The Digest of Justinian

[THE SAME AUTHOR, in the eighteenth book on Sabinus.]

​If the usufruct of any thing is bequeathed, the owner can demand security in that matter, so that this may be done by the office of the judge; for just as the usufructuary ought to use and enjoy, so also the owner of the property ought to be secure concerning his property. And Julian approves in the thirty-eighth book of his Digests that this applies to every usufruct. If a usufruct is bequeathed, the action is not to be given to the usufructuary before he has given security that he will use and enjoy according to the arbitration of a good man; but even if there are several from whom the usufruct has been left, security must be given to each of them.

​Therefore, when a dispute is about a usufruct, not only what has been done is arbitrated, but also how he ought to use and enjoy in the future.

​Furthermore, for past damages, the usufructuary is held liable both under the Lex Aquilia and under the interdict ‘quod vi aut clam’, as Julian says; for it is certain that the usufructuary also is held liable by these actions, as well as for theft, just like anyone else who has committed such an act on another’s property. Finally, when asked what good it was for the praetor to promise the action, since the action under the Lex Aquilia lies, he replied that because there are cases in which the Aquilian action does not apply, therefore a judge is given so that he may use according to his arbitration; for he who does not plow a field, who does not replant vines, and likewise allows watercourses to be ruined, is not held liable under the Lex Aquilia. The same things must be said also in the case of a user.

​But if there is a controversy between two usufructuaries, Julian writes in the thirty-eighth book of his Digests that it is most equitable for a trial to be given as if for partitioning common property, or that they should secure themselves by a stipulation between themselves as to how they shall enjoy; for why, says Julian, should the praetor allow those whom he can reconcile by his jurisdiction to proceed to arms and strife? Celsus also approves this opinion in the twentieth book of his Digests, and I think it is correct.

​The usufructuary must not make the condition of the property worse; he can make it better. And if the usufruct of a land is bequeathed, he must neither cut down fruitful trees, nor demolish the villa, nor do anything to the destruction of the property. And if by chance the estate was for pleasure, having pleasant and shaded gardens or riding paths or walks with unfruitful trees, he must not cut them down, perhaps to make vegetable gardens or something else that looks to revenue.

​Hence it has been asked whether he can himself open quarries or clay pits or sand pits; and I think that he can indeed open them himself, if he is not going to occupy a necessary part of the land for this purpose. Accordingly, he will also be able to search for veins of quarries and of minerals of this kind; therefore he can both work gold, silver, sulfur, copper, iron, and other mines which the father of the family opened, or open them himself, if it does no harm to agriculture. And if by chance there is more revenue in what he has opened than in the vineyards or plantations or olive groves that were there, perhaps he can even cut these down, since indeed he is permitted to improve the property.

​If, however, what the usufructuary has opened should either corrupt the air of the land or require a large apparatus of workmen or gatherers perhaps, which the owner cannot support, he will not be seen to enjoy according to the arbitration of a good man; nor indeed will he place a building on the land, except what is necessary for gathering the fruits.

​But if the usufruct of a house is bequeathed, Nerva the son says that he can even put in windows; and he can also apply colors, paintings, marbles, small statues, and anything for the ornament of the house. But he will not be permitted to transform rooms, or to join or separate them, or to turn entrances or back doors, or to open escape exits, or to change the atrium, or to convert gardens to another style; for he can beautify what he found without changing the character of the building. Likewise Nerva says that he to whom the usufruct of a house is bequeathed cannot raise it higher, although the lights are not obscured, because the roof is disturbed more; which Labeo writes also concerning the owner of the property. The same Nerva says that he cannot block them either.

​Likewise, if the usufruct of a house is bequeathed, the usufructuary must not make rental rooms there, nor divide the house by garrets; yet he can lease it, but it will be necessary to lease it as a house. Nor is a bath to be made there. But when he says that he shall not make rental rooms, understand it as what are commonly called inns or fuller’s shops. I indeed think that even if there is a bath in the house accustomed to be vacant for the master’s use in the innermost part of the house or among pleasant rooms, he will not act rightly nor according to the arbitration of a good man if he begins to lease it so that people may bathe publicly, no more than if he leased the house for a station of beasts of burden, or if he leased a stable, which was vacant for the beasts and carriages of the house, for a mill.