restricted access 19. PRIVATE RIGHT OF WAY IN PERSON AND WITH CATTLE
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BOOK FORTY-THREEIPRIVATE RIGHT O F WAY 105 it. If any other action on supeflcies is demanded, I will grant it upon cause shown." 1. Whoever has the supeflcies of the ground of someone else relies on a civil action. For if he rented or bought it, he can take action against the landlord or seller who owns the ground. And so if the owner prevents him, he will obtain the extent of his interest by bringing an action; if he is prevented by someone else, the owner must deliver and cede to him his rights of action. But because it was uncertain whether evidence of the lease existed, and because it is better to be in possession than to sue personally, it was held most advantageous to provide this interdict and so promise what amounts to an action for the thing. 2. The interdict provided is double, on the model of the interdict for the possession of land. The praetor protects the person claiming superjicies without exacting from him an account of his case for possession. His only requirement is that he should not happen to have possession by force, fraud, or precarium from his adversary. And all the provisos of the interdict for possession of land apply here also. 3. The praetor's words "if any other action on sz~pe6cies is demanded , I will grant it upon cause shown" are to be understood to mean that if someone has taken a temporary lease on superficies, he will be refused an action for the thing. However, if he has taken a lease of superjcies not just for a short time, an action for the thing will lie. 4. But the person on whose land the superjcies is by no means lacks an utilis actio. He has an action for the thing insofar as he has it for the land. Plainly, if he wishes to vindicate against the superficiary, it is to be said that he may avail himself of the grant of a defense infactum. For when we grant an action to anyone, he will be considered all the more entitled to a defense. 5. If the possessor of the land is evicted from the supe$cies, it will be entirely just to come to his aid either with an action on stipulation on account of the eviction, or at any rate with an action on sale. 6. And because an action for the thing will be granted on account of superjicies, it must be held that a creditor should be granted an action for supe$cies and that what amounts to a kind of usufruct or right of use can exist and be established for him by utiles actiones. 7. Moreover, it must be understood that this can be delivered, just as it can be bequeathed and given. 8. And if it is common to two, we shall also grant an utilejudicium for its common division. 9. Servitudestoo are established by praetorian law, and they can be claimed through utiles actiones on the model of those established by civil law. An interdict effectively lies for these also. 2 GAIUS,Provincial Edict, book 25: We mean by superficiary buildings those that are sited on leased land. By both civil and natural law their ownership belongs to the owner of the land. PRIVATE RIGHT OF WAY IN PERSON AND WITH CATTLE 1 ULPIAN,Edict, book 70: The praetor says: "I forbid the use of force to prevent you from using the private right of way in person or with cattle that is in question, which you have used this year not by force or stealth or precarium from such a one." 1. This interdict is for prohibition. Its object is the protection of only rural servitudes . 2. In this interdict the praetor does not inquire whether or not he had the servitude lawfully imposed, but only whether he used it this year, not by force or stealth or precarium; and he protects him even if he did not use it at the time the interdict was issued. Whether he was entitled to the right of way or not, he qualifies for the praetor's protection provided that he used it this year even for a short time, BOOK FORTY-THREE/PRIVATE RIGHT OF WAY 105 it. If any other action on superficies is demanded, I will grant it upon cause shown." 1. Whoever has the superficies of the ground of someone else relies on a civil action. For if...


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