Ill RELATIONS WITH NEIGHBOURS

i.    Boundaries

A fertile area for dispute between neighbours was the question where the boundary between their respective properties lay.

69 had already provided an action for this, the action for regulating boun­daries (actio finirm sigredosrm; table 7.2; Gaius, D. 10.1.13). Where the boundary was simply unclear or there was a dispute about the owner­ship of land at the boundary, either neighbour could raise this action, and the judge would adjudicate on where the boundary lay. The conse­quence of his judgment might be to vest ownership in one neighbour and divest the other.

2.   Sirvitrdis

Roman law recognized a limited class of servitudes (sesvitrs), rights in the property of another. The most typical example is a right of way across a neighbour's land. Of course, it was always open to the landowners to enter into an agreement that one could cross the land of the other and, if made in the proper form, it would be enforceable in contract. But such an agreement would bind only those who were party to it; and it would therefore immediately cease to be of any value if one of the landown­ers sold his or her land to someone else.

To overcome this insecurity it was essential that the right of way be a right not exercised against a specific person (who might change) but against a specific piece of land. This, broadly speaking, is what a servi­tude is: a right ii^There were some more general remedies too.

(1)   Where a neighbour wrongfully caused physical harm to property, it might be possible to make use of the ordinary action for damages for negligently causing harm (which of course applied in many contexts other than this), the actio legis Aquiliae. But this was not altogether straight­forward. It was necessary, in the first place, to prove that the defendant had caused the harm, and some jurists took a strict line on this. So, for example, Labeo took the view that if someone piled up earth against his neighbour's wall, the earth was soaked by constant rain, and this caused dampness in and the eventual collapse of the wall, the neighbour was not liable under the lex Aquilia, because it was not the neighbour's act (the piling of the earth) but the dampness percolating from the pile which caused the loss (Iavolenus citing Labeo, D. 19.2.57).

An even more serious restriction on this remedy was that it was appar­ently a good defence to the action that the loss resulted from the normal use of property. This seems to be the reason why the jurist Proculus said there was no liability when the heat from a neighbour's oven, which was placed against a common wall, had damaged the wall (Ulpian citing Proculus, D. g.2.27.10).

In short, this remedy depended on showing that the neighbour was at fault, but fault required that he was doing something which was not a normal use of his property. That might not be at all easy; and the prob­lems this might raise seem all the more serious on reflection that Roman housing was not zoned or neatly divided into residential and commer­cial areas, but baths, bakeries and commercial enterprises (perhaps even cheese factories: see below) might for m |:m i of the same buildmg (Wallace-Hadrill iggq.: 131—4).

There were however certain remedies which made it possible to prevent a neighbour making even an ordinary or normal use of his prop­erty. These were available in highly specific circumstances. Some of the remedies were peculiar to rural use and others to urban.

(2)   The ‘action for warding off rainwater' (artio aquae pluviae arreadae) imposed liability for damage caused by rainwater in very specific circum­stances: the defendant had to liofe buili a cocsttrction woidi caused rainwater to harm the plaffin'stiland. The rationale of this action was the protection of agricultural land. It was therefore available only for harm done to land, not to buildings; and for the same reason some types of construction did not give rise to liability, notably works built for agri­cultural purposes. If the defendant lost the action, judgment was given for a sum of money, but the formula in the action was devised so as to encourage the defendant to remove the offending construction rather than pay the money. (More detail on this point is given in chapter 6.)

This action already existed at the time of the Twelve Tables, in the middle of the fifth century bg (Pomponius, D. 40.7.21 pr.). Since Roman society at that time was overwhelmingly agricultural, the fact that this action appeared so early is unsurprising. The exception made for con­structions built for agricultural purposes also makes good sense, although from when it dates is unclear.

It is remarkable that, although some early jurists such as Trebatius took a broader view, the classical notion of the scope of this action was rather naarow: it was; riggdly confined to ‘rainwater', so if the complaint was about polluted or hot water, the action was not available (Ulpian citing Trebatius, D.

73 was that his neighbour had intercepted his water supply, although it might be thought that this was a potentially serious cause of action (Ulpian, D. 39.3.1.11—12, 21; Paul, D. 39.3.2.9). Only if a servitude right to the water existed would an interdict be available for this sort of infringement (Ulpian, D. 43.20.1.7 and 1.19).

It is true that some of the texts just referred to suggest that there might have been a remedy had the neighbour's motive been malicious. But it is doubtful whether this represents classical law. It would anyway be difficult to prove that a neighbour's activities on his own land were so lacking in any possible utility to him that they must have been motivated purely by malice.

(3)   An important remedy, probably of greater importance in an urban environment, was known as damnum infectum. Gaius defines this as ‘loss which has not yet occurred (nondum factum) but which we fear will occur' (D. 39.2.2). The importance of this remedy was — as the name suggests - that it allowed protection to be sought against the threat of future loss. Again, this protection was available in very specific situations, that is, where a person anticipated suffering loss in the future from a neighbour's building, site or work of construction which was in danger of collapse. The threatened neighbour could seek a promise (cautw) from his neigh­bour that he would indemnify him in the event of loss; and the praetor exercised measures to attempt to compel the giving of the promise.

Although it is not altogether straightforward to reconcile the texts in the Digest, it appears that the provisions for damnum infectum were aimed at restricting what would otherwise have been legitimate activities on an owner's own land.

The importance of this remedy lay in the fact that there was other­wise no clear entitlement to claim if a building collapsed owing to its owner's faiiure to maintain it: to make a case under the /ex Aquilla would be difficult, since there was not normally liability for the consequences of omissions. In short, everything turned on obtaining the promise in advance of the damage (Gaius, D. 39.2.6). Even so, liability under the promise would be triggered only if the loss was caused by a fault in the building or construction and not, for instance, by violent storms or by someone's negligence (Ulpian, D. 39.2.24.7 and 10).

Although the circumstances in which liability could be brought home

to the owner of the moribund property were therefore limited, none the less this device, of inducing its owner to undertake contractual liability for the loss, filled what would otherwise have been a serious gap in the law. For example, the case mentioned above of the wall collapsing owing to the penetration of dampness could have been solved in this way (Alfenus, D. 8.5.17.2).

(4)   Related to, and sometimes overlapping with, damnum infectum was operis novi nuntiatio, a term which may be inelegantly translated as the ‘denunciation of new work'. This was the remedy where the com­plainant's concern was that he would suffer harm from new construc­tion which his neighbour was undertaking on his own land. The sort of harm relevant for the purposes of the remedy were such things as encroachment onto or emissions into the complainant's own land, infringement of a servitude, damnum infectum, or incompatibility with building regulations (Ulpian, D.

Since there might well be urgency about these proceedings, they were extremely informal: the noticc was a private notice which had to be served o1 the plape whowe the build ing win takins place an p must mdco it clepr exacffy whwt ronstrnattgh ohere wae hwang npmgloinra o1 (Ulpian, D. 39.1.5.3-4, 15). At this stage the complainant did not need to demonstrate any right to prohibit the work. That became material only at the later stage if the respondent sought to have the order set aside. In effect, therefore, the serving of the notice made it clear to the builder that, if he persisted in building, he did so at his own risk and might be required to demolish what he had built.

This remedy too therefore offered a neighbour some protection against unwelcome activity taking place on someone else's land. Its scope was somewhat broader than damnum infectum, but it was confined to building work which was still under way.

(5)   On the other hand, if the building had already been completed, another remedy might still meet the case. This was the general interdict quod vi aut clam, named after its opening words (‘what by force or stealth...'). In essence this forced people to give notice to their neigh­bours if they intended to build anything which would either encroach onto the neighbouring land or would obstruct the neighbour's use of a

75 servitude over their own (i.e. the builder's) land. The interpretation given to the terms ‘force' and ‘stealth' was rather broad: vis did not in fact require any force at all but simply that the work should be done contrary to a prohibition, while for something to be done clam it was necessary only that it be done without giving notice. The usual reason for not giving notice would of course be that the person notified would object. It was not enough simply to indicate generally that work would be taking place: it was necessary to indicate when, where, and what was ta be con­structed. If the work was done by force or stealth in these broad s of the words, then the complainant could obtain this interdict from praetor ordering tim removal of the work.

These proceedings did not go into the question whether the res dent to the interdict might be entitled to do what he had done:t that it I mid b cow node by borcf oc stealth was sufficient ground for the thing complained of to be removed.

(6)   Unusual servitudes. As we have seen, servitudes could be used to adjust neighbours' respective entitlements to light, or to discharge rain­water, and so forth. What is much less clear is whether servitudes were extended to deal with other potential inconveniences of urban life. A well-known text in the Digest deals with the sufferings of those whose houses were near premises on which a particularly noxious smoked cheese was produced.

Aristo gave an opinion to Cerellius Vitalis that he did not think that smoke could lawfully be discharged from a cheese factory into the buildings higher up unless they are subject to a servitude to this effect. He also says that it is not permis­sible to discharge water or any other substance from the upper onto the lower property, as a man is only allowed to carry out operations on his own premises to the extent that he discharges nothing onto the property of another; and the emission of smoke is just like that of water. The upper proprietor can therefore bring an action against the lower one asserting that he has no right to act in this way He reports that Alfenus writes that an action can be brought alleging that a man does not have the right to hew stone on his own land in such a way that broken pieces fall onto the plaintiff's land.... (Ulpian, D. 8.5.8.5)

This is one of very few texts in the Digest suggesting that, by analogy with emission of water, emission of other substances such as smoke or steam might be regulated by servitude. Another text, also setting out the views of an early jurist, suggests that there might be a servitude allow­ing one person to emit dampness into a neighbour's wall (Alfenus, D. 8.5.17.2). But there is no more evidence of this for classical law. If, however, such things could be regulated by servitude, that is clearly

Property

significant. Yet there would be no automatic protection against all fumes or ann dampness: proteetion going geyond a normal and reasdnable level would h ava: to be be ncgaUnecO as a seevitode  end sh an

unusual rebsitivity trwordo fumus might grove expensive;. There is sis suggestion in any of the Sexlt     tcate aoulb be restrained in any sucS

way.

Some conchiswns

The maos obv^^ co nclutern Os thst tha law re lhow Roman businesses may have been organized: what sort of labour they used; and how they attempted to limit their liability. It con­cludes with the law of insolvency.