A few remarks on the Roman
law on nuisance
RENATA KAMIŃSKA
Cardinal Stefan Wyszynski University
in Warsaw
ABSTRACT: Nel
diritto romano non c’era nessuna definizione di immissione ma il fenomeno stesso
era ben noto. Come oggi le immissioni consistevano in azioni che comportavano
interferenze con la proprietà di qualcun altro.
Nuisance has always been an inseparable part of
every community’s life. It occurs wherever we have a neighbourhood. Relations
between neighbours are associated with property and the fact that people want
to make the best possible use of the rights deriving from the ownership of
property. Every property owner wants to secure his exclusive right to use the
things he owns as he wishes without third parties interfering, and to have the
protection of the law for this.
The possibility of meeting all these
requirements was a problem that occupied the attention of Roman jurists. One of
the main questions they asked was whether the law should admit the legality of
situations where an owner used his property in accordance with his wishes and
ignored the rights of others. To settle the question we first have to consider
what they meant by ownership. Unfortunately, this is a difficult task, because
the Romans did not define what they meant by ownership[1]. They only made general
statements, using expressions such as plena in re potestas[2],
in other words «an unlimited right to a thing», for ownership, which
meant that an owner could do whatever he liked with his property, provided
there was no prohibition in positive law nor someone else’s right to prevent
him from doing so. So he had the right to use a thing he owned and use it up
completely (ius utendi et abutendi),
to dispose of it (ius disponendi), to
possess it (ius possidendi), and to
draw a benefit from it (ius fruendi)[3]. The right of
ownership was undoubtedly the chief and broadest aspect of property law, and it
was afforded protection by means of complaints in rem (rei vindicatio, actio negatoria). The most controversial
feature of Roman private property was its unlimited nature. As I have said, a
proprietor (dominus) could do
anything he liked with his property, unless there was a specific injunction on
such behaviour. This suggests that in fact there must have been certain
restrictions limiting rights of ownership. The predominant opinion in the
contemporary doctrine is that the expression «unlimited right of ownership»
applied to the concept itself, not to its subject matter. Otherwise – as Marek
Kuryłowicz observes[4] – the loss or
curtailment of any of an owner’s rights, especially if treated in an
enumerative way, would have brought about the forfeiture of his proprietorship.
So if we assume that there was a positive prohibition restricting an owner’s
rights, then the next question we must ask concerns its nature. What could have
been the grounds for such restrictions on the lawful exercise of
proprietorship?[5]
Such restrictions were grounded in the first place on public
interest in the broad sense of the term (utilitas
publica). In other words, what an owner did with the things he owned could
not be against the interest of society as a whole or of individuals who held
rights which were analogous to those he held himself, even though his rights
were derived from the individual’s right
of ownership. The grounds for such reservations could have come from public
law, for instance administrative provisions[6], or provisions
relating to the law on building[7], transport[8], or sanitary
provisions[9]; or they could
have been based on private law. In the latter case such restrictions would have
been due primarily to relations between neighbours, particularly the prevention
of nuisance. The Romans used the noun immissio
or its verb immittere[10] for human
activity of whatever kind which interfered with other people’s property[11]. Hence it was
the business of the law to impose appropriate limits on an owner’s freedom to
exercise his rights of ownership in the interest of the rights of another
owner, viz. his neighbour[12] (utilitas singulorum)[13]. This is almost the same way we
understand the term “nuisance” nowadays. For instance, in Polish law it is
defined in Art. 144 of the Civil Code (Dziennik Ustaw, 18 May 1964, No. 16,
Item 93, with later amendments), where the legislator says that in the exercise
of his rights of ownership a proprietor should refrain from actions which would
interfere with other proprietors’ enjoyment of neighbouring properties in
excess of the average level of nuisance due to the social and economic purpose
of the property and the local conditions.
So the reality which is always behind the
concept of nuisance is the mutual effect of properties belonging to different
persons[14], in other words the activities one of the
proprietors involved conducts within the scope of his rights, which interfere
with another proprietor’s free enjoyment of his property[15]. Nowadays we speak of two types of
nuisance, direct nuisance and indirect nuisance.
Ulpian presented the concept of nuisance in
Roman law in one of his commentaries on a praetorian edict:
D.
8.5.8.5 (Ulpianus septimo decimo ad
edictum): Aristo Cerellio Vitali respondit non putare se ex taberna
Casiaria fumum in superiora aedificia iure immitti posse, nisi ei rei
servitutem talem admittit. Idemque ait: et ex superiore in inferiora non aquam,
non quid aliud immitti licet: in suo enim alii hactenus facere licet, quatenus
nihil in alienum immittat, fumi autem sicut aquae esse immissionem: posse
igitur superiorem cum inferiore agere ius illi non esse id ita facere. Alfenum
denique scribere ait posse ita agi ius illi non esse in suo lapidem caedere, ut
in meum fundum fragmenta cadant. Dicit igitur Aristo eum, qui tabernam
Casiariam a Minturnensibus conduxit, a superiore prohiberi posse fumum immittere,
sed Minturnenses ei ex conducto teneri: agique sic posse dicit cum eo, qui eum
fumum immittat, ius ei non esse fumum immittere. Ergo per contrarium agi
poterit ius esse fumum immittere: quod et ipsum videtur aristo probare. Sed
et interdictum uti possidetis poterit locum habere, si quis prohibeatur,
qualiter velit, suo uti.
This statement helps us understand the essence
and types of nuisance (immissio), and
determine the bounds to the mutual impact which was admissible from
neighbouring properties. From Ulpian’s expression in suo alii hactenus facere licet, quatenus nihil in alienum immittat we may infer that the essential
feature of immissio was that it was
caused by a proprietor on his own property (facere
in suo), but the effects of the nuisance were felt by another proprietor on
his property (immittere in alienum).
Hence the nuisance was due to facere in
suo[16].
Nowadays this type of impact on another party’s
property is known as indirect nuisance, and in principle it is unlawful, just
as it was in Antiquity[17]. Yet Ulpian’s
observation gives rise to serious misgivings. He tells us that any activity a
proprietor conducted on his own property was lawful provided it did not cause
an interference in alieno, yet the
discharge of smoke, smells, or noise could be regarded as an impact on
another’s property; we may thus reach a conclusion that a proprietor’s freedom
to act in suo in any way he liked was
not «all-inclusive», and in practice he could come up against restrictions or
prohibitions at any time. However, we should bear in mind that such
restrictions were formulated in various sources, either private or public law,
and they were inherent in the concept of dominium as plena in re potestas. Every
proprietor who carried out specific activities within the boundaries of his own
property not exceeding his rights was acting lawfully[18]. In other words, a person who had the
right of ownership of a particular thing could exercise that right in any way
he pleased, providing his conduct did not interfere with the analogous rights
of another owner, and in particular that it did not bring harm or damage to
another’s property. On the other hand, an owner’s right to freely enjoy his
property and the proximity of properties belonging to others subsumed the
admissibility of mutual impact[19]. Thus we need
to establish whether every interference with another proprietor’s domain was
treated as nuisance, and if so, prohibited.
This was a thorny issue already in Antiquity.
There were disputes among Roman jurists as to which restrictions could be
lawfully applied on the right to enjoy one’s property, what should be
recognised as a restriction on proprietorship, and what was merely an outcome
of the free enjoyment of one’s property[20]. The passage from Ulpian’s commentary
preserved in D. 8.5.8.5 which I have quoted above is very useful in this
respect. It tells us what was regarded in Roman law as an impact on a
neighbour’s domain. We learn that there were three types of matter which were considered to cause nuisance,
solids, liquids, and gases; and all three were prohibited. Both Ulpian and the
other lawyers he cites made no distinction in their statements on prohibited
kinds of impact on another person’s property between littering a neighbour’s
property with chips flying off stone dressed in suo, spraying it with water, or discharging smoke on it. In
Ulpian’s opinion facere in suo meant
only activities which did not cause nuisance in alieno, and it applied to the same degree to all three of these
situations. Yet on the other hand the normal enjoyment of one’s rights of
proprietorship takes for granted that nuisance will occur. Furthermore, «the
very fact that there are other properties in the neighbourhood gives rise to a
self-evident dependence which makes one property exert an impact on another
property»[21], as our own
civil law acknowledges. So the basic problem is not impact as such, which may
be seen as an inherent part of neighbourly relations, but its magnitude. Hence
the next question concerning nuisance is its admissibility, or in other words
the bounds to the free enjoyment of one’s property. The modern Polish legislation provides an answer to this
question in Art. 144 of its Civil Code, under which proprietors are bound to
use their property in a manner which does not exceed the «average level» of
disturbance determined on the basis of the social and economic purpose of the
property and local conditions. There is an opinion in the doctrine that the
«average level» of interference should be assessed from the perspective of the
objective estimate arrived at by the owner of a property on which disturbances
of the given type occur at an intensity not greater than those which normally
occur in the given place[22]. In other
words, only such nuisance is legally admissible which is due to the lawful
enjoyment of the given property in compliance with its socio-economic purpose,
and its level does not unreasonably restrict other proprietors’ enjoyment of
neighbouring properties[23].
This modern view fully complies with Rudolf von
Jhering’s theory of ordinary effect[24]. Von Jhering wrote that direct nuisance
or indirect activity or nuisance in excess of the generally accepted level was
unlawful. According to his theory, classical Roman law prohibited direct and
indirect nuisance which was due to facere
in suo but had an intolerable effect on a neighbouring property. Another
jurist who held a similar opinion was Alberto Burdese, who said that under
Roman law nuisance in alieno caused
by facere in suo could only be
regarded as lawful if its extent was limited to the level of disturbance due to
the normal use of the property[25].
The following passage from Pomponius’ ad Sabinum provides a partial
corroboration of this view:
D. 8.2.27pr. (Pomponius libro trigensimo tertio ad Sabinum): Sed
si inter te et me communes sunt Titianae aedes et ex his aliquid non iure in
alias aedes meas proprias immissum sit, nempe tecum mihi agere licet aut rem
perdere. Idem
fiet, si ex tuis propriis aedibus in communes meas et tuas aedes quid similiter
esset proiectum: mihi enim soli tecum est actio.
In this passage Pomponius says that a proprietor
whose rights were infringed owing to nuisance could sue his neighbour
responsible for the nuisance. In addition, that neighbour was liable to forfeit
the thing which caused the nuisance (nempe
tecum mihi agere licet aut rem perdere).
Another source which appears to confirm
Jhering’s theory is the following passage from Paulus’ commentary to the
writings of Sabinus:
D. 8.2.19pr. (Paulus libro sexto ad Sabinum): Fistulam
iunctam parieti communi, quae aut ex castello aut ex caelo aquam capit, non
iure haberi Proculus ait: sed non posse prohiberi vicinum, quo minus balienum
habeat secundum parietem communem, quamvis umorem capiat paries: non magis quam
si vel in triclinio suo vel in cubiculo aquam effunderet. sed Neratius ait, si
talis sit usus tepidarii, ut adsiduum umorem habeat et id noceat vicino, posse
prohiberi eum.
This text makes a clear distinction between
activities in relations between neighbours which were unlawful and those which
were allowed. The former group included one proprietor installing a water pipe
on a wall he shared with his neighbour to collect water from a water tank or
rainwater. The latter group involved activities evidently due to a proprietor’s
normal use of his property for his ordinary, everyday needs, such as having a
bathroom or using a lot of water in his dining room or bedroom. However, if his
having hot baths caused damp in his neighbour’s premises, in other words if it
damaged his neighbour’s property, there were sufficient grounds for the
neighbour to apply for an injunction to stop him from doing this[26].
There is a conclusion which may be drawn from
the source texts I have cited so far. If the effects a proprietor’s activity
had on a neighbouring property did no damage to it, and particularly if any
damage done was not wilful, and if those effects were the natural consequences
of the proprietor’s rights not exceeding the bounds of those rights, in other
words if they were an inherent part of his exercise of his right to his
property, if they were simply part of his ordinary everyday activities, such
effects should not be classified as an unlawful nuisance[27]. So not all the types of interference
with another person’s property which today we would consider an indirect
nuisance would have been regarded as such by the Romans[28]. They would have called only those
types of facere in suo unlawful which
involved a disturbance of a neighbour’s legal domain[29].
This rule applied to all types of nuisance to the same extent, whether
it was caused by noise, smoke, or water. Each of them was an abuse and unlawful
if the extent of the discharge was excessive with respect to what a neighbour
was obliged to tolerate, and with respect to the real needs of the person who
caused the nuisance. A passage from Javolenus’ commentary to the last works of
Labeo may serve as proof:
D. 47,10,44 (Iavolenus libro nono ex posterioribus Labeonis):
Si inferiorum dominus aedium superioris vicini fumigandi causa fumum faceret,
aut si superior vicinus in inferiores aedes quid aut proiecerit aut infuderit,
negat Labeo iniuriarum agi posse: quod falsum puto, si tamen iniuriae faciendae
causa immittitur.
Javolenus contested the opinion of Labeo, who
denied the proprietor of a house on higher ground the right to sue a proprietor
below him who filled his property with smoke emitted from a smoke house. There
would be no grounds for a complaint, either, if the proprietor of the upper
property threw or poured something out on the property below. In this latter
case both jurists concurred. But Javolenus thought it was necessary to
distinguish between the situation when the person pursuing the activities
described by Labeo was wilfully causing damage to his neighbour’s property (iniuriae faciendae causa immittitur),
from the situation where he did not intend to cause the damage. If the damage
was wilful, then according to Javolenus the injured party should have the right
to sue. This gives rise to the following question: was the wilful emission of smoke into a neighbour’s domain
the only ground for a suit for nuisance, or did the discharge of smoke
considered excessive with regard to the generally accepted level give sufficient
grounds for a suit? If we accept Jhering’s theory, we should apply it to the
case described by Javolenus. A situation had occurred in which someone
conducting his business in suo
nonetheless caused an intolerable nuisance in someone else’s property, thereby
infringing Gaius’ and Paulus’ principles,
nullius videtur dolo facere, qui suo iure utitur (D. 50.17.55) and nemo damnum facit, nisi qui id fecit, quod
facere ius non habet (D. 50.17.1.151). Conversely, we may say that a person
caused damage if he conducted a certain activity even though he should not
have, because he had no right to conduct it. Conducting such an activity was
considered against the law (iniuria).
In its narrower sense iniuria was
equivalent to contumelia (insult)[30]. So if an
insult was a breach of the law which could be committed either by a deed or
verbally, as Labeo tells us[31], then all the
actions described by Javolenus meet these criteria and may be considered an
insult, which in turn leads to the conclusion that the situation he presents
gives the injured party the grounds for an actio
iniuriarum[32].
The final issue relating to the treatment of
nuisance in Roman law concerns the admissibility of nuisance in the public
domain. An example of such activity is given in a passage from Book 68 of
Ulpian’s commentary to the praetor’s edict publishing the interdict ne quid in via publica itinereve publico
facere immittere[33]. In this edict
the praetor prohibited the discharge in a public road or street of anything
which could cause the deterioration of the road or street[34].
One of the examples the jurist cites is the nuisance caused by the
emission of a smell:
D.
43.8.2.29 (Ulpianus libro sexagensimo
octavo ad edictum): Idem ait, si odore solo locus pestilentiosus fiat, non
esse ab re de re ea interdicto uti.
According to Ulpian, the interdict did not apply
if the air over a public road was contaminated due to the emission of an evil
smell. However, he did not give the limit beyond which it would no longer be a
case of just an ordinary immissio,
but an unlawful disturbance of another party’s domain, here the public domain.
It seems more than likely that here the theory of the ordinary effect would have
been applicable on a much broader basis because the place where the disturbance
and its presumable detrimental effects were felt was a public domain. We may
thus conjecture that if a property neighboured on a public place such as a
road, the provisions of private law did
not apply. Of course, this did not mean all disturbances as such, but only
those which had to be prohibited or at least limited due to the nature of the
neighbourhood. This is well illustrated in the case of the emission of a smell,
even a pleasant smell, which would be fatiguing if discharged continuously. The
same may be said of noise. Such a situation would be intolerable for a person
permanently resident next to a property which continuously emitted a smell or
generated noise over the normal level. But the problem was reduced on a public
road, which is used by travellers only for the time it takes them to make their
journey.
In Roman law there was no definition of immissio, but the nature of this
phenomenon was well known. So were the sources and types of nuisance. This will allow us to determine the component
parts and attributes of the conduct of someone whose action may be considered
an immissio.
First, an immissio
involved an action, just as a nuisance does today. Secondly, every impact on
someone else’s property had to involve an action or activity which it was
within an owner’s right to conduct on the grounds of his ownership of a thing
or property, or at least his right to the usufruct (usufructus) of that thing or property. The third attribute of
indirect immissio was that it
involved interference with someone else’s property. Thus, immissio applied to a situation in which an activity or action
conducted by a proprietor on his own property (facere in suo) brought about an appreciable effect on a neighbour’s
property (immittere in alieno). So as
with nuisance today, the essential nature of immissio involved a human action or activity whereby one person
trespassed on another person’s rights, bringing about real though not necessarily
material damage. The fourth and final feature of immissio was connected with the vicinity of the property which
caused the nuisance, the fact that it neighboured on the property where the
nuisance was felt. We may assume that just as with easements, mutual interactions occurred not only when the
properties involved were each other’s immediate neighbours, viz. bordered on
one another, but also when they did not adjoin each other but were removed from
one another by a certain distance which was small enough for them still to be
regarded as «in the neighbourhood»[35].
To sum up I shall quote Leon Piniński, a
Polish scholar of ancient law. In the late 19th century he turned his attention
to property in ancient Rome, and observed that «restrictions on physical
proprietorship are nothing extraordinary but quite a normal thing. Perhaps the
only place which would not have them would be an island isolated off
completely, for example surrounded by the sea, and belonging to a single owner»[36]. On the other
hand, for those who live in a community, be it rural or municipal,
proprietorship has always been affected by a variety of interferences, and even
restrictions. They come from diverse sources, and relations between neighbours
is one of their sources.