[ULPIANUS libro septuagensimo primo ad edictum. ] §43.24.15.prSemper aduersus possessorem operis hoc interdictum competit, idcircoque, si quilibet inscio uel etiam inuito me opus in fundo meo fecerit, interdicto locus erit.
[ULPIANUS libro septuagensimo primo ad edictum.] This interdict is always available against the possessor of the work; and therefore, if anyone does work on my land without my knowledge or even against my will, there will be room for the interdict.
§43.24.15.1Is, cui fundum pastinandum locaueras, lapides sustulit et in uicini proiecit praedium.
A person to whom you had leased land to be dug up removed stones and threw them onto a neighbor's estate.
ait Labeo te ui 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.
Labeo says that you are not liable for force or stealth unless it was done by your order: I think that the lessee is liable, but the lessor is not liable otherwise than if he can either provide tolerance or has some action which he can hand over; otherwise, he ought not to be held liable.
§43.24.15.2Si in sepulchro alieno terra congesta fuerit iussu meo, agendum esse quod ui aut clam mecum Labeo scribit.
If earth has been piled up on another's grave by my order, Labeo writes that an action must be brought against me on the ground of force or stealth.
et si communi consilio plurium id factum sit, licere uel cum uno uel cum singulis experiri: opus enim, quod a pluribus pro indiuiso factum est, singulos in solidum obligare.
And if it was done by the common plan of several persons, it is permitted to sue either one or each of them; for a work which has been done by several persons undivided binds each of them for the whole.
si tamen proprio quis eorum consilio hoc fecerit, cum omnibus esse agendum, scilicet in solidum: itaque alter conuentus alterum non liberabit, quin immo perceptio ab altero: superiore etenim casu alterius conuentio alterum liberat.
If, however, each of them did this by his own plan, the action must be brought against all, namely, for the whole; therefore, the suing of one will not release the other, but rather satisfaction from one [will release him]; for in the former case, the suing of one releases the other.
praeterea sepulchri quoque uiolati agi potest.
Furthermore, an action can also be brought for violation of a sepulcher.
§43.24.15.3Hoc interdictum in heredem ceterosque successores datur in id quod ad eos peruenit.
This interdict is granted against the heir and other successors to the extent of what has come to them.
§43.24.15.4Et post annum non competit.
And it is not available after a year.
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.
But the year begins to run from the time when the work was completed or ceased to be done, even if it was not completed; otherwise, if one were to count the year from the beginning of the work started, it would be necessary to bring actions more often against those who do the work very slowly.
§43.24.15.5Sed si is sit locus, in quo opus factum est, qui facile non adiretur, ut puta in sepulchro ui aut clam factum est uel in abdito alio loco, sed et si sub terra fieret opus uel sub aqua, uel 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 interueniente.
But if the place in which the work was done is such that it would not easily be approached, as for example if it was done by force or stealth in a grave or in some other hidden place, or if the work was done underground or underwater, or something was done in a sewer, even after a year, upon inquiry into the cause, the interdict is available concerning what was done; for upon inquiry into the cause, the one-year exception is to be waived, that is, when a great and just cause of ignorance intervenes.
§43.24.15.6Si quis rei publicae causa afuisset, deinde reuersus interdicto quod ui aut clam uti uellet, uerius est non excludi anno eum, sed reuersum annum habere.
If anyone had been absent on account of the state, and then having returned, wished to use the interdict concerning force or stealth, it is more correct that he is not excluded by the year, but has a year from his return.
nam et si minor uiginti 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 impleuit uicensimum quintum annum: et ita diuus Pius et deinceps omnes principes rescripserunt.
For even if a person under twenty-five years of age had begun to be absent on account of the state, and then became of full age while absent on account of the state, it will happen that the year is computed for 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 emperors replied by rescript.
§43.24.15.7Hoc interdicto tanti lis aestimatur, quanti actoris interest id opus factum esse.
In this interdict, the suit is valued at as much as it is in the interest of the plaintiff that the work was done.
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 ui neque clam factum esset.
But by the office of the judge, it must be judged that restoration ought to be made in such a way that in every case the condition of the plaintiff is the same as it would have been if the work in question had been done neither by force nor by stealth.
§43.24.15.8Ergo nonnumquam etiam dominii ratio habenda est, ut puta si propter hoc opus, quod factum est, seruitutes amittantur aut usus fructus intereat.
Therefore, sometimes account must also be taken of ownership, as for example if, because of this work which was done, servitudes are lost or a usufruct perishes.
quod non tantum tunc eueniet, cum quis opus aedificauerit, uerum etiam si diruisse opus proponatur et deteriorem condicionem fecisse uel seruitutium uel usus fructus uel ipsius proprietatis.
This will happen not only when someone has built a work, but also if it is proposed that he demolished a work and made the condition worse, either of servitudes, of usufruct, or of ownership itself.
§43.24.15.9Sed quod interfuit, aut per iusiurandum, quod in litem actor iurauerit, aut, si iurare non possit, iudicis officio aestimandum est.
But what the interest was must be valued either by the oath which the plaintiff swore in the suit, or, if he cannot swear, by the office of the judge.
§43.24.15.10Eum autem, qui dolo malo fecerit, quo minus possit restituere, perinde habendum, ac si posset.
But he who has acted with malicious intent so that he cannot restore must be treated just as if he were able to do so.
§43.24.15.11Culpam quoque in hoc interdicto uenire erit probandum: quae tamen arbitrio iudicis aestimanda erit.
It must also be shown that fault comes under this interdict; which, however, must be valued by the judgment of the judge.
§43.24.15.12Quia 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 because this interdict contains the interest, if anyone by another action has obtained his interest in the work not being done, it will be logical to say that he ought to obtain nothing from the interdict.