[ULPIANUS libro septuagensimo primo ad edictum. ] §43.24.11.prIs qui in puteum uicini aliquid effuderit, ut hoc facto aquam corrumperet, ait Labeo interdicto quod ui aut clam eum teneri: portio enim agri uidetur aqua uiua, quemadmodum si quid operis in aqua fecisset.
[ULPIANUS, from the seventy-first book on the Edict.] Labeo says that he who has poured something into his neighbor's well, so as to corrupt the water by this act, is bound by the interdict concerning what is done by force or stealth; for running water is regarded as a portion of the land, just as if he had made some work in the water.
§43.24.11.1Quaesitum est, si statuam in municipio ex loco publico quis sustulerit uel ui uel clam, an hoc interdicto teneatur.
The question was raised, if anyone has removed a statue from a public place in a municipality either by force or stealth, whether he is bound by this interdict.
et exstat Cassii sententia eum, cuius statua in loco publico in municipio posita sit, quod ui 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 uera est.
And there exists the opinion of Cassius that he whose statue was placed in a public place in a municipality can bring the interdict concerning what is done by force or stealth, because it was in his interest that it should not be removed; but the citizens will also sue for theft, because the thing is theirs, as if it were public property; if, however, it has fallen down, they themselves remove it; and this opinion is true.
§43.24.11.2Si quis de monumento statuam sustulerit, an ei, ad quem ius sepulchri pertineret, agere permittitur? et placet et in his interdicto locum esse.
If anyone has removed a statue from a monument, is he to whom the right of sepulcher belonged permitted to sue? It is agreed that in these cases also there is room for the interdict.
et sane dicendum est, si qua sepulchri ornandi causa adposita sint, sepulchri esse uideri.
And indeed it must be said that if any things have been placed for the purpose of decorating a sepulcher, they are seen to belong to the sepulcher.
idem est, et si ostium auellat uel effringat.
The same is true if he tears away or breaks open a door.
§43.24.11.3Si quis in uineas meas uenerit et inde ridicas abstulerit, hoc interdicto tenebitur.
If anyone has entered my vineyards and taken away the props from there, he will be bound by this interdict.
§43.24.11.4Quod ait praetor: 'quod ui aut clam factum est', ad quod tempus referatur, uideamus, utrum ad praeteritum an ad praesens.
Let us see to what time the praetor's words "what has been done by force or stealth" refer, whether to the past or to the present.
quae species apud Iulianum exposita est: ait enim in hoc interdicto praesentis temporis significationem accipi debere.
This situation is explained in Julian; for he says that in this interdict the meaning of the present time ought to be accepted.
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.
If, however, he says, damage has been done by the work, or the owner or he whose land has been injured has removed it at his own expense, it is more usefully approved, as Julian attempts to show, that both the damage should be repaired and the expenses restored.
§43.24.11.5Interdictum complectitur id, quodcumque aut ui aut clam factum est.
The interdict embraces whatever has been done either by force or stealth.
sed interdum euenit, ut quid et ui et clam fiat, partim et partim, in eodem opere.
But it sometimes happens that something is done both by force and stealth, partly the one and partly the other, in the same work.
ut puta cum prohiberem, fundamenta posuisti: postea cum conuenissem, ne reliquum opus fieret, absente et ignorante me reliquum opus perfecisti: uel contra fundamenta clam iecisti, deinde cetera prohibente me aedificasti.
As, for instance, when, although I prohibited you, you laid the foundations; afterwards, when I had formally warned you that the rest of the work should not be done, you completed the rest of the work in my absence and without my knowledge; or on the contrary, you laid the foundations secretly, and then built the rest while I was prohibiting it.
hoc iure utimur, ut et si ui et clam factum sit, interdictum hoc sufficiat.
We follow this law, that even if it was done both by force and stealth, this interdict is sufficient.
§43.24.11.6Si tutoris iussu aut curatoris factum sit, cum placeat, quod Cassius probat, ex dolo tutoris uel curatoris pupillum uel furiosum non teneri, eueniet, ut in ipsum tutorem curatoremque aut utilis actio competat aut etiam utile interdictum.
If it has been done by the order of a tutor or curator, since it is accepted, as Cassius approves, that a ward or insane person is not bound by the fraud of a tutor or curator, it will happen that either a useful action or even a useful interdict lies against the tutor and curator themselves.
certe ad patientiam tollendi operis utique tenebuntur pupillus et furiosus et ad noxam.
Certainly, the ward and the insane person will indeed be bound to permit the removal of the work, and also for the damage.
§43.24.11.7An ignoscitur seruo, qui obtemperauit tutori aut curatori? nam ad quaedam, quae non habent atrocitatem facinoris uel sceleris, ignoscitur seruis, si uel dominis uel his, qui uice dominorum sunt, obtemperauerint.
Is a slave excused who has obeyed a tutor or curator? For in respect of certain acts which do not have the atrocity of a crime or wickedness, slaves are excused if they have obeyed either their masters or those who are in the place of masters.
quod et in hoc casu admittendum est.
Which is also to be admitted in this case.