[ULPIANUS libro sexagensimo octauo ad edictum. ] §43.8.2.31Deinde ait praetor: 'quo ea uia idque iter deterius sit fiat'.
Next, the praetor says: 'whereby that road and that pathway may be or become worse.' This applies whether the road is made worse immediately or afterwards; for these words 'be' and 'become' refer to this.
hoc siue statim deterior uia sit, siue postea: ad hoc enim pertinent haec uerba 'sit fiat': etenim quaedam sunt talia, ut statim facto suo noceant, quaedam talia, ut in praesentiarum quidem nihil noceant, in futurum autem nocere debeant.
Indeed, some things are of such a nature that they cause harm immediately by their execution, while others are of such a nature that they cause no harm at present, but are bound to cause harm in the future.
§43.8.2.32Deteriorem autem uiam fieri sic accipiendum est, si usus ad commeandum corrumpatur, hoc est ad eundum uel agendum, ut, cum plane fuerit, cliuosa fiat uel ex molli aspera aut angustior ex latiore aut palustris ex sicca.
Moreover, a road being made worse is to be understood in this way: if its use for travel is impaired, that is, for walking or driving, so that, whereas it was level, it becomes steep, or rough from being soft, or narrower from being wider, or marshy from being dry.
§43.8.2.33Scio tractatum, an permittendum sit specus et pontem per uiam publicam facere: et plerique probant interdicto eum teneri: non enim oportere eum deteriorem uiam facere.
I know it has been discussed whether it should be permitted to construct a channel or a bridge across a public road; and most authorities approve that he is bound by the interdict, for he ought not to make the road worse.
§43.8.2.34Hoc interdictum perpetuum et populare est condemnatioque ex eo facienda est, quanti actoris intersit.
This interdict is perpetual and popular, and the condemnation under it must be made for as much as it is in the interest of the plaintiff.
§43.8.2.35Praetor ait: 'Quod in uia publica itinereue publico factum immissum habes, quo ea uia idue iter deterius sit fiat, restituas'. §43.8.2.36Hoc interdictum ex eadem causa proficiscitur, ex qua et superius: et tantum interest, quod hoc restitutorium, illud prohibitorium est.
The praetor says: 'What you have done or projected in a public road or public pathway, whereby that road or that pathway may be or become worse, you shall restore.' This interdict arises from the same cause as the upper one; and the only difference is that this one is restitutory, while that one is prohibitory.
§43.8.2.37Hoc interdicto non is tenetur, qui in uia publica aliquid fecit, sed is, qui factum habet.
Under this interdict, not he who did something on the public road is bound, but he who has the thing done.
proinde si alius fecit, alius factum habet, is tenetur, qui factum habet: et est hoc utilius, quia is potest restituere, qui factum immissum habet.
Accordingly, if one person did it and another has the thing done, he who has the thing done is bound; and this is more useful, because he who has the thing done or projected is the one who is able to restore it.
§43.8.2.38Habere eum dicimus, qui utitur et iure possessionis fruitur, siue ipse opus fecit siue ex causa emptionis uel conductionis uel legato uel hereditate uel quo alio modo adquisiit.
We say that he has it who uses and enjoys it by right of possession, whether he himself did the work or acquired it by reason of purchase, lease, legacy, inheritance, or in any other way.
§43.8.2.39Unde Ofilius putat eum, qui pro derelicto reliquit id opus quod fecit, si uiam publicam corrupit et reliquit, non teneri hoc interdicto: non enim habet quod fecit.
Hence Ofilius thinks that he who has abandoned the work he did, if he damaged the public road and abandoned it, is not bound by this interdict; for he does not have what he did.
sed an in eum actio debeat dari, uidebimus. et puto utile interdictum competere, ut, quod in uia publica aedificauit, restituat.
But we shall see whether an action ought to be granted against him; and I think that a useful interdict lies, so that he may restore what he built on the public road.
§43.8.2.40Si ex fundo tuo arbor in uiam publicam sic ceciderit, ut itineri sit impedimento, eamque pro derelicto habeas, non teneri Labeo scribit: si tamen, inquit, actor sua impensa arborem tollere paratus fuerit, recte tecum acturum interdicto de uia publica reficienda.
If a tree falls from your land into a public road in such a way as to be an obstacle to travel, and you abandon it, Labeo writes that you are not bound; but if, he says, the plaintiff is prepared to remove the tree at his own expense, he will correctly proceed against you under the interdict for repairing a public road.
sed si pro derelicto non habeas, recte tecum agi hoc interdicto.
But if you do not abandon it, you are correctly sued under this interdict.
§43.8.2.41Idem Labeo scribit, si uicinus meus uiam opere corruperit, quamuis opus, quod fecit, tam mihi quam ipsi utile sit, tamen si is uicinus fundi sui causa id fecerit, me tamen non posse hoc interdicto conueniri: si autem communiter hoc opus fieri curauerimus, utrumque nostrum teneri.
The same Labeo writes that if my neighbor damages the road by a work, although the work he did is useful both to me and to himself, yet if the neighbor did it for the sake of his own land, I cannot be sued under this interdict; but if we jointly caused this work to be done, both of us are bound.
§43.8.2.42Hoc interdictum locum habet etiam aduersus eum, qui dolo malo fecit, quo minus possideret uel haberet: etenim parem esse condicionem oportet eius, qui quid possideat uel habeat, atque eius, cuius dolo malo factum sit, quo minus possideret uel haberet: et mihi uidetur uera Labeonis sententia.
This interdict also applies against him who did something with malicious intent so that he would not possess or have; for the condition of him who possesses or has something ought to be equal to that of him through whose malicious intent it was brought about that he would not possess or have. And to me Labeo's opinion seems to be true.
§43.8.2.43'Restituas' inquit.
He says 'you shall restore'.
restituere uidetur, qui in pristinum statum reducit: quod fit, siue quis tollit id quod factum est uel reponat quod sublatum est.
He is deemed to restore who brings things back to their former state; which is done whether one removes what has been made or replaces what has been taken away.
et interdum suo sumptu: nam si ipse, quo qui interdixit, fecerit, uel iussu eius alius, aut ratum habitum sit quod fecit, ipse suis sumptibus debet restituere: si uero nihil horum interuenit, sed habet factum, tunc dicemus patientiam solam eum praestare debere.
And sometimes at his own expense; for if he himself, against whom the interdict is brought, did the work, or another by his order, or what he did has been ratified, he must restore it at his own expense; but if indeed none of these has occurred, but he merely has the thing done, then we shall say that he ought only to offer tolerance.
§43.8.2.44Interdictum hoc non esse temporarium sciendum est: pertinet enim ad publicam utilitatem: condemnatioque ex eo facienda est, quanti actoris intersit tolli quod factum est.
It must be known that this interdict is not temporary, for it pertains to public utility; and the condemnation under it must be made for as much as it is in the interest of the plaintiff that what has been done be removed.
§43.8.2.45Praetor ait: 'Quo minus illi uia publica itinereue publico ire agere liceat, uim fieri ueto'.
The praetor says: 'I forbid force being used to prevent him from walking or driving on a public road or public pathway.'