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SUPERFI´CIES

SUPERFI´CIES, SUPERFICIA´RIUS, The doctrine of the civil as of our own law, in respect of things attached to the soil, was that they became part of the soil itself, and so the property of its owner: “superficies solo cedit” (Gaius, 2.73); “omne quod inaedificatur solo cedit” (Inst. 2.1, 29). Hence, if A built on the land of B, he had no remedy against the latter if he claimed the land by. vindicatio, unless he was, in bonâ--fide possession of it himself, in which case, by entering the plea of dolus malus, he was entitled to retain possession until B would indemnify him for the expense of building it (Inst. ib. 30). If the land were built on land held under a lease, it acquired the name of Aedes Superficiariae (cf. Cic. Att. 4.2, “superficies aedium:” ), but was in no, way excepted from the general rule. “Both by Civil and Natural law,” says Gaius in Dig. 43, 18, 2, “it belongs to the landowner;” though, if ejected against the terms of his agreement, the builder might of course obtain damages against the latter, but not restitution, by actio locati. But owing to historical reasons, as will be seen below, this species of interest became especially common at Rome; and where the right had been conceded by the landowner in perpetuity, or at least for a very long term,, the praetor gave it a “real” character by entitling the person to whom it belonged both to real actions and, to interdicts; a change based, according to Ulpian, on considerations of public policy: “sed longe utile visum est, quia et incertum erat, an locatio existeret, et quia melius est, possidere potius quam in personam experiri, hoc interdictum perponere et quasi in rem actionem polliceri” (Dig. 43, 18, 1, 1). The ownership of the proprietor of the soil was not. called in question, but superficies, the interest of the other party, acquired the character of a jus in re aliena; and in Dig. 30, 86, 4, it is actually termed servitus. The right of the superficiarius, whether it extended over the whole house or only over a portion of it (e. g. a flat, Dig. 43, 17, 3, 7), was heritable (Dig. 43, 18, 1, 7) and alienable both inter vivos and by will: he could assert it against any one by whom it was infringed, and not merely against the owners of the soil (Dig. 30, 86, 4; 39, 2, 19, pr.); had the fullest use of the building and the servitudes annexed to it; could pledge and create servitudes over it available for the duration of his own interest (Dig. 43, 18, 1, 6, 7 and 9; 7, 7, 1, pr.; 13, 7, 16, 2). The duties of the superficiarius were in the main determined by the disposition under which he acquired his right, and usually comprised the payment of a ground-rent (solarium) to the landowner (Dig. 6, 1, 74; 20, 4, 15; 43, 8, 2, 17): he also had to pay all rates and taxes with which the building as such was chargeable (Dig. 43, 18, 1, 6). For the recovery of the house, if [p. 2.727]dispossessed, he could use in their utilis forms all the actions which were competent to a dominus, especially vindicatio, actio Publiciana, negatoria, and confessoria (Dig. 43, 18, 1, 1, 3 and 6; 6, 1, 73, 1; ib. 74, 75; 6, 2, 12, 3): and against the owner of the soil he could in most cases bring also personal actions on sale or hire (Dig. 43, 18, 1, 1). That he had some sort of possession is proved by his title to interdicts, though as to its precise nature there is a difference of opinion. Some writers maintain that he had representative or derivative possession of the building and the soil as well, but this is disproved by the landowner's capacity to use the interdict Uti possidetis (Dig. 43, 17, 3, 7), for “plures eandem rem in solidum possidere non possunt” (Dig. 41, 2, 3, 5). That he could use the interdicts De vi and De precario in their direct, not utilis forms (Dig. 43, 16, 1, 5; 43, 26, 2, pr. and 3), establishes the view of those who attribute to him original possession of the building, and disproves that of others who credit him with a mere juris quasi-possessio. The praetor also gave him a special interdict De superficiebus (Dig. 43, 18, 1, pr. and 2), which was retinendae possessionis causa, and modelled after Uti possidetis. There is no evidence that the praetor required proof of traditio of the superficies by the dominus to the superficiarius as a condition of granting the latter his real action, though some hold that traditio was essential for the alienation of a superficies already created (cf. Dig. 43, 18, 1, 7). Of the modes in which the right of superficies originated the most important is contract with the owner of the soil, who by gift, exchange, or lease (Dig. 43, 18, 1, pr. and 3; ib. 2) might permit the other to build on his land. In Dig. 43, 18, 1, 1, it is said that it might also arise from sale: from which it may be inferred that it did not always originate in the superficiarius' building on alienum solum, but that the owner of land with a house on it might sell or let out the latter without the soil for a very long term or in perpetuity: an interest which after causae cognitio the praetor might treat as a superficies, it not having been his intention to ascribe civil possession and real rights to any and every lessee: “quod ait praetor . . . . causa, cognita . . . . sic intelligendum est, ut si ad tempus quis superficium conduxerit, negetur ei in rem actio: et sane causa cognita ei, qui non ad modicum tempus conduxit superficiem, in rem actio competit” (Dig. 43, 18, 1, 3). Besides this, superficies might be created by a legacy in the landowner's testament (Dig. 30, 86, 4) and by adjudicatio in judicum divisorium. Whether it could be acquired by usucapio is disputed: the passages bearing on the point are Dig. 6, 2, 12, 3, and 41, 3, 26.

The modes in which superficies was extinguished are substantially identical with those in which EMPHYTEUSIS determined, though it is a moot point here whether the landowner could evict the superficiarius on non-payment of solarium for two years: see Dig. 19, 2, 54, on which the affirmative opinion is based.

The prominence of superficies at Rome is commonly ascribed to the supposed fact that at one time all land belonged to the state, which refused as a general rule to grant ownership in it to individuals, but was not averse to allowing them to build on a locus publicus (Dig. 43, 8, 2, 17), an example of which is found in the assignment of the Aventine to the plebs by the Lex Icilia, n.100.456 (Dionys. A. R. 10.31, 32: cf. Puchta, Institutionen, § 244, note e). If this was its origin, there is no doubt that when private property in land was recognised the precedent was largely followed by municipal corporations (of which there is a good instance in an inscription of A.D. 193 in Orelli's Inscriptiones, i. No. 39; Bruns, Fontes, p. 91: cf. Zeitschrift, für g. R. 11.219-238, 15.335-341) and individuals; so that in later times it was common at Rome for the ground on which Insulae were built to remain the property of the owner of the soil, while other persons had a jus superficiarium in the different stories, in respect of which a rent was paid by them to him.

(Gaius, 2.73-75; Dig. 43, 18; Niegolewski, dejure Superficiario, Bonn, 1848; Rudorff, Beitrag zur Geschichte der Superficies, “Zeitschrift für g. R.” 11.219 sq.; Schmid, Handbuch, ii. pp. 57 sq.; Degenkolb, Platzrecht und Miethe, Beiträge zu ihrer Geschichte und Theorie, 1867: to these may be added; Wächter, Das Superficiaroder Platzrecht, “Abhandlungen der Leipziger Juristen-Facultät,” vol. i.)

[J.B.M]

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