[IAUOLENUS libro quarto ex posterioribus LABEONIS.] §18.1.77.prIn lege fundi uendundi lapidicinae in eo fundo ubique essent exceptae erant, et post multum temporis in eo fundo repertae erant lapidicinae.
[JAVOLENUS, in the fourth book of Epitomes of Labeo's Last Works.] In the terms of the sale of a tract of land, it had been excepted that any quarries which might be anywhere on that land should be excluded, and after a long time, quarries were discovered on that land.
eas quoque uenditoris esse Tubero respondit: Labeo referre quid actum sit: si non appareat, non uideri eas lapidicinas esse exceptas: neminem enim nec uendere nec excipere quod non sit, et lapidicinas nullas esse, nisi quae apparent et caedantur: aliter interpretantibus totum fundum lapidicinarum fore, si forte toto eo sub terra esset lapis.
Tubero gave the opinion that these also belonged to the seller. Labeo says that it is important what was agreed upon; if this does not appear, those quarries are not considered to have been excepted. For no one can either sell or except what does not exist, and there are no quarries except those which are visible and being worked. Otherwise, for those who interpret it differently, the entire land would become a quarry, if by chance there were stone under the whole of it.
hoc probo:
I approve of this.