scit se nullum ius habere et utitur.-D. 43, 20, 1. 1, pr. 1, § 19.1 $99. SUPERFICIES AND EMPHYTEUSIS (AGER Superficies is the real right originated by the Praetorian Law of use and disposition, transmissible and alienable, in a building (superficies, -um) or even parts of such building (e.g., stories), erected upon ground (solum) owned by another, or possibly in an already existing building; which has been granted for ever by the ground owner to the person entitled (superficiarius), or indeed for a very long time by way of hire, or purchase perhaps, in consideration of a ground-rent (solarium, pensio)—or gratuitously for a nominal rent. Gai. Superficiarias aedes appellamus, quae in conducto solo positae sint: quarum proprietas et civili et naturali iure eius est, cuius et solum.1. 2, D. h. t. (de superfic. 43, 18). : 2 Ulp. Si quis nemine prohibente in publico aedificaverit, . . si obstet id aedificium publico usui, utique is, qui operibus publicis procurat, debebit id deponere, aut si non obstet, solarium ei imponere vectigal enim hoc solarium appellatur ex eo, quod pro solo pendatur.-D. 43, 8, 1. 2, § 17.3 1 The Praetor says: 'As you during this year have not led the water in question by violence, secretly, or upon sufferance, to prevent your leading it, I forbid violence.'-Aristo thinks he alone has this interdict who supposes he uses it by his own right, not the person who is aware that he has no right, and yet makes use of it. 2 We call buildings 'superficiary' which are situated upon ground hired out, the ownership of which both by civil and natural Law is his to whom also the ground belongs. 3 If a man, without opposition, builds in a public place. but such building interferes with public communication, he that looks after the public works must in any case pull it down, or if it be not an obstruction, must charge a ground-rent upon it; Pt. 1. Ch. I. Id. Qui superficiem in alieno solo habet, BOOK III. civili actione subnixus est: nam si conduxit superficium, ex conducto, si emit ex empto agere cum domino soli potest; sed longe utile visum est, quia et incertum erat, an locati existeret, et quia melius est possidere potius quam in personam experiri, hoc interdictum proponere et quasi in rem actionem polliceri.—l. 1, § 1, h. t.' The ground owner remains also owner of the building, but the right of the superficiary in the § 84, ad init. building ostensibly approaches very nearly to ownership. a ciem. Sed et tradi posse intelligendum est, ut et Sc. superfilegari et donari possit.-Servitutes quoque praetorio iure constituentur.-Ib. §§ 7, 9.2 The superficiary is also protected—even against the ground owner-by a special (quasi-possessory) interdictum de superficie' and an 'in rem actio (utilis rei vindicatio)' conceived in factum.' Ait praetor: VTI EX LEGE LOCATIONIS SIVE CON- this impost being called a ground-rent, because it is paid for the ground. 1 He that has a lease of ground belonging to another is protected by a civil action, for he can take proceedings against the ground owner, if he has hired the tenement, upon the ground of the hire; if he has purchased it, upon the ground of the purchase. But, as it was even uncertain whether a lease existed, and as it is better to be in possession than to bring a personal action, it seemed highly advantageous to offer this interdict, and to promise a real action, so to speak. 2 It [that is, the tenement] must also be understood to admit of being delivered, bequeathed and given. Moreover, servitudes may also be created according to Praetorian Law. 3 The Praetor says: As you by virtue of the contract of lease or hiring have the enjoyment of the tenement in question, BOOK III. Pt. I. Ch. 1. loco publico fruendo? See Anct. Law,' pp. 299, sqq. Superficiario-i.e. qui in alieno solo superficiem ita habet, ut certam pensionem praestetpraetor causa cognita in rem actionem pollicetur. —D. 6, 1, 73, 1.-1. 75 (Paul., Ulp.).' Is autem, in cuius solo superficies est, utique non indiget utili actione, sed habet in rem, qualem habet de solo; plane si adversus superficiarium velit vindicare, dicendum est exceptione utendum in factum data.-1. 1, § 4, h. t.2 A Lease is in itself only an obligatory relation, but the lessees of public lands (agri vectigales) had by Praetorian Law a 'real' right of use, which was transmissible, in the lands let to them, which upon due discharge of the ground-rent (vectigal) was protected a Interdictum de by interdicts," and by an in rem actio against third persons as well as the lessor. The right of the agri vectigalis was next, in the later imperial Law, blended with the right of Emphyteusis, which from the third century came up and was customary in the eastern part of the Empire, and was an hereditary or long lease of uncultivated imperial and fiscal lands, intended to promote their cultivation. The name Emphyteusis was transferred to all grants of civic, municipal, ecclesiastical and private lands; and the contract of hereditary lease was declared by an ordinance of Zeno to be a peculiar contract, alike different from Lease neither by violence, nor covertly, nor upon sufferance the one from the other, to hinder such enjoyment, I forbid violence; if any other action shall be asked for concerning a tenement, I will grant it after inquiry into the matter.' 1 To the superficiary, i.e., the person who possesses a tenement upon ground belonging to another in such way as to pay a fixed sum for it, the Praetor promises a real action upon investigation of the matter. 2 Now the person upon whose ground the tenement is does not at all need an analogous action, but he has the same real action as in respect of the ground. Certainly if he desire to bring the proprietary action against the lessee, we must state that the latter will have to employ a plea granted in factum. and Purchase, which point earlier on had been subject Book III. of dispute. The Emphyteuta has juristic possession of the land and can dispose of it as owner, only that he may not deteriorate it, has to pay the taxes charged upon it, and is in particular obliged to pay the owner an hereditary rent (canon, pensio), in default of payment of which for three years, the owner can dispossess the Emphyteuta (right of ejectment). If the Emphyteuta alienates his right, the owner has a right of preemption. Agri civitatum vectigales vocantur, qui in perpetuum locantur id est hac lege, ut quamdiu pro his vectigal pendatur, tamdiu neque ipsis, qui conduxerint, neque his, qui in locum eorum successerunt, auferri eos liceat.-§ Qui in perpetuum fruendum conduxerunt a municipibus, quamvis non efficiantur domini, tamen placuit competere eis in rem actionem adversus . ipsos municipes:-ita tamen, si vectigal solvant. —D. 6, 3, l. 1 (Paul.), l. 2 (Ulp.).' Gai. iii. § 145: in quibusdam causis quaeri (solet), utrum emptio et venditio contrahatur, an locatio et conductio: veluti si qua res in perpetuum locata sit, quod evenit in praediis municipum, quae ea lege locantur, ut quamdiu id vectigal praestetur, neque ipsi conductori neque heredi eius praedium auferatur; sed magis placuit locationem conductionemque esse." 1 The lands of civic communities are called stipendiary which are leased in perpetuity, i.e., upon the condition that as long as a tax is paid for them, so long neither they themselves who have taken such lease nor their successors shall be deprived of them. § They that have taken a lease of the perpetual enjoyment of estates from a corporation, although not becoming owners, it is held possess the real action against the corporation itself, yet only if they discharge the rent. 2 In some cases it is a matter of doubt whether a contract of buying and selling or of letting and hiring is made. For example, if any property has been leased in perpetuity, as happens Pt. I. Ch. I. BOOK III. Pt. I. Ch. I. a Markby, Scrutton, p. 157. b But cf. § 103 Bocth. in Cic. Top. 10. Iust. iii. 24, § 3-lex Zenoniana lata est, quae emphyteuseos contractui propriam statuit naturam neque ad locationem neque ad venditionem inclinantem, sed suis pactionibus fulciendam,1 LAW OF PLEDGE." § 100. NATURE AND HISTORY OF THE PLEDGE-RIGHT. The ius pignoris is that right in a thing owned by another which belongs to a creditor, providing security for his claim, by virtue of which he can upon nonperformance sell such thing, and can reimburse himself out of the purchase-money. It is essentially distinguished from the other iura in re aliena by the fact that (1) it assures to the person entitled a merely transitory, partial control over the thing without right of user-or the privilege of transferring the ownership by sale of the thing-with the full exercise of which it is itself extinguished; that (2) by the latter step it destroys the proprietary right itself; and that (3) it is an accessory right, i.e., one existing on account of the claim.b The institution of real security of claims by an object of ownership (pledge-right, pignus in the wider sense) mortgaged to the creditor as an eventual means of satisfaction, was by the Roman Law developed in three different stages and forms: interim ownership, juristic possession, ius in re. The oldest form of security is the FIDVCIA, i.e., the in the case of estates of corporations which are leased upon the condition that as long as such rent is paid, the estate shall not be taken away from he lessee himself nor his heir. But the prevailing view is that this is a letting and hiring. 1-the l. Zenoniana was passed, which settled that the contract of emphyteusis had a special character, and did not approximate either to Hiring or to Sale, but should rest on its own agreements. |