. This was an action having for its
original object [p. 1.860]
the determination of a controversia de fine,
which was a dispute concerning
the boundary of five feet (finis quinque pedum
interposed between the allotments (sortes
]. According to the law of the Twelve
Tables and the Lex Mamilia, this land on the confines of two holdings, which
was contributed by the adjacent proprietors in equal portions, could be used
by them in common as a way or for turning the plough and for other purposes,
but each was restricted from doing anything in respect of it which might
injure the other, and hence there were provisions against planting trees or
raising buildings on it. If these restrictive conditions were not observed,
or if the limits of the boundary were matter of dispute, the actio finium regundorum
was the appropriate remedy.
The action did not apply to ager arcifinius
land in a town, but only to ager limitatus.
dispute about land which was not a finis
called controversia de loco,
as opposed to
controversia de fine,
and was tried by
means of an ordinary vindicatio.
that, when the subject of dispute was a finis,
a title by usucapion to the land in question could not be set up; but if the
dispute was about land beyond the limits of a finis,
a title by usucapion might be asserted. (Cic. de Legg. 1.2. 1
§ 55; Isidor. Orig.
5.2; Hygin. de
p. 40, Goes.) It was provided by the Twelve Tables that three
should be appointed to try the
actio finium regundorum,
but by the Lex
Mamilia only one was required. (Cic. l.c.:
Theod. 2.26, 3.) Justinian made the finis
subject to the thirty years' prescription, and extended the actio finium regundorum
so as to make it embrace
controversiae de loco
as well as de fine.
Thus the action became the regular means of
trying boundary disputes. In making his award, it was first of all the duty
of the arbiter to find out and re-establish the old boundary (depalare,
cf. C. I. L.
); but if there was not sufficient evidence of it, he was
obliged to treat the land in dispute as common, and to partition it between
them. His adjudicatio
or award constituted a
complete title to the land assigned under it. He might condemn either of the
parties to pay damages for mesne profits and deterioration of land illegally
possessed. Each party was also entitled to compensation for improvements
made in the portion of land which did not belong to him (Dig. 10
). This action belonged to the
class of duplicia judicia.
[FAMILIAE ERCISCUNDAE ACTIO.] (Dig. 10
; Cod. Theod. 2.26; Cod. Just. 3.39
; Rudorff, Ueber die
Gränzscheidungsklage, Zeitschr. für geschichtliche
vol. 10.343 ; Grom. Institutionen in der Schr.
d. röm. Feldmesser,
in the collection of Blume,
Lachmann, and Rudorff, 2.433-445; Karlowa, Beitr. z. Gesch. des