Ad Dig. 8,2,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 6a.Ulpianus, On the Edict, Book LIII. Where a man by raising his own house shuts off the lights of his neighbor, and is not subject to a servitude imposed upon his building, no action can be brought against him.

Ulpianus, On the Edict, Book LIII. Where anyone has obtained the right of conducting water by long use, and, as it were, by long possession, it is not necessary for him to establish by law the right which he has to the use of the water; for instance, to show that it was derived from a legacy or in any other way; but he is entitled to an equitable action to prove that he has had the use of said water for a certain number of years, and that this was not obtained by force, or by stealth, or by sufferance. 1This action can be brought not only against the party on whose land the source of the water is situated, or through whose premises it is conducted, but also against all persons who try to prevent me from conducting the water; just as in the case of other servitudes. Generally speaking, I can institute proceedings by means of this action against anyone whomsoever that attempts to prevent me from conducting the water.

Ulpianus, On the Edict, Book LIII. The Prætor says, “In the case of threatened injury, I order every one who appears in his own behalf to promise indemnity, and all others to give security to the other party, who is willing to swear that neither he nor the person for whom he acts makes the demand for the purpose of causing annoyance; and that application may be made until the day which I shall fix for having the case. If it is disputed whether the party who is to give security is the owner of the property, or not, I direct that security shall be given provisionally. Where any structure is erected in a public stream, or on the bank of the same, I shall order security to be furnished for ten years. Moreover, I shall order the party to whom security is furnished to take possession of the property, in the name of him who makes the demand for security; and, if just cause is shown, I shall order him to obtain actual possession of the same. I will grant an action against him who refuses to give security, or who does not permit the other party to remain in possession, or to acquire it; in order that he may pay as much as he would have been required to pay if security had been furnished with reference to said property, in accordance with my decree, or with that of a judge having jurisdiction over said property, which is also in my jurisdiction. If he to whom I have granted possession in the name of another does not give security against threatened injury, I shall order him to whom security has not been furnished to be placed immediately in actual possession of the said property.” 1This Edict has reference to injury which has not yet been committed, while other actions which relate to injuries have reference to reparation, as that of the Aquilian Law, and others. Under this Edict nothing is provided with reference to injury already committed, for when animals have caused damage it is not customary to render us liable, except to compel us to surrender them by way of reparation; and there is much more reason for the same rule to be applicable where property destitute of life is considered, as we should not be liable to a greater amount; especially where the animals which committed the damage are still in existence; but the house that caused ruin by falling has ceased to exist. 2Therefore, if the house should fall before security has been given, and the owner is not willing to remove the rubbish, and abandons it, the question arises whether an action can be brought against him. Julianus, in a case where a ruinous house had fallen, before a stipulation with reference to threatened injury had been entered into, having been consulted as to what he upon whose premises the rubbish had fallen should do in order to obtain damages, answered that if the owner of the house which had fallen wished to remove the rubbish, he should not be permitted to do so, unless he removed everything; that is to say, even what was worthless, and should also give security, not only with reference to future injury but also with reference to that which had already been sustained. If the owner of the house which has toppled over does not do anything; an interdict should be granted him upon whose premises the rubbish had fallen by which his neighbor may be compelled either to remove the rubbish, or to abandon the entire house which had been destroyed.

Ulpianus, On the Edict, Book LIII. Julianus further says, it may be held that, in this case, the owner of the house can be compelled to give security for the damage which has already taken place; for, as protection can be provided while the building is still intact, it is not inequitable for it to be furnished after it has fallen into ruin. However, while it was intact, anyone can be compelled either to give security against threatened injury, or to abandon the house which he is unwilling to repair. Finally, he says that if anyone, on account of the shortness of the time required, or because of his absence on business for the State, cannot enter into a stipulation against threatened injury, it is not unjust for the Prætor to provide that the owner of the ruinous house should either repair the damage, or abandon it. Reason approves the opinion of Julianus. 1The question arises whether an interdict can be granted with reference to things which have been transported by the current of a river. Trebatius says that when the Tiber becomes swollen, and carries the property of some persons upon the premises of others, an interdict is granted by the Prætor to prevent violence from being employed against the owners of said property to prevent them from removing what belongs to them; provided they promise indemnity against threatened injury. 2Alfenus says that if a portion of your land falls upon mine, and you claim it, an action will be granted against you for injury already committed. This opinion is approved by Labeo; for the injury which I already have sustained cannot be left to the decision of the judge before whom the recovery of the earth which has fallen is demanded; nor should an action be granted unless everything which has fallen is removed. Alfenus also says that the earth which has fallen can only be claimed where it has not become united with, and constitutes a part of my land. Nor can a tree, which, having been carried into my field and has taken root in my soil, be claimed by you. Nor can I bring an action against you on the ground that you had no right to your part of the land deposited on mine, if it was already united with mine, for the reason that it then becomes my property. 3Neratius, however, says that if your boat is carried upon my land by the force of the stream, you cannot remove it unless you furnish me with security for any injury which I may have sustained. 4The question arose, when the land belongs to one person, and the surface of it to another, whether the latter should promise indemnity for threatened injury, or should give security. Julianus says that whenever a house which stands on the land of another is ruinous, the owner must promise indemnity, not only with reference to the defective condition of the land but also with reference to that of the building; or that he to whom the surface belongs must furnish security both with respect to the land and to the house; and if either one of them fails to do so, the neighbor should be placed in possession of the property. 5Celsus very properly holds that if the usufruct of your house belongs to Titia, you, as the owner, must promise indemnity against threatened injury, or Titia must give security. If he to whom security against threatened injury should be furnished is placed in possession of the property, he will prevent the use and enjoyment of the same by Titia. He also says than an usufructuary, who does not repair the property, should be prevented by the owner from enjoying it; and therefore, if the usufructuary does not give security against threatened injury, and the owner is compelled to promise indemnity, the usufructuary should be prevented from enjoying the property.

Ad Dig. 39,2,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 3.Ulpianus, On the Edict, Book LIII. What shall we say with reference to a creditor who has received a house by way of pledge? Must he promise indemnity against threatened injury, in order that his rights may be protected; or must he give security because he is not the owner of the property? This point is treated in an opposite sense by Marcellus; for he asks whether security against threatened injury should be given to a creditor who holds a house by way of pledge. Marcellus says that it is not necessary for him to give security, and adds that the same rule will apply to a person who did not purchase the house from the owner, for the stipulation would have no force, so far as the latter is concerned. I think, however, that it would be perfectly just that the interest of the creditor should be taken into account; that is to say, that he should be secured by means of a stipulation.

Ulpianus, On the Edict, Book LIII. Let us see whether a purchaser in good faith, who obtained property from one who was not its owner, should promise indemnity against threatened injury, or should give security. The latter opinion is adopted by certain authorities; it, however, is reasonable that the purchaser should rather promise indemnity than give security, since he does so in his own name. 1Where a question arises whether the owner of the land or one who has a right in it (as, for instance, a servitude), should furnish security against threatened injury, I think that he should promise indemnity, and not give security, because he acts in his own name and not in that of another. 2Where another house, which is in good repair, stands between mine and yours which is ruinous, let us see whether you alone should give security to me, or whether he, whose house is in good condition, should alone obtain security; or whether I can require it of both of you. The better opinion is that both should furnish security; because it is possible that the ruinous house might injure mine by falling upon the one which is in good condition, although it may be said that this did not take place through any defect in the building, which was in good repair, if the other, by falling upon it, causes me damage. But, as the owner of the intervening house could have protected himself by obtaining security against threatened injury, it is but reasonable that he should be liable to an action. 3Where anyone demands that security against threatened injury be given him, he must, in the first place, swear that this is not done for the purpose of annoyance. Therefore, anyone who is willing to take an oath to this effect shall be permitted to enter into a stipulation, and no inquiry will be made whether he has any interest in the property, or whether he has an adjoining house, or not; for the entire matter must be submitted to the decision of the Prætor, who shall determine to whom security must be given, and who is not entitled to it. 4But security should not be given to anyone who has a right to cross my land, or to wash thereon, or to lodge in my house. 5Ad Dig. 39,2,13,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 6.Labeo says that it is clear that security should be given by the owner of a building, which is not in good repair, not only to the neighbors, their tenants and their wives, but also to those who reside with them. 6The question arises whether the owner of the house should give security to his tenants. Sabinus says that security should not be given to the tenants, for they either rented the house which was ruinous in the beginning, and it is their own fault that they did so; or the house has subsequently become ruinous and they can bring an action under the lease. This opinion is the more correct one. 7Where anyone builds a house near a monument, or suffers a monument to be erected near his house, security against threatened injury should not be given to him afterwards, because he allowed an unlawful act to be committed. In other cases, however, where a building injures a monument, and the person to whom the right to the monument belongs is not to blame, security must be furnished the latter. 8It is now settled that persons who have the right to the surface and the usufruct of land can enter into a stipulation providing against threatened injury. 9Ad Dig. 39,2,13,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 3.Marcellus, however, says that he who, in good faith, purchases property from someone who is not the owner of the same, cannot enter into a stipulation with reference to threatened injury. 10Where anyone serves notice for the discontinuance of a new work, Julianus discusses the question as to whether security against threatened injury should, nevertheless, be furnished him; and he is inclined to the belief that this ought to be done. Julianus also says that security should be given to a person entitled to the interdict Quod vi et clam against his adversary; because the security has no reference to any defects in a building or to any injury which may result from the work. 11Where anyone is placed in possession of a house for the reason that security was not given him, and afterwards the person to whom the house belonged, who has other buildings adjoining the former, demands that security against threatened injury on account of the ruinous house should be furnished him by the complainant who has been placed in possession of the same; let us see whether the latter should be compelled to furnish security, or whether the other party should be heard. Julianus holds that the person who has surrendered the ruinous house and retained those which were in good condition acts very dishonorably in demanding security from him who has just taken possession of the one in bad repair, when he himself lost possession of it because he refused to furnish security against threatened injury. And, indeed, he can with little propriety demand security to protect himself on account of a building for which he neglected to furnish security. This opinion is correct. 12Where anyone, about to enter into a stipulation, was sworn, but failed to conclude the agreement, let us see if he should again be sworn if he afterwards desires to enter into it. I think that he should be sworn a second time, for the reason that it is possible that either at first, or at present, he may have intended to cause annoyance. 13If I demand that security be furnished me against threatened injury, in the name of another, I must swear that he in whose name I demand security does not do so for the purpose of causing annoyance. 14If, however, I make the demand in the name of a person who, if he did so in his own proper person, would not be compelled to be sworn, as for instance, a patron, or a parent, it must be held that there is no ground for an oath; as in a case where the principal need not be sworn, he who acts for him should “not make oath in a stipulation of this kind. 15In this stipulation a certain term should be prescribed, within which the bond will become operative if any injury is sustained, for the person giving security should not perpetually be liable under the stipulation. Therefore, the Prætor himself prescribes the term for the stipulation, the circumstances of the case being taken into account, as well as the nature of the injury which it is apprehended may result.

Ulpianus, On the Edict, Book LIII. If the time prescribed by the bond has passed, new security can be furnished by a decree of the Prætor. 1When a stipulation is entered into without fixing any time, or where, by an agreement of the parties, the stipulation was to become operative when the injury was done; or if the omission was made through mistake, and the time has expired which it is customary to prescribe in such cases; the party who furnished the security can apply to the Prætor to be released. 2The Prætor next says, “With reference to any structure erected in a public stream, or on the bank of the same, I shall order security to be given for ten years.” A bond is necessary in this instance, and a time must be prescribed for the expiration of the stipulation; and this is done because the structure is erected in a public place. Moreover, where this is done upon the property of another, the Prætor requires a bond to be furnished. 3It must be remembered that security is given not only on account of defects in the soil, but also with reference to the structure itself; and, even though the latter is erected upon private ground, the security applies both to the soil and to the building itself. Where, however, the land is public property, it is not necessary for security against threatened injury to be furnished with reference to anything but defects in the construction of the building. 4Any damage which may occur within ten years is therefore included in this stipulation. 5Where the Prætor says, “With reference to any work,” we must understand this to refer to any damage resulting from a structure erected on public land. 6Where anything is built on a public highway, security must be given for the reason that it is erected on the land of another. 7The Prætor, however, after investigation, will fix the time in accordance with the nature of the work. 8Where anyone performs labor to protect a highway, or does any other work with reference to the same, security should be furnished to prevent damage being sustained by private persons. 9Nothing is expressly provided with reference to other public places, but, on account of the general clause referring to structures erected upon the premises of others, security against threatened injury should be furnished. 10Where a public place is repaired by public labor; Labeo very properly holds that the rule that security against threatened injury shall not be given applies, where any injury may result from either a defect in the land or the work; but the work should be performed in such a way that no injury or damage may be sustained by the neighbors. 11Under the terms of this Edict, if security is not furnished, the plaintiff is placed by the Prætor in possession of that part of the building which seems to be in a ruinous condition. 12Let us see whether he should be placed in possession of the whole house. An opinion of Sabinus is extant which says that he should be placed in complete possession; otherwise, he says if damage is apprehended only on account of the building, the Edict cannot be carried into effect, nor will it benefit him to be placed in possession which he cannot legally hold, or which will be of no advantage to him. This opinion of Sabinus is the better one. 13Where a building is divided into several parts, let us see whether the plaintiff should be placed in possession of a portion of the same, or of all of it. If it is so large that spaces exist between the part which is ruinous and that which is in good repair, it must be said that the plaintiff should be placed in possession of the ruinous portion alone; but if the entire building is closely united, he should be placed in complete possession of it. Therefore, in houses of great extent, the better opinion is that the plaintiff should be placed in possession of the part which is contiguous to that which is in a ruinous condition. If, however, but a very small portion of a house of great extent is in a ruinous state, how can it be held that the person to whom security against threatened injury has not been given should be directed to take possession of the entire building, when it is of such vast dimensions. 14Again, what shall we say if an addition to the house is in a ruinous condition? Shall the plaintiff be placed in possession of the addition, or of the entire building? The better opinion is that he should not be placed in possession of the entire building, but only in possession of the addition to the same. 15Where several persons demand that security shall be given to them, it is customary for all of them to be placed in possession. Labeo adopts this opinion, where one has already been placed in possession, and another desires this to be done; for we shall not consider the order in which they appear, but both of them will be entitled to possession. Where, however, one has already been directed to take possession, and another demands that security against threatened injury be furnished; then, unless this is done, the second one shall be placed in possession. 16Julianus says that where anyone is placed in possession on account of threatened injury, he cannot acquire the title to the property by lapse of time, unless he is made the owner by a second decree of the Prætor. 17If another has also been placed in possession before this decree was issued, both of the parties will become joint-owners of the house; that is to say, if they were ordered to take possession of the same. If, however, the one who is first placed in possession has become the owner, and Titius should demand that security against threatened injury be given him, and the first should refuse to furnish it, Titius alone will remain in possession. 18Where several persons are placed in possession, they are all on the same footing, and the amount of damage which may affect each one is not considered; and this is reasonable, for when one person is placed in possession this is not done with reference to the proportion of damage which he may apprehend, but it is done for the benefit of all. Hence, where several are placed in possession, all of them equally obtain complete possession, and their shares are regulated by contribution. 19If, however, anyone who is placed in possession should incur expense, and should afterwards be ordered to take possession by a second decree, can he recover the expense, and if he can, by what proceeding? It is established that he can recover the expense he has incurred by an action in partition. 20Where, however, a person is placed in possession, but has not yet been ordered to take complete possession by a second decree, let us see whether the owner of the property is obliged to relinquish possession. Labeo says that he is obliged to do so, as is the case where neither creditors nor legatees are placed in possession. This opinion is correct. 21When the Prætor places anyone in possession of property, he does not grant them complete possession at once, but only after proper cause is shown. Therefore, a certain interval of time should elapse, in order to show that the owner, by a long silence, considers the house as abandoned, or where a person has been placed in possession, and, after he has remained there for some time, no one furnishes security. 22If the owner should happen to be absent on business for the State, or for any other good reason, or if he should be of an age which entitles him to relief, the rule should be adopted that the Prætor ought not to use undue haste in promulgating the decree to place the party in complete possession of the property. And even if he should issue such a decree, there is no doubt that complete restitution will be granted the party interested. 23Where anyone is ordered to take complete possession, the owner should be compelled to relinquish it. 24Where any rights are due to the parties who have been able to give security against threatened injury, the assertion of those rights cannot be made against the person who has been placed in possession. Labeo approves this opinion. 25In the case of a creditor who holds a ruinous house in pledge, the question arises whether he can assert his rights to the pledge against anyone who has been ordered to take complete possession by virtue of the second decree of the Prætor. The better opinion is that he will be refused the right to claim his pledge, if the debtor should not promise indemnity, or the creditor furnish security. Celsus very properly holds that this rule also applies to the case of an usufructuary. 26Ad Dig. 39,2,15,26Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 459, Note 27.Where a house is held under a perpetual lease, we are of the opinion that a person can be placed in possession, but cannot be authorized to obtain complete possession by a second decree of the Prætor; for the ownership of the property can never be acquired by possession. A decree should, however, be issued to the effect that the tenant will be in the same position as he who refused to give security, after which decree he can avail himself of the proper action for this purpose under his lease. 27With reference to land leased by a municipality, however, if the authorities do not give security, it must be said that ownership can be acquired by lapse of time. 28If the damage apprehended should occur whiie the Prætor is deliberating as to whether the stipulation should be granted or not, the following nice question has arisen; namely, whether the plaintiff can be indemnified. And, indeed, the placing in possession will not become operative. The Prætor should, nevertheless, decree that any damage which may have occurred shall also be included in that covered by the bond; or if he thinks that it would be proper for him to grant an action, he can issue a decree to that effect. 29Where a ward has no guardian by whose authority he can promise indemnity for threatened injury, the plaintiff can be placed in possession, just as in the case where no defence was made. 30Where anyone is placed in possession on account of threatened injury, some authorities hold that he should prop up and repair the building in question, and that he is responsible for negligence, as in the case of a person who receives a pledge. We, however, make use of another rule; for as he is only placed in possession instead of receiving security, he will not be to blame if he does not make repairs. 31If security is offered him after he has been placed in possession, let us see whether he should be obliged to vacate the premises, unless security is also furnished him for any damage which may have been committed after he was placed in possession. This opinion, indeed, is the better one. Therefore, the time prescribed should be stated twice in the promise for indemnity; and, moreover, security must be furnished him for any expense which he may have incurred. 32The question arises from what date the account of the damage must be estimated, whether from the time when the plaintiff obtained possession, or from the time when the Prætor decreed that he should enter into possession. Labeo says that it should be from the time that the decree was issued; and Sabinus holds that it should date from the time when the plaintiff obtained possession. I think that the adoption of one or the other of these opinions depends upon the circumstances of the case; for it is customary to come to the relief of one who has been directed to take possession, and for some reason did not do so, or who obtained possession too late. 33However, after anyone has been ordered by the Prætor to take complete possession by the right of ownership, there is no ground for the tender of security. Labeo adopts this opinion, for he says that, otherwise, the case would never be terminated. This is perfectly correct, except where the parties are entitled to relief, either on account of their age, or for some other good reason. 34Where a house has already fallen down, let us see whether the person to whom security has not been given should still be placed in possession of the ruins, or of the land. The better opinion is that this should be done. Labeo concurs in this, but he adds that it should be adopted only where the house had fallen after the Prætor had issued a decree placing the plaintiff in possession. I think that the opinion of Labeo is correct. Hence, if the plaintiff makes any repairs, it should be held that he is not compelled to depart before he has been paid for them, and security has been furnished for damage previously sustained. He can, however, recover what he has expended by an action in factum, but he cannot recover more than ought to have been expended in accordance with the judgment of a good citizen. The same rule applies where someone else has incurred expense by my order or request, without fraudulent intent; and a decision has been rendered against me on this account, or I have paid the amount in good faith. 35Where anyone relinquishes possession of a house through fear that it will fall, and he does so when he cannot prevent it, Labeo says that his right will remain unimpaired, just as if he had continued in possession; because, if he preferred to abandon the house when its condition could be remedied, he will lose the benefit of the decision of the Prætor, and he should not be heard if he afterwards applies for relief. Cassius, however, says that if he withdrew through fear that the house would fall, and not with the intention of abandoning it, he should be restored to possession. He also says that where the person placed in possession does not appear, and the building collapses, he will lose the benefit of the decree of the Prætor. This should be understood to mean if he neglected to take possession, and not where the house fell after he had come with the intention of taking possession of it. 36Where anyone has been sent by the Prætor to take possession under this Edict, and is not permitted to do so, he can avail himself of an action in factum, and ask that as much shall be paid to him as would have been required to be paid if security with reference to the property had been furnished. This action extends to the time when the damage was committed.

Ulpianus, On the Edict, Book LIII. Where anyone, who is under the control of another, refuses to admit the person who was placed in possession, many authorities hold that a noxal action on this ground will lie. 1What course must be pursued if an agent should prevent him from taking possession? Shall we grant an action against him, or against his principal? The better opinion is that the action should be granted against the agent. 2The same rule will apply to the agent of a municipality, a guardian, and those who appear for others. 3This action, which is in factum, is granted perpetually, and passes to and against the heir, as well as to and against other persons. 4The judge who has jurisdiction in a case of threatened injury, and also where a tract of land has been alienated by the party against whom suit was brought, ordinarily makes an estimate of all the damage which has been sustained before judgment is rendered.

Ulpianus, On the Edict, Book XLIII. Where rain-water causes damage to anyone, he will be entitled to an action to compel his neighbor to divert it from his premises. By rainwater we mean that which falls from the heavens, and increases after a heavy rain, whether it does the damage of itself, or, as Tubero says, is mixed with other water. 1This action can be brought before the damage has been sustained, and after some building has been constructed, on account of which damage is apprehended. It will lie whenever water will probably result in injury through human agency, that is to say, whenever anyone does something which will cause the water to flow in some other way than it is naturally accustomed to do, that is, if by allowing it to run, he causes the amount to become greater, or the current to become more rapid, or stronger, or if, by confining it, he causes it to overflow. If, however, the water, by its nature, should cause damage, it cannot give rise to an action. 2Neratius says a certain man constructed a levee to exclude the water which ordinarily flowed from a marsh upon the land; if the marsh should be filled with rain-water, and it, having been turned aside by the levee which he constructed, should damage the field of his neighbor, he can be compelled to remove it by an action brought for that purpose. 3Quintus Mucius says that this action will not lie with reference to work performed with a plow, for the purpose of cultivating land. Trebatius, moreover, only allows this exception where the work done with the plow is only performed for the purpose of obtaining a better crop of grain, and not merely for the benefit of the land. 4Where ditches are dug for the purpose of draining fields, Mucius says that this is done for the sake of cultivation, but it must not cause the water to flow in a single stream; for a man has a right to improve his land, but he must not do so by damaging that of his neighbor. 5Moreover, if anyone can plow and sow his fields without making furrows for drainage, he will be liable if he makes any, even though he may be held to have done so for the purpose of cultivating his land. But if he could not sow his seed without opening furrows to carry off the water, he will not be liable. Ofilius, however, says that a person has a right to dig ditches for the purpose of cultivating his land, provided they all follow the same course. 6It is said by the authors on Servius, that if anyone has planted willows, and the flow of the water is arrested by them, and damages a neighbor, the latter can bring an action on this account. 7Labeo, also, says that this action does not apply to anything which is done for the purpose of gathering grain and fruit, and it makes no difference what kind of crops are to be gathered by means of the work performed. 8Both Sabinus and Cassius hold that this action is applicable to any work performed by the hand of man, unless it is done for the purpose of cultivating the soil. 9They also say that a party will be liable to this action if he makes any water-course on his land which the Greeks call helikes. 10The same authorities say that an action to control rain-water will not lie where the water flows naturally, but if by means of any work it is turned back, or falls on land below, suit can be brought. 11They also say that everyone has the right to retain rainwater on his own premises, or to use for his own benefit any which flows from those of his neighbor, provided he performs no work on the land of another; for no one is forbidden to profit by anything so long as he does not injure some one else, nor can anyone be held liable on this ground. 12In conclusion, Marcellus says that when anyone, while excavating upon his own land, diverts a vein of water belonging to his neighbor, no action can be brought against him, not even one on the ground of malice. And it is evident that he should not have such a right of action, where his neighbor did not intend to injure him, but did the work for the purpose of improving his own property. 13It must be remembered that this action can be brought by one owning land situated above against one owning land situated below, to prevent water which flows naturally from running over his fields as the result of some work which has been constructed, and by the owner of the land below to prevent him from diverting the water from its natural course. 14It should also be noted that this action will never lie where the nature of the ground causes the damage. For (properly speaking), it is not the water, but the nature of the ground which causes it. 15In short, I think that this action will only lie where the rainwater itself causes the damage, or where, having been allowed to collect it is the source of injury, and this occurs not naturally, but through human agency; unless the work is done for the purpose of cultivating the soil. 16Water is said to be increased by the rain, when it changes its color, or the quantity is greatly augmented. 17Ad Dig. 39,3,1,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 11.It must also be remembered that this action will not lie except where the water causes some injury to land, for it cannot be brought if it injures a building, or a house in a town; as, in the latter instance, suit can be brought on the ground that the neighbor has not the right to let the water drip or flow upon our premises. Therefore, Labeo and Cascellius say that an action of this kind is a special one, and that which has reference to canals and the dripping of water is one of general application, and can be brought everywhere. Hence, when water injures land, the party who is responsible can be sued to compel him to retain the water in its proper channel. 18We do not inquire from what source the water is derived; for if it has its origin in a public or a sacred place, and runs through the land of a neighbor, and he, by some means, diverts it upon my premises, Labeo says he will be liable to this action. 19Cassius also says that if water from a building in a city injures either land or a building in the country, an action must be brought under the law having reference to canals and the dripping of water. 20Moreover, I find it stated by Labeo that if water flowing from my field injures land situated between two buildings, an action cannot be brought against me to compel me to take care of the rainwater. This action, however, can be brought where the water flows from a place of this kind upon my land and damages it. 21Moreover, as where any work that is performed in such a way that rain-water causes me damage, this action can be brought; so, on the other hand, the question arises whether an action of this kind will lie if my neighbor should do some work to prevent the water from running over my land, and which is a benefit to him. Ofilius and Labeo hold that it cannot be brought, even if it was to my interest that I should have access to the water, because it will only lie where rain-water causes damage, and not where it is a benefit. 22Ad Dig. 39,3,1,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 473, Note 7.If a neighbor should remove the structure which he had erected, and, after its removal, the water following its natural course should injure the field belonging to the owner below, Labeo thinks that this action cannot be brought; since it is a perpetual servitude enjoyed by land situated below to receive water pursuing its natural course. Labeo, however, acknowledges that it is evident if, on account of the work having been removed, the water should flow more rapidly, or collect in its channel, an action of this description can be brought. 23Ad Dig. 39,3,1,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 473, Note 7.Finally, he says that certain laws have been enacted with reference to the different conditions of land; so that if on certain tracts there are large accumulations of water, I may be permitted to build levees or excavate ditches on your ground, for my own protection. Where, however, there is no condition mentioned with reference to land, the natural condition of the same must be preserved, and the lower tract will always be subject to the upper one; and this inconvenience must be naturally endured by the one situated below, for the benefit of the upper tract, and should be compensated for by other advantages; for, as all the fertile soil of the upper tract is carried upon the lower, so, also, the inconvenience of the water flowing upon it must be tolerated. But if no special law relating to the tract of land in question can be found, ancient custom is held to take the place of law. For, indeed, with reference to servitudes, we follow this rule that where a servitude is not found to have been imposed, and one has been enjoyed for a long time without force, or by a precarious title, or clandestinely, the servitude is held to have been created by a long-established custom, or by law. Therefore, we cannot compel a neighbor to build levees, but we ourselves can build them on his land, and to obtain the enjoyment of this species of servitude we are entitled to either a prætorian action or an interdict.

Ulpianus, On the Edict, Book LIII. It is related by Trebatius that a certain person, on whose land there was a spring, established the business of a fuller near the said spring, and permitted the water, after being used in this way, to flow upon the land of his neighbor. He says that he would not be liable to an action of this kind brought by his neighbor, but many authorities hold that if he confines the water to a channel or throws any filth into it, he can be prevented from doing so. 1Trebatius also thinks that where anyone is damaged by a flow of warm water, he can bring a suit of this kind against his neighbor, but this is not true, for warm water is not rain-water. 2If a neighbor who was accustomed to irrigate a field during a certain season of the year should make a meadow of it, and by constant irrigation should cause his neighbor damage, Ofilius says that he will not be liable to an action on the ground of threatened injury, or for the diversion of rain-water, unless he has levelled the ground so that, in this way, the water will be carried more rapidly upon the land of his neighbor. 3It has been established, and we adopt the rule, that a person is not liable to this action, except when he does the work, which causes the damage, upon his own land. Therefore, if anyone performs any work upon public land, this action will not lie; and he who did not provide against threatened injury by obtaining the execution of a bond has no one to blame but himself. If, however, the work is performed upon private premises, as well as upon public land, Labeo says that an action of this kind can be brought for everything. 4Ad Dig. 39,3,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 473, Note 17.An usufructuary cannot bring this action, nor can it be brought against him.

The Same, On the Edict, Book LIII. Moreover, although this action can only be brought against the owner of the work, still Labeo says that if anyone builds a sepulchre, and the water from it injures a neighbor, it is preferable to adopt the rule that the owner will be liable to this action, even if he had ceased to be such because of the ground having become religious, for he was the owner at the time when the structure was erected. If he should be compelled by order of court to restore the work to its former condition, an action for the violation of the sepulchre will not lie. 1Julianus also said that, if after proceedings had been instituted to compel him to take care of the rain-water, and he against whom suit had been brought for damages previously sustained, and for the restoration of the property to its original condition, should alienate the land, the judge must render the same decision which he would have done if no alienation had taken place; for, after the land had been alienated, the case remains the same, and the account of the damage should include any which had been suffered after the alienation took place. 2Julianus also says that this action cannot be brought against anyone but the owner of the property, and therefore, if a tenant should erect any structure without the owner of the land being aware of it, the latter is not compelled to do anything except to suffer the structure to be destroyed. The tenant, however, can, by the interdict Quod vi aut clam, be compelled to restore the property to its former condition, and to pay any damages which may have been sustained. If, however, the owner should wish to obtain security against threatened injury from the owner of the land, it would be perfectly just for it to be given him. 3If, however, I did not construct such a work, but my agent did, and my neighbor is injured by the water, the action can be brought against me, just as it can be against the tenant. The agent, however, can, according to the opinion of Julianus, have proceedings instituted against him under the interdict Quod vi aut clam, even after the property has been restored to its former condition.

Ulpianus, On the Edict, Book LIII. If the neighbor next above the one adjoining me constructs a work by which the water, running over the land of my nearest neighbor, causes me damage, Sabinus says that I can bring an action either against the one immediately above me, or against the one above him, if the former fails to do so. This opinion is correct. 1If the water flowing from land owned by several persons causes damage, or if it injures land belonging to several persons, it has been decided, and we adopt the same rule, that where it belongs to several owners, suit can be brought by each one in accordance with his interest, and judgment can be rendered proportionally; or where the action is brought against several persons, judgment shall be rendered against them individually in proportion to their respective shares. 2Hence the question arises, if water from your land should cause damage to a field held in common by yourself and me, whether this action can be brought. I think that it can, in such a way, however, that only a portion of the damage shall be paid by the party who loses the case. 3On the other hand, where the water from a field held by joint-owners damages land owned by one of them, an action of this kind can be brought, but the party who brings it can only obtain damages in proportion to his share. 4If anyone, before instituting proceedings, should transfer the ownership of the land to another, he will cease to have a right to bring this action, and it will pass to the person to whom the field belongs, for the action has reference to injury which may, in the future, be sustained the owner; although the work may have been done when the land belonged to the former proprietor. 5It must be remembered that this action is not a real, but a personal one. 6It is the duty of the judge, in a case of this kind, where any work has been done by a neighbor, to order him to restore the property to its former condition, and to pay all damages sustained after issue has been joined. If, however, any damage was caused before issue was joined, he should only compel him to restore the property to its original condition, and not to pay any damages. 7Celsus says, that if I build anything by which rain-water may cause you any damage, I can be compelled to remove it at my own expense. If anyone else, over whom I have no authority, should do this, it will be sufficient if I permit you to remove the structure. But if my slave, or anyone whose heir I am, should do the work, I will be obliged to surrender the slave by way of reparation; but if the person whose heir I am, did it, it is just the same as if I myself had erected the building. 8The judge must estimate the damage in accordance with the truth of the matter; that is to say, according to the amount of damage which appears to have been sustained.

Ulpianus, On the Edict, Book LIII. In granting the right to conduct water, the consent, not only of those on whose ground the source of the water is situated, but also of those who have the use of the same, must be obtained; that is to say, the consent of the persons to whom the servitude of said water is due. This is not unreasonable, for their right is diminished, and hence their consent is required. Generally speaking, it is held that the consent of all those who have any right to the water itself, or any interest in the land through which it flows, or on which its source is situated, must be obtained.

Ulpianus, On the Edict, Book LIII. When there are several owners of the same land in which a stream of water has its source, there is no doubt that the consent of all of them must be obtained; for it would be unjust if the consent of one who is the owner of, perhaps, a very small share, should prejudice the rights of the other joint-owners. 1Let us see whether subsequent consent can be obtained. It is established that it makes no difference whether the consent precedes or follows the conducting of the water, because the Prætor must also take into consideration consent afterwards given. 2Labeo says that, if a river is navigable, the Prætor must not grant permission for enough water to be taken from it to render it less navigable. The same rule applies where another river is rendered navigable by means of the water of the one in question.

Ulpianus, On the Edict, Book LIII. He who can alienate property can also consent to its alienation. But where the right to donate it is not granted to a person, the rule should be adopted that his wishes must not be considered, even if he consents to its donation by another.