est, sublato aedificio, quod in litore positum erat, cuius condicionis is locus sit, hoc est utrum maneat eius cuius fuit aedificium, an rursus in pristinam causam recidit perindeque publicus sit, ac si numquam in eo aedificatum fuisset. quod propius est, ut existimari debeat, si modo recipit pristinam litoris speciem. 15. IDEM libro quinto regularum. Qui autem in ripa fluminis aedificat, non suum facit. 16. FLORENTINUS libro sexto institutionum. In agris limitatis ius alluuionis locum non habere constat : idque et is removed which has been erected on the shore, of what character is its site? That is to say, does it remain the property of him who owned the building, or does it fall back again into its old condition, and become public, as though there had never been anything built upon it? The latter is the view most proper to be taken, provided only it resumes its former character of a shore. 15. Neratius. But a man who builds on the bank of a river does not make (the site) his own'. 16. Florentinus. It is well established that in agri limitati the right of alluvion does not exist: as the late emperor 1 Obviously; for he is a trespasser, building on private property. The owner of the land is also himself prevented from building unless his purpose is to protect the bank and he causes no needless obstruction of the navigation. When this is the case he is protected by the interdict de ripa munienda, D. 43. 15. 2 Agri limitati= lands bounded by roads or paths, laid out by the agrimensores in a colonia. The breadths of these roads are specified by Hyginus in his treatise "de limitibus." The Maximus Decimanus running centrally through the land of the colony from east to west, and the Maximus Kardo, also centrally from north to south, were to be of 20, 15 or 12 feet wide; the Subruncivi, parallel to the Maximus De cimanus or Maximus Kardo, and Grotius says (De Jure Belli ac Pacis, 2. 3. 16): "docent nos mensores tria esse agrorum genera: diuus Pius constituit, et Trebatius ait agrum, qui hostibus deuictis ea condicione concessus sit, ut in ciuitatem ueniret, habere alluuionem neque esse limitatum: agrum autem manu captum limitatum fuisse, ut sciretur, quid cuique datum esset, quid uenisset, quid in publico relictum esset. 17. ULPIANUS libro primo ad Sabinum. Si duo domini seruo communi rem tradiderit, adquirit alteri ab altero. Pius also laid down in his constitution, and Trebatius says that land which is surrendered by vanquished enemies, in such wise as to become the property of the state, admits of alluvion and is not limitatus': but that land taken in actual warfare is limitatus, that it may be known what portion is assigned to each, what sold, and what left to the old possessor3. 17. Ulpian. If two owners deliver an article to a common slave, he acquires for each from the other3. 1 It is, according to the classification quoted above from Grotius, arcifinius. 2 The apparent reading of the MSS. is "quid in publico relictum esset, ," but Cujas is of opinion that the true reading should be "quid ve. p. relictum esset," which he interprets "quid veteri possessori relictum esset." The Romans were in the habit of apportioning a part of conquered territory to colonists, a part to the State (which portion was frequently sold by auction), and a third portion to the old possessors, i.e. the old owners. See D. 6. I. 5. 2; D. 21. 2. II. These portions were limited by exact measurements and not by the natural features of the country; whereas surrendered lands were simply a present to the Roman People, and requiring no subdivision were regarded as arcifinii. 3 If the reading is correct (but this is more than doubtful) the explanation must be that the article delivered is common property, equally Iwith the slave himself. When A delivers to the slave what is jointly owned by himself and B, his intention must be to transfer his share to B, for the slave cannot take A's property for A: but B does a similar act: therefore the slave accepts A's share for B, and B's share for A, or acquires "alteri ab altero." The emendations suggested by Pothier and Mommsen, in essence the same, seem however to give a much more rational meaning. Pothier would read: "Si duo domini sint, et unus servo communi rem tradiderit, &c.;" Mommsen: "si duo domini servi rei alicujus emptionem inter se fecerint, et qui vendit servo communi rem tradiderit, &c." But Pothier's emendation is, I think, the better one, for why should the case be restricted to a traditio emptionis 18. IDEM libro quarto ad Sabinum. Per hereditarium seruum quod est eiusdem hereditatis heredi adquiri non potest et maxime ipsa hereditas. 19. POMPONIUS libro tertio ad Sabinum. Liber homo, qui bona fide mihi seruit, id quod ex operis suis aut ex re meà pararet, ad me pertinere sine dubio Aristo ait: quod uero quis ei donauerit aut ex negotio gesto adquisierit, ad ipsum pertinere. sed hereditatem legatumue non adquiri mihi per eum, quia neque ex re mea neque ex operis suis id sit nec ulla eius opera esset in legato, in hereditate aliquatenus, quia per ipsum adiretur (quod et Varium Lucullum aliquando dubitasse), sed uerius esse non adquiri, etiamsi testator ad me uoluisset pertinere. sed licet ei minime adquirit, attamen, si uoluntas eui 18. Ulpian. By means of an hereditary slave, acquisition cannot be made on the heir's behalf of an article belonging to the self-same inheritance, and most especially (it cannot be made) of the inheritance itself'. 19. Pomponius. Whatever a freeman, who serves me in good faith, acquires by his own labour or in connection with my property, there is no doubt, says Aristo, that this belongs to me but whatever any one gives him or he acquires by his unsolicited services belongs to himself. But an inheritance or a legacy is not acquired for me through his means, because this is neither from my property nor from his labour; there could in fact be no labour of his in regard to a legacy, though there might to some degree in regard to an inheritance, because it would be entered upon by him (and so as to this Varius Lucullus once was doubtful); but it is more correct to say that it is not acquired for me, even though the testator wished it to be mine. Yet, admitting that he does not acquire causa, as Mommsen would have it? This law must be the same for a traditio based on any legally recog nized causa. See D. 41. I. 37. I. This passage I take it denotes a delivery eo modo quomodo alienis servis donare solemus." 66 1 The heir could only acquire through his own slave, or through another's slave whom he possessed in good faith as his own: if he uses the hereditary slave as an agent to procure for himself the inheritance of which that slave is a part, he clearly admits that the slave is not his own; and if he professes to possess him, he is in mala fide. 2 He has the property, but not the legal possession (which is in me). See D. 41. I. 54. 4; D. 41. 2. 1. 6: Savigny on Poss. Bk. 1. § 9. 3 So far Pomponius has been quoting the opinion of Aristo; now he gives his own. dens testatoris appareat, restituendam esse ei hereditatem. sed Trebatius, si liber homo bona fide seruiens iussu eius cui seruiet hereditatem adisset, heredem ipsum fieri nec interesse quid senserit, sed quid fecerit. Labeo contra, si ex necessitate id fecisset: quod si ita, ut et ipse uellet, ipsum fieri heredem. 20. ULPIANUS libro uicensimo nono ad Sabinum. Traditio nihil amplius transferre debet uel potest ad eum qui accipit, quam est apud eum qui tradit. si igitur quis dominium in fundo habuit, id tradendo transfert, si non habuit, ad eum qui accipit nihil transfert. (1.) Quotiens autem dominium transfertur, ad eum qui accipit tale transfertur, quale fuit apud eum qui tradit: si seruus fuit fundus, cum seruitutibus transit, si liber, uti fuit: et si forte seruitutes debebantur fundo qui it for him (i.e. for the possessor bona fide), still if the intention of the testator appears clear, the inheritance will have to be delivered up to him'. Trebatius, however, maintains that if a freeman serving another in good faith has made entry upon an inheritance by order of the person whom he serves, he becomes heir himself; and that we must not care for what he intended, but for what he did. Labeo maintains the contrary, if he acted under compulsion; but (admits that) if he was a willing agent, he becomes heir himself. 20. Ulpian. Delivery ought not to transfer, and cannot transfer, to him who receives more than belongs to him who delivers. If, therefore, any one had the ownership of a field, he transfers it by delivery, but if he had it not, he transfers nothing to him who receives3. 1. But, whenever ownership is transferred, it passes to the receiver such as it was when it belonged to the deliverer. If the land was subject to servitude, it passes with its servitudes; if unburdened, as it was : and if it happens that servitudes were due to the land which 1 The liber homo, after he has been reinstated in his liberty, will be regarded as a trustee for his former possessor, and will have to cede the inheritance to him per condictionem sine causa, D. 45. 3. 39. 2 If he acted under compulsion, he would have refused, had he not believed himself to be a slave, there fore his acceptance was purely for his possessor. See an argument of a very similar kind in D. 29. 2. 17. Labeo's opinion prevailed, see below, D. 41. I. 54. pr. 3 Except possession: and so indirectly ownership through operation of usucapion. si traditus est, cum iure seruitutium debitarum transfertur. quis igitur fundum dixerit liberum, cum traderet, eum qui seruus sit, nihil iuri seruitutis fundi detrahit, uerumtamen obligat se debebitque praestare quod dixit. (2.) Si ego et Titius rem emerimus eaque Titio et quasi meo procuratori tradita sit, puto mihi quoque quaesitum dominium, quia placet per liberam personam omnium rerum possessionem quaeri posse et per hanc dominium. 21. POMPONIUS libro undecimo ad Sabinum. Si seruus meus tibi bona fide seruiret et rem emisset traditaque ei esset, Proculus nec meam fieri, quia seruum non possideam, nec tuam, si non ex re tua sit parata. sed si liber bona fide tibi has been delivered, the ownership passes accompanied by the right to the servitudes due. If, therefore, any one has declared the land to be without burden, when he was delivering what was subject to servitudes, he in no way detracts from the right of servitude attaching to the land; although he binds himself (personally) and is under a duty to make good what he said'. 2. If Titius and I have bought something, and it has been delivered to Titius (for himself) and also as being my agent, I think the ownership is acquired for me too, because it is the rule that possession of any thing can be acquired through a free person, and ownership through the possession*. 21. Pomponius. If my slave was serving you in good faith, and bought something, which was thereupon delivered to him; Proculus says that it does not become mine, because I am not in possession of the slave, nor yours, if it was not acquired through your substance. But if a free person serving If he says nothing, he sells the land subject to its burdens. There is no implied guarantee on this head. D. 18. I. 59. 2 Et quasi etiam quasi. Schulting. Acting under a mandate, and that there was a mandate is implied in the words "quasi meo procuratori." 4 Ownership is not universally acquired simultaneously with possession, but it is in the two cases of occupatio and traditio. See Savigny On Poss. Bk. I. § 3; Bk. II. § 28. 5 Cujas, Schulting and Pothier agree that the opinion of Proculus is here merely quoted and not approved. See D. 41. 1. 10. 3 and 4; D. 41. I. 54. 4. The purchase money is supposed to come out of the peculium which is not ex re possessoris. Savigny (Bk. 11. § 28) says that Pomponius' dictum holds good in the case of a runaway slave who considers himself free; but he cannot consider himself free if he serves in good faith," |