Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

96 LAW OF PROPERTY

recorded are of lands which were technically the property of the State, though in the hands of possessores holding, in practice permanently, but technically at the will of the State. Augustus hesitated to expropriate for public utility at the height of his power.1 What looks like a case, the Senatusconsult of 11 B.C. dealing with aqueducts,2 is explained as creating certain general restrictions on ownership for the future, in the neighbourhood of aqueducts. Even the later Emperors expropriated sparingly.3 Moreover, there is a difference between the supreme legislature and an executive department, and it does not appear that any magistrate or official had the compulsory powers which are vested in so many subordinate authorities in our law. On the other hand necessity and utility are different things, and there is no doubt that officials of various classes had large powers of destruction of property for religious, military or police purposes. The aediles destroyed to check a fire. The augurs ordered the destruction of houses which obstructed the auspices. But these and similar cases are all of overriding necessity.

A much discussed problem is that of abuse of right, opinion being divided on the question whether any rule on this matter existed in the Roman law. There are in fact two distinct questions. The first is whether there were in Roman law, in any relations, specific rules which can be construed as making abuse of right an actionable wrong, abuse of right meaning exercise of proprietary rights with intent or knowledge that the exercise will do harm to some other person or his property without any economic benefit to the doer. The answer is that there were such rules, i.e. rules which can be so understood. Thus in regard to an enactment of Antoninus Pius protecting slaves against cruel masters we are told, as a reason for the rule, that we

ought not male uti our right.x And elsewhere we are told that a bonafide possessor compelled to give up the property may take away (jus tollendt) what he has added, so far as the property is not damaged, but not merely to gratify spite and without benefit to himself.2 In these cases there is no application of a general recognised rule. There are a few others of the same kind, but in all of them, as here, the moral reason is given as a justification of a specific rule, and not as a general principle of law. Out of them a general rule might have grown, but there is no evidence that it ever did. There is another group of texts dealing with rain-water, streams and percolating water, in which we are told that the landowner may act in such and such a way, but with the restriction that he must not do it merely to injure his neighbour, the restriction being often, but not always, the work of Justinian's compilers.3 Of these the same may be said: the restriction expresses this moral principle, but no more, and in some of the cases it is clear that the rule was originally stated without this reason for it. But there is another fact which makes these texts unconvincing for the purpose of establishing such a rule. In all these cases it is not a question of a man's dealings with his land as such; it is of his dealings with flowing water on his land. Now in Roman law it is clear that flowing water, whatever its source, is not the subject of ownership: the landowner may use it for his own economic purposes but no more. If he does more he is not abusing his right but exceeding it, and he will be liable to an action if by so doing he prevents his neighbour from getting benefit out of it, or causes it to

law, based on the XII Tables (Bruns, Fontes, p. 26), was that nothing affixed to a building could be removed. The ius tollendi in the circumstances indicated in the texts is an equitable relaxation where the strict legal rule would do injustice or hardship, and is thus limited to what is necessary to prevent this hardship. It has nothing to do with 'abuse of right*.

3 E.g. D. 39. 3. 1. 11; 2. 5; 2.9.

such interferences and, if intentional, would give rise to an actio iniuriarum. But the title on this delict1 gives no hint of such a thing.2 There is indeed one branch of the law, not concerned with property, in which there is such a rule —the law of actions. Abuse of process, the wilful bringing of an unfounded action, created a liability to the actio calumniae for a penalty.3 But this liability seems to have rested on an express provision of the Edict and thus to be of itself evidence against any general principle.

Modern systems of Roman law4 have dealt with the matter in different ways, but have in general accepted from the medieval lawyers the principle that abuse of right is an actionable wrong. Our English common law seems to take the same view as the Roman. There is no general principle of abuse of right, and in the sphere of the law of property some glaring instances can be found of the exercise of rights in order to injure a neighbour or to blackmail him into buying out the perpetrator.* But outside the law of property there are at least two kinds of abuse of legal rights which the common law will not tolerate. In the first place, abuse of process is with us both an actionable wrong and a crime, at least certain forms of it are.6 But the lines are not those of the Roman law of calumnia. It does not seem that in our law the bringing wilfully of an unfounded civil suit is an actionable wrong, except in the case of malicious bankruptcy or liquidation proceedings, though a malicious criminal prosecution, at any rate of a

he was acting in good faith. See G. 4. 174 sqq.; Inst. 4. 16. 1; Buckland,

Text-took, p. 641.

4 Gutteridge, 'Abuse ofRights', Cambridge Law Journal, v(i933),p.22. 5 Mayor of Bradford v.Pickles,[i$<)$]A.C. 587, where Lord Halsbury L.C. said (p. 594): 'if it was a lawful act, however ill the motive might be,

he had a right to do it/

6 See Winfield, History of Conspiracy and Abuse of Legal Procedure and Present Law of Abuse of Legal Procedure.

kind which involves scandal, and under certain conditions maliciously procuring a person's arrest, are actionable in our law.1 On the other hand it does not seem that mere maintenance, i.e. without personal interest or personal tie supporting the cost of a piece of litigation, or even champerty, was an actionable wrong in Roman law. For the Edict on calumnia which penalises the receiving of money as a consideration for stirring up trouble, or refraining from doing so, calumniae causa* seems to be aimed at blackmail. In the second place, the existence of malice, which in this connexion means some dishonest or improper motive, may deprive a defendant to an action for defamation of the defence of qualified privilege or of fair comment, or may render actionable, as slander of title or slander of goods, an untrue and disparaging statement regarding the property of another. Moreover, it has recently been confirmed that conduct by a neighbour which is objectively reasonable may become subjectively unreasonable, and therefore a nuisance, if done maliciously, i.e., with a desire to injure.3 Since the nuisance amounted to taking the law into one's own hands, the case is not easily reconcilable with Pickles' Case (see p. 99, ante). It may be only the first of a number of distinguishing' castes.

In the United States, where the social ends which law should seek to attain have perhaps received more attention from legal writers than they have in this country, and where much more weight is in fact attached to the writings of distinguished lawyers than our Courts allow to them, there seems to be a distinct tendency towards recognition of abuse of right as a tort. This tendency to diverge from the common law seems to manifest itself mainly within the sphere of property relations, but with great variety of judicial opinion. Thus Professor Ames tells us4 that in

1 Winfield, Present Law, cit. p. 202. a D. 3. 6. 1. pr.

3 Hollywood Silver Fox Farm Ltd. v. Emmett, [1936] All E.R., 825.

4 Ames, Lectures on Legal History, republished 1913, pp. 403 sqq.

thirteen out of fifteen jurisdictions in which the question has arisen ' the malevolent draining of a neighbor's spring is a tort', but that in six out of ten jurisdictions actions 'brought for the malevolent erection of a spite fence* have failed. He adds that 'in at least six States statutes have been passed making the erection of spite fences a tort'. The enactment of such statutes with a limited aim seems to negative the notion of any common law of abuse of right for these jurisdictions. But it seems that at common law also the notion is constantly gaining strength.1

The maxim 'cuius est solum, eius est usque ad coelum' does not occur in the Roman texts though it is found in the gloss,2 from which our law seems to have borrowed it. But the Roman law took the principle of the maxim in some respects more seriously than we do, though there is little mention of the higher reaches of the air, for the reason that, for the Romans, no question could arise as to these. The later addition 'et ad inferos' (it is perhaps suggested by the casus prefixed to the gloss on C. 3. 34. 8) certainly represents the Roman law; for, apart from the facts that most mining areas were the property of the State, and mining in Italy was restricted, possibly for political reasons,* it is clear that minerals were the property of the owner of the land, though, as we have seen, he could be compelled, subject to a right to royalties, to permit a lode to be followed under his land. But a very important difference between the Roman law and ours is that the Roman law totally excluded superimposed freeholds. They present no difficulty with us. The possibility is clearly laid down in Coke on Littleton4 and the thing exists in various places, notably on the south side of New Square, Lincoln's Inn. The houses here consist of layers

1Prosser, Handbook of the Law of Torts, pp. 27-33.

2McNair, Law of the Air, ch. ii.

3 Daremberg et Saglio, Diet, des Antiq. iii. 2, p. 1870. 4 Sect. 48 b.

of freeholds, sold as such, by the Inn, many years ago. There is of course a very complicated system of covenants under which the owner of one layer is bound to support the layers above. There is, perhaps, a hint of the same thing in one Roman text,1 but, if so, it is only to be rejected. It seems to have existed in some Eastern communities,2 but in the Roman law itself, if the surface was vested in one and the soil in another, the surface right was merely a praetorian ius, the ownership being in the dominus soli.

6. TRESPASS

It is further to be noted that trespass to lands was not an actionable wrong in Roman law: the owner had a right to exclude, and to remove, a trespasser, but no more. If, however, he had expressly forbidden entry or if it was an enclosure, such as a dwelling-house, into which everyone knew that free entry would be forbidden, the entry would in the law of the Empire be an actionable wrong. But it is a wrong against personality, not against property. Under the wide conception of insult, outrage, which had then been reached, any wanton and wilful interference with a man's rights was an actionable iniuriaZ There was no ownership in wild animals and thus, as there was no law of trespass and no special game law, if a man entered my land and trapped game there, I had no claim to it; and, so far as the question of property was concerned, the result was the same even though the land was an enclosed wood, unless indeed it was an actual vivarium^ in which case the animals, while still in my control, were private property.4 There is thus no room for the complex doctrines which have been developed in our law as to the property in wild

1 D. 6. i. 49.

4 D. 41. 2. 3. 14; 41. 1. 55. The common law of Scotland follows the Roman in this matter, Bell's Law of Scotland, sect. 1288. The law of trespass is a very unimportant matter in Scotland; indeed it hardly exists.

TRESPASS IO3

animals killed on another's land.1 But our law as to wild animals is fundamentally the same as the Roman, and is probably derived from it.

In like manner, though the wilful taking in bad faith of a man's goods might be, and usually would be, actionable civilly as a theft,2 taking in good faith, however wrongfully, was not in the Roman law in itself an actionable wrong; whereas in the common law a wrongful taking of the goods of another, whether by mistake or, unless necessity can be shown, even from a praiseworthy motive, is an actionable trespass.3 If, in the Roman law, the taker thought, wrongly, that it was his own, or that he had some right in it, e.g. a usufruct, so that he would be entitled to possession or quasi-possession, the remedy against him was a real action for the recovery of the thing or the usufruct. If the right which he supposed himself to have did not involve possession, e.g. he thought the owner had lent him the thing (for an ordinary bailee, other than a pledgee, had no possession in Roman law), and he returned it on demand, no action lay for the intervening enjoyment. If he did not so return it, even though he might still be in good faith, a real action lay for the thing.* If he claimed that it had been lent him by a third person, or if indeed it had been so lent, the result was the same, though, in the last case, in classical law, the real action would be against the lender.

7. COMMON OWNERSHIPS

The first point to note is that the Romans had really only one kind ofcommon ownership. It was immaterial whether it arose by universal succession or in any other way. The principal remedies were different, but the main principles

4A fortiori from D. 41. 2. 20, 47.

5See especially Riccobono, Essays in Legal History, ed. Vinogradoff, Oxford, 1913, pp. 3 3 sqq.; Bonfante, Corso, ii. 2, ch. xx, with full discussion of current theories as to the Roman conception of the institution.

were the same. Thus the complications introduced into our law by the conception of joint tenancy, tenancy in common, coparcenary and tenancy by entireties had for them no existence. While with us the joint tenant has an interest'per my et per tout'1 and a tenant in common owns only an undivided share and is not potential owner of the whole, the Roman common owner was thought of originally, and probably in classical law, as having a potential ownership of the whole.2 It is however still matter of controversy whether this is properly contemplated as a number of distinct ownerships of the whole, cut down by the existence of the others, or as a number of partial ownerships, each extending over the whole, or as one ownership of the whole shared by all.3 Of these views the first seems preferable, but it is clear that Justinian has altered some texts, by no means consistently, in such a way as to make the coowner owner only of a part.

In our law the question of the correct analysis of any given case of common interest in property might be put in the form: If one of the parties wishes to transfer his interest to another of the parties, does he release his interest or does he convey it? A joint tenant releases, a tenant in common conveys. In Roman law a common owner desiring to transfer to another common owner did so by an ordinary conveyance, as to a third party.4 If he desired simply to pass out of the community the machinery of the actio communi dividundo would be invoked. The index would 'adjudicate' the whole of the property to the other co-owners and award a money payment to the party ceasing to own.

1 Which probably means in Coke's phrase (Co. Litt. 186 a) 'totum tenet et nihil tenet', 'my' or 'mie' having nothing to do with moiety, but meaning 'not in the least' (Daniel v. Camp/in (1845), 7 M. and G. 167, 172 n.; Murray v. Hall (1849), 7 C.B. 441, 455 n.).

2See, e.g., D. 32. 80.

3For these and other views, Bonfante, loc. cit.

4Arg. C. 4. 52. 3.

As in our joint tenancy, there was a right of accrual, but it was very different and less extensive. On the death of a common owner his inheritance represented him and took his interest: it was only where the right of a successor did not arise that there was accrual. This might occur, e.g., where one of two owners purported to manumit a slave: his right accrued to the other, though Justinian did away with this in a way which shows that he was more concerned with favor libertatis than with any theory about common ownership.1 It might occur where one owner abandoned his share.2 It arose where one legatee refused or was unable to take his share of a legacy left by direct gift (per vindicationem) to two or more,3 probably also where one died without a successor, and indeed the rule is illustrated in many other ways.4

There were no necessary 'unities* in Roman law, though the unities of time, title, interest and possession existed in fact on the occurrence of joint succession. Any co-owner could alienate his share and be replaced in the community. The shares might be entirely unequal, and as there was no limited ownership the point of unity of interest could not arise.

The fragment of Gaius discovered in 19335 has shown us that in the primitive law of joint succession the theory that each owned the whole was carried so far that any one of the 'family heirs' could alienate an object in the succession. But in the law of historical times this has disappeared : as in our law, no common owner could effect an act of disposition affecting the whole, e.g. alienation or creation of a servitude, without the consent, indeed the

1 Inst. 2. 7. 4. * D. 41. 7. 3./>r. 3 G. 2. 199; Ulp. Reg. 24. 12.

4 The ius accrescendi between coheredes was not an accrual of property. 5 For the editions and literature see De Zulueta, Journal of Roman

Studies, 1934, pp. 168 sqq. and 193 5, pp. 19 sqq. The fragment in question is now printed as sects. 154a and 154b of Book iii in De Zulueta's edition of the Institutes of Gaius.