L’operis novi nuntiatio publici iuris tuendi gratia fra passato e futuro: qualche considerazione

Before the coming into force of the Highway Code Reform Act on 30 April 1992, by virtue of which all rural roads became municipal and local roads (i.e. those built on private land), if used by the community, were considered equivalent to municipal roads, the cultivated hill area of Solopaca (BN) was run through by a series of rural concaved shaped communication routes called ‘cupe’ acting as channels for the water to flow in the event of heavy rainfall or overflowing streams, thanks to their concave shape. Unfortunately, after that date, most of these drains have been asphalted or even concreted over, resulting in them no longer being able to perform their original function of land draining. Well, to solve the problem of the ‘cupe’ it would make no sense to reintroduce a notice of new work to protect public rights modelled on the Roman publici iuris tuendi gratia, also because the notice would require the start of the works, not their conclusion, and the ‘cupe’ have been in the aforementioned conditions for more than thirty years now. Nevertheless the example of this ancient remedy, that, as everyone knows, would encourage an immediate intervention on the spot by whoever wanted to block an activity prejudicial to the utilitas publica, might help us to acertain the best available formula by which we could achieve a full and satisfactory care of public assets in current times, for instance by making each citizen aware that those assets (regional, provincial, municipal) are also, as in ancient times, his or hers iure civitatis, that is for the simple fact of being a member of that community and being able to use those assets together with other members. Thus everyone would be entitled to intervene in any case of misuse of public assets to defend the utilitas publica in full awareness of safeguarding also his/her own interest because contributing to the protection of the res publicae would also imply as a consequence the protection of the res privatae too. In other words, nowadays, as in ancient Roman times, the good state of public assets inevitably affects the condition of private property: for the purposes of safeguarding the former, the perspective of a public-private opposition should therefore be abandoned and instead embrace the idea of a balanced relationship between the two areas.