Actor and Defendant in Negatoria Servitutis

L Capogrossi colognesi (rome)

It is well known that both Savigny and Niebuhr associated the origin of the interdictum uti possidetis with the need to give some protection to the posses­sores of ager publicus.

Falcone has thus attempted to resolve the problem concerning the fact that we are informed by both Gaius and Ulpian of the duplex character of uti posside­tis. The jurists relate this dual character to the preliminary discussions about who is the defender and who the pursuer in a rei vindicatio, i.e. which of the two disputants should have the better position as the possessor of the res litigiosa.² It is possible, as Falcone himself points out, that behind the form duplex of uti possidetis Roman jurists also knew a form simplex.³ But even if this is the case it is practically impossible—if we follow classical jurists—for the original form to have been the simplex. For this reason we must keep to the strict association of the uti possidetis duplex with the definition of actor and reus in the Roman vindicatio.

This association is also confirmed by the fact that another interdict, based on the uti possidetis model, the interdictum de aqua, is given in form duplex when used against another riparian owner who wants aquam ducere against the quasi-possessio of a neighbour. But only in this case. In general, both the inter­dictum de aqua and the interdictum de itinere actuque privato were given by the Praetor in the form simplex.⁴

¹ G Falcone, “Ricerche sull'origine dell'interdetto uti possidetis”, (1996) 44 Annali del Seminario giuridico delΓUniversitd di Palermo 5—360, at 143ff.

² cf. G. 4.148: “Retinendae possessionis causa solet interdictum reddi, cum ab utraque parte de proprietate alicuius rei controversia est, et ante quaeritur, uter ex litigatoribus possidere et uter petere debeat”. See Ulpian, D. 43.17.1.3—4. Further, cf. Falcone, supra n.1, 47ff.

³Falcone, supra n.1, 121ff.

⁴ cf. A Ubbelohde, Ausfuhrliche Erlauterung der Pandecten XLIII—XLIV, I (Erlangen, 1889) § 1826b, p. 282 f. (Italian tr. V. Pouchain, Commentario alie Pandette, XLIII—XLIV, 1—2 (Milan, 1899) § 1826b, p.215 ff). The direct association of the interdicts de aqua et de itinere with the uti

The first explanation is quite simple. These interdicts had nothing to do with the problem of defining who, of two opponents, the possessor was, and conse­quently who the actor would be in a formulary trial. In litigation about a ius aquae ducendae or eundi agendi, there was no necessity for the parties to define their positions. For these iura praediorum, unlike disputes over ownership, two opposite actions do in fact exist. As Ulpian in D. 8.5.2pr informs us: “confesso­ria ei qui servitutes sibi competere contendit, negatoria domino qui negat” [“A confessory action pertains to the man who claims that he has a right to servi­tudes, the negative action to the owner who denies this”].

In this passage Ulpian does not appear to have many problems defining the two different actiones which refer to servitudes. But in fact there are questions concerning the quasi possessio of these rights. We read for example in another text by the same jurist, from the same book of his Commentary on the Edict, D. 8.5.6.1 (Ulpian 70 ad ed.):

“in his servitutibus [scil. altius non tollendi] possessorem esse eum iuris (eundem?) et petitorem. Et si forte non habeam aedificatum altius in meo, adversarius meus possessor est: nam cum nihil sit innovatum, ille possidet et aedificantem me prohiheere potest...”

[“As far as these servitudes are concerned, the person who is in possession of the right may also be the plaintiff.

The existing form of Ulpian’s text is not perfect, but the argument of the jurist is clear.⁵ In a servitude altius non tollendi possession is assigned to the dominus of the fundus qui servit, if the building has been raised above the limits. On the other hand possessio is recognised as being of the owner of the dominant land if the burdened property of the neighbour has not been raised above the limits. In the first case an actio confessoria will be given, in the second an actio negatoria.

For this reason possession is also relevant for servitudes, to discover if an actio confessoria or negatoria will be given, and consequently which of the two litigants will be the actor.

I would like to quote, on this argument, an interesting opinion of Scaevola, reported in D. 39.2.45 (12 quaest.):

“Aedificatum habes, ago tibi ius non esse habere: non defendis. Ad me possessio trans­ferenda est, non quidem ut protinus destruatur opus... sed ut id fiat, nisi intra certum tempus egeris ius tibi esse aedificatum habere.”

[“You have a building. I bring an action to deny your right to it. You fail to defend the case. Possession of it must be transferred to me, not indeed for it to be demolished forthwith... but for it to be demolished if, within a fixed period, you do not bring an action to establish your right to have it.”]

possidetis is affirmed in my Struttura della proprieta e formazione dei �iura praediorum’ in eta repubblicana II (Milan, 1976) 368ff, but see, with a different evaluation, G Grosso, Le servitu pre- diali nel diritto romano (Turin, 1969) 179, 305ff.

⁵ cf. A Rodger, Owners and Neighbours in Roman Law (Oxford, 1972) 93.

Here too we are dealing with a servitude altius non tollendi. The discussion con­cerns the problem arising from an offending structure, already built.^[79] The per­son who wants the building to be removed is the pursuer; the defender does not oppose the legal claim.

Ulpian seems to follow the same criteria. The most important of his excerpts on this argument is reported in D. 8.5.8.3 (70 ad ed.):

“sed si quaeritur, quis possessoris, quis petitoris partes sustineat, sciendum est pos­sessoris partes sustinere, si quidem tigna immissa sint, eum qui servitutem sibi deberi ait, si vero non sunt immissa, eum qui negat.”

[“Suppose the question is asked, which of the parties is to be in the role of possessor and which in that of claimant? The answer is that if the beams have already been inserted, the party who is in the position of possessor is the one who claims the bene­fit of the servitude; but if the beams have not yet been inserted, then the man who denies the right is the possessor.”]

This fragment is proof that the problems proposed for the identification of the possessor of a servitude are analagous to those concerning the possession of property.^[80] We are dealing with facts: the material disposal of the res with a cer­tain legal qualification does not differ from the material condition of a paries with or without tignum immissum.

This problem of fact is relevant—as is possessio in order to identify the actor of the vindicatio—to decide if it is an actio confessoria or negatoria servitutis which should be given.^[81]

As I have said, there seems to be no difference concerning the relevance of possession between the vindicatio of property and actiones de servitute. But this conclusion obliges us to consider once more the meaning of the character sim­plex of interdicta de aqua et de itinere. If it is also important—for legal dispu­tation over servitudes—to identify the possessor, and depending on this, the choice between an actio confessoria or negatoria, why is the form of the inter­dict so different from that of uti possidetis?

According to to Gaius and Ulpian the uti possidetis simplex does not allow us to detect which of the two litigants in a vindicatio can be conceived of as the pos- sesor rei, assuming as a consequence the role of defender.

In this case it may be that, in Roman procedure, the identification of which of the two parties was effectively the “possessor”, and consequently which kind of actio (confessoria or negatoria) should be granted, could be realised by means of two different interdicts. To the interdictum de aqua or de itinere actuque pri­vato it is possible that the opponent used uti possidetis simplex. The result was the same as, for technical possessio, the uti possidetis duplex with two spon­siones aimed at identifying the motives of the opponents. However, this hypoth­esis is not confirmed by any element which can be found in Roman legal texts and, in any case, it can be applied only to the older iura praediorum rusticorum.

This solution cannot be followed in all the situations considered by Roman jurists in those texts referring to legitimacy in an actio confessoria or negatoria which I have already quoted (i.e. the iura praediorum urbanorum). We must, however, consider that for all the most important urban servitudes the prelimi­nary litigation on possessio servitutis might not be so important as for iura prae­diorum rusticorum. In these iura, in fact, the existence of opera (the tignum immissum, or altius tollere of D. 8.5.8.3 and 8.5.6.1) was the objective element referred to in order to decide if an actio confessoria or negatoria was to be given and consequently who had to sustain the part of pursuer and who the part of defender. We are dealing with the kind of servitudes which in our civil law per­tain to the category of “servitu apparenti”.^[82] And in the formula of the confesso­ria or negatoria there will be a reference to the opus as the foundation of the actio.

But there is an even more serious difficulty resulting from the more recent iura praediorum rusticorum (though not only from them) in which the servitude consists of a facere of the owner of the land by right of servitude: a ius pascendi, fumi immittendi, harenae fodiendae, etc. In all these cases, as with the other iura in re aliena, particularly the rather old institution of usus fructus,^[83] the exercise of the ius is not protected by an interdict and does not correspond to an objec­tive element such as an opus.

However, it may be that in this field, as in the case of usus fructus, the rele­vance of possession was not so great as in the case of a rei vindicatio.

In modern legal systems, particularly in Italian civil law, there is no longer such a strict relationship between the old actio confessoria and the negatoria servitutis as was the case in Roman law. On the one hand, in our Civil Code, what does exist—concerning a legal claim to a servitude—is a procedure deriv­ing from the Roman actio confessoria by which “il titolare della servitu puo farne riconoscere in giudizio Fesistenza contro chi ne contesta Fesercizio e puo far cessare gli eventuali impedimenti e turbative” (Article 1079, Codice Civile, 1942). On the other hand, the actio negatoria servitutis has now partly changed its meaning and has become a general form of protection of property. In Article 949 of our Civil Code, the owner is given an “azione negatoria” in order to affirm the freedom of his property right from any restraint deriving from the existence of a ius in re aliena (“declare the non-existence of rights affirmed by others in the thing”). This article is part of Chapter IV on “actions concerning defence of property”, in Book III of our Civil Code.

This long story has led to the actio negatoria assuming the physiognomy of a general form of defence of property. Already at the beginning of the last century this character was acknowledged and transmitted to the Pandektenrecht schol­ars of the nineteenth century. For Gluck, for example, only one action referred to a servitude: the actio confessoria; on the other hand, “die Negatorienklage... ist eine aus dem Eigenthumsrechte entspringende Vindication der Freiheit unsers Grundstucks, welche ihren Grund nicht sowohl, wie einige behaupten, in der naturliche Freiheit, auch nicht... in der Verneinung der Dienstbarkeit, son- dern vielmehr... in der Natur des Eigenthumsrechts hat, vermoge dessen der Eigenthuemer seine Sache auf alle mogliche Art gebrauchen, und jedem verbie- ten kann”.^[84] Of the same opinion is Hugo, for whom “auch ist ein Grunde die Eigenthumsklage, womit man die Freiheit des Eigenthums von einer Servitut oder einem Pfandrechte behauptet. In jenem Falle heisst sie die negatoria actio oder negativa actio”.^[85]

But the same author also confirms a widespread opinion which concerns the onus probandi deriving from this actio: “dass der Klager nur sein Eigenthum, und nicht noch besonders die Freiheit Desselben zu beweisen brauchte”.^[86] This is the central core of the problem which we have considered in this chapter. I am referring to the burden of proof and its relation to the possessory position of the litigants.

It is at least possible that there is no great difference between an actio confes­soria or an actio negatoria servitutis. From the beginning of the Historical School, as we have seen, the prevailing opinion was precisely that of consider­ing the burden of proof on behalf of the pursuer in an actio negatoria as practically the same as that which was required for the defender in the opposite actio confessoria servitutis.

This opinion is still predominant among modern scholars. It is enough to quote Bonfante’s statement in his Corso: “the actor has to demonstrate his prop­erty in the thing and the damage undergone, but he is not expected to demon­strate the non-existence of the right claimed”. Any different interpretation is for the author “dogmatically illogical, practically absurd” because it would be necessary to prove the absence of a right of someone, which is practically impos­sible.^[87]

It is strange, but not without significance, that modern scholars have devoted so little attention to the problem of the position of the pursuer in the actio nega­toria. Neither Franciosi nor Biondi, nor the sound and authoritative Grosso, has examined the problem with sufficient attention.^[88] They seem in fact to limit their interest in the subject to accepting the results of the work done by older scholars.^[89] In practice, we have still to refer to the opinions, rather generally expressed, of the last century.

However, this solution explains the irrelevance of the debate on the posses­sory position of the two litigants over a servitude. This is also an important ele­ment which helps us to reconsider the relations between the original model—if it was original—of uti possidetis and the interdicts de itinere and de aqua.

Apparently their simplex nature was aimed at giving effective protection to the exercise of a ius before reaching a permanent result with a petitorium. But if a relation can still be asserted between these interdicts and uti possidetis, we must in that case conclude that, when these new means were introduced into the Praetor’s Edict, probably around the middle of the second century BC,^[90] the uti possidetis was already suitable for protecting the actual possessor against any interference from other people, and not only for defining the position of the litigants.