De aqua cottidiana et aestiva
(Concerning the edict which has reference to water used every day and to such as is only used during the summer.)
1 Ulpianus libro septuagensimo ad edictum. Ait praetor: ‘Uti hoc anno aquam, qua de agitur, non vi non clam non precario ab illo duxisti, quo minus ita ducas, vim fieri veto’. 1Hoc interdictum prohibitorium et interdum restitutorium est et pertinet ad aquam cottidianam. 2Cottidiana autem aqua non illa est, quae cottidie ducitur, sed ea, qua quis cottidie uti, si vellet: quamquam cottidianam interdum hieme ducere non expediat, etsi possit duci. 3Duo autem genera sunt aquarum: est cottidiana, est et aestiva. cottidiana ab aestiva usu differt, non iure. cottidiana ea est, quae duci adsidue solet vel aestivo tempore vel hiberno, etiamsi aliquando ducta non est: ea quoque dicitur cottidiana, cuius servitus intermissione temporis divisa est. aestiva autem ea est, qua aestate sola uti expedit, sicuti dicimus vestimenta aestiva, saltus aestivos, castra aestiva, quibus interdum etiam hieme, plerumque autem aestate utamur. ego puto probandum ex proposito utentis et ex natura locorum aquam aestivam a cottidiana discerni: nam si sit ea aqua, quae perpetuo duci possit, ego tamen aestate sola ea utar, dicendum est hanc aquam esse aestivam: rursum si ea sit aqua, quae non nisi aestate duci possit, aestiva dicetur: et si ea sint loca, quae natura non admittant aquam nisi aestate, dicendum erit recte aestivam dici. 4Quod autem scriptum est in interdicto: ‘uti hoc anno aquam duxisti’ hoc est: non cottidie, sed hoc anno vel una die vel nocte. ergo cottidiana quidem aqua alia est, quae cottidie duci possit, vel hieme vel aestate, etsi aliquo momento temporis ducta sit, aestiva ea, quae cottidie quidem duci possit, vel sola aestate, ducatur autem aestate tantum, non et hieme, non quia non possit et hieme, sed quia non solet. 5Loquitur autem praetor in hoc interdicto de ea aqua sola, quae perennis est: nulla enim alia aqua duci potest, nisi quae perennis est. 6Quamquam ad perennes aquas dixerimus hoc interdictum pertinere, ad eas tamen perennes pertinet, quae duci possunt. ceterum sunt quaedam, quae, etsi perennes sunt, duci tamen non possunt, ut puta puteales et quae ita sunt summersae, ut defluere extra terram et usui esse non possint. sed huiusmodi aquis, quae duci non possint, haustus servitus imponi potest. 7Haec interdicta de aqua, item de fonte ad eam aquam pertinere videntur, quae a capite ducitur, non aliunde: harum enim aquarum etiam servitus iure civili constitui potest. 8Caput aquae illud est, unde aqua nascitur: si ex fonte nascatur, ipse fons: si ex flumine vel lacu, prima incilia vel principia fossarum, quibus aquae ex flumine vel ex lacu in primum rivum compelli solent. plane si aqua sudoribus manando in aliquem primum locum effluere atque ibi apparere incipit, eius hoc caput dicemus, ubi primum emergit. 9Et qualiter sit constitutum ius aquae, dicendum est hoc interdictum locum habere. 10Sed etsi iure aqua non debetur alicui, si tamen iure ducere se putavit, cum non in iure, sed in facto erravit, dicendum est eoque iure utimur, ut interdicto hoc uti possit: sufficit enim, si iure se ducere putavit nec vi nec clam nec precario duxit. 11Illud quaeritur, utrum ea tantum aqua his interdictis contineatur, quae ad agrum irrigandum pertinet, an vero omnis, etiam ea, quae ad usum quoque et commodum nostrum. et hoc iure utimur, ut haec quoque contineatur. propter quod etiam si in urbana praedia quis aquam ducere velit, hoc interdictum locum habere potest. 12Praeterea Labeo scribit, etsi quidam ductus aquarum non sit fundi, quia quocumque duci possint, tamen ad hoc interdictum pertinere. 13Idem Labeo scribit, etiamsi praetor hoc interdicto de aquis frigidis sentiat, tamen de calidis aquis interdicta non esse deneganda: namque harum quoque aquarum usum esse necessarium: nonnumquam enim refrigeratae usum irrigandis agris praestant. his accedit, quod in quibusdam locis et cum calidae sunt, irrigandis tamen agris necessariae sunt, ut Hierapoli: constat enim apud Hierapolitanos in Asia agrum aqua calida rigari. et quamvis ea sit aqua, quae ad rigandos non sit necessaria, tamen nemo ambiget his interdictis locum fore. 14Sive autem intra urbem sit aqua sive extra urbem, hoc interdicto locus erit. 15Illud tamen hic intellegendum est eodem modo praetorem duci aquam iussisse, quo ducta est hoc anno. proinde neque amplioris modi, neque alia permississe potest videri. quare si alia aqua sit, quam quis velit ducere, quam hoc anno duxit, vel eadem, per aliam tamen regionem velit ducere, impune ei vis fiet. 16Illud Labeo dicit omnes partes illius fundi, in quem loci aqua ducitur, eiusdem numero esse. ergo et si forte actor confinem agrum emerit et ex agro, in quem hoc anno aquam duxerit, postea fundi empti nomine velit aquam ducere, ita demum eum recte hoc interdicto (ut de itinere actuque) uti putant, ut semel in suum ingressus inde egredi qua velit possit, nisi ei nocitum sit, ex quo aquam ducit. 17Item quaeritur, si quis aquae, quam hoc anno ducebat, aliam aquam admiscuerit, an impune prohibeatur. et extat Ofilii sententia existimantis recte eum prohiberi, sed eo loci, in quo primum aquam aliam in rivum admittit: et Ofilius in tota aqua recte eum prohiberi ait. ego Ofilio adsentio non posse dividi, quia non potest ita in parte vis fieri, ut non in tota aqua fiat. 18Trebatius, cum amplior numerus pecoris ad aquam appelletur, quam debet appelli, posse universum pecus impune prohiberi, quia iunctum pecus ei pecori, cui adpulsus debeatur, totum corrumpat pecoris adpulsum. Marcellus autem ait, si quis ius habens pecoris ad aquam appellendi plura pecora adpulserit, non in omnibus pecoribus eum prohibendum: quod est verum, quia pecora separari possunt. 19Aristo putat eum demum interdictum hoc habere, qui se putat suo iure uti, non eum, qui scit se nullum ius habere et utitur. 20Idem ait eum, qui hoc anno aquam duxerit nec vi nec clam nec precario et eodem anno vitiose usus est, recte tamen hoc interdicto usurum: quod referri ad id tempus, quod sine vitio fuerit: esse enim verum hoc anno non vi non clam non precario usum. 21Quaesitum est, si quis ante annum aquam duxit, deinde sequenti tempore, hoc est intra annum, aqua influxerit ipsa sibi me non ducente, an hoc interdicto locus sit. et refert Severus Valerius competere ei hoc interdictum, quasi duxisse videatur, licet penitus prospicientibus non videtur iste duxisse. 22Item quaesitum est, si quis, dum putat tertio quoque die habere se ius aquae ducendae, duxerit una die, an recte et sine captione possessoris recte duxisse videatur, ut hoc interdictum habeat: ait enim praetor: ‘uti hoc anno aquam duxisti’ id est alternis diebus. illud autem nihil interest, utrum quinto die aqua debeatur an alternis diebus an cottidie ei, qui hoc interdicto uti velit: nam cum sufficiat vel uno die hoc anno aquam duxisse, nihil refert, qualem aquae ductum habens duxerit: dum, si quis, cum quinto quoque die uteretur, quasi alternis diebus ducens interdixerit, nihil ei prodesse videtur. 23Praeterea illud sciendum est, si, cum aquam duxisses, adversarius te prohibuerit, deinde tu interim ius aquae ducendae amiseris, in restitutionem hoc venire, ut tibi praestetur per hoc interdictum quod amisisti: et hoc verum puto. 24Si fundum, ad quem aquam ducebas, vendideris et tradideris, nihilo minus interdictum tibi utile est. 25Competit hoc interdictum adversus eum, qui prohibet me aquam ducere, et nihil interest, utrum quis dominium fundi habeat an non. idcircoque is tenetur interdicto: nam et si servitus coepit adversus quemvis posse vindicari. 26Si inter rivales, id est qui per eundem rivum aquam ducunt, sit contentio de aquae usu, utroque suum usum esse contendente, duplex interdictum utrique competit. 27Labeo putat per hoc interdictum prohiberi quem, ne quid in illo fundo faciat fodiat serat succidat putet aedificet, quare ex re ea aqua, quam ille hoc anno per fundum tuum sine vitio duxit, inquinetur vitietur corrumpatur deteriorve fiat: et similiter de aestiva aqua debere interdici ait. 28Si quis hoc cesserit, ne liceat sibi aquam quaerere, ea cessio valet. 29Deinde ait praetor: ‘Uti priore aestate aquam, qua de agitur, nec vi nec clam nec precario ab illo duxisti, quo minus ita ducas, vim fieri veto. inter heredes emptores et bonorum possessores interdicam’. 30Hoc interdictum de aqua aestiva proponitur. 31Quia autem diximus aestivam aquam aliquo distare ab aqua cottidiana, sciendum est etiam interdictis distare, quod qui de aqua cottidiana interdicit, ita interdicit: ‘uti hoc anno aquam duxisti’, at qui de aestiva, sic: ‘uti priore aestate’, nec immerito: nam quia hieme non utitur, referre se non ad praesentem aestatem, sed ad priorem debuit. 32Aestatem incipere (sic peritiores tradiderunt) ab aequinoctio verno et finiri aequinoctio autumnali: et ita senis mensibus aestas atque hiems dividitur. 33Priorem aestatem ex comparatione duarum aestatium accipi. 34Propter hoc, si aestate interdicatur, nonnumquam annum et sex menses continere: quod ita contingit, si initio verni aequinoctii ducta sit aqua et sequenti aestate pridie aequinoctium autumnale interdicatur: et proinde, si hieme interdicatur, etiam in biennium haec res extendetur. 35Si quis hieme tantum aquam solitus fuit ducere, aestate non fuit solitus, utile interdictum ei competit. 36Qui hac aestate duxit, non superiore, utile interdictum habet. 37Ait praetor: ‘inter heredes et emptores et bonorum possessores interdicam’. haec verba non solum ad aestivam aquam, verum etiam ad cottidianam quoque referenda esse sciendum est: nam sicuti de itinere actuque et successoribus dantur interdicta et emptori, ita haec quoque danda praetor putavit. 38Ait praetor: ‘Quo ex castello illi aquam ducere ab eo, cui eius rei ius fuit, permissum est, quo minus ita uti permissum est ducat, vim fieri veto. quandoque de opere faciendo interdictum erit, damni infecti caveri iubebo’. 39Hoc interdictum necessario propositum est. namque superiora interdicta ad eos pertinent, qui a capite ducunt vel imposita servitute vel quia putant impositam: aequissimum visum est ei quoque, qui ex castello ducit, interdictum dari. id est ex eo receptaculo, quod aquam publicam suscipit. castellum accipe. 40Si ex castello permissum est, dandum erit interdictum: 41Permittitur autem aquam ex castello vel ex rivo vel ex quo alio loco publico ducere. 42Idque a principe conceditur: alii nulli competit ius aquae dandae. 43Et datur interdum praediis, interdum personis. quod praediis datur, persona extincta non extinguitur: quod datur personis, cum personis amittitur ideoque neque ad alium dominum praediorum neque ad heredem vel qualemcumque successorem transit. plane ei, ad quem dominium transit, impetrabile est: nam si docuerit praediis suis aquam debitam, etsi nomine eius fluxisse, a quo dominium ad se transiit, indubitate impetrat ius aquae ducendae, nec est hoc beneficium, sed iniuria, si quis forte non impetraverit. 44Meminisse autem debemus in hoc interdicto totam quaestionem finiri adsignationis: non enim praeparat hoc interdictum causam, ut superiora interdicta, nec ad possessionem temporariam pertinet, sed aut habet ius adsignatum sibi aut non habet, et interdictum totum finitur.
1 Ulpianus, On the Edict, Book LXX. The Prætor says: “I forbid force be used against you to prevent you from conducting the water in question the same way in which you have conducted it during the past year, provided you have not done so, either by violence, or clandestinely, or under a precarious title.” 1This interdict is prohibitory, and is sometimes restitutory, and has reference to water in daily use. 2Water in daily use is not such as is made use of constantly, but is that which anyone can use every day if he so desires; although sometimes, while it may not be convenient to conduct it during the winter, one, nevertheless, has the right to do so. 3There are two kinds of servitudes relating to water, one of them for its daily use, and the other for its use in the summer. That which can be used every day differs from that which is used in the summer, for the former is such as is conducted constantly both in summer and in winter, although sometimes it is not made use of. That which is called water for daily use has its servitude divided by intervals of time. That which is for use during the summer is such as is only convenient to use during that season, as we are accustomed to speak of summer clothing, summer resorts, and summer camps, which we make use of occasionally during the winter, but for the most part during the summer. I think water that is used in the summer, and that which is for daily use, should be distinguished by considering the intention of the parties, and the nature of the places where it is used; for if it is such that it can always be conducted, but I only use it in summer, it must be said that this is summer water. Moreover, if it can only be conducted during the summer, it is also summer water. If the places are such that, by their nature, the water can only be introduced during the summer, it must be held that it will properly be called summer water. 4When it is stated in the interdict, “as you have conducted the water during the past year,” this means not every day, but even only one day or night during the entire year. Therefore, daily water is such as can be conducted every day during the winter or summer, although there may be times when it is not conducted. Summer water is such as can be conducted every day, but is used only in summer, and not in winter; not because this cannot be done during the winter, but because it is not usually the case. 5Again, the Prætor, in this interdict, only refers to water which runs continuously, for water cannot be conducted unless its flow is constant. 6Although we stated that this interdict only has reference to water which flows continuously, it also relates to such as can be conducted. For there is certain water which, though its flow is continuous, still cannot be conducted; as, for instance, well water, and such as is so deep underground that it cannot be raised to the surface so as to be of use. A servitude for drawing water of this kind, which cannot be conducted, may be imposed. 7These interdicts with reference to water and springs are considered only to apply to water which is drawn from its source, and not from anywhere else, for a servitude can be imposed upon water of this kind under the Civil Law. 8The source of water is the place where it originates, and is the spring itself, if it proceeds from a spring. If, however, it is derived from a river or a lake, the first parts of the trench by which it is conducted from the said river or lake into the canal is considered to be its source. If water, oozing through the ground, first appears in some place or other, it is clear that we must call the place where it first emerges from the earth its source. 9And, no matter in what way the right to water may be established, it must be held that this interdict will apply. 10If, however, the right to the water does not legally belong to anyone, but he thinks that he has the legal right to conduct it, and does so, as, in this instance, the error is not in law, but in fact, it must be held, and it is also our practice, that he is entitled to avail himself of this interdict; for it is sufficient if he thought that he had the legal right to conduct the water, and did not do so either by violence, or clandestinely, or under a precarious title. 11The question is asked whether these interdicts only have reference to water which is used for irrigating land, or whether they apply to all water, even such as is employed for our use and convenience. It is our practice to consider that they have reference to all kinds of water. Hence this interdict will be applicable, even where anyone desires to bring water into his houses in the city. 12Moreover, Labeo says that even where there are certain aqueducts which do not belong to the land, because they can be used by anyone, the interdict still will apply. 13Labeo also says that even if the Prætor, in this interdict, meant to refer to cold water, the interdicts should, nevertheless, not be refused where warm water is concerned, as the use of water of this kind is necessary, for sometimes it is employed instead of cold water in irrigating fields. In addition to this, in some places warm water is indispensable for the purpose of irrigation, as, for example, at Hieropolis, since it is a fact that the Hieropolitans irrigate their lands in Asia with warm water. And although water of this kind may not be absolutely necessary for irrigation purposes, still no one doubts that these interdicts will apply under such circumstances. 14There will be ground for this interdict whether the water is in a town or out of it. 15It, however, must be understood that the Prætor orders the water to be conducted in the same way as it was conducted during the past year, hence this cannot be done in a larger quantity, or in a different place. Therefore, if the water which anyone wishes to conduct is different from that which he conducted during the past year, or if it was the same and he desires to conduct it through a different part of his premises, force may be used to prevent him from doing so. 16Labeo says that every portion of the land through which the water is conducted is entitled to the benefit of the servitude. Hence, if the plaintiff has purchased an adjoining field, and wishes to conduct the water which he has used during the past year into the field which he has recently purchased, he can legally avail himself of this interdict, as is the case of rights of way; so that, once having entered upon his own land, he can enter upon the other wherever he pleases, unless he is prevented by the person from whom the servitude of the water was obtained. 17The question is also asked where anyone mixes other water with that which he has used during the preceding year, whether he can be prevented from doing so with impunity. An opinion of Ofilius is extant, who thinks that he can legally be prevented from doing so, but only in the place where he first allows the water to run into his canal. Ofilius says that he can legally be prevented with reference to his entire right to the water. I concur in the opinion of Ofilius that the right cannot be divided, because violence cannot be employed with reference to a portion of the water, where this is not applicable to all of it. 18Trebatius holds that if a larger number of cattle are driven to a watering-place than the owner has a right to take there, all of them can be prevented from coming, because those which have been added to the cattle which had the right to drink will annul the right of all of them to make use of the privilege. Marcellus, however, says that if he who has the right to conduct a certain number of cattle to a watering-place conducts more than that number, he should not be prevented from bringing all of them. This is true, because cattle can be separated. 19Aristo holds that he alone is entitled to employ this interdict who thinks that he has a right to do so; and not he who, well knowing that he has no such right, makes use of it. 20He also says that he who, during the past year, conducted water without violence, or clandestinely, or under a precarious title, but whose enjoyment during part of the same year was subject to one or the other of these defects, can still properly make use of this interdict for the time when he did so, and no such defect existed, should be taken into consideration; as it is true that there was a period during the past year when he enjoyed the servitude without employing violence, or acting clandestinely, or relying on precarious title. 21The question arose, where anyone has conducted water for a longer period than a year, and during the following time, that is, within the year, the water flowed of itself, without his conducting it, whether there would be ground for this interdict. Severus Valerius says that the interdict will lie in his favor, as he is considered to have conducted the water, although, strictly speaking, he may not be held actually to have done so. 22The question was also asked, if anyone thought that he had the right to conduct water every other day, and conducted it only one day, whether he could be held to have done so properly, and without deceiving the possessor of the land where the water originated, so that he would be entitled to make use of this interdict. For the Prætor says, “as you have conducted the water during the past year,” that is, on alternate days, it makes no difference whether the water was due every fifth day, or every other day, or daily, so far as he who desires to avail himself of the interdict is concerned; for as it is sufficient to have conducted the water only one day during the past year it is of no consequence what right to conduct it the person has, since if anyone who has the right to conduct it every fifth day wishes to avail himself of the interdict, alleging that he has the right to conduct the water every other day, he will be held to have no right to do so. 23Moreover, it must be noted that if, when you are conducting water, your adversary prohibits you from doing so, and then in the meantime, you lose your right to conduct it, you can, by means of this interdict, obtain restitution by recovering what you have lost. I think that this opinion is correct. 24If you should sell and deliver the land upon which you are accustomed to conduct water, you can still avail yourself of the interdict. 25This interdict will lie against anyone who prevents me from conducting the water, and it makes no difference whether he has the ownership of the land or not, as he will still be liable under the interdict, for, after the servitude has once become operative, it can be claimed against anyone whomsoever. 26If a dispute arises between two rivals (that is to say, between two persons who conduct water through the same canal), with reference to the water, and each one of them claims to have the exclusive right, a double interdict will lie in their favor. 27Labeo thinks that, under this interdict, a man will be prevented from building anything on the land through which the water is conducted, or from digging or sowing there, or from cutting down any trees, or from erecting any building by means of which the water which he conducted during the past year under a good title through your land may be polluted, vitiated, spoiled, or deteriorated. He says that, in like manner, the interdict can be employed in the case of summer water. 28If anyone relinquishes the right to draw water, the abandonment will be valid. 29The Prætor further says, “I forbid violence to be employed to prevent you from drawing water, as you have done during the past summer, without the exertion of force, or clandestinely, or under a precarious title. I will grant this interdict to heirs, purchasers, and prætorian possessors of property.” 30This interdict has reference to summer water. 31As we have stated that a difference exists between water used only during the summer and that which may be used daily, it must also be noted that a difference exists between the interdicts; for the one which has reference to water used daily contains the following clause, “As you have conducted the water during the past year,” and that which relates to water used only during the summer contains the following clause, “As you have conducted it during the past summer.” This is not unreasonable, for as the individual in question did not use the water during the winter, he should refer, not to the present summer, but to the previous one. 32Learned men have decided that summer begins from the vernal equinox, and terminates at the autumnal equinox. Hence summer and winter are divided by the period of six months. 33Last summer is calculated from the comparison of two summer seasons. 34On this account, if an interdict is issued during the summer, sometimes the period includes a year and six months. This happens where water is conducted at the beginning of the vernal equinox, and the interdict is issued during the next summer, on the day before the autumnal equinox. Hence, if it is issued in the winter, the period will include two years. 35If anyone has been accustomed to conduct the water only during the winter, and not during the summer, he can avail himself of the interdict. 36Anyone is entitled to an available interdict who has conducted the water during this summer and not during the previous one. 37The Prætor says: “I will grant an interdict to heirs, purchasers, and prætorian possessors of property.” It should be observed that these words not only have reference to water used during the summer, but also to that used every day, for, as interdicts are granted to successors with reference to rights of way, so the Prætor thought that these also should be granted. 38The Prætor says: “I forbid violence to be employed to prevent anyone from conducting water from a reservoir on his premises to whom the right to do so has been conceded. Whenever an interdict with reference to the construction of some work should be issued I will order security against threatened injury to be furnished.” 39It was necessary to propose this interdict, for, as the preceding ones have reference to persons who conduct water from its source on account of a servitude having been imposed, or because they think that this has been done, it seemed to be just that an interdict should be granted to one who conducted water from a reservoir, that is to say, from the receptacle which contains water for the use of the public and which is designated a reservoir. 40If permission is given to conduct water from a reservoir, an interdict should be granted. 41Moreover, permission will be given to conduct water from a reservoir, a stream, or from any other public place. 42This permission is granted by the Emperor, and no one else has a right to give it. 43This right is sometimes granted to land, and sometimes to persons. When it is granted to land, it is not extinguished with the death of the party interested; but when it is granted to persons, it is lost by their death, and therefore does not pass to any other owner of the land, or to heirs or other successors. It is clear that the right can be claimed by him to whom the ownership of the land is transmitted. For if he proves that the water is due to his land, and has flowed in the name of him by whom the ownership has been transmitted to himself, he can undoubtedly obtain the right to conduct it; for this is not a favor, but it will be an injustice if it should not be obtained. 44We should also remember that, in this interdict, the entire question of the assignment of the right to the water is determined. For this interdict is not merely preliminary, as those formerly described are, nor does it only relate to temporary possession, but the party interested either has had the right assigned to himself, or he has not, and the interdict effectually disposes of the whole matter.
2 Pomponius libro trigensimo secundo ad Sabinum. Si diurnarum aut nocturnarum horarum aquae ductum habeam, non possum alia hora ducere, quam qua ius habeam ducendi.
2 Pomponius, On Sabinus, Book XXXII. If I have the right to conduct the water during the day or the night, I cannot do so at different hours than those during which I am entitled to conduct it.
3 Idem libro trigensimo quarto ad Sabinum. Hoc iure utimur, ut etiam non ad irrigandum, sed pecoris causa vel amoenitatis aqua duci possit. 1Ex flumine aquam ducere plures possunt, ita tamen, ut vicinis non noceant, vel, si angustus amnis sit, etiam ei, qui in alia ripa sit. 2Si aquam ex flumine publico duxeris et flumen recesserit, non potes subsequi flumen, quia ei loco servitus imposita non sit, quamvis is locus meus sit. sed si alluvione paulatim accesserit fundo tuo, subsequi potes, quia locus totus fluminis serviat ductioni. sed si circumfluere coeperit mutato alveo, non potes, quia medius locus non serviat interruptaque sit servitus. 3Aqua, quae in rivo nascitur, tacite lucri fit ab eo qui ducit. 4Ductus aquae, cuius origo memoriam excessit, iure constituti loco habetur. 5Is, qui aquae cottidianae ius habet, vel fistulam in rivo ponere vel aliud quodlibet facere potest, dummodo ne fundum domino aut aquagium rivalibus deterius faciat. 6Si aqua ducatur, supra eam alia aqua per pontem, qui supra rivum factus sit, iure ducitur, dum inferiori rivo non noceatur.
3 The Same, On Sabinus, Book XXXIV. We have adopted the rule that water can be conducted, not only for irrigating purposes, but also for the use of cattle, and even for pleasure. 1Several persons can conduct water from a river, provided they do not cause any damage to their neighbors, or even those who are on the opposite bank, if the stream narrows. 2If you have conducted water from a public river, and it leaves its bed, you cannot follow it up, even though the place where it now runs belongs to me, because the servitude was not imposed upon that land. You can, however, follow it up, if the river should gradually accrue to your land by alluvial deposit, because the entire locality is subject to the servitude of conducting the water of the river. But if the river, having changed its bed, begins to surround it, you cannot then follow it up, because the abandoned bed is not subject to the servitude which, in consequence, is interrupted. 3The water which originates in a brook is tacitly considered to b$ for the benefit of him who conducts it from thence. 4An aqueduct, whose origin is beyond the memory of man, is considered to have been lawfully established in the place through which it passes. 5He who is entitled to conduct water for daily use can place pipes in a stream, or do anything else; provided he causes no damage to the land of his neighbor, or interferes with the right of others to use water from the same source. 6Anyone who has a right to conduct water can also legally conduct other water above it by means of an aqueduct constructed upon the shore, provided no injury is done to the conduit below.
4 Iulianus libro quadragensimo primo digestorum. Lucio Titio ex fonte meo ut aquam duceret, cessi: quaesitum est, an et Maevio cedere possim, ut per eundem aquae ductum aquam ducat: et si putaveris posse cedi per eundem aquae ductum duobus, quemadmodum uti debeant. respondit: sicut iter actus via pluribus cedi vel simul vel separatim potest, ita aquae ducendae ius recte cedetur. sed si inter eos, quibus aqua cessa est, non convenit, quemadmodum utantur, non erit iniquum utile iudicium reddi, sicut inter eos, ad quos usus fructus pertinet, utile communi dividundo iudicium reddi plerisque placuit.
4 Julianus, Digest, Book XLI. I granted to Lucius Titius the privilege of conducting water from my spring. The question arose whether I could grant to Mævius the right to conduct water by the same aqueduct. If you think that this action can be granted to two persons to conduct it by the same aqueduct, how ought they to avail themselves of the right? The answer was that as a right of way can be granted to several persons conjointly, or separately; so, in like manner, the right to conduct water can legally be granted to them. If the parties do not agree among themselves, in what way shall they make use of it? It will not be inequitable to grant them a prætorian action, just as many authorities have decided that a suit of this kind can be granted in partition to several persons who are entitled to the enjoyment of an usufruct.
5 Idem libro quarto ex Minicio. Cum constet non solum temporibus, sed etiam mensuris posse aquam dividi, potest eodem tempore alius cottidianam, alius aestivam aquam ducere, ita ut aestate dividatur inter eos aqua, hieme solus ducat is qui cottidianae ius habeat. 1Inter duos, qui eodem rivo aquam certis horis separatim ducebant, convenit, ut permutatis inter se temporibus aqua uterentur: quaero, cum amplius tempore servitutibus praefinito ita duxissent, ut neuter eorum suo tempore usus esset, num ius utendi amississent. negavit amississe.
5 The Same, On Minicius, Book IV. It is established that the use of water can be divided not only by seasons, but also by measurement. One person can have the right to conduct it for daily use, and another to do so during the summer; so that the water will be divided between them during the summer, and, during the winter, he alone can conduct it who has the right to its daily use. 1It was agreed between two persons who were entitled to the privilege of conducting water by the same aqueduct, at different hours, that the hours for its use should be changed. If they had conducted it for a longer period than was necessary, as prescribed by the servitude, so that neither of them used it during the specified time for which it had been granted him, I ask whether they had lost the right to its use. It was denied that they had lost it.
6 Neratius libro tertio membranarum. De interdicto de aqua aestiva, item cottidiana quaerentes primum constituendum existimabamus, quae esset aqua aestiva, de qua proprium interdictum ad prioris aestatis tempus relatum reddi solet, hoc est aestiva aqua utrumne ex iure aestivo dumtaxat tempore utendi diceretur, an ex mente propositoque ducentis, quod aestate eam ducendi consilium haberet, an ex natura ipsius aquae, quod aestate tantum duci potest, an ex utilitate locorum, in quae duceretur. placebat igitur aquam ob has duas res, naturam suam utilitatemque locorum in quae deducitur, proprie appellari, ita ut, sive eius natura erit, ut nisi aestate duci non possit, etiamsi hieme quoque desideraretur, sive omni tempore anni duci eam ipsius natura permitteret, si utilitas personis, in quam ducitur, aestate dumtaxat usum eius exigeret, aestiva recte diceretur.
6 Neratius, Parchments, Book III. While we are examining the interdicts which have reference to water used during the summer, we think that we should first determine what summer water is, concerning which an interdict is usually granted relating to the preceding season; that is to say, whether summer water should be decided to be such as one only has a right to use during the summer, whether the intention of him who has the right to conduct it during that season ought to be taken into account; whether this designation depends upon the nature of the water itself, which can only be conducted during the summer; or whether the advantage to the places to which it is conducted should be considered. Hence it was held that the water was properly so called on account of two things; namely, its nature, and the benefit of the land upon which it is conveyed; so that if its nature is such that it can only be conducted during the summer, even though it is also desired to do this during the winter; or if its nature permits it to be conducted during any season of the year, and the benefit to the places where it is taken only requires its use during the summer by the persons entitled to it, it is very properly called summer water.
7 Paulus libro quinto sententiarum. Si de via itinere actu aquae ductu agatur, huiusmodi cautio praestanda est, quamdiu quis de iure suo doceat, non se impediturum agentem et aquam ducentem et iter facientem. quod si neget ius esse adversario agendi aquae ducendae, cavere sine praeiudicio amittendae servitutis debebit, donec quaestio finietur, non se usurum.
7 Paulus, Decisions, Book V. If proceedings are instituted with reference to a right of way, or the right to conduct water, security must be furnished that, as long as the plaintiff attempts to prove his right to the servitude, no obstacle will be offered to his conducting the water, or using the right of way. If, however, he denies that his adversary has any right to use the right of way, or to conduct the water, he should, without any apprehension of losing the servitude, furnish security that he will not make use of it until the case has been disposed of.
8 Scaevola libro singulari ὅρων. Cui per fundum iter aquae debetur, quacumque vult in eo rivum licet faciat, dum ne aquae ductum interverteret.
8 Scævola, Observations. He who is entitled to a right of way through land for the purpose of conducting water is permitted to construct a canal through any part thereof that he wishes, provided he does not interfere with some other aqueduct.