王名扬法国行政法第10卷.docVIP

THE DIGEST OR PANDECTS. BOOK X.TITLE I. CONCERNING THE ESTABLISHMENT OF BOUNDARIES.1. Paulus, On the Edict, Book XXIII.The action for the establishment of boundaries is a personal one; although it is a proceeding for the recovery of property.2. Ulpianus, On the Edict, Book XIX.This action has reference to rustic estates, even though buildings are situated between them; for it does not make much difference whether a party plants trees, or erects a building on the boundary line.(1) A judge is permitted in the case of establishment of boundaries to decide the controversy as seems to him best where he cannot fix the boundaries; and if the judge, for the purpose of removing a doubt of ancient origin chooses to direct the boundaries to be established in a new direction, he can do so in this way, and order a sum of money to be paid by way of compensation.3. Gaius, On the Provincial Edict, Book VII.In any case in which it is necessary that a decision should be made giving the land of one of the parties to the other, the one in whose favor the decision is rendered shall be required to pay to the other a certain sum of money by way of compensation.4. Paulus, On the Edict, Book XXIII.Where a controversy exists with reference to a certain piece of real-estate the land can be divided into shares by means of a decree, in accordance with what the judge finds to be the interest of the parties in said land.(1) In a suit for the establishment of boundaries an account must be taken of the interest of the parties; for example, where anyone obtains some benefit from a tract of land which is ascertained to belong to a neighbor, would it be unjust that payment should be required on that account? Moreover, if a surveyor had been employed by one of the parties, the other who did not employ him would be obliged to pay his share of the compensation.(2) After issue has been joined in a case, account is taken of the profits, for from that time negligence and malice must be made the subject of investigation, but whatever is collected before issue is joined will not, under any circumstances, be considered, for either the party collected it in good faith, and he should be allowed the benefit of it if he has consumed it; or, if he collected it in bad faith, an action must be brought against him for its recovery.(3) Where, however, anyone refuses to obey the judge by cutting down a tree, or removing a building erected on the boundary, or on some portion of it, he will be required to make payment.(4) Where landmarks are alleged to have been thrown down or dug up; the judge who has jurisdiction can hear an application to establish the boundaries also.(5) Where one tract of land belongs to two persons and another to three; the court can adjudge the tract which is in dispute to one side, even though it includes several owners, since where the boundaries of land are established, this is understood to be done rather for the benefit of an estate than for that of a person; in this instance, however, since the decision was for the benefit of several parties, each one will be entitled to the same share which he has in the estate, and which will be held in common.(6) Those who have shares in the common estate will not be liable to payment to one another, for no judicial controversy appears to have arisen between them.(7) If you and I have an estate in common, and I alone own an adjoining tract of land, can legal proceedings be taken by us for the establishment of boundaries? Pomponius states that there cannot, because my joint-owner and myself cannot be adversaries in an. action of this kind, but we are considered to occupy the place of one person. Pomponius also says that even an equitable action cannot be granted, as the party who holds property in his own right can alienate either what he held jointly or severally, and then institute proceedings.(8) An action can be brought for the establishment of boundaries not only between two estates, but even among three or more, as for instance, where one estate and several others, even as many as three or four, are contiguous.(9) An action for the establishment of boundaries can be brought where lands are subject to perpetual lease; or between persons who have usufructs in the different tracts; or between an usufructuary and a mere owner of adjoining land; or between parties who have possession on account of real property given by way of pledge.(10) This action is available where the boundary is between rustic estates; it does not, however, apply in the case of urban estates; for in the latter instance, the parties are not persons who have the same boundary, but they are rather said to be neighbors, and their estates are, for the most part, separated by common walls. Therefore, where buildings are adjoining, even in the country, there is no ground for this action; and, on the other hand, in a city there may be gardens which are contiguous, so that here also an action can be brought for the establishment of boundaries.(11) Where a river or a highway intervenes, it is not understood to be a boundary; hence no suit can be brought for the establishment of a boundary.5. The Same, On Sabinus, Book XV.Because the highway or the river constitutes my boundary, rather than the land of my neighbor.6. The Same, On the Edict, Book XXIII.But if a private stream intervenes, an action for the establishment of boundaries can be brought.7. Modestinus, Pandects, Book X.Arbiters are appointed to determine the dimensions of land; and he who is stated to have a larger part of the entire tract will be compelled to transfer a certain portion to the others who have smaller ones; and this is stated in a rescript.8. Ulpianus, Opinions, Book VI.Where an inundation destroys the boundaries of a field by the overflow of the water, so as to afford an opportunity to any person to seize places over which they have no right; the governor of the province must order that they shall not interfere with the property of others, and that the land of the owner shall be restored to him, and the boundaries be fixed by a surveyor.(1) It is part of the duty of the magistrate in a case involving the boundaries of land to send surveyors, and by means of them dispose of the question of boundaries in accordance with justice, and by examination with his own eyes, if occasion demands It.9. Julianus, Digest, Book VIII.The case for the establishment of boundaries remains for hearing, even though the common owners may have brought an action for partition, or have sold the land.10. The Same, Digest, Book LI.An action for partition among joint-owners or heirs, or one for the establishment of boundaries is of such a nature that each individual party has the double right of both plaintiff and defendant in the action.11. Papinianus, Opinions, Book II.With reference to inquiries as to boundaries, the ancient memorials, and the authority of the census which had been taken before the suit was brought, must be followed; provided it is proved that no changes have resulted through a number of successions, and by the arbitrary acts of possessors tracts of land have been either added or taken away, and the boundaries subsequently altered.12. Paulus, Opinions, Book III.In a question relating to ownership, attention must be paid to those boundaries which a person who was the owner of both tracts designated when he sold one of them; for it is not necessary that the boundaries which formerly separated the two different tracts should be observed, but the descriptions of the adjoining owners must be used to establish the new boundaries between the said tracts of land.13. Gaius, On the Law of the Twelve Tables, Book IV.It should be remembered that in the action for the establishment of boundaries the rule must be observed which, to a certain extent, coincides with the plan of the one which Solon is said to have passed at Athens, which is as follows: Where a party builds a wall adjoining the land of another, he must not go beyond the boundary; if it is a wall built of masonry, he must leave a foot; if it is a house, two feet. If he digs a grave or a ditch, he must leave an open space equal in width to the depth of the same; if a well, the width of a pace. If he plants an olive or a fig-tree, he must place it nine feet from the adjoining land, and in the case of other trees he must leave five feet.TITLE II.CONCERNING THE ACTION FOR THE PARTITION OF ANESTATE.1. Gaius, On the Provincial Edict, Book VII.This action is derived from the Law of the Twelve Tables, for it was considered necessary, where co-heirs desired to relinquish ownership in common, that some kind of action should be established by which the property of the estate might be distributed among them.(1) This action, in fact, can be brought directly by a party who is not in possession of his share. Where, however, he who is in possession of the estate denies that the plaintiff is his co-heir, he can bar him by an exception stated as follows: If the inheritance is not prejudiced with reference to the matter in question. If the party possesses his share, even though it may be denied that he is a co-heir, an exception of this kind will not be a bar; the result of which is that, in this instance, the judge himself who hears the case must determine whether the party is a co-heir or not; for if he is not, nothing will be adjudged to him, nor will his adversary be required to make him any payment.2. Ulpianus, On the Edict, Book XIX.By means of the action for the partition of an estate the latter can be divided whether it is derived from a will or passes by intestacy, and whether the estate is granted by the Law of the Twelve Tables, or by some other law, or by a Decree of the Senate, or even by an Imperial Constitution. Generally speaking, an estate can be divided only between those after whose death an action to recover it can be brought.(1) If a fourth of the estate is coming to anyone who was arrogated in accordance with the Constitution of the Divine Pius, then, because a party of this kind does not become either an heir or the possessor of the property, a prtorian action will be necessary for the partition of the estate.(2) Moreover, if the peculium1 of the son of a family who is a soldier is in question, it can be forcibly asserted that an estate is created by the Imperial Constitutions, and therefore this action will be available.(3) In an action for the partition of an estate, each of the heirs takes the part of both defendant and plaintiff.1 The right of peculium was the privilege granted by the Civil Law to a son or a slave, while under the control of his father or master, to possess and enjoy property under certain restrictions. Every description of property was included under the designation, whether it was real or personal, and whether it consisted of written evidences of debt, rights of action on obligations, bequests or devises. By a strange anomaly of the Roman System a slave, although incapable of the absolute ownership of anything, could hold another slave (known as a vicarius) in in bondage as a part of his peculium.There were many kinds of peculium, whose names were generally indicative of their origin. The peculium profectitium was derived by the son from the father either directly or indirectly; the peculium adventitium was acquired through the mother or anyone else but the father, or was what the child obtained by his own labor or other exertions. Peculium castrense embraced whatever personal effects came into the hands of a minor under paternal control as the result of military service; of which booty taken in war, bequests of comrades in arms, and rewards for bravery, constituted the principal portion. Under the head of peculium quasi castrense were classed acquisitions from professions, and public employments of every kind, excepting those of a military character; such as fees obtained by the practice of law and medicine, the salaries of teachers, and the emoluments of government officials. Peculium militare was a general term including both castrense and quasi castrense; peculium paganum was used to designate both profectitium and adventitium, and was employed in contradistinction to militare.The consent of a father or a master was not indispensable to enable a son or a slave to accumulate or hold peculium as, if it was not specifically stated, it was always presumed. The legal ownership was vested in the person possessing paternal or magisterial authority, and the party under control could not, by testament or otherwise, dispose of any property which was nominally his own, unless his superior had expressly conferred upon him absolute power of alienation. The former was responsible to the extent of the peculium for any contracts or pecuniary obligations incurred, and he was personally liable for the entire indebtedness if he had authorized it, or had, in any way, profited by the transaction.The liability of the master, so far as the business affairs of his slaves were concerned, was an important consideration in the eye of Roman jurisprudence. The pride of the Roman noble would not tolerate his engaging in commercial pursuits, but he was, by no means, averse to the advantages to be obtained from their successful exercise; hence he employed his slaves who were frequently men of fine education and great financial ability to act as his factors and brokers in(4) Again it cannot be doubted that an action for the partition of an estate can be maintained where only a few heirs out of many institute proceedings.(5) Although claims are not considered in this action, nevertheless, if stipulations had been entered into with reference to the division of the same, so that it is settled that each party shall assign rights of action to the other and appoint him agent for the transaction of his business, the division shall be adhered to.3. Gaius, On the Provincial Edict, Book VII.It is evident that it sometimes becomes the duty of the judge to see that different debts and claims are assigned to different heirs in severalty, because it often occurs that the payment or collection of debts to be apportioned among different shares causes no small degree of inconvenience. Still, this assignment does not always have the effect of rendering a single heir liable for the entire indebtedness, or of giving him the right to collect all of it, but the result merely is that if proceedings are instituted, the heir brings them partly in his own name and partly in the capacity of agent; or, where an action is brought against him, he is sued partly in his own name and partly as agent.Although the creditors are fully empowered to bring suit against each individual heir; the latter still have a perfect right to substitute in their places such parties as the order of the court indicates should sustain the burden of the action.the prosecution of mercantile and speculative ventures of every description, which frequently involved the investment, expenditure, and collection of vast sums of money; a large proportion of which was classed as peculium.Even if a slave was manumitted, he was not entitled to his peculium, if his master desired to assert his right; but if while the latter was living he failed to do so, he was understood to have relinquished his claim. In all other instances than those above mentioned, at the death or change of status of the slave, his peculium immediately passed into the possession of his master.The rigor of these rules was considerably relaxed under the Empire. The peculium castrense, established by Augustus, was at the absolute disposal of a son subordinated to parental authority, and this privilege was afterwards extended to quasi castrense acquisitions by Constantine. A Constitution of Justinian permitted a son to own property which he had received or inherited from any relative other than the one to whom he owed obedience, subject, however, to the usufruct of the latter during his lifetime.The Greeks, also, allowed slaves to hold and alienate property, provided they paid a nominal sum annually to their masters; and the latter were compelled to manumit them if they had accumulated enough to purchase their freedom. (Potter, Antiquities of Greece, I, X, page 77.)While the Hebrews were in captivity in Egypt they had cattle of their own, and probably other possessions. (Exodus, IX, 4, 24, 25, 26.)The unrestricted control of the property of a child by its father is established by Mohammedan Law. The father may discharge his personal debt from the property of the minor. The same is the case with pledge. (Syed Ameer Ali, Mohammedan Law, I, XXIII, 3.)According to the rule of both English and American jurisprudence, a child is absolutely incapable of owning property until it attains its majority.The Code of Louisiana permitted a slave to have peculium provided his master gave his consent, but he could not alienate it. If he could have inherited property if free, and if he had free descendants the succession could pass through him to4. Ulpianus, On the Edict, Book XIX.Therefore everything except pecuniary claims are included in this proceeding. But if a pecuniary claim is bequeathed to one of several heirs, the said heir can obtain it by a suit for partition of the estate.(1) Noxious drugs and poisons are embraced in this action; but the judge ought by no means to interfere in matters of this description, for it is his duty to perform the functions of a good and innocent man. He should act in the same manner with reference to books which it is improper to read (for instance, those treating of magic and similar subjects); all of these, however, should be immediately destroyed.(2) Moreover, where anything has been acquired by peculation or sacrilege, or by violence, theft, or aggression, it shall not be divided.(3) The ju