[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.2.9.prHoc amplius Iulianus posse dici compellendum eum, ut etiam de praeterito damno caueret: quod enim re integra custoditur, hoc non inique etiam post ruinam aedium praestabitur.
[ULPIAN on the edict, book 53.] Furthermore, Julianus says it can be said that he should be compelled to provide security even for past damage: for what is preserved while the matter is intact will not unfairly be provided even after the collapse of the building.
integra autem re unusquisque cogitur aut de damno infecto cauere, aut aedibus carere quas non defendit.
Indeed, while the matter is intact, everyone is compelled either to provide security for damage not yet done, or to forfeit the building which he does not defend.
denique, inquit, si quis propter angustias temporis aut quia rei publicae causa aberat non potuerit damni infecti stipulari, non inique praetorem curaturum, ut dominus uitiosarum aedium aut damnum sarciat aut aedibus careat.
Finally, he says, if anyone because of shortage of time or because he was absent on public business could not stipulate for damage not yet done, it will not be unfair for the praetor to see to it that the owner of the defective building either repairs the damage or forfeits the building.
sententiam Iuliani utilitas comprobat.
Practical utility approves the opinion of Julianus.
§39.2.9.1De his autem, quae ui fluminis importata sunt, an interdictum dari possit, quaeritur.
It is asked, moreover, whether an interdict can be granted concerning those things which have been carried in by the force of a river.
Trebatius refert, cum Tiberis abundasset et res multas multorum in aliena aedificia detulisset, interdictum a praetore datum, ne uis fieret dominis, quo minus sua tollerent auferrent, si modo damni infecti repromitterent.
Trebatius reports that when the Tiber had flooded and had carried many things belonging to many people into the buildings of others, an interdict was granted by the praetor so that force should not be used against the owners to prevent them from taking away and carrying off their belongings, provided only that they promised against damage not yet done.
§39.2.9.2Alfenus quoque scribit, si ex fundo tuo crusta lapsa sit in meum fundum eamque petas, dandum in te iudicium de damno iam facto, idque Labeo probat: nam arbitrio iudicis, apud quem res prolapsae petentur, damnum, quod ante sensi, non contineri, nec aliter dandam actionem, quam ut omnia tollantur, quae sunt prolapsa.
Alfenus also writes that if a piece of earth has slipped from your land onto my land and you claim it, an action should be granted against you for damage already done; and Labeo approves this: for the damage which I suffered beforehand is not included in the discretion of the judge before whom the fallen things are claimed, and the action should not be granted other than on condition that all things which have fallen are removed.
ita demum autem crustam uindicari posse idem Alfenus ait, si non coaluerit nec unitatem cum terra mea fecerit.
The same Alfenus says, however, that the piece of earth can only be vindicated if it has not blended nor made a unity with my land.
nec arbor potest uindicari a te, quae translata in agrum meum cum terra mea coaluit.
Nor can a tree be vindicated by you, which, having been transferred into my field, has blended with my land.
sed nec ego potero tecum agere ius tibi non esse ita crustam habere, si iam cum terra mea coaluit, quia mea facta est.
But neither shall I be able to bring an action against you that you have no right to have the piece of earth in that way, if it has already blended with my land, because it has become mine.
§39.2.9.3Neratius autem scribit, si ratis in agrum meum ui fluminis delata sit, non aliter tibi potestatem tollendi faciendam, quam si de praeterito quoque damno mihi cauisses.
Neratius, however, writes that if a raft has been carried onto my land by the force of a river, the power of removing it should not be granted to you otherwise than if you have also provided security to me for the past damage.
§39.2.9.4Quaesitum est, si solum sit alterius, superficies alterius, superficiarius utrum repromittere damni infecti an satisdare debeat.
The question was asked, if the ground belongs to one person and the superstructure to another, whether the superficiary ought to promise against damage not yet done or to give security with sureties.
et Iulianus scribit, quotiens superficiaria insula uitiosa est, dominum et de soli et de aedificii uitio repromittere aut eum, ad quem superficies pertinet, de utroque satisdare: quod si uterque cesset, uicinum in possessionem mittendum.
And Julianus writes that, whenever a leased block of apartments on another's ground is defective, either the owner of the ground must promise against the defect of both the ground and the building, or the person to whom the superstructure belongs must give security with sureties for both; but if both fail to act, the neighbor must be put in possession.
§39.2.9.5Celsus certe scribit, si aedium tuarum usus fructus Titiae est, damni infecti aut dominum repromittere aut Titiam satisdare debere.
Celsus certainly writes that if the usufruct of your building belongs to Titia, either the owner ought to promise against damage not yet done, or Titia ought to give security with sureties.
quod si in possessionem missus fuerit is, cui damni infecti cauendum fuit, Titiam uti frui prohibebit.
But if he to whom security for damage not yet done was to be provided has been put in possession, he will prohibit Titia from using and enjoying.
idem ait eum quoque fructuarium, qui non reficit, a domino uti frui prohibendum: ergo et si de damno infecto non cauet dominusque compulsus est repromittere, prohiberi debet frui.
The same writer says that the usufructuary who does not repair should also be prohibited by the owner from using and enjoying; therefore, also if she does not provide security for damage not yet done and the owner was compelled to promise, she ought to be prohibited from enjoying.