67. On the Co-ownership of Things

1. Titus, Sempronius, and Caius possess a house, of which the lowest part is Titus's, the middle Sempronius's, the upper Caius's. The roofs having been destroyed by the force of hail, a controversy arises among them, and Titus and Sempronius compel Caius to repair it, since he himself is the owner of the upper part of the house. Caius then begins not to repair the roof, but to construct another story, piano; but again Titus and Sempronius rise up against Caius.

Q. 1. What is co-ownership of things, and by what laws is it governed? 2. What as to the case?

R. To the first. Cf. I. M. 1241, 1242. - To the second. If there are various owners of different parts of the same house, the repair of the great walls, muri maestri, and of the roofs is common, according to the proportion of the value of the story of each owner. The same is true for halls, anditi, gates, wells, cisterns, aqueducts, and other things common to all the owners. But latrines are common, as to repair, according to the proportion of the number of openings, aperture, of immission. The owner of each story is held to repair the pavements on which he walks and the vaults, volte, by which he is covered, and also the ceilings and panels, soffitti, which cover places pertaining to him. - Stairs are to be built by the owner of the story which they serve, according to the value of each story. Wherefore, if the same story is common to several, each is held according to the value of his part. And the repair of those stairs which provide access to the first stories is to be made proportionately by all; but the repair of those which provide access to the higher stories is to be made only by the owners of those stories. - Underground cells, cantine, floors, palchi morti, rooms, soffitte o camere a tetto, are considered as stories of the house. - The same is to be observed for the repair of terraces and roofs. If their use is not common to all, he who has their exclusive use contributes for a fourth part of the expenses, and the other three parts are to be furnished by him and by the other owners according to the value of each part. The owner of the last upper story cannot raise it higher without the consent of the others. He can construct only the coping of the terrace, parapetto, if it harms the others in nothing. C. I. 562-564. Cf. C. G. 664.

Hence it is clear that the repair of the roofs in the case does not pertain to Caius alone, but to Titus, to Sempronius, and to Caius according to the value of each part. But Caius cannot raise his apartments, appartamento, higher without the consent of the others, since this can well harm the others.

2. Amelius constructs a cabinet in the common wall of his house, since that wall is very deep. Likewise he places an aqueduct within it, since that wall is much nearer the public road through which the public water canal passes. Is this by right?

R. A wall between two houses, gardens, or courtyards, cortili, is presumed common, C. I. 546; C. G. 653; C. A. 854. - In a common wall no one can open windows, C. I. 583; C. G. 675, nor build against it an oven or chimney, C. I. 574; C. G. 674, nor make a hollow, incavo, in it, C. I. 557; C. G. 662, nor, generally, do anything which harms the common wall itself or the co-owner; yet it is permitted to insert beams in it. C. I. 551, 552, 558, 573; C. G. 657, 674.

Someone can raise a common wall higher, provided he does this at his own expense, does not harm the co-owner, and repays him damages, if he has brought any upon him; and the latter can compel him to cede to himself a part of the wall superimposed.

And generally the owner of any estate contiguous to a wall can make that wall common to himself, provided he does this over its whole extension, public buildings excepted. C. I. 553-556; C. G. 658-661. Someone can demand the communion even of a wall which has been built within a half-meter. C. I. 571.

Finally, someone can compel the co-owner to repair the common wall at common expense. C. I. 559, 561; C. G. 663.

It is clear from these dispositions of the law that Amelius could have done neither thing without the order of the other co-owner; and if he refuses, the necessary means are to be defined by experts, lest the work harm the rights of the other. C. I. 557; C. G. 662.

3. Sedulus and Sedulius move a dispute between themselves concerning the ownership of trees which are placed on the common boundary of their own fields. Sedulus says they are his, because they are nearer his own field. Sedulius contends they are his, because the hedge in which they are situated is his.

Q. What as to the case?

R. A hedge between two estates is presumed common and is preserved at common expense, unless one estate alone is enclosed by it, or there is a boundary marker, or proof to the contrary. C. I. 568; C. G. 670; C. A. 854. Trees which arise in a common hedge are common; and each of the two owners can always demand that they be cut down. Always, because division of a common thing is never prescribed. Trees arising on the boundary of two estates are presumed common when there is no title or proof to the contrary. Of them there belongs to each a part as great as he has in the land. Trees which mark the limits of fields cannot be cut down except by common consent, or with judicial authority approving. C. 569; C. G. 673; C. A. 421; L. 83, Pro socio.

Therefore the trees placed on the boundary of the two fields of Sedulus and Sedulius are common; namely those which are in the hedges are so in equal parts, although they are nearer Sedulus's estate. Hence the fruits belong to each from the region of each one's estate; trees uprooted or cut or torn away are common and are equally to be divided between the two owners. Wherefore what Sedulus says, that the trees are nearer his own estate, has no value, just as what Sedulius says, that the hedges are his, has no value, unless he proves this positively. For unless this is shown by some title, the hedge is presumed common and the trees situated in it are presumed common.

4. From a certain mountain water is flowing forth most abundantly, which until now was being dissipated, since all the surrounding fields were uncultivated. The owner of one of those fields, deciding to cultivate his field and to establish in it a large workshop, constructed a new course of the water at his own expense, and directed all the water to his own field and workshop. But the other owners of the neighboring fields, seeing this and wishing now also themselves to cultivate their fields and to build other workshops, bring suit concerning the aforesaid derivation of the water.

Q. What as to the case?

Water flowing naturally, and without manufactured works, except that which belongs to public right or to the right of some private person, can be used by him who possesses an estate near its bank, whether for irrigating his own estate or for exercising his own industry; but he must restore the remaining water to its ordinary course, which accordingly cannot be disturbed. And, if the water passes through the estate itself, likewise the owner of the estate can use it, but he also must restore it to its ordinary course when it leaves his estate; and therefore its course can be disturbed on one's own estate. C. I. 543; C. G. 644. Where a controversy arises, the water is to be divided by the judge, equity being preserved, according to the measure of the possessions and at the same time of the utility of agriculture and industry. C. I. 544; C. G. 645. If someone having a right to divert to his own estate the water of a river, torrent, stream, canal, lake, or water deposit must use a manufactured work, he is held to pay the expenses of this, and to repay all damages of other estates. C. I. 613.

It is clear from what has been said that the aforesaid owner altogether exceeded in appropriating all the water to himself and in changing its course, neither of which he could do. Hence by right the other owners of the neighboring fields protest. The water, its natural course having been changed, is to be divided among them according to the ownership of each one's estate, and then that which is left over, when it leaves one's own estate, must be restored to its ordinary course. Namely, just as the owners of lower fields receive the inconveniences, so also they should receive the advantages of waters flowing nearby.