27. FELLING TREES
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128 BOOK FORTY-THREEIFELLINGTREES asked for permission to possess undoubtedly gets possession. It has been doubted whether the person who has been asked is also in possession. But it is settled that a man who has been given by precarium belongs to both: to the one who asked, because he possesses him bodily, and to the owner, because he has not relinquished his possession in mind. 5. In what place anyone possesses or takes possession by precarium is immaterial, as far as concerns the interdict. 16 POMPONIUS, Sabinus, book 32: If I adopt someone who has asked for something by precarium, I shall possess it by precarium too. 17 POMPONIUS, Sabinus, book 23: Anyone who possesses a farm by precarium may avail himself of the interdict for possession of land against all but the person he asked. 18 JULIAN,Digest, book 13: Anyone may give his property by precarium, even if he does not possess it himself, to the person who does possess it. 19 JULIAN, Digest, book 49: Two cannot each have the same thing in full by precarium, any more than can two by force or stealth. For two persons, whether rightly or wrongly in possession, cannot possess concurrently. 1. Someone who asks my slave for something is held to have it by precarium from me, if I ratify this, and therefore will be liable to me under the interdict on precarium. 2. When something has been asked by precarium, we may avail ourselves not only of the interdict but also of a condictio for an unspecified thing, that is, praescriptis verbis. 20 ULPIAN,Replies, book 2: Things that have been sold on the understanding that they are to remain by precarium in the hands of the buyer, until the whole price has been paid, may be got back by the seller if the buyer has deliberately failed to pay up. 21 VENULEIUS, Actions, book 4: When someone asks by precarium that he himself should be permitted to stay in a farm, it is superfluous to add "himself and his household "; for in every case permission to himself is held to mean permission to his household too. 22 VENULEIUS, Interdicts, book 3: If someone who is in possession as possessor has by precarium asked the owner to let him keep the property or someone who has bought someone else's property has asked the owner, it appears that they are possessors by precarium. And they are not to be thought to relinquish possession when the owner concedes possession by precarium to them. For if you have asked by precarium for what you already possess, you are held to stop possessing it on the previous terms and to take possession of it by precarium. On the other hand, if he has asked by precarium the possessor who could withdraw the property from him, he is liable for precarium, because something has come to him through this request for precarium, that is, possession of what belongs to someone else. 1. If a pupillus has asked by precarium without the authority of his tutor, Labeo says that he has precarious possession and is liable under this interdict. For there is no need for the tutor's authority for the pupillus to be in natural possession, and it will rightly be said, "what you have by precarium," because what he possesses he possesses on the terms under which he asked for it. There is nothing new to be settled by the praetor, because either he has the property and will be bound by the decision of the judge, or he has not and will not be bound. FELLING TREES 1 ULPIAN,Edict, book 71:The praetor says: "I forbid the use of force to prevent such a one from removing and having for himself the tree which overhangs his house from your house, if it is your fault that you are not removing it." 1. This interdict is for prohibition. 2. If a tree overhangs someone else's house, should the praetor order its total removal, or only the removal of the part which projects over the house? Rutilius says it is to be cut down to the ground, and many hold this to be the better opinion. 128 BOOK FORTY-THREE/FELLING TREES asked for permission to possess undoubtedly gets possession. It has been doubted whether the person who has been asked is also in possession. But it is settled that a man who has been given by precarium belongs to...