courtyard) of my house, or a beam let into the wall.

Dig. 43.26.4pr.

Digest 43.26.4, beginning.

Ulpianus 71 ad ed.

Ulpian 71 to the ed.

In rebus etiam mobilibus precarii rogatio constitit.

In movable property too, the precarial request obtains.

Dig. 43.26.4.1

Digest 43.26.4.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Meminisse autem nos oportet eum, qui precario habet, etiam possidere.

We ought, moreover, to remember that he who has on a precarium also possesses.

Dig. 43.26.4.2

Digest 43.26.4.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

He is bound by this interdict not necessarily who requested by precarium, but who holds by precarium: for indeed it can happen that someone did not request, but holds by precarium. For instance, my slave requested: he acquired a precarium for me; or someone else who is subject to my right.

Dig. 43.26.4.3

Digest 43.26.4.3

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Item si rem meam precario rogavero, rogavi quidem precario, sed non habeo precario idcirco, quia receptum est rei suae precarium non esse.

Likewise, if I shall have requested my own property on a precarium, I indeed requested on a precarium, but I do not hold it on a precarium for that reason, because it is settled that there is no precarium of one’s own property.

Dig. 43.26.4.4

Digest 43.26.4.4

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Likewise, one who has requested a precarium for a time, when the time has ended, even if he did not request it for this length of time, nevertheless is considered to possess by precarium: for the owner, when he allows him who has requested by precarium to possess, is understood to grant it again by precarium.

Dig. 43.26.5

Digest 43.26.5

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

But if, with the precarium still continuing, you asked for a further period, the precarium is prorogated: for neither is the cause of possession changed, and in that way a precarium is not constituted, but it is carried forward to a longer time. But if you ask after the day has passed, it is more correct that, since the cause of the precarium has already been dissolved, it is not reinstated, but a new one is constituted.

Dig. 43.26.6pr.

Digest 43.26.6, beginning.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Certe si interim dominus furere coeperit vel decesserit, fieri non posse Marcellus ait, ut precarium redintegretur, et hoc verum est.

Certainly, if in the meantime the dominus has begun to be insane or has died, Marcellus says that it cannot be effected that the precarium be redintegrated, and this is true.

Dig. 43.26.6.1

Digest 43.26.6.1

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Si procurator meus me mandante vel ratum habente precario rogaverit, ego precario habere proprie dicor.

If my procurator, with me giving the mandate or having it ratified, has requested by precarium, I am properly said to hold by precarium.

Dig. 43.26.6.2

Digest 43.26.6.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Is qui rogavit, ut precario in fundo moretur, non possidet, sed possessio apud eum qui concessit remanet: nam et fructuarius, inquit, et colonus et inquilinus sunt in praedio et tamen non possident.

He who has asked to stay on the estate by precarium does not possess, but possession remains with the one who granted it: for, he says, even the fructuary (usufructuary) and the colonus (tenant-farmer) and the inquilinus (lodger/tenant) are on the estate and yet do not possess.

Dig. 43.26.6.3

Digest 43.26.6.3

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Julian says that one who has ejected another by force and from that same person has requested a precarium ceases to possess by force and begins to possess by precarium, nor should he suppose that he is changing the cause of possession for himself, since with the will of the one whom he ejected he has begun to possess by precarium: for if he had bought from that same person, he could likewise begin to acquire dominion as a buyer.

Dig. 43.26.6.4

Digest 43.26.6.4

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

It has been asked, if someone has given his own thing to me in pledge and has petitioned by precarium, whether this interdict has application. The question is this: whether a precarium can stand with respect to one’s own thing. It seems to me more true that a precarium can stand in a pledge, since what is requested is possession, not proprietorship; and this opinion is also most useful: for every day creditors are petitioned by precarium by those who have given things in pledge, and the precarium ought to stand.

Dig. 43.26.7

Digest 43.26.7

Venonius 3 interd.

Venonius Book 3 on Interdicts.

Sed et si eam rem, cuius possessionem per interdictum uti possidetis retinere possim, quamvis futurum esset, ut tenear de proprietate, precario tibi concesserim, teneberis hoc interdicto.

But even if I have granted to you by precarium that thing, the possession of which I could retain by the interdict uti possidetis, although it would come about that I would be held on the question of proprietorship, you will be bound by this interdict.

Dig. 43.26.8pr.

Digest 43.26.8pr.

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

It has been asked: if Titius has requested of me that he use the property of Sempronius, then I have asked Sempronius to allow it, and he, wishing to do me a favor, has granted it. titius holds from me by precarium, and I will proceed against him by the interdict on precarium; but sempronius will not proceed against him, because these words " you have by precarium from that man" show that the interdict lies only for him from whom someone asked by precarium, not for the one whose property it is—yet does sempronius nevertheless have the interdict against me, as if he had been asked by me? And the sounder view is that he does not have it, because I do not hold by precarium, since I obtained it not for myself, but for another.

however, he can have an action of mandate against me, because, at my mandating, he gave to you; or if someone should say that it was not by my mandate, but rather that, trusting in me, he did this, it must be said that an action on the facts should be granted also against me.

Dig. 43.26.8.1

Digest 43.26.8.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

What someone requested by precarium from Titius, he is considered to hold by precarium also from his heir: and thus both Sabinus and Celsus write, and we make use of that rule. Therefore he is considered to hold it by precarium also from the other successors. The same Labeo approves and adds that, even if one does not know who the heir is, nevertheless he is considered to hold it by precarium from the heir.

Dig. 43.26.8.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Let us nevertheless see what the case is, if you have asked me by precarium and I have alienated that thing, whether the precarium endures when the thing has been transferred to another. And the more correct view is that, if he does not revoke it, the interdict can be sought as if you hold by precarium from him, not as if from me; and if he has allowed for some time that you hold by precarium from himself, the interdict will properly be issued, as if you hold by precarium from himself.

Dig. 43.26.8.3

Digest 43.26.8.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

The praetor also wanted him to be held under the precarium who by fraud brought it about that he ceased to have it. it is noted that the one who asked by way of precarium does not answer for fault, but answers only for fraud, although he who undertook a loan for use (commodatum) answers not only for fraud but also for fault. nor without reason does the one who asked by precarium answer only for fraud, since the whole descends from the liberality of him who granted by precarium, and it is enough if only fraud is answered for.

culpam tamen dolo proximam contineri quis merito dixerit.

yet someone might with good reason say that fault, being next to fraud, is contained.

Dig. 43.26.8.4

Digest 43.26.8.4

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

By this interdict he must be restored to the former condition: but if that has not been done, condemnation will be for so much as it was in the plaintiff’s interest that the thing be restored to him, from the time from which the interdict was issued: therefore the fruits also will be owed from the day the interdict was issued.

Dig. 43.26.8.5

Digest 43.26.8.5

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Si servitute usus non fuit is qui precario rogavit ac per hoc amissa sit, videamus, an interdicto teneatur. ego arbitror non alias, quam si dolo fecerit.

If the one who requested by precarium did not make use of the servitude and thereby it has been lost, let us see whether he is bound by the interdict. i judge not otherwise than if he has acted with fraud.

Dig. 43.26.8.6

Digest 43.26.8.6

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

And, generally, it must be said that, for restitution, only fraud and gross negligence come into consideration; the rest do not. Clearly, after the interdict has been issued, both fraud and fault and every cause must be admitted: for where someone has made delay while holding by precarium, he will have to establish the whole cause.

Dig. 43.26.8.7

Digest 43.26.8.7

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Interdictum hoc et post annum competere labeo scribit eoque iure utimur: cum enim nonnumquam in longum tempus precarium concedatur, absurdum est dicere interdictum locum non habere post annum.

labeo writes that this interdict also is available after a year, and we use that rule: for since a precarium is sometimes conceded for a long time, it is absurd to say that the interdict has no place after a year.

Dig. 43.26.8.8

Digest 43.26.8.8

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

By this interdict the heir of him who requested on precarium is bound just as he himself, so that, whether he has it or committed fraud to prevent his having it or its coming to him, he is held; but for the fraud of the deceased only to this extent, insofar as it reached him.

Dig. 43.26.9

Digest 43.26.9

Gaius 26 ad ed. provinc.

Gaius 26 on the Provincial Edict.

Precario possessio consisti potest vel inter praesentes vel inter absentes, veluti per epistulam vel per nuntium.

Precarial possession can be constituted either between persons present or between persons absent, for example by letter or by messenger.

Dig. 43.26.10

Digest 43.26.10

Pomponius 5 ex plaut.

Pomponius 5 from Plautius.

Quamvis ancillam quis precario rogaverit, id actum videtur, ut etiam quod ex ancilla natum esset in eadem causa haberetur.

Even if someone has requested a maidservant by way of precarium, it is deemed to have been transacted that also whatever was born from the maidservant be held in the same case.

Dig. 43.26.11

Digest 43.26.11

Celsus 7 Dig.

Celsus 7 Digest.

Si debitor rem pigneratam precario rogaverit, soluta pecunia precarium solvitur: quippe id actum est, ut usque eo precarium teneret.

If the debtor has requested the pledged thing by a precarium, once the money is paid the precarium is dissolved: for that was the thing agreed, that he should hold the precarium only up to that point.

Dig. 43.26.12pr.

Digest 43.26.12pr.

Celsus 25 Dig.

Celsus 25 Digest.

When something is given on a precarium, if it is agreed that he may possess on a precarium until the Kalends of July, is he to be aided by an exception, lest possession be taken from him before? But there is no force in this agreement, such that it be permitted to possess another’s property with the owner unwilling.

Dig. 43.26.12.1

Digest 43.26.12.1

Celsus 25 Dig.

Celsus 25 Digest.

Precario rogatio et ad heredem eius qui concessit transit: ad heredem autem eius qui precario rogavit non transit, quippe ipsi dumtaxat, non etiam heredi concessa possessio est.

The precarial request also passes to the heir of the one who granted; but it does not pass to the heir of the one who requested on precarium, since the possession was conceded to him only, not also to his heir.

Dig. 43.26.13

Digest 43.26.13

Pomponius 33 ad q. muc.

Pomponius, 33 on Q. Mucius.

If your slave, on your mandate, has requested by precarium, or if you have ratified what he requested in your name, you will be liable as though you held it by precarium. But if, without your knowledge, either the slave or a son has requested in his own name, you are not deemed to hold by precarium; rather, he will have an actio de peculio or an actio de in rem verso.

Dig. 43.26.14

Digest 43.26.14

Paulus 13 ad sab.

Paulus 13 on Sabinus.

Interdictum de precariis merito introductum est, quia nulla eo nomine iuris civilis actio esset: magis enim ad donationes et beneficii causam, quam ad negotii contracti spectat precarii condicio.

The interdict concerning precaria was rightly introduced, because there was no civil-law action under that name: for the condition of a precarium pertains more to donations and the cause of a beneficium than to a contracted transaction.

Dig. 43.26.15pr.

Digest 43.26.15pr.

Pomponius 29 ad sab.

Pomponius, 29 on Sabinus.

Et habet summam aequitatem, ut eatenus quisque nostro utatur, quatenus ei tribuere velimus.

And it has supreme equity, that each person use what is ours only to that extent, to the extent that we are willing to grant it to him.

Dig. 43.26.15.1

Digest 43.26.15.1

Pomponius 29 ad sab.

Pomponius 29 to Sabinus.

Hospites et qui gratuitam habitationem accipiunt non intelleguntur precario habitare.

Guests and those who receive gratuitous habitation are not understood to dwell by precarium.

Dig. 43.26.15.2

Digest 43.26.15.2

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Precario habere etiam ea quae in iure consistunt possumus, ut immissa vel protecta.

We can hold by precarium even those things which consist in law, such as emissions or overhangs.

Dig. 43.26.15.3

Digest 43.26.15.3

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Cum quis de re sibi restituenda cautum habet, precarium interdictum ei non competit.

When someone has a guarantee concerning the thing to be restored to himself, the interdict of precarium does not lie for him.

Dig. 43.26.15.4

Digest 43.26.15.4

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

He who has requested by precarium that it be permitted for him to possess—there is no doubt that he acquires possession; whether the one who was asked also possesses has been a matter of doubt. However, it is the accepted view that the person who was given by precarium is “with” both: with him who asked, because he possesses by the body; with the owner, because he has not departed in mind from possession.

Dig. 43.26.15.5

Digest 43.26.15.5

Pomponius 29 ad sab.

Pomponius 29 on Sabinus.

Quo quis loco precario aut possideat aut coeperit possidere, nihil refert, quod ad hoc interdictum pertinet.

In what place anyone either possesses by precarium or has begun to possess makes no difference, so far as this interdict is concerned.

Dig. 43.26.16

Digest 43.26.16

Pomponius 32 ad sab.

Pomponius 32 on Sab.

Si adoptavero eum, qui precario rogaverit, ego quoque precario possidebo.

If I adopt him who has asked by precarium, I too will possess by precarium.

Dig. 43.26.17

Digest 43.26.17

Pomponius 23 ad sab.

Pomponius 23 on Sabinus.

Qui precario fundum possidet, is interdicto uti possidetis adversus omnes praeter eum, quem rogavit, uti potest.

He who possesses a fundus by precarium may use the interdict uti possidetis against all, except the one whom he asked.

Dig. 43.26.18

Digest 43.26.18

Iulianus 13 Dig.

Julian 13 Digest.

Unusquisque potest rem suam, quamvis non possideat, precario dare ei qui possideat.

Each person can, although he does not possess it, give his own thing, by way of precarium, to him who possesses it.

Dig. 43.26.19pr.

Digest 43.26.19, pr.

Iulianus 49 Dig.

Julian 49 Digest.

Duo in solidum precario habere non magis possunt, quam duo in solidum vi possidere aut clam: nam neque iustae neque iniustae possessiones duae concurrere possunt.

Two cannot hold by precarium for the whole any more than two can possess for the whole by force or by stealth: for two possessions, whether just or unjust, cannot concur.

Dig. 43.26.19.1

Digest 43.26.19.1

Iulianus 49 Dig.

Julianus 49 Digest.

Qui servum meum precario rogat, videtur a me precario habere, si hoc ratum habuero, et ideo precario interdicto mihi tenebitur.

He who asks for my slave by precarium is deemed to hold it by precarium from me, if I have ratified this; and therefore he will be liable to me under the interdict de precario.

Dig. 43.26.19.2

Digest 43.26.19.2

Iulianus 49 Dig.

Julianus 49 Digest.

Cum quid precario rogatum est, non solum interdicto uti possumus, sed et incerti condictione, id est praescriptis verbis.

When something has been requested by way of precarium, we can employ not only the interdict, but also the condictio incerti—that is, the action with praescriptis verbis.

Dig. 43.26.20

Digest 43.26.20

Ulpianus 2 resp.

Ulpian book 2 of Responses

Ea, quae distracta sunt, ut precario penes emptorem essent, quoad pretium universum persolveretur: si per emptorem stetit, quo minus persolveretur, venditorem posse consequi.

Those things which were sold, on the understanding that they should be precariously in the buyer’s possession until the entire price was paid in full: if it was through the buyer that payment was not made, the seller can pursue recovery.

Dig. 43.26.21

Digest 43.26.21

Venonius 4 act.

Venonius Actions, book 4.

Cum precario quis rogat, ut ipsi in eo fundo morari liceat, supervacuum est adici " ipsi suisque": nam per ipsum suis quoque permissum uti videtur.

When someone requests by precarium that it be permitted for himself to remain on that estate, it is superfluous to add " himself and his": for by "himself" it seems that permission is granted to his household as well to use it.

Dig. 43.26.22pr.

Digest 43.26.22pr.

Venonius 3 interd.

Venonius 3 interdicts.

If one who was possessing on behalf of a possessor should petition the owner by precarium that he be allowed to retain the thing for himself, or if one who had bought another’s thing should petition the owner, it is apparent that they are possessing by precarium. Nor are those to whom it is granted by the owner to possess by precarium to be thought to be changing for themselves the cause (ground) of their possession: for even if, as to that which you possess, you have asked another by precarium, you are deemed to cease to possess from the original cause and to begin to hold from precarium; and conversely, if the person who could call the thing back from him should petition the possessor by precarium, he is held by precarium, since something has come to him through this request for a precarium, that is, possession, which is another’s.

Dig. 43.26.22.1

Digest 43.26.22.1

Venonius 3 interd.

Venonius 3 interdicts.

If a ward, without the authority of his guardian, has requested by precarium, Labeo says that he has precarious possession and is held by this interdict. For, because the possession is of the more merely natural sort, there is no place for the guardian’s authority; and it is rightly said, “what you have by precarium,” because what he possesses he possesses on that ground on which he requested; and nothing new need be established by the praetor, since, whether he has the thing, he would be bound under the judge’s duty, or, if he does not have it, he would not be bound.

Dig. 43.27.0. De arboribus caedendis.

Digest 43.27.0. On cutting down trees.

Dig. 43.27.1pr.

Digest 43.27.1pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ait praetor: " quae arbor ex aedibus tuis in aedes illius impendet, si per te stat, quo minus eam adimas, tunc, quo minus illi eam arborem adimere sibique habere liceat, vim fieri veto".

The praetor says: "As to a tree which from your house overhangs that man's house, if it depends on you that you do not remove it, then I forbid force to be used to prevent that man from removing that tree and having it for himself."

Dig. 43.27.1.1

Digest 43.27.1.1

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Hoc interdictum prohibitorium est.

This interdict is prohibitory.

Dig. 43.27.1.2

Digest 43.27.1.2

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

If a tree should overhang another’s buildings, the question is whether the praetor ought to order the whole tree to be removed, or rather only that which over-projects. And Rutilius says it should be cut down from the stock, and this seems truer to most; and unless the owner removes the tree, Labeo says that permission is granted to him whom the tree hinders, that, if he wished, he might cut it down and carry off the wood.

Dig. 43.27.1.3

Digest 43.27.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Arboris appellatione etiam vites continentur.

Under the appellation “tree,” vines too are included.

Dig. 43.27.1.4

Digest 43.27.1.4

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Non solum autem domino aedium, sed etiam ei qui usumfructum habet competit hoc interdictum, quia et ipsius interest arborem istam non impendere.

Not only to the owner of the house, but also to the one who has the usufruct this interdict is available, because it is in his interest too that that tree not overhang.

Dig. 43.27.1.5

Digest 43.27.1.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Praeterea probandum est, si arbor communibus aedibus impendeat, singulos dominos habere hoc interdictum et quidem in solidum, quia et servitutium vindicationem singuli habeant.

Moreover, it must be shown that, if a tree overhangs buildings held in common, each of the owners has this interdict, and indeed for the whole, since each also has the vindication of servitudes.

Dig. 43.27.1.6

Digest 43.27.1.6

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

The praetor says: " if it rests with you that you do not take it away, so that it may not be permitted to him to take away that tree, I forbid force to be used". therefore the faculty of removing is given to you first: if you do not do it, then he forbids force to be used against the neighbor who wishes to remove it.

Dig. 43.27.1.7

Digest 43.27.1.7

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Then the praetor says: " whatever tree overhangs from your field into his field, if it is within your power to restrain it higher to fifteen feet from the ground, then I forbid force to be used to prevent his thus restraining it and having the wood for himself".

Dig. 43.27.1.8

Digest 43.27.1.8

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Quod ait praetor, et lex duodecim tabularum efficere voluit, ut quindecim pedes altius rami arboris circumcidantur: et hoc idcirco effectum est, ne umbra arboris vicino praedio noceret.

What the praetor says, and what the Law of the Twelve Tables wished to effect, is that the branches of a tree be pruned to a height of fifteen feet; and this was effected for this reason, lest the shade of the tree harm the neighboring estate.

Dig. 43.27.1.9

Digest 43.27.1.9

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Differentia duorum capitum interdicti haec est: si quidem arbor aedibus impendeat, succidi eam praecipitur, si vero agro impendeat, tantum usque ad quindecim pedes a terra coerceri.

The difference between the two heads of the interdict is this: if indeed a tree overhang the buildings, it is prescribed that it be cut down; but if it overhang a field, only that it be restrained to 15 feet from the ground.

Dig. 43.27.2

Digest 43.27.2

Pomponius 34 ad sab.

Pomponius 34 on Sabinus.

Si arbor ex vicini fundo vento inclinata in tuum fundum sit, ex lege duodecim tabularum de adimenda ea recte agere potes ius ei non esse ita arborem habere.

If a tree from a neighboring estate, bent by the wind, stands over your estate, under the Law of the Twelve Tables you can properly proceed for its removal, asserting that he has no right to have the tree in that manner.

Dig. 43.28.0. De glande legenda.

Digest 43.28.0. On acorn-gathering.

Dig. 43.28.1pr.

Digest 43.28.1, preface.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Ait praetor: " glandem, quae ex illius agro in tuum cadat, quo minus illi tertio quoque die legere auferre liceat, vim fieri veto".

The praetor says: "As to the acorn that falls from his field into yours, I forbid force to be used so that it may not be permitted to him to gather and carry it off every third day."

Dig. 43.28.1.1

Digest 43.28.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Glandis nomine omnes fructus continentur.

Under the name “acorn,” all fruits are contained.

Dig. 43.29.0. De homine libero exhibendo.

Digest 43.29.0. On producing a free person.

Dig. 43.29.1pr.

Digest 43.29.1 pr.

Ulpianus 71 ad ed.

Ulpian 71 to the Edict.

Ait praetor: " quem liberum dolo malo retines, exhibeas".

The praetor says: " whomever, being free, you are detaining by malicious fraud, produce."

Dig. 43.29.1.1

Digest 43.29.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum proponitur tuendae libertatis causa, videlicet ne homines liberi retineantur a quoquam:

This interdict is proposed for the purpose of safeguarding liberty, namely, lest free persons be retained by anyone:

Dig. 43.29.2

Digest 43.29.2

Venonius 4 interd.

Venonius 4 interdicts.

( nihil enim multum a specie servientium differunt, quibus facultas non datur recedendi):

( for they do not differ much from the condition of those serving, to whom the faculty of withdrawing is not given):

Dig. 43.29.3pr.

Digest 43.29.3, at the beginning.

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Which the lex Fabia has also provided for. Nor does this interdict remove the execution of the lex Fabia: for both it will be possible to proceed by this interdict, and nonetheless an accusation under the lex Fabia can be instituted; and conversely, he who has proceeded by the Fabia action will nonetheless be able also to have this interdict, especially since one person may have the interdict, another the Fabia action.

Dig. 43.29.3.1

Digest 43.29.3.1

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

These words "quem liberum" pertain to every free person, whether of age or under age, whether male or female, whether one or several, whether of his own right or under another’s right: for this alone we consider, whether he be free.

Dig. 43.29.3.2

Digest 43.29.3.2

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

Is tamen, qui in potestate habet, hoc interdicto non tenebitur, quia dolo malo non videtur habere qui suo iure utitur.

However, he who has him in his power will not be held by this interdict, because one who exercises his own right is not deemed to be holding by malicious fraud.

Dig. 43.29.3.3

Digest 43.29.3.3

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

If anyone retains the person whom he redeemed from the enemy, he is in such a position that he is not held by the interdict: for he does not act with malicious fraud. Clearly, if the price is offered, the interdict has place. But also, if he released him with no price accepted, it must be said that the interdict will have place, if, after he has once released him, he wishes to retain him.

Dig. 43.29.3.4

Digest 43.29.3.4

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

If someone should retain a son whom he does not have in his power, he will for the most part be seen to act without bad faith; for genuine pietas brings it about that he is retained without bad faith, unless evident bad faith should intervene. Accordingly, the same must be said if he retain his freedman, or his alumnus (foster-child), or one noxally surrendered, still prepubescent. And, generally, one who has a just cause for retaining a free person with himself is not seen to act with bad faith.

Dig. 43.29.3.5

Digest 43.29.3.5

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

If someone detains one who is willing, he does not seem to detain by malicious deceit. But what if he does detain one who is indeed willing, yet not without craftiness—someone circumvented or seduced or solicited—and he does not do this on a good or probable ground? It will be rightly said that he detains by malicious deceit.

Dig. 43.29.3.6

Digest 43.29.3.6

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Is, qui nescit apud se esse hominem liberum, dolo malo caret; sed ubi certioratus retinet, dolo malo non caret.

He who does not know that a free man is in his keeping is without malicious intent; but when, once informed, he retains him, he is not without malicious intent.

Dig. 43.29.3.7

Digest 43.29.3.7

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Clearly, if there is doubt whether he is free or a slave, or a controversy of status is made, one must withdraw from this interdict and the cause of liberty must be pursued. For indeed it has been rightly resolved that this interdict has place then and only then, whenever someone is for certain free; but if inquiry is made about status, it is not proper that a prejudgment be made to another’s cognizance.

Dig. 43.29.3.8

Digest 43.29.3.8

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Ait praetor " exhibeas". exhibere est in publicum producere et videndi tangendique hominis facultatem praebere: proprie autem exhibere est extra secretum habere.

The praetor says " exhibit." to exhibit is to bring forth into the public and to provide the faculty of seeing and touching the person: but properly to exhibit is to have him outside of secrecy.

Dig. 43.29.3.9

Digest 43.29.3.9

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Hoc interdictum omnibus competit: nemo enim prohibendus est libertati favere.

This interdict is available to all: for no one is to be prohibited from favoring liberty.

Dig. 43.29.3.10

Digest 43.29.3.10

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

Plane ex causa suspectae personae removendae sunt, si forte talis persona sit, quam verisimile est colludere vel calumniari.

Clearly, suspect persons must be removed for cause, if perchance such a person is one whom it is plausible will collude or calumniate.

Dig. 43.29.3.11

Digest 43.29.3.11

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

But also, if a woman or a ward should desire this interdict, being concerned for their cognate or parent or affine, it must be said that the interdict is to be granted to them: for they can also make persons defendants by a public action, while they pursue their own injuries and those of their kin.

Dig. 43.29.3.12

Digest 43.29.3.12

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

If, however, there are several who wish to make trial, the one to whom the matter most pertains, or the one who is more suitable, must be chosen by the praetor: and it is best that the plaintiff for this interdict be chosen on the basis of connection, of fidelity, and of dignity.

Dig. 43.29.3.13

Digest 43.29.3.13

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

If, however, after action has been taken under this interdict, another should desire to proceed by this interdict, it will be evident that thereafter it is not easily to be granted to another, unless something can be said about the perfidy of the former. And so, the cause having been examined, this interdict is not to be moved more than once. For neither in public trials is it permitted that there be further proceedings than once it has been acted upon, except if the prior accuser has been condemned for prevarication.

si tamen reus condemnatus malit litis aestimationem sufferre quam hominem exhibere, non est iniquum saepius in eum interdicto experiri vel eidem sine exceptione vel alii.

if, however, the condemned defendant prefers to suffer the valuation of the lawsuit rather than to produce the man, it is not inequitable to try him repeatedly by the interdict, either by the same person without exception, or by another.

Dig. 43.29.3.14

Digest 43.29.3.14

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

Hoc interdictum et in absentem esse rogandum labeo scribit, sed si non defendatur, in bona eius eundum ait.

Labeo writes that this interdict is also to be requested against one absent; but if he is not defended, he says one must proceed against his goods.

Dig. 43.29.3.15

Digest 43.29.3.15

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Hoc interdictum perpetuum est.

This interdict is perpetual.

Dig. 43.29.4pr.

Digest 43.29.4pr.

Venonius 4 interd.

Venonius 4 interdicts.

Si quis liberum hominem ignorantem suum statum retineat, tamen si dolo malo retinet, cogitur exhibere.

If anyone should retain a free man ignorant of his own status, nevertheless, if he retains him by malicious fraud, he is compelled to exhibit him.

Dig. 43.29.4.1

Digest 43.29.4.1

Venonius 4 interd.

Venonius 4 interdicts.

Trebatius quoque ait non teneri eum, qui liberum hominem pro servo bona fide emerit et retineat.

Trebatius likewise says that he is not held liable who, in good faith, has purchased a free man as a slave and retains him.

Dig. 43.29.4.2

Digest 43.29.4.2

Venonius 4 interd.

Venonius book 4 On Interdicts.

Nullo tempore dolo malo retineri homo liber debet, adeo ut quidam putaverint nec modicum tempus ad eum exhibendum dandum, quoniam praeteriti facti poena praestanda est.

At no time ought a free man to be retained by malicious fraud, to such an extent that some have thought that not even a moderate time should be granted for exhibiting him, since the penalty of the past act must be rendered.

Dig. 43.29.4.3

Digest 43.29.4.3

Venonius 4 interd.

Venonius 4 interdicts.

Creditori non competit interdictum, ut debitor exhiberetur: nec enim debitorem latitantem exhibere quisquam cogitur, sed in bona eius ex edicto praetoris itur.

The creditor does not have an interdict that the debtor be exhibited; for no one is compelled to exhibit a debtor who is hiding, but one proceeds against his goods by the praetor’s edict.

Dig. 43.30.0. De liberis exhibendis, item ducendis.

Digest 43.30.0. On producing children, likewise on taking them away.

Dig. 43.30.1pr.

Digest 43.30.1pr.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ait praetor: " qui quaeve in potestate lucii titii est, si is eave apud te est dolove malo tuo factum est, quo minus apud te esset, ita eum eamve exhibeas".

The praetor says: "whoever, male or female, is in the power of Lucius Titius, if he or she is in your custody, or it has been brought about by your malicious fraud that he or she be not in your custody, then so exhibit him or her".

Dig. 43.30.1.1

Digest 43.30.1.1

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Hoc interdictum proponitur adversus eum, quem quis exhibere desiderat eum, quem in potestate sua esse dicit. et ex verbis apparet ei, cuius in potestate est, hoc interdictum competere.

This interdict is proposed against the one whom someone desires to make exhibit the person whom he says is in his power. And from the words it appears that this interdict is competent to him in whose power he is.

Dig. 43.30.1.2

Digest 43.30.1.2

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

In hoc interdicto praetor non admittit causam, cur apud eum sit is, qui exhiberi debet, quemadmodum in superiore interdicto, sed omnimodo restituendum putavit, si in potestate est.

In this interdict the praetor does not admit a cause why the one who ought to be exhibited is with him, as in the superior interdict; but he thought that in every way he must be restored, if he is in his power.

Dig. 43.30.1.3

Digest 43.30.1.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

If indeed it is the mother who retains, with whom sometimes the son ought to stay rather than with the father ( of course for a most just cause), both the deified Pius decreed and there was a rescript by Marcus and by Severus, aid must equally be afforded to her by way of an exception.

Dig. 43.30.1.4

Digest 43.30.1.4

Ulpianus 71 ad ed.

Ulpian, 71 on the edict.

In the same way, if it has been adjudged that he is not under potestas, even if it has been adjudged wrongfully, an exception of res judicata must be raised against the party proceeding under this interdict, so that the inquiry be not whether he is under potestas, but whether it has been adjudged.

Dig. 43.30.1.5

Digest 43.30.1.5

Ulpianus 71 ad ed.

Ulpian 71 On the Edict.

If someone should wish to carry off his daughter, who is married to me, or should desire that she be produced to him, is an exception to be granted against the interdict, if perchance the father wishes to dissolve a concordant marriage, perhaps even supported by children? And we make use of a settled law, lest marriages that are well in concord be disturbed by the right of paternal power. This, however, is to be applied in such a way that the father is persuaded not to exercise his paternal power harshly.

Dig. 43.30.2

Digest 43.30.2

Hermogenianus 6 iuris epit.

Hermogenianus 6 of the Epitome of Law.

Immo magis de uxore exhibenda ac ducenda pater, etiam qui filiam in potestate habet, a marito recte convenitur.

Nay rather, concerning a wife to be produced and led away, the father—even one who has his daughter under his power—is properly convened by the husband.

Dig. 43.30.3pr.

Digest 43.30.3, beginning.

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Deinde ait praetor: " si lucius titius in potestate lucii titii est, quo minus eum lucio titio ducere liceat, vim fieri veto".

Then the praetor says: "if lucius titius is in the power of lucius titius, I forbid force to be used, to prevent its being lawful to lead him to lucius titius".

Dig. 43.30.3.1

Digest 43.30.3.1

Ulpianus 71 ad ed.

Ulpian, 71 On the Edict.

The foregoing interdicts are exhibitory, that is, they pertain to the exhibition (production) of children and of the others about whom we spoke above; but this interdict pertains to duction, so that one may be able to lead away those over whom he has the right of duction. Therefore the earlier interdict, which concerns children to be exhibited, is preparatory to this interdict: for indeed, in order that one might be able to be led away, he had to be exhibited.

Dig. 43.30.3.2

Digest 43.30.3.2

Ulpianus 71 ad ed.

Ulpian, 71 on the Edict.

Ex iisdem causis hoc interdictum tribuendum est, ex quibus causis de exhibendis liberis competere diximus: itaque quaecumque ibi diximus, eadem hic quoque dicta accipienda sunt.

From the same causes this interdict is to be granted, from which causes we said the remedy concerning the exhibiting of children is available: therefore whatever we said there, the same are to be taken as said here as well.

Dig. 43.30.3.3

Digest 43.30.3.3

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

But this interdict is available not against the son himself, whom someone wishes to lead away, but there must in any case be someone who defends him by the interdict; otherwise the interdict ceases, and the praetor’s cognition can succeed, so that before him it may be disputed whether someone is in power or is not.

Dig. 43.30.3.4

Digest 43.30.3.4

Ulpianus 71 ad ed.

Ulpian 71 on the edict.

Julian says that whenever that interdict about leading away a son is set in motion, or a hearing is held, and the person concerned is underage, sometimes the matter ought to be deferred to the time of puberty, sometimes to be held forthwith; and this must be determined from the persona of those between whom the controversy will be, and from the kind of the case. For if he who says he is the father is of tried authority, prudence, and good faith, he will keep the underage person with him until the day of suit; but if the one who raises the controversy is a man of low station, a calumniator of notorious depravity, the hearing must be held immediately. Likewise, if he who denies that the underage is in another’s power is a man approved in every way, a tutor (guardian) appointed either by testament or by the praetor, who protects the ward whom he has had with him up to the day of suit, but he who says he is the father is suspect as a kind of calumniator, it will not be proper to defer the suit.

but if indeed both persons are suspect, either as infirm or as base, it will not be out of place, he says, to arrange with whom in the meantime the boy should be brought up, and to defer the controversy to the time of puberty, lest through collusion or the inexperience of either of the contenders either a paterfamilias be adjudged to another’s power or an alien son be constituted in the place of a paterfamilias.

Dig. 43.30.3.5

Digest 43.30.3.5

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

Even if, moreover, the father most strongly proves that the son is under his own paternal power, nevertheless, with the case examined, the mother will be preferable in retaining him; and this is contained in certain decrees of the deified Pius: for the mother prevailed, on account of the father’s depravity, that the son should remain with her without diminution of the paternal power (patria potestas).

Dig. 43.30.3.6

Digest 43.30.3.6

Ulpianus 71 ad ed.

Ulpian 71 on the Edict.

In this interdict, until the matter is adjudicated, the praetor orders that the woman, the praetextatus, and also him who most nearly approaches the age of the praetextatus be meanwhile placed with the materfamilias. We say that he most nearly approaches the praetextatus’s age who has now entered the age of puberty. When you hear “materfamilias,” understand a woman of noted authority.

Dig. 43.30.4

Digest 43.30.4

Africanus 4 quaest.

Africanus 4 Questions.

Si eum, qui se patrem familias dicat, ego in mea potestate esse et iussu meo adisse hereditatem dicam, tam de hereditate agi oportere quam ad interdictum de filio ducendo iri debere ait.

If, as to one who calls himself paterfamilias, I say that he is in my power and that by my order he has entered upon an inheritance, he says that both it ought to be proceeded with concerning the inheritance and that resort must be had to the interdict de filio ducendo.

Dig. 43.30.5

Digest 43.30.5

Venonius 4 interd.

Venonius 4 interdicts.

If a son is with someone of his own accord, this interdict will be ineffectual, because the son is rather with himself than with the one against whom the interdict is laid, since he had the free faculty of departing or remaining: unless there were a controversy between two who called themselves fathers, and one desired that he be exhibited by the other.

Dig. 43.31.0. Utrubi.

Digest 43.31.0. Which of the two.

Dig. 43.31.1pr.

Digest 43.31.1pr.

Ulpianus 72 ad ed.

Ulpian, 72 on the Edict.

Praetor ait: " utrubi hic homo, quo de agitur, maiore parte huiusce anni fuit, quo minus is eum ducat, vim fieri veto".

The praetor says: " in whichever of the two this man, about whom the dispute is, has been for the greater part of this very year, I forbid force to be used, to prevent that man from leading him away".

Dig. 43.31.1.1

Digest 43.31.1.1

Ulpianus 72 ad ed.

Ulpian 72 to the edict.

This interdict has application to possession of movable things; but it has prevailed that its force has been equalized to the interdict uti possidetis, which pertains to things of the soil, so that in this interdict also he prevails who has possession neither by force, nor by stealth, nor by precarium, while he is being disturbed about this by his adversary.

Dig. 43.32.0. De migrando.

Digest 43.32.0. On moving.

Dig. 43.32.1pr.

Digest 43.32.1, preface.

Ulpianus 73 ad ed.

Ulpian, 73 on the Edict.

The praetor says: "If the man who is at issue is not among those things concerning which it was agreed between you and the plaintiff that whatever had been introduced or imported into that dwelling in question, or had been born or made there, would be a pledge to you for the rent of that dwelling; or if he is among those things and that rent has been paid to you, or satisfaction has been made under that head, or it is by your doing that payment is not made: then, so that it may not be unlawful for the person who brought him in under the name of pledge to lead him away from there, I forbid force to be used."

Dig. 43.32.1.1

Digest 43.32.1.1

Ulpianus 73 ad ed.

Ulpian 73 on the Edict.

Hoc interdictum proponitur inquilino, qui soluta pensione vult migrare: nam colono non competit.

This interdict is proposed for the lodger (inquilinus) who, the rent having been paid, wishes to migrate; for it does not lie for the colonus.

Dig. 43.32.1.2

Digest 43.32.1.2

Ulpianus 73 ad ed.

Ulpian, 73 on the Edict.

Cui rei etiam extra ordinem subveniri potest: ergo infrequens est hoc interdictum.

Relief can also be afforded to this matter by extraordinary procedure: therefore this interdict is infrequent.

Dig. 43.32.1.3

Digest 43.32.1.3

Ulpianus 73 ad ed.

Ulpian Book 73 on the Edict.

Si tamen gratuitam quis habitationem habeat, hoc interdictum utile ei competet.

If, however, someone should have gratuitous habitation, this utile interdict will lie for him.

Dig. 43.32.1.4

Digest 43.32.1.4

Ulpianus 73 ad ed.

Ulpian 73 on the edict.

If the installment is not yet due, Labeo says this interdict does not apply unless he is ready to pay that installment. Accordingly, if he pays a half‑year installment, while a six‑month installment is owed, he will employ the interdict to no effect unless he also pays the following six‑month installment—provided, however, that a special agreement was made in the lease of the house that it is not permitted to move out before the year is completed or before a fixed time. The same holds if someone has leased for several years and the period has not yet elapsed.

nam cum in universam conductionem pignora sunt obligata, consequens erit dicere interdicto locum non fore, nisi liberata fuerint.

for since pledges are bound for the lease as a whole, it will follow to say that the interdict will not lie, unless they have been released.

Dig. 43.32.1.5

Digest 43.32.1.5

Ulpianus 73 ad ed.

Ulpian 73 on the edict.

It must be noted that the praetor did not here require that the thing be in the goods of the lessee, nor that a thing had been brought in as a pledge, but only that it had been introduced under the name of pledge. Accordingly, even if they are another’s (aliena) and even if they are of such a kind as could not be held under the name of pledge, nevertheless, if they have been introduced under the name of pledge, there will be scope for this interdict: but if they have not been introduced under the name of pledge, they cannot be retained by the lessor.

Dig. 43.32.1.6

Digest 43.32.1.6

Ulpianus 73 ad ed.

Ulpian 73 on the edict.

Hoc interdictum perpetuum est et in successores et successoribus dabitur.

This interdict is perpetual, and it will be granted both against successors and to successors.

Dig. 43.32.2

Digest 43.32.2

Gaius 26 ad ed. provinc.

Gaius 26 on the provincial edict.

Hoc interdictum inquilino etiam de his rebus, quae non ipsius sint, sed forte commodatae ei vel locatae vel apud eum depositae sunt, utile esse non dubitatur.

It is not doubted that this interdict is available to the tenant even concerning those things which are not his own, but perhaps have been lent to him (commodatum) or leased (locatum) to him, or deposited with him.

Dig. 43.33.0. De salviano interdicto.

Digest 43.33.0. On the salvian interdict.

Dig. 43.33.1pr.

Digest 43.33.1 preface.

Iulianus 49 Dig.

Julian 49 Dig.

Si colonus ancillam in fundo pignoris nomine duxerit et eam vendiderit, quod apud emptorem ex ea natum est, eius adprehendendi gratia utile interdictum reddi oportet.

If a tenant-farmer has taken a maidservant on the estate under the name of pledge and has sold her, for the sake of apprehending what has been born from her in the buyer’s possession, a useful interdict ought to be rendered.

Dig. 43.33.1.1

Digest 43.33.1.1

Iulianus 49 Dig.

Julianus 49 Digest.

If a tenant (colonus) has brought goods into the farm of two owners by way of pledge, such that they are obligated in solidum to each, each one, against a third party, will rightly proceed by the Salvian interdict; but as between themselves, if this interdict is rendered, the condition of the possessor will be the better. But if it was arranged that the goods be obligated pro partibus (for shares), a useful action (actio utilis) ought to be given both against third parties and between themselves, by which each will take hold of half shares of the possession.

Dig. 43.33.1.2

Digest 43.33.1.2

Iulianus 49 Dig.

Julian 49 Dig.

Idem servari conveniet et si colonus rem, quam cum alio communem habebat, pignoris nomine induxerit, scilicet ut pro parte dimidia pignoris persecutio detur.

It will be proper that the same be observed even if a colonus (tenant) has introduced, under the name of a pledge, a thing which he held in common with another, namely that prosecution of the pledge be granted for the half part.

Dig. 43.33.2

Digest 43.33.2

Ulpianus 70 ad ed.

Ulpian, 70 on the Edict.

In salviano interdicto, si in fundum communem duorum pignera sint ab aliquo invecta, possessor vincet et erit eis descendendum ad servianum iudicium.

In the Salvian interdict, if pledges have been brought by someone into a fundus common to two, the possessor will prevail, and they must resort to the Servian action.