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]
