Ownership
(1) The Nature of Ownership
Ownership, or dominium, is generally seen as being difficult to define.[811] The Roman jurists themselves said little about it — not surprisingly, given their characteristic focus on practical working out of legal consequences rather than legal theory — although attempts do exist in the later civil law tradition.
One such attempt defines ownership as the ius utendi, fruendi, abutendi: the right of using, enjoying and abusing (including alienating the property).[812] This definition does suffer from the weakness that the owner may not presently have these rights. For example, a tenant occupying the property will have the present right to use the property. It is true that, in that case, the owner will at least benefit from collecting rent payÂments, but if the property is subject to a usufruct[813] then the owner does not even have that. However, by and large, while the owner's rights may be postponed to another person's rights, this is only postponement. If the other person's right falls away, the owner's right will be left. Ownership is the ultimate, residual right, from which all other real rights are derived. In principle, there can only be one right of ownership in a given thing,[814] and no right to use the property will be valid unless it is derived from the owner. Thus, no lease or usufruct or other right of use will be valid if it is granted by someone other than the owner.[815] Only the owner has the right to damage or destroy the property without having to acquire that right from someone else.[816] In the same way, risk of damage to the property ultimately lies with the owner. It is true that that risk may be transferred to another by contract,[817] but then it will manifest itself as an obligation to compensate the owner.[818]None of this is to say, however, that the owner's rights are unlimited, even where nobody else has any right to use the property.
As we shall see below, the owner's rights are restricted in various ways where the owner's actions may cause loss or injury to neighbouring properties.(2) Rights Arising from Ownership
Various rights arose from ownership. In principle, unless someone else could show an immediate right to possession, enforceable against the owner, the owner was entitled to possession of the property. This included the right to use the legal process to recover the property from anyone who was in possession of it without right. An owner was also entitled to things attached to the property and produce derived from the property.
(a) Right to Non-Interference and Recovery
Much as in modern law,[819] an owner who was not in possession had the right to recover the property from whoever was in possession. This was the case even if the current possessor acquired the property in good faith.[820] The right to recover the property was, however, subject to limitations. It is fairly obvious that, if I give you a lease of my land, I am bound by my contract to allow the occupation of that land for as long as the lease lasts, and that I cannot recover the land from you during that time. Equally, if you have a usufruct over the land,[821] I cannot recover the land from you as long as the usufruct lasts. The recovery of property by the owner is considered in more detail below.
Various other remedies were available to an owner to protect his or her interest in the property Some of these are discussed below, as restrictions on the neighbour's rights.
(b) Fruits, Accessories and Pertinents
Ownership of land included anything attached to it, such as buildings and plants.[822] Unlike the situation in modern law, there was no exception for indiÂvidual flats in tenement buildings.[823] The whole building belonged to the owner of the ground underneath, and so the individual flats could not be separately owned. They could certainly be leased, but in Roman law a lease of land was no more than a contract, and could not give the tenant a real right in the property.[824]
An owner also had the right to the ‘fruits' of the property, meaning the proÂduce of the property.
Of course, the right to take the fruits could be given by the owner to another: an obvious example is a tenant of a farm, who will clearly need to have the right to harvest his crop; another example is the holder of a usufruct, who had the right to the fruits of the property.[825] The category of natural fruits included the produce of plants grown on land — apples grown in an orchard, for example — and also plants to be removed from the land on being harvested, such as cereal crops.[826] In the case of animals, their offspring are fruits,[827] as are milk, hair and wool produced by them.[828] There is also a category known as civil fruits, which essentially means rent paid by tenants of land. If I own land, and I lease it to you, the rent you pay me can be seen as a fruit of the land. In this case, though, my right to the rent arises, not from my ownership of the land, but from our contract.A purchaser of land might be entitled to additional things as pertinents to the land, meaning simply things the right to which is carried along with the land. One example of this is the right to enforce a praedial servitude.[829] For instance, if I have a right of way over your land to get to mine, and I sell my land, the benefit of the right of way will pass to the purchaser.
(3) Restrictions on the Rights of an Owner
(a) Interference with Neighbours
In modern law, a general principle has developed that an owner or occupier of land is not to use the land in such a way as to cause an intolerable disturbance to a neighbour.[830] In a very similar way, the ius commune lawyers of the Middle Ages and later[831] developed a concept called aemulatio vicini (often called ‘abuse of rights').[832] The idea of this was that a person was not to be permitted to use his or her property with the intention of harming a neighbour. This principle was received into Scots law, but its scope in modern law is limited.[833]
However, although aemulatio vicini was developed from Roman foundations, it was not of itself Roman.[834] Instead, it is an example of the ingenuity of the ius comÂmune lawyers in adapting the Roman texts to meet their needs.
The Roman law itself had no such general principle. In certain circumstances, for example where a person harmed a neighbour’s property through fault, one of the normal delictual remedies might be available.[835] Beyond this, though, the law regulating neighbourÂhood relations developed in a piecemeal fashion, often through the intervention of the praetor. The result was a range of specific remedies dealing with specific situations, rather than a general principle of not harming or disturbing neighbours.One such remedy was the cautio damni infecti. This was concerned with damnum infectum, or ‘anticipated injury’, which is ‘injury that has not yet happened, but which we fear may happen in the future’.[836] The aim of this was to provide protection to a person concerned about damage resulting from the dangerous state of neighbourÂing property. The individual who feared that damage would occur could apply to the praetor, who would order the neighbour to give a cautio,[837] or undertaking, against damage to the property. The advantage of this was that it was available even where there would otherwise have been no remedy for the damage to the property: in the event of damage, liability would be contractual, based on breach of the undertakÂing. By the same token, though, there was no liability unless the undertaking had been sought and obtained before the damage happened.[838] If the neighbour refused to give the undertaking, the praetor would issue a decree authorising the complainer to enter upon the neighbouring land to take preventive measures.[839]
If the undertaking was given, the neighbour only counted as being in breach if damage happened because of a weakness or defect in the neighbour’s buildÂing. For example, if tiles were blown off by the wind and caused damage after an undertaking had been given, the owner of the building would not be liable if this had happened because of an exceptionally strong wind.[840]
Where it was feared that harm would result from construction work being carried out on neighbouring property, protection could be sought by means of the operis novi nuntiatio, which can be translated as ‘denunciation of new work’.
This procedure was initiated by service of a notice on the neighbour carrying out the work, and the praetor could then order the neighbour to give an undertak- ing[841] that harm would not result. If work continued after the notice was served, the praetor could order the demolition of the work carried out.[842] The wording of the undertaking was such that there would be no liability if the work was lawful.The operis novi nuntiatio was only available where the work complained of was not completed. Where the work had been completed, the interdict quod vi aut clam (‘because of force or stealth') might be available. The interdict instructed anything done by force or stealth, if damaging to the land, to be undone. These terms were interpreted broadly: to do something by force in this context meant simply to do it contrary to a prohibition;[843] to do something by stealth was to do it without giving notice to a person one suspected might object.[844] The requirement for force or stealth meant that, if the work was done openly, it would be necessary to object before the work was complete.
The actio aquaepluviae arcendae (‘action for warding off rainwater')[845] was a very old remedy, existing already at the time of the Twelve Tables.[846] Where the manÂagement of land increased the risk of rainwater running onto neighbouring land and causing damage, the neighbour could sue using this action for the restoraÂtion of the previous position and for compensation for any damage caused. An example given by the jurist Neratius is of a person making a construction to keep out water normally overflowing from a neighbouring marsh. If rainwater then increased the size of the marsh and damaged a neighbour's field, the person making the construction that caused this would be liable under this action to remove it.[847] Liability could also arise from a failure to maintain an existing conÂstruction, such as a failure to keep a drainage ditch clear.[848] Not all constructions gave rise to liability, though.
There was a partial exception for work carried out for agricultural purposes, such as ploughing and the digging of drainage ditches. There is some doubt about the precise scope of this exception, though, as various views are reported in the Digest.[849]We shall see in Chapter 13 a category of rights called praedial servitudes, which are rights held by the owner of one area of land over neighbouring land. An example is the right to cross neighbouring land to get to your own land. Where a neighbour was doing something that could only be done if the neighbour had a servitude, and the neighbour did not have a servitude, proÂtection could be obtained using the actio negatoria, the action for denying that a servitude exists.[850] For example, it appears that the owner of a house had a right to such light as was necessary for ‘reasonable daily use',[851] although a servitude could be acquired to allow a building to block out a neighbour's light. In the absence of such a servitude, the blocking of light could be restrained using the actio negatoria.
(b) Boundary Issues
From early times, the management of the boundaries between adjacent propÂerties was subject to detailed regulation. For example, rules existed prohibiting building close to boundaries.[852] If your tree overhung my house, I was entitled to cut it down; if it overhung my field, I was entitled to cut it back up to a height of fifteen feet. This right appears to have existed already in the time of the Twelve Tables, but the praetor later provided an interdict against you using force to preÂvent me doing this if you did not take care of the matter.[853] The jurist Pomponius said, though, that I did not have the right to cut back encroaching roots,[854] perÂhaps because this would be more likely to damage the tree. If acorns — later interÂpreted to mean any fruits — fell from your tree onto my land, you were entitled to come onto my land to gather them.[855]
Where land was bounded by a river, there seems to have been doubt about the ownership of the river. Certain rivers were considered to be public, meaning at least that the public had use of them.[856] The position in the Justinianic law seems to have been that the river was owned to the midpoint by the owners on either side of the river. This, at any rate, is implied by the rules allocating ownership of dried-up river beds and of islands arising in a river on this basis.[857] On this view, the public would have only the right to use the river, ownership remainÂing private.[858] However, there are also texts suggesting that the public had not only the right of use, but also ownership, of public rivers.[859] In any case, where a river changed its course through gradual erosion and build-up of the banks, the boundary between the properties on either side changed with it.[860] The same was not true of sudden changes, caused for example by a flood. In circumstances of that kind, ownership of the affected land remained unchanged.[861]
Where there was a dispute over the boundaries between two areas of land, the matter could be resolved using the actio finium regundorum (the action for regulating boundaries). This action gave broad powers to the judge to resolve the dispute. Notably, thejudge had the power to adjust the boundary where he thought it appropriate, with any party losing land being entitled to compensation from the party gaining land.[862]
(c) Restrictions Arisingfrom Third Party Rights
In addition to restrictions arising from the nature of ownership itself, an owner's rights may also be restricted by rights held by third parties. For example, if I own
an area of land, and lease it to you, our contract obviously restricts my right to use the land as long as the lease lasts.[863] Again, there are various real rights that an individual may have in another person's property, such as a right of way over a neighbour's land.[864]
(4) Co-ownership
It was possible for two or more people to share ownership of property, whether because of joint purchase or some other reason. It may be supposed that it was particularly common where an owner died, given that a man's[865] children had equal rights to succeed on intestacy to their father's estate. This contrasts with modern Scots law where, until the Succession (Scotland) Act 1964, there was a preference for the eldest son.[866] This preference no longer applies in the modern law.
Common property is dependent on co-operation between the co-owners to make it work. While a co-owner was an owner, and as such was entitled to use the property, this right had to be balanced with the right of other co-owners to do the same. Thus, any co-owner had an absolute right of veto over any building work on the land, as long as the veto was exercised before the building was complete.[867] Equally, no one co-owner could create or discharge a real right affecting another co-owner's share.[868] This restriction arises from the principle discussed above that, generally, nobody can grant a real right in property except for the owner of that property. It follows from that principle that, as owner of only a share of the property rather than the whole property, a co-owner can only create or discharge real rights insofar as they affect his or her own share. In addition, the manner in which the property was managed might also give rise to an obligation to compenÂsate another co-owner when the relationship of co-ownership came to an end.
Roman law gave co-owners an absolute entitlement to end the relationship of co-ownership.[869] For the situation where one of the co-owners wanted to do this, Roman law provided the actio communi dividundo (‘action for dividing common property'). The starting point was physical division of the property.[870] Where this was not possible, for example with a slave or mule, the judge would award the property to one co-owner subject to an obligation to compensate the others. The judge had discretion in how to divide the property. He could divide it as seemed fair and reasonable, with compensation due by anyone getting more than his or her fair share.[871] Alternatively, if any of the co-owners could not afford this, the property might be sold off to an outside bidder and the proceeds of the sale divided.[872] A similar procedure existed for dividing inheritances among co-heirs, the actio familiae erciscundae[873] These actions have been influential on Scots law in this area. In Brock v Hamilton,[874] [875] the Lord Ordinary said: It cannot, indeed, be disputed, in the face of clear authorities, that we have borrowed from the Roman law, and introduced into our common law actions of the same nature and import with those of the Roman law familiae erciscundae and de communi dividundo. Thus, in Scrimgeour v Scrimgeour i"'1 the pursuer sought the transfer to her of her former husband's share of the matrimonial home, in exchange for the discharge of a debt owed to her by him. The amount of this debt was roughly equivalent to the value of the defender's share in the house. Counsel for the pursuer argued that ‘the Scots law on the matter is in fact not just derived from the Roman law but is taken in its entirety from the Roman law'. While not expressly adopting this statement, the Lord Ordinary gave the pursuer the remedy she had asked for. However, some subsequent cases have been more doubtful of whether the court does have any discretion over the form of the remedy given,[876] and so the current position is uncertain. In its developed form, the actio communi dividundo and the actio familiae erciscundae could also be used to consider questions about the rights and duties of co-owners. For example, one co-owner might be found liable to the other for excessive conÂsumption of fruits, or might be judged liable to contribute to necessary expendiÂture incurred by the other.[877] The accounting between the co-owners could also take into account gains taken by a co-owner or damage done to the property.[878] D.