restricted access 24. AGAINST FORCE OR STEALTH
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116 BOOK FORTY-THREEIAGAINST FORCE OR STEALTH and go on with the repair I had begun. 14. But he will also have to promise a cautio for threatened damage in case of any damage from faulty work. For just as repair and cleaning of drains is to be permitted, so it must be said that it should be in a manner that does no damage to other people's houses. 15. The praetor then says: "If you have anything done or inserted in a public drain by which its use is or shall be made worse, you are to make it good. And I will issue an interdict that nothing should be so done or inserted." 16. This interdict applies to public drains, so that you should have nothing that is done or inserted in a public drain by which it is or shall be made worse. 2 VENULEIUS, Interdicts, book 1: Although the repair of a drain, but not the building of a new drain, is included in this interdict, nevertheless, Labeo said that there should be a similar interdict against the use of force to prevent the building of a drain of the same usefulness; for the praetor had issued an interdict of this kind, forbidding the use of force to prevent the building of a drain in public land; and that this had met with the approval of Ofilius and Trebatius. Labeo himself said that it should be said that the cleaning and repair of a drain already built should be permitted by interdict, but that the building of a new one was for the curator of public ways to concede. AGAINST FORCE OR STEALTH 1 ULPIAN,Edict, book 71: The praetor says: "You are to make good what has been done by force or stealth in the property in question, as there is the power of resorting to proceedings." 1. This interdict is for restitution, and by its means the cunning of those who are gaining certain objects by force or stealth is opposed; for they are directed to restore them. 2. And it makes little difference whether he had a right to do what he did or not; for whether he had or not, he is still liable under the interdict, because he did it by force or stealth; for he should have protected his right, but not contrived injury. 3. The question then arises whether he may bar the person availing himself of this interdict with the defense "what I did not recover by my right." The better opinion is that he cannot. For nobody may defend himself with a just defense for what he has done by force or stealth. 4. This interdict applies only to those works which are carried out by force or stealth on the land. 5. Let us see what is done by force or stealth. Quintus Mucius wrote that anything is done by force if it is done against prohibition, and I hold Quintus Mucius's definition to be adequate. 6. And if anyone, when prohibited by the throwing of the smallest pebble, persists in doing something, Pedius and Pomponius write that he is doing it by force, and this is the rule we follow. 7. And if he does it against a declaration before witnesses and the serving of due notice, Cascellius and Trebatius think the same; which is true. 8. And Aristo says that force is also used by one who, knowing he will be prohibited, contrives to make prohibition impossible. 9. Again, Labeo writes: "If I prohibit someone from doing something and he desists for the present, and later begins again, he is held to have done it by force, unless he began to do it with my permission or because there happened to be some good cause." 10. But if someone was prevented by weakness or even by the fear of offending you or someone who thinks highly of you, and for this reason did not come to prohibit, his adversary will not be held to have used force; and so Labeo writes. 11. Labeo also writes that even if someone frightened you off (perhaps with arms) without any fraud on my part, when you were wishing to come to prohibit, and because of this you did not come, I am not held to have used force, 116 BOOK FORTY-THREE / AGAINST FORCE OR STEALTH and go on with the repair I had begun. 14. But he will also have to promise a cautio...


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