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 p1078  Superficies

Article by George Long, M.A., Fellow of Trinity College
on pp1078‑1079 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

SUPERFI′CIES, SUPERFICIA′RIUS.— Superficies is anything which is placed upon the ground, so as to become attached to it. The most common case of superficies is that of buildings erected on another man's land. "Those are aedes superficiariae which are built on hired ground, and the property of which both by the Jus Civile and Naturale belongs to him to whom the ground (solum) also belongs." (Gaius, Dig. 43 tit. 18 s2). Cicero (ad Att. IV.2) uses the expression "superficies aedium." Every building then was considered a part of the ground on which it stood; and the owner­ship and possession of the building were inseparable from the owner­ship and possession of the ground. The Superficies resembles a Servitus and is classed among the Jura in re. According to the definition, the Superficiarius had not the thing even In bonis; and as the animus Domini could not exist in the case of Superficies, he consequently could not be Possessor. He had however a Juris Quasi Possessio. The Superficiarius had the right to the enjoyment of the Superficies: he could alienate the Superficies and pledge it for the term of his enjoyment; he could dispose of it by testament; and it could be the object of succession ab intestato; he could also make it subject to a Servitus; and he could prosecute his right by a utilis in rem actio. As he had a Juris Quasi Possessio, he was protected against threatened disturbance by a special Interdict, which is given in the Digest (43 tit. 18), and in its effect resembles the Interdictum Uti possidetis. The explanation of the passage relating to this Interdict (Dig. 43 tit. 18 s3) is given by Savigny (Das Recht des Besitzes, p289, 5th ed.). If he was ejected, he could have the Interdictum de vi, as in the case of proper Possession; and if he had granted the use of the Superficies to another Precario, who refused to restore it, he had the Interdictum de precario.

A man could obtain the use of a Superficies by agreement with the owner of the land for permission to erect a building on it: he thus obtained a Jus Superficiarium; and he might also by agreement have the use of an existing Superficies. He was bound to discharge all the duties which he owed in respect of the Superficies, and to make the proper payment in respect of it (solarium), if any payment had been agreed on. The solarium was a ground-rent (Dig. 43 tit. 8 s2 § 17).

The rule of law that the Superficies belonged to the owner of the soil was expressed thus: Superficies solo cedit. (Gaius, II.73). If then a man built on another man's land, the house became the property of the owner of the land. But if the owner of the land claimed the house, and would not pay the expense incurred by building it, the builder of the house could meet the claimant with a plea of dolus malus (exceptio doli mali), that is to say, if he was a Bonae fidei possessor. In any other case, he had of course no answer to the owner's claim.

According to Coke (Co. Litt. 48b), "a man may have an inheritance in an upper chamber, though the lower buildings and the soil be in another, and seeing it is an inheritance corporeal, it shall pass by livery." But this doctrine is open to serious objections, and contradicts a fundamental principle of law.

At Rome if a man received permission to build on a locus publicus, he thereby obtained a Jus Superficiarium. The Lex Icilia de Aventino, B.C. 456, probably gave the ground in owner­ship to the Plebs. Dionysius, who speaks particularly of this lex, says that several persons united to build a house on the same plot of ground, and distributed the stories among them; this, however, would not be a case of superficies, but a communio pro indiviso. In later times, it was common at Rome  p1079 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 (solarium) was payable to the dominus of the soil. Rudorff (Beitrag zur Geschichte der Superficies, Zeitschrift für Geschicht. Rechtsw. &c., No. XI) says that these terms were as common in Rome "as they now are in London where great landholders, in consideration of a rent for nine and ninety years, and the reservation of the owner­ship of the soil, allow others to occupy building ground and slightly built houses." He who builds on another's land on a building lease has a Jus Superficiarium and nothing more.

(Gaius, II.73‑75; Dig. 43 tit. 18; Lex Icilia, Dionys. Antiq. Rom. X.32; Puchta, Inst. II § 244; Zeitschrift. &c. XI.219; Stair, Institutes, book II tit. 7; M'Dowell, Inst. I.676; Code Civil, art. 664).

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