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Justinian I · The Digest of Justinian §8.2.1.pr-8.2.1.1

Servitudes across Public Roads and Usufruct Liabilities

Passage 1369 of 9271 · Latin

Summary

Explains the distinction between easements that are or are not obstructed by an intervening public land or road, and defines that liability for neighboring burdens on a building subject to a usufruct falls solely on the owner.

[PAULUS libro uicensimo primo ad edictum. ] §8.2.1.prSi intercedat solum publicum uel uia publica, neque itineris actusue neque altius tollendi seruitutes impedit: sed immittendi protegendi prohibendi, item fluminum et stillicidiorum seruitutem impedit, quia caelum, quod supra id solum intercedit, liberum esse debet.
[PAULUS in the twenty-first book on the Edict.] If public land or a public road intervenes, it does not prevent easements of a right of way on foot or for driving, nor of raising a building higher; but it does prevent easements of inserting beams, of projecting roofs, of prohibiting [these], as well as of discharge of rainwater and drippings, because the airspace that lies above that land must be free.
§8.2.1.1Si usus fructus tuus sit, aedium proprietas mea, quae onera uicini sustinere debeant, mecum in solidum agi potest, tecum nullo modo.
If the usufruct is yours, and the ownership of the building is mine, which building must bear the burdens of a neighbor, an action can be brought against me for the whole, but in no way against you.

Notes

  1. §8.2.1.primmittendi protegendi prohibendi — These are all genitives of the gerund depending on the subsequent noun seruitutem (accusative singular). They refer to the easement of inserting beams (servitus immittendi), projecting roofs (servitus protegendi), and prohibiting them (servitus prohibendi). Since an intervening public space requires its airspace (caelum) to remain free, these easements physically encroaching on that space cannot be established.
  2. §8.2.1.1quae — A relative pronoun in the nominative feminine plural. Its antecedent is aedium. While aedes in the singular means 'temple', its plural form aedes, aedium means 'house' or 'building'. Even when referring to a single building, it is grammatically treated as plural, which is why the relative pronoun is plural. The relative clause quae ... debeant modifies aedium, describing the ownership of the building that must bear the neighbor's burdens.
  3. §8.2.1.1mecum in solidum agi potest — The word mecum is a combination of the preposition cum and the first-person ablative pronoun me, indicating the defendant (the owner, 'me') of the action. agi potest is an impersonal passive construction meaning 'an action can be brought'. The phrase in solidum is a legal idiom meaning 'for the whole' or 'in full', showing that the owner, rather than the usufructuary (you), is directly liable for the full extent of the neighbor's easement (such as the duty to support a load).

Cite this passage

Justinian I, The Digest of Justinian §8.2.1.pr-8.2.1.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.2.1.pr-8.2.1.1

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