De fluminibus. ne quid in flumine publico ripave eius fiat, quo peius navigetur
(Concerning the interdict which has reference to rivers and the prevention of anything being done in them or on their banks which may interfere with navigation.)
1 Ulpianus libro sexagensimo octavo ad edictum. Ait praetor: ‘Ne quid in flumine publico ripave eius facias neve quid in flumine publico neve in ripa eius immittas, quo statio iterve navigio deterior sit fiat’. 1Flumen a rivo magnitudine discernendum est aut existimatione circumcolentium. 2Item fluminum quaedam sunt perennia, quaedam torrentia. perenne est, quod semper fluat, ἀέναος, torrens ὁ χειμάρρους: si tamen aliqua aestate exaruerit, quod alioquin perenne fluebat, non ideo minus perenne est. 3Fluminum quaedam publica sunt, quaedam non. publicum flumen esse Cassius definit, quod perenne sit: haec sententia Cassii, quam et Celsus probat, videtur esse probabilis. 4Hoc interdictum ad flumina publica pertinet: si autem flumen privatum sit, cessabit interdictum: nihil enim differt a ceteris locis privatis flumen privatum. 5Ripa autem ita recte definietur id, quod flumen continet naturalem rigorem cursus sui tenens: ceterum si quando vel imbribus vel mari vel qua alia ratione ad tempus excrevit, ripas non mutat: nemo denique dixit Nilum, qui incremento suo Aegyptum operit, ripas suas mutare vel ampliare. nam cum ad perpetuam sui mensuram redierit, ripae alvei eius muniendae sunt. si tamen naturaliter creverit, ut perpetuum incrementum nanctus sit, vel alio flumine admixto vel qua alia ratione, dubio procul dicendum est ripas quoque eum mutasse, quemadmodum si alveo mutato alia coepit currere. 6Si insula in publico flumine fuerit nata inque ea aliquid fiat, non videtur in publico fieri. illa enim insula aut occupantis est, si limitati agri fuerunt, aut eius cuius ripam contingit, aut, si in medio alveo nata est, eorum est qui prope utrasque ripas possident. 7Simili modo et si flumen alveum suum reliquit et alia fluere coeperit, quidquid in veteri alveo factum est, ad hoc interdictum non pertinet: non enim in flumine publico factum erit, quod est utriusque vicini aut, si limitatus est ager, occupantis alveus fiet: certe desinit esse publicus. ille etiam alveus, quem sibi flumen fecit, etsi privatus ante fuit, incipit tamen esse publicus, quia impossibile est, ut alveus fluminis publici non sit publicus. 8Si fossa manu facta sit, per quam fluit publicum flumen, nihilo minus publica fit: et ideo si quid ibi fiat, in flumine publico factum videtur. 9Aliter atque si flumen aliquam terram inundaverit, non alveum sibi fecerit: tunc enim non fit publicum, quod aqua opertum est. 10Item si amnis aliquid circumeat, sciendum est eius manere cuius fuit: si quid igitur illic factum est, non est factum in publico flumine. nec pertinet ad hoc interdictum, si quid in privato factum sit, ne quidem si in privato flumine fiat: nam quod fit in privato flumine, perinde est, atque si in alio privato loco fiat. 11In flumine publico factum accipere debemus, quidquid in aqua fiat: nam si quid extra factum sit, non est in flumine factum: et quod in ripa fiat, non videtur in flumine factum. 12Non autem omne, quod in flumine publico ripave fit, coercet praetor, sed si quid fiat, quo deterior statio et navigatio fiat. ergo hoc interdictum ad ea tantum flumina publica pertinet, quae sunt navigabilia, ad cetera non pertinet. sed Labeo scribit non esse iniquum etiam si quid in eo flumine, quod navigabile non sit, fiat, ut exarescat vel aquae cursus impediatur, utile interdictum competere ‘ne vis ei fiat, quo minus id opus, quod in alveo fluminis ripave ita factum sit, ut iter cursus fluminis deterior sit fiat, tollere demoliri purgare restituere viri boni arbitratu possit’. 13Stationem dicimus a stando: is igitur locus demonstratur, ubicumque naves tuto stare possunt. 14Ait praetor: ‘iterque navigii deterius fiat’. hoc pro navigatione positum est: immo navigium solemus dicere etiam ipsam navem, iter ergo navigio potest et sic accipi ‘iter navi deterius fiat’. navigii appellatione etiam rates continentur, quia plerumque et ratum usus necessarius est. si pedestre iter impediatur, non ideo minus iter navigio deterius fit. 15Deterior statio itemque iter navigio fieri videtur, si usus eius corrumpatur vel difficilior fiat aut minor vel rarior aut si in totum auferatur. proinde sive derivetur aqua, ut exiguior facta minus sit navigabilis, vel si dilatetur, aut diffusa brevem aquam faciat, vel contra sic coangustetur, et rapidius flumen faciat, vel si quid aliud fiat quod navigationem incommodet difficilioremve faciat vel prorsus impediat, interdicto locus erit. 16Labeo scribit non esse dandam exceptionem ei, qui interdicto convenitur: ‘aut nisi ripae tuendae causa factum sit’, sed ita excipiendum ait: ‘extra quam si quid ita factum sit, uti de lege fieri licuit’. 17Si in mari aliquid fiat, Labeo competere tale interdictum: ‘ne quid in mari inve litore’ ‘quo portus, statio iterve navigio deterius fiat’. 18Sed et si in flumine publico, non tamen navigabili fiat, idem putat. 19Deinde ait praetor: ‘Quod in flumine publico ripave eius fiat sive quid in id flumen ripamve eius immissum habes, quo statio iterve navigio deterior sit fiat, restituas’. 20Superius interdictum prohibitorium est, hoc restitutorium, ad eandem causam pertinens. 21Iubetur autem is, qui factum vel immissum habet, restituere quod habet, si modo id quod habet stationem vel navigium deterius faciat. 22Haec verba ‘factum habes’ vel ‘immissum habes’ ostendunt non eum teneri, qui fecit vel immisit, sed qui factum immissum habet. denique Labeo scribit, si auctor tuus aquam derivaverit, et hoc interdicto, si ea tu utaris.
1 Ulpianus, On the Edict, Book LXVIII. The Prætor says: “Nothing shall be thrown into a public river or deposited on its banks, by means of which the landing of merchandise, traffic, or the movement of shipping may be interfered with.” 1A river is distinguished from a small stream by its superior size, or by the opinion of the people who live in the neighborhood. 2Some rivers have a continuous flow, and others are torrential. Those which have a continuous flow run always; those which are torrential only flow during the winter. If, however, a river, which at other times continues to flow, should dry up in the summer, it will not, on this account, be removed from the former class. 3Some rivers are public, and some are not. Cassius defines a public river to be one which flows uninterruptedly. This opinion of Cassius, which is approved by Celsus, seems to be plausible. 4This interdict has reference to public rivers, but it does not apply to one which is private, because a private river does not differ from other places which belong to individuals. 5A bank is properly defined to be what contains a river when it pursues its natural course, for it does not change its banks on account of rain, the tide, or for any other reason. No one says that the Nile, which covers Egypt with its overflow, changes or enlarges its banks; for when it returns to its ordinary dimensions, the sides of its channel should be repaired. If, however, a river should naturally increase in size in such a way as to acquire a permanent enlargement, either through the addition of the water of another stream, or for some other cause, it undoubtedly must be held that it has changed its banks, just as if, having changed its bed, it begins to flow elsewhere. 6If an island is formed in a public river, and anything is built upon it, it will not be considered to have been constructed in a public place, for the island becomes the property of the first occupant if the neighboring fields have regular boundaries; or belongs to him to whose bank it is contiguous; or if formed in the middle of the channel, it will belong to those who own land on both banks of the stream. 7In like manner, if a river leaves its bed and begins to flow elsewhere, anything which was built in the old bed will not come under the terms of this interdict, for what belongs to the neighbors on both sides is not constructed in a public stream; or, if the land has boundaries, the bed of the river will belong to the first occupant, and it certainly ceases to be public property. Moreover, although the new bed which the river has made for itself was previously private property, it at once becomes public; because it is impossible for the bed of a public stream not to be public. 8A canal, made by human hands, through which a public river flows is, nevertheless, public property to such an extent that if anything is built there, it is considered to have been built in a public stream. 9It is otherwise if a river overflows the land of another, and does not make a new bed for itself; for then what the water covered does not become public property. 10Again, if a river surrounds land, it must be noted that the land still remains the property of the original owner. Therefore, if anything is built in it, it is not built in a public stream. Whatever is done on private land does not come within the scope of this interdict, any more than what is done in a private stream; for anything which is done in a private stream is just the same as if it was done in any other place belonging to a private individual. 11We understand anything to have been built in a public stream where this was done in the water itself; for if anything is built outside of the water, it is not considered to have been done in the stream, so that any structure erected upon the bank is not held to have been built in the stream. 12The Prætor does not absolutely prohibit any work being done in a public river, or on the bank of the same, but only whatever may interfere with the landing of goods, or navigation. Therefore, this interdict only applies to public rivers which are navigable, and not to any others. Labeo, however, says that even if anything is done to a river that is not navigable, which may cause it to dry up, or which obstructs the course of the water, it will not be unjust to grant an available interdict to prevent any violence from being employed against removing or demolishing a structure which has been built in the bed of the stream, or on its bank, that interferes with the passage or current of the river, and to compel everything to be re-established in good condition, in accordance with the judgment of a reliable citizen. 13The word statio, a landing-place for ships, is derived from the verb statuo. By it, therefore, the place is indicated where ships can remain in safety. 14The Prætor says, “or the movement of shipping may be interfered with.” This is used instead of the word navigation, and, indeed, we are accustomed to employ the terms shipping and navigation, instead of the vessel itself. Hence, by the term “shipping” may also be understood the course of the vessel. Boats are also included in this term, for their use is frequently necessary. If the approach for pedestrians is obstructed, the movement of shipping is also interfered with. 15The anchorage and the course of navigation are also considered to be interfered with where the use of the same is interrupted, or rendered more difficult, or diminished, or made less frequent, or entirely destroyed. Hence, if the water is drawn away, and the river, having become smaller, is rendered less navigable; or if its width is increased, or the water being more widely distributed becomes shallower; or if, on the other hand, the stream is rendered more narrow, and runs very rapidly; or if anything is done to inconvenience navigation, make it more difficult, or entirely prevent it; there will be cause for the interdict. 16Labeo says that an exception on the ground that the work was only performed for the purpose of preserving the bank should not be granted to him who is sued under the interdict; but that it should be on the ground that nothing has been done except what was authorized by law. 17Where anything has been built in the sea, Labeo says that the following interdict will lie. “Nothing shall be constructed in the sea, or on the shore of the same, by which a harbor, anchorage, or the course of navigation may be obstructed.” 18He also thinks that the same rule will apply to any public stream which is not navigable. 19The Prætor further says, “If you have placed anything in a public river or done any work therein, or on the bank thereof, by which the anchorage of vessels or the course of navigation has been, or may be interfered with, you shall restore everything to its former condition.” 20The interdict above mentioned is prohibitory; the one which has reference to the same case is restitutory. 21He who has done any work, or placed anything in a river or upon its bank which may obstruct navigation, is obliged to restore everything to its former condition, if what he has done may interfere with the anchorage of vessels or their movements. 22The following words, “has done or placed,” indicate that he who built or deposited the obstruction is not liable, but that he who has possession of it after this has been done is liable. Finally, Labeo says that if your agent has diverted the course of the stream, you will be liable under this interdict, if you use the water.
2 Pomponius libro trigensimo quarto ad Sabinum. Quominus ex publico flumine ducatur aqua, nihil impedit (nisi imperator aut senatus vetet), si modo ea aqua in usu publico non erit: sed si aut navigabile est aut ex eo aliud navigabile fit, non permittitur id facere.
2 Pomponius, On Sabinus, Book XXXIV. There is nothing to prevent anyone from taking water from a public stream unless this is forbidden by the Emperor or the Senate; provided the water is intended for the use of the public. If the stream is either navigable, or another is rendered navigable by it, this is not permitted to be done.
3 Paulus libro sexto decimo ad Sabinum. Flumina publica quae fluunt ripaeque eorum publicae sunt. 1Ripa ea putatur esse, quae plenissimum flumen continet. 2Secundum ripas fluminum loca non omnia publica sunt, cum ripae cedant, ex quo primum a plano vergere incipit usque ad aquam.
3 Paulus, On Sabinus, Book XVI. Public rivers which have a regular course, together with their banks, are public property. 1The banks of a river are considered to be those that confine it when the water is at its highest point. 2The places along the banks of a stream are not all public, as they are accessory to the banks, beginning at the point where the latter begins to incline from the level ground to the water.
4 Scaevola libro quinto responsorum. Quaesitum est, an is, qui in utraque ripa fluminis publici domus habeat, pontem privati iuris facere potest. respondit non posse.
4 Scævola, Opinions, Book V. Inquiry has been made whether he who owns houses on both sides of a public stream has a right to build a bridge which will be his private property. The answer was that he cannot do so.