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Justinian I · The Digest of Justinian §8.5.9.pr-8.5.9.1

Remedies Against Obstruction by Building and Right Retention

Passage 1474 of 9271 · Latin

Summary

The text discusses remedies when an owner builds on land subject to rights of way or drip-water servitudes, contrasting the loss of right for a usufructuary with that of a servitude holder, and addresses how using a wider/narrower road or mixing water affects the retention of rights.

[PAULUS libro uicensimo primo ad edictum. ] §8.5.9.prSi eo loco, per quem mihi iter debetur, tu aedificaueris, possum intendere ius mihi esse ire agere: quod si probauero, inhibebo opus tuum.
[PAULUS, book 21 on the Edict.] If you build on the place through which a right of way is owed to me, I can claim that I have the right to go and to drive; and if I prove this, I shall stop your work.
item Iulianus scripsit, si uicinus in suo aedificando effecerit, ne stillicidium meum reciperet, posse me agere de iure meo, id est ius esse immittendi stillicidium, sicut in uia diximus.
Likewise Julian wrote that if a neighbor, by building on his own land, should bring it about that he does not receive my drip-water, I can bring an action concerning my right, that is, that there is a right to discharge drip-water, just as we said in the case of a road.
sed si quidem nondum aedificauit, siue usum fructum siue uiam habet, ius sibi esse ire agere uel frui intendere potest: quod si iam aedificauit dominus, is qui iter et actum habet adhuc potest intendere ius sibi esse, fructuarius autem non potest, quia amisit usum fructum: et ideo de dolo actionem dandam hoc casu Iulianus ait.
But if indeed he has not yet built, whether a person has a usufruct or a right of way, he can claim that he has the right to go, to drive, or to enjoy; but if the owner has already built, he who has the right of way can still claim that he has the right, whereas the usufructuary cannot, because he has lost the usufruct; and therefore Julian says that in this case an action on fraud should be granted.
contra si in itinere, quod per fundum tibi debeo, aedifices, recte intendam ius tibi non esse aedificare uel aedificatum habere, quemadmodum si in area mea quid aedifices.
Conversely, if you build on the path which I owe to you through my land, I shall rightly claim that you have no right to build or to keep what has been built, just as if you were to build something on my vacant ground.
§8.5.9.1Qui latiore uia uel angustiore usus est, retinet seruitutem, sicuti qui aqua, ex qua ius habet utendi, alia mixta usus est, retinet ius suum.
He who has used a wider or narrower road retains the servitude, just as he who has used water, of which he has the right of use, mixed with other water, retains his right.

Notes

  1. §8.5.9.prquod si probauero — The word "quod" is a connective relative pronoun referring back to the content of the preceding clause (the existence of the right of way), serving as the direct object of "probauero" within the conditional clause "si probauero".
  2. §8.5.9.prfructuarius autem non potest, quia amisit usum fructum — If the owner completes a building, the holder of a right of way can still assert their servitude (as the right is not instantly extinguished until the prescriptive period of non-use expires), whereas the usufructuary is deemed to have lost the usufruct itself. This is because building on the land alters its essential character, which is legally treated as the destruction of the object of usufruct. Thus, the usufructuary cannot bring an action based on the usufruct itself, but is granted an "action on fraud" (actio de dolo) against the owner who maliciously prevented the enjoyment.
  3. §8.5.9.1aqua, ex qua ius habet utendi, alia mixta usus est — The noun "aqua" (water) is modified by the participle phrase "alia [aqua] mixta" (other water having been mixed). The phrase means "he who has used water, of which he has the right of use, mixed with other water". "alia" is in the ablative and "mixta" is a perfect participle agreeing with "aqua".

Cite this passage

Justinian I, The Digest of Justinian §8.5.9.pr-8.5.9.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.5.9.pr-8.5.9.1

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