The actio negatoria[307]
CASE 134
D 8.5.8.5 (Ulpianus libro septimo decimo ad edictum)
Aristo Cerellio Vitali respondit non putare se ex taberna casiaria fumum in superiora aedificia iure immitti posse, nisi ei rei servitutem talem admittit.
idemque ait: et ex superiore in inferiora non aquam, non quid aliud immitti licet: in suo enim alii hactenus facere licet, quatenus nihil in alienum immittat, fumi autem sicut aquae esse immissionem: posse igitur superiorem cum inferiore agere ius illi non esse id ita facere. Alfenum denique scribere ait posse ita agi ius illi non esse in suo lapidem caedere, ut in meum fundum fragmenta cadant. dicit igitur Aristo eum, qui tabernam casiariam a Minturnensibus conduxit, a superiore prohiberi posse fumum immittere, sed Minturnenses ei ex conducto teneri: agique sic posse dicit cum eo, qui eum fumum immittat, ius ei non esse fumum immittere. ergo per contrarium agi poterit ius esse fumum immittere: quod et ipsum videtur Aristo probare. sed et interdictum uti possidetis poterit locum habere, si quis prohibeatur, qualiter velit, suo uti.Translation: (Ulpian in the 70th book of his Commentary on the Praetor’s Edict)[308]
Aristo, in an opinion to Cerellius Vitalis, stated that he did not believe that someone could lawfully send smoke from his cheese factory into higher buildings, unless a servitude to that effect permitted it. The same jurist also said that it was not permissible to let water or anything else fall from a higher floor onto a lower one: for people are free to act on their own premises only to the degree that they do not send anything into the premises of another, such as smoke or water.
Therefore the inhabitant above could sue the one below, alleging that the latter did not have a right to act as he did. He further states, Alfenus writes, that one can sue on the charge that someone does not have the right to chip stone on his own property in such a way that the chips fall onto my property. So Aristo stated that someone who leased a cheese factory from the municipality of Minturnae could be sued by a neighbor who dwelt higher up for sending up smoke, but that the municipality of Minturnae was liable to him on the contract. And he says that in this way it is possible to sue the person who sends up the smoke on the grounds that he does not have a right to send it up. On the other hand, it will also be possible to sue on the charge that one does have the right to send up smoke: which Aristo also seems to have accepted. But the interdictum uti possidetis[309] will also be available if someone is kept from using his property as he wishes.Discussion Questions:
3)"Times New Roman"'> What legal remedies are available to defend against discharges from a neighboring property into or onto one's own property? To what degree must such discharges be tolerated?
4) In which of the following situations can an affected neighbor get relief?
— Titius opens a smithy and hammers there all day long.
— Seius practices his trumpet every night.
— Maevius' rooster awakens the neighbors every day at sunrise.
Compare with this Text:
§ 364 Austrian Civil Code:
1) In general the exercise of one's ownership rights is valid only insofar as neither an interference with the rights of a third party occurs thereby, nor a violation of limitations that are prescribed in laws for the preservation and advancement of the general well-being.[310]
2) The owner of a piece of land can prohibit his neighbor from allowing the effects of waste water, smoke, gases, heat, odor, noise, trembling, and similar things that arise from the neighbor's land only insofar as they exceed the normal measure according to the local circumstances and they actually impair the use of the land that is customary in that place.
Direct discharge [of such substances] without a special legal right is impermissible under all circumstances...§ 523 Austrian Civil Code:
In reference to servitudes there is a double right of suit. One can assert the right of the servitude against the owner [of the servient property], or the owner can complain of the usurpation of a servitude... [311]
§ 906 German Civil Code:
I The owner of a piece of land cannot prohibit the introduction of gases, vapors, odors, smoke, soot, heat, noise, trembling, and similar things that arise from another's land in so far as the effects do not impair the use of his land, or do so only trivially... .
II The same applies insofar as an actual impairment is created by use of the other land in a manner that is customary in the locale and that cannot be prevented by means that are economically feasible for users of this kind. If the owner has to tolerate an effect of this kind, he can obtain from the user of the other land a commensurate compensation in money, if the effect of use of his land that is customary in the locale, or its output, causes an impairment that is beyond the reasonable amount.
III The introduction [of such things] through a special route is impermissible.[312]
§ 1004 BGB
I If ownership is interfered with in some way other than by dispossession or the withholding of possession, then the owner can demand relief from the interference from the person causing the disturbance.
If there is a concern about continuing interference, the owner can sue for prohibition.size=1 color=black face=Georgia>II The complaint is not allowable if the owner is obligated to tolerate [the interference].[313]
Literature:
Watson, Alan. The Law of Property in the Later Roman Republic. Oxford: Clarendon Press, 1968, 177ff.
Rainer, J. Michael. “Die Immissionen: Zur Entstehungsgeschichte des § 906 BGB, in Vestigia iuris Romani: Festschrift für Gunter Wesener zum 60. Geburtstag am 3. Juni 1992, Georg von Klingenberg, ed. Graz, 1992, 358 ff.
D 8.5.17.2 (Alfenus libro secundo digestorum)
Secundum cuius parietem vicinus sterculinum fecerat, ex quo paries madescebat, consulebatur, quemadmodum posset vicinum cogere, ut sterculinum tolleret. respondi, si in loco publico id fecisset, per interdictum cogi posses, sed si in privato, de servitute agere oportere: si damni infecti stipulatus esset, possit per eam stipulationem, si quid ex ea re sibi damni datum esset, servare.
Translation: (Alfenus in the second book of his Digesta)[314]
Someone against whose wall a neighbor had placed a dung-heap, and the wall had become damp, asked how the neighbor could be compelled to remove the dungheap. I replied: if the neighbor has placed the dung-heap on public land, he could be compelled by interdict; if on private land, then one would have to proceed by means of suit on a servitude.
If the neighbor had given a stipulatio damni infecti [“guarantee that no damage will be caused”], then compensation could be obtained from this stipulatio, to the degree that any damage had been caused by the matter.Discussion Questions:
The text is found in Title D 8.5 si servitus vindicetur vel ad alium pertinere negetur (“If a servitude is the subject of a rei vindicatio or that it belongs to another is contested”). Write an exegesis of this text.
Literature:
Watson (Case 134) 177 ff.
Rainer, J. Michael. Bau- und nachbarrechtliche Bestimmungen im klassischen römischen Recht. Graz: Leykam, 1987, 105 ff.
Rainer (Case 134) 365 ff.
Rainer, J. Michael. “Zum Typenzwang der Servituten: Vom römischen Recht zum BGB,” in Collatio ivris Romani: etudes dediees ä Hans Ankum ä l’occasion de son 65e anniversaire, Hans Ankum and Robert Feenstra, eds. Amsterdam: J. C. Gieben, 1995, 417.
D.