Ulpianus, On the Edict, Book LXX. Where I wish to institute proceedings against a debtor, the approved course is that, if he admits that he owes the money and states that he is ready to pay it, he must be heard, and time must be granted him for making payment under a sufficient bond; for no great injury can result from delay for a reasonable time. By a “reasonable time” must be understood that which is granted defendants for payment, after judgment has been rendered against them.

Ulpianus, On the Edict, Book LXX. Where a person undertakes the defence of a case without any good reason, as he is not in possession and has not acted fraudulently to avoid being in possession, Marcellus says he cannot have the case dismissed, if the plaintiff is not informed of the facts, and this opinion is the correct one; this, however, is on the presumption that issue has been joined. But where a party, before issue is joined, avers that he is not in possession when in fact he is not, and does not deceive the plaintiff and departs, he cannot be held to have undertaken to defend the case.

The Same, On the Edict, Book LXX. It may also be stated that the same rule is applicable where anyone purchases part of an estate.

The Same, On the Edict, Book LXX. Where anyone purchases a tract of land presumed to be free from rights of way, and he is forbidden to pass through it, and is defeated in court; he will be entitled to an action on purchase. For although no stipulation with reference to eviction was made, because the judgment rendered with reference to the servitude is not final, so far as the property itself is concerned, still it must be said that an action on purchase will lie.

The Same, On the Edict, Book LXX. Aristo says that the Prætor should come to the relief not only of creditors, but also of the heir who has been appointed, and that they should furnish the latter with a copy of their claims, in order that he may ascertain whether it is to his interest to accept the estate or not. 1If the estate is quite valuable, and while the heir is deliberating there is property forming part of it which will be spoiled by lapse of time, upon application to the Prætor, the person who is deliberating can sell the said property for a fair price, without being prejudiced thereby; and he can also sell any property which is too expensive to keep, as, for instance, beasts of burden, or slaves which were for sale; as well as such articles as become deteriorated by delay. He also should take care that any debt which is due, or which is subject to a penalty, or which is secured by valuable pledges, is paid.

Ulpianus, On the Edict, Book LXX. The present rule is that municipalities can both hold possession and acquire by usucaption, and that this can be done through a slave, or a person who is free.

Ulpianus, On the Edict, Book LXX. We say that he holds anything clandestinely who takes possession of it by stealth, suspecting that the other party, not knowing what he has done, may raise a controversy, and fearing that he will contend his right. He, however, who does not take possession secretly, but conceals himself, is in such a position that he is not considered to have clandestine possession. For not the manner in which he acquired possession, but the beginning of his acquiring it, should be taken into account, nor does anyone begin to acquire possession clandestinely who does so in good faith, with the knowledge or consent of him to whom the property belongs, or for any other good reason. Hence Pomponius says that he obtains clandestine possession who, fearing that some future controversy may arise, and the person of whom he is apprehensive being ignorant of the fact, takes possession by stealth. 1Labeo says that where a man goes to a market, leaving no one at home, and on his return from the market finds that someone has taken possession of his house, the latter is held to have obtained clandestine possession. Therefore, he who went to the market still retains possession, but if the trespasser should not admit the owner on his return, he will be considered to be in possession rather by force than clandestinely.

Ulpianus, On the Edict, Book LXX. He who has the usufruct of property is held to possess it naturally. 1Ownership has nothing in common with possession, and therefore an interdict Uti possidetis is not refused to one who has begun proceedings to recover the property, for he who does so is not held to have relinquished possession.

The Same, On the Edict, Book LXX. In conclusion, I think that it must be said that this interdict ought to be granted among usufructuaries, even if one of them claims the usufruct, and the other the possession. The same rule should be adopted where anyone alleges that he is in possession of the usufruct. This is also held by Pomponius. Hence this interdict should also be granted where one person claims the use and another the usufruct of the same property.

Ulpianus, On the Edict, Book LXX. The Prætor says: “I forbid you to prevent the enjoyment of the surface of the land in question, in accordance with the terms of the lease or the contract, either by the employment of force, or clandestinely, or under a precarious title. If any other action having reference to the surface of the land is applied for, I will grant it where proper cause is shown.” 1Anyone who has a right to use the surface of land belonging to another is protected by a civil action. For if he has leased it, he can bring suit under the lease; if he has purchased it, he can bring an action on purchase against the owner of the land, and if the latter interferes with him, he can be sued for the amount of the plaintiff’s interest. When his rights are interfered with by another, the owner will be obliged to indemnify him, and assign him his rights of action. It was, however, considered much more advisable to employ this interdict and to promise a kind of real action, because it was uncertain whether the action under the lease could be brought, as it is always better to have possession than to bring a personal action. 2In this case a double interdict is proposed, just as in the case of the interdict Uti possidetis. Therefore the Prætor protects him who claims the right to the surface of the land by an interdict resembling that of Uti possidetis, and he does not require anything else of him, except that he must have a title to possession. He only asks one thing, namely, whether he has obtained possession from his adversary by force, clandestinely, or under a precarious title. All the formalities are observed under this interdict which are applicable to the interdict Uti possidetis. 3When the Prætor says, “If any other action having reference to the surface of the land is applied for, I will grant it, where proper cause is shown,” this must be understood to mean that if anyone has leased the surface of the land for a short time, a real action will be refused him. This action in rem, however, will lie in favor of him who has leased the surface of the land for a long time, after proper cause has been shown. 4Moreover, he on whose land a building has been erected does not need an equitable action, but he has a real one which is the same as that to which he is entitled for the purpose of recovering the soil. It is clear, if he wishes to bring suit against the person having the right to the building, that he can make use of an exception in factum, for when we grant an action to anyone, it must be said that he is, with much more reason, entitled to an exception. 5If the surface of the soil is evicted from the possessor, it will be perfectly just to come to his relief under a stipulation having reference to eviction, or at any rate, by an action on purchase. 6Ad Dig. 43,18,1,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 223, Note 7.Again, for the reason that an action in rem is granted to anyone having a right to the surface of the soil, it is also granted against him; and it must be maintained that he is entitled to a sort of usufruct or use, and that his right can be established by means of prætorian actions. 7It should be understood that the right to the surface of the soil can be transferred by delivery, as well as bequeathed, and donated. 8If this right is held in common by two persons, we will grant them an action in partition. 9Servitudes are also established by Prætorian Law, and proceedings to recover them can be instituted by means of equitable actions, just like those which are established by the Civil Law. An interdict having reference to them will also lie.

Ulpianus, On the Edict, Book LXX. The Prætor says: “I forbid you to prevent the enjoyment of the private road or way in question, as you have done during the past year; unless you have obtained the use of the same from your adversary, either by violence, clandestinely, or under a precarious title.” 1This interdict is prohibitory, and only has in view the preservation of rustic servitudes. 2In granting this interdict, the Prætor does not inquire whether the applicant has a servitude imposed by law or not, but only whether he has used the right of way for the present year, without employing violence, or secretly, or under a precarious title, and he protects him, although he may not be using the right of way at the time when the interdict is granted. Therefore, whether he is entitled to the right of way, or whether he is not, he is in a position to claim the protection of the Prætor, provided he has made use of his right during a year, or for a reasonable period, that is to say, for not less than thirty days. This enjoyment has no reference to the present time, for, in most instances, we do not use a road constantly, but only when necessity demands it. Hence the Prætor restricted its use to the term of a year. 3We should compute the year back from the date of the interdict. 4If anyone makes use of this interdict, it will be sufficient to prove one of two things, namely, that he has used the road either to walk upon, or to drive over. 5Julianus says that the interdict will lie in favor of the plaintiff until he has entered upon the road, which is true. 6Vivianus very properly says that where anyone, on account of the inconvenience caused by a stream, or because the public highway has been obstructed, makes a new road through the field of a neighbor, he is, by no means, understood to acquire the use of it, even if he does this frequently; hence the interdict cannot be employed by him, not for the reason that he has used the road by a precarious title, but because he has not used it at all. According to this, he is not considered to have used either road, since he has still less used the old one over which he did not travel, on account of the inconvenience caused by the stream, or because it was obstructed. The same rule must also be said to apply where it was not a public highway, but a private road which was obstructed, for, in this instance, the question is the same. 7If a tenant, a guest, or anyone else makes a road through the land of another, the proprietor will be considered to have used it, and therefore he will be entitled to the interdict; and this was also mentioned by Pedius, who added that, if he did not know through whose land he had passed, he would retain the servitude. 8If, however, I should make a road through land which a friend of mine thinks belongs to him, he will be understood to be entitled to the interdict for his own benefit, and not for mine. 9If anyone has not used a right of way for the past year, on account of an inundation, but did use it the year before, he can avail himself of this interdict by changing the date, and will be entitled to complete restitution under the clause of the interdict, “if there seems to me to be any good reason.” If, however, he has been prevented by violence from using the right of way, Marcellus thinks that he must be granted complete restitution. Moreover, the interdict with the changed date can be employed in other cases, in which a party is ordinarily entitled to demand complete restitution. 10It must also be noted that, where delay is granted to my adversary, and my case under the interdict will be prejudiced thereby, it is only just that the date of the interdict should be changed. 11Ad Dig. 43,19,1,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 8.If I have conveyed to you under a precarious title a tract of land to which a right of way is due, and you apply to the owner of the adjacent premises held under a precarious title, to permit you to use the said right of way, will you be barred by an exception, if you wish to employ the interdict against him to whom you have applied for permission to use the right of way under a precarious title? The better opinion is that you will be barred; and this can be gathered from what Julianus said in a case of the same kind. For he asks, if I should convey to you a tract of land by a precarious title, to which a right of way is due, and you obtain the right to use the road by a precarious title, I can still avail myself of the interdict, because, as the precarious title does not bind me, so I am not considered to be in possession by anything which you may have done under such a title. For whenever my tenant, or the person to whom I conveyed the land by a precarious title, uses the road, I am understood to use it; for which reason I very properly say that I am enjoying the use of it. Hence he says the result will be that, if I have obtained the right of way by a precarious title, and I afterwards convey the land to you under the same title, and although you travelled upon the road with the belief that the right was due to my land, the interdict cannot be employed by me, and I will, not without reason, be held to have used the road by a precarious title, for not your opinion but mine should be considered. I think, however, that you can avail yourself of the interdict, although Julianus says nothing on this point. 12If anyone has used the right of way for the above-mentioned term of a year, without employing violence, or acting clandestinely, or relying on a precarious title, but has not used it since, or has done so clandestinely, or under a precarious title, let us see whether this will prejudice his rights. The better opinion is that it will not prejudice them in any way, so far as the interdict is concerned.

Ulpianus, On the Edict, Book LXX. Labeo refers to the following case, namely: “If you are using a right of way which you have legally obtained from me, and I sell the land on which the right is imposed, and the purchaser afterwards prevents you from using it, although you may be considered to be using it clandestinely, so far as he is concerned (for anyone who makes use of a right, after having been forbidden to do so, uses it clandestinely); still, the interdict will lie in your favor for a year, because, during this year, there was a time when you made use of the right without the employment of violence, or without doing so clandestinely, or under a precarious title.” 1It must be noted that a person is considered to make use of a right of way clandestinely, not only after he has been forbidden to do so, but also when he uses it after he from whom he acquired the right has been prohibited. It is clear that, if I was not aware that he had been forbidden to use it, and continue to do so, it must be said that I will not be injured. 2Where anyone has obtained the use of a right of way through my agent by having employed violence, or has acted clandestinely, or holds it by a precarious title, he can be prevented by me from using it, and he cannot avail himself of the interdict, because he who possesses by a defective title obtained through my agent is considered to have possession from me by violence, clandestinely, or under a precarious title. Pedius says that, if anyone, in either of these ways, has acquired possession from a person whom he succeeded by inheritance, by purchase, or by any other title, the same rule will apply. For where we succeed to the rights of others, it is not just that we should be injured by something which did not injure him whom we succeed. 3In this interdict, the value of the interest which the party had in not having been prevented from using the right of way is taken into account. 4Ad Dig. 43,19,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 163, Note 9.We are considered to enjoy servitudes through our slaves, our tenants, our friends, or our guests, and by almost all those who hold the servitudes in our name. Julianus, however, says that a servitude is not retained for the owner of the property by an usufructuary, and that this interdict will not lie in favor of the owner through the usufructuary. 5Julianus also says that if I have an usufruct in your land whose ownership is actually vested in you, and both of us pass through the land of a neighbor, we can both avail ourselves of this interdict. If the usufructuary should be prevented from enjoying his right by a stranger, or by the owner, or the latter is interrupted by the usufructuary, the interdict will apply; for it can be employed against anyone whomsoever that interferes with the right of way. 6This interdict will also lie in favor of one who obtains possession of a tract of land by reason of a donation. 7Where anyone purchases land by my order, it is perfectly just that this interdict should be granted me, in order that he who bought the property under my direction should enjoy his right. 8If, however, anyone purchases the usufruct or use of land, or it is bequeathed or transferred to him, he will be entitled to this interdict. 9Further, anyone to whom land has been transferred by way of dowry can institute proceedings under this interdict. 10And, generally speaking, it must be said that there will be ground for this interdict in all cases where a right of way had been obtained by sale, or by any other contract. 11The Prætor says: “I forbid anyone to forcibly prevent you from repairing a road or path, and restoring it to the same condition in which it was when you enjoyed it during the last year, if you have not used it by employing violence, acting clandestinely, or by virtue of a precarious title. Anyone who wishes to avail himself of this interdict must furnish security to his adversary for any damage which may result from any fault of his.” 12The public welfare also caused the introduction of this interdict, for it was only proper that an interdict should be promulgated for the benefit of him who enjoys a right of way in order to enable him to repair the road. For how can anyone conveniently use a road or path unless he repairs it? For as soon as the road becomes damaged, he who is entitled to the right of way can use and enjoy it to less advantage. 13This interdict differs from the previous one, because all can have recourse to the latter who have used the road for a year; but only those can avail themselves of this interdict who have used the road for a year, and have, in addition, the right to repair it. This right, however, is held to be vested in him to whom the servitude is due. Therefore, anyone who makes use of this interdict must prove two things: first, that he has used the road for a year; and second, that he is entitled to the servitude, for if he fails to establish either of them, the interdict will not apply. Nor is this unreasonable, for if he who wishes to enjoy the right of way until his claim to the servitude is established does not produce the proof of it, what has he lost who suffers him to do what he has already done for a year? But he who desires to repair the road undertakes something new, and ought not to be permitted to attempt this on the land of another, unless he shows that he is actually entitled to the servitude. 14Moreover, it may happen that someone has the right to pass and drive over the premises of another, but does not have the right to repair the road, because, in granting the servitude, it may have been expressly provided that the right to repair the road was not included; or it may have been done in such a way that if the beneficiary should wish to repair it, he would be allowed to do so only in a certain way. Hence the Prætor very properly says, with reference to repairs, “I forbid anyone to prevent you from repairing the road, as you have a right to do,” that is to say, to the extent that you are permitted in accordance with the terms of the servitude imposed. 15We understand by the term “repair,” to restore the road to its former condition, that is to say, that it shall not be widened, or lengthened, lowered, or raised, for it is one thing to repair a road and a very different thing to build it. 16The question is asked by Labeo, if anyone desires to construct a new bridge for the purpose of repairing a road, whether he should be permitted to do so. He says that he should be permitted to do so, because a structure of this kind forms part of the repair of a road. I think that the opinion of Labeo is correct; provided that, if this was not done, one could not travel conveniently back and forth upon the road.

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.

Ulpianus, On the Edict, Book LXX. The Prætor says: “I forbid force to be employed against anyone to prevent him from repairing or cleaning any aqueduct, canal, or reservoir, which he has a right to use for the purpose of conducting water, provided he does not conduct it otherwise than he has done during the preceding summer, without the employment of violence, or clandestinely or under a precarious title.” 1This interdict is extremely useful, for unless anyone is permitted to repair a conduit, he will be inconvenienced in his use of the same. 2Therefore, the Prætor says, “An aqueduct and a canal.” A canal is a place excavated throughout its length, and derives its name from a Greek word meaning to flow. 3A reservoir is a place from which one looks down, and from it public exhibitions are named. 4Conduits are opposed to ditches, and are for the purpose of conducting and forcing water from a stream, whether they are of wood, stone, or any other material whatsoever. They were invented for the purpose of containing and conveying water. 5A ditch is a place excavated at the side of a stream, and is derived from the word incision, because it is made by cutting; for the stone or the earth is first cut, in order to permit the water to be brought from the river. Pits and wells are also included in this interdict. 6The Prætor next says, “to repair and clean.” To repair is to restore anything which is injured to its former condition. In the term “repair” are included to cover, or support from below, to strengthen, to build, and also to haul and transport everything necessary for that purpose. 7Several authorities hold that the term “clean” only has reference to a canal which is in good condition, but it is evident that it also applies to one which needs repair, for frequently a canal needs both repairing and cleaning. 8The Prætor says, “for the purpose of conducting the water.” This is added for a good reason, as he only is permitted to repair and clean a water-course who made it in order to conduct water. 9This interdict will also lie in favor of one who has not the right to conduct water, provided he did conduct it either during the previous summer, or during that year; as it is sufficient that he did not do so by the employment of violence, or clandestinely, or under a precarious title. 10If anyone desires to make a conduit of stone, which was previously merely dug through the earth, it is held that he cannot legally avail himself of this interdict, for he who does this does not merely repair the water-course. This opinion was adopted by Ofilius. 11Hence, even if a person wishes to dig a canal through a different place, he can be prevented from doing so with impunity. This rule also applies whether he lowers, raises, widens, extends, covers, or uncovers the conduit. I, however, think that he can be prevented from changing it in other respects, but so far as covering and uncovering it is concerned, I do not believe that he can be interfered with, unless his adversary proves that it is for his advantage that this should not be done.

Ulpianus, On the Edict, Book LXX. Servius, however, holds that water which formerly flowed through an open channel is conducted in a different way, if it is subsequently conveyed through one that is covered; for if anyone constructs a work by means of which the water is better preserved or contained, he cannot be prevented from doing so with impunity. I think the contrary applies with reference to a pipe, unless greater benefit is derived by the adversary. 1Servius and Labeo say that if a person wishes to make the conduit of stone which, in the first place, was dug through the earth, and therefore did not retain the water, he should be heard. If, on the other hand, he should change the conduit which was formerly built of stone into merely a ditch through the earth, either wholly or in part, he cannot be prevented from doing so. It seems to me that any urgent and necessary repairs should be permitted. 2If anyone desires to connect a new channel or new pipes with the water-course, which were never there before, Labeo says that this interdict will be applicable. We, however, are of the opinion that, in a case of this kind, the benefit of him who conducts the water without causing any inconvenience to the owner of the land should be considered. 3If water is conducted into a lake, and from the latter by means of several aqueducts, this interdict will lie for the benefit of anyone desiring to repair the lake itself. 4This interdict has reference to all conduits, whether they are situated in public or in private places. 5Even if the pipe is for the purpose of conducting warm water, this interdict will also be available, where any repairs of the same should be made. 6Aristo thinks that a prætorian action will lie where a subterranean pipe through which vapor is conveyed into hot baths requires repairs; and it must be said that an interdict can also be employed in a case of this kind. 7This interdict is also granted to the same persons, in the cases above enumerated, in which interdicts with reference to water are granted. 8Ad Dig. 43,21,3,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 9.Where notice to desist from the construction of a new work is served upon anyone who is repairing a conduit, it has been very properly held that he need not pay any attention to it, for as the Prætor forbids violence to be employed against him under such circumstances, it is absurd that he should be interfered with by the service of notice to stop the construction of a new work. It must be said that an action in rem can undoubtedly be brought against the party in question, on the ground that he had no right to make the repairs. 9There is no question whatever, that he who makes the repairs should give security against threatened injury. 10Ofilius thinks that this interdict will lie in favor of anyone who is prevented from bringing or transporting any materials required for repairs. This is true.

Ulpianus, On the Edict, Book LXX. The Prætor says: “I forbid force to be employed to prevent you from making use of the spring in question, the water of which you have used during the past year, without employing force, or clandestinely, or under a precarious title. I will also grant an interdict of the same kind with reference to lakes, wells, and fish-ponds.” 1This interdict was introduced for the benefit of him who is prevented from using the water of a spring. For servitudes are usually granted not only for the purpose of conducting water, but also for drawing it; and as those relating to the conducting of water and the drawing of the same are distinct, so, also, the interdicts relating to them are separately granted. 2Moreover, this interdict will apply if anyone is prevented from using water; that is to say, if he is either hindered from drawing it, or driving his cattle to it. 3The same rule which we have mentioned as governing previous interdicts must also be said to apply to those which have reference to persons. 4This interdict will not lie in the case of cisterns, for a cistern has not perpetual, or running water. From this it is evident that, in all these instances, it is required that the water be running. Cisterns, however, are filled by rains. In conclusion, it is established that the interdict will not apply if the lake, fish-pond, or well, does not contain running water. 5It is clear that the interdict will also be sufficient, where anyone is prevented from using a road giving access to the water to be drawn. 6The Prætor next says: “I forbid force to be employed to prevent you from repairing and cleaning the spring in question, in order that you may retain the water; provided you do not make use of it in a different way than you have done during the past year, without the employment of force, or clandestinely, or under a precarious title.” 7This interdict is as advantageous as the one which has reference to the repair of conduits; for if it is not permitted to clean and repair a spring, it will be of no use. 8A spring should be cleaned and repaired for the purpose of retaining the water, so that anyone may use it in the same way in which this was done during the past year. 9To retain water is to confine it in such a way that it will not overflow, or be lost; provided anyone is not permitted to seek for and open new springs, for this is an innovation upon what has been done during the preceding year. 10An interdict can also be employed where a lake, a well, or a fish-pond is to be repaired or cleaned. 11This interdict is granted to all persons who are allowed to make use of the one having reference to summer water.

Ulpianus, On the Edict, Book LXX. He who does work in a different way than that in which he gave notice that it would be done, or deceives the person who had an interest in not having it performed, or intentionally serves notice upon his adversary, when he knows that he cannot hinder him, or notifies him so late that he cannot leave his house in order to interfere with the work, is held to have acted clandestinely. Aristo says that Labeo adopted this opinion. 1When anyone gives notice that a new structure is about to be erected, he is not always considered to have acted clandestinely, if he does the work after the notice has been given; for (according to Labeo), both the day and the hour should be included in the notice, as well as the place where the work is to be done, and the nature of it. A notice should not be either vague nor obscure, nor should it so restrict the adversary that he cannot appear within the time designated, in order to prevent the work from being performed. 2If there is no one upon whom the notice can be served, and no fraud has been committed by the person intending to do the work, notice should be served upon the friends or agent of the party interested, or at his house. 3Servius, however, very properly states that it will be sufficient to notify the husband of a woman, who is interested, that the work is about to be done, or to do it with his knowledge; although it will also be sufficient not to have the intention of concealing it from him. 4He also says, that if anyone desires to construct a new work in a public place belonging to a municipality, it will be sufficient if notice is served upon the official having charge of the affairs of the city. 5If anyone, thinking that certain land belongs to you, while in fact it is mine, undertakes a new work with the intention of concealing it from you, but not from me, the interdict will lie in my favor. 6He also says that, if someone undertakes a new work with the intention of concealing it from my servant, or my agent, I will be entitled to an interdict. 7If anyone who did not serve notice that he was about to begin a new work, but was himself notified not to undertake it, and, nevertheless, does so, I think that the better opinion will be that he employed violence. 8These words, “what has been done by violence or clandestinely,” Mucius says should be understood to mean what you yourself, or anyone of your people, have done, or what has been done by your command. 9Labeo, however, thinks that a larger number of persons are included in these words; for, in the first place, it includes the heirs of the persons enumerated by Mucius. 10He also says that this interdict is available against an agent, a guardian, a curator, and a municipality or syndic, as representing other parties. 11If my slave undertakes a new work, an action cannot be brought against me on this account, but it will be necessary for him to do it either in my name, or in his own; for if I have your slave employed by the day, and he begins any work in my name, proceedings can be instituted under this interdict on this ground, not against you, but against me, by whose order, or in whose name the work was performed by your slave. 12In like manner, where such work is performed by the order of anyone, this action will lie not against him, but against the person in whose name the order was given. For if an agent, a guardian, a curator, or the duumvir of a municipality, acting in the name of him or those whose business he transacts, should order the work to be performed, proceedings must be instituted against him in whose name this was done, and not against him who ordered it to be done. If I direct you to order work to be performed, and you obey me, the action should be brought against you, and not against me. 13As the interdict is expressed in the following terms, “what has been done by violence, or clandestinely,” and not “what you have done by violence, or clandestinely,” Labeo thinks that it extends to other persons than to those whom we have mentioned above. 14Our practice renders me liable under the interdict Quod m aut clam, whether I have done any new work or ordered it to be done.

Ulpianus, On the Edict, Book LXX. In the Salvian Interdict, if the property to be pledged is brought upon land belonging to two joint-owners, the party in possession will be preferred, and they must have recourse to the Servian Action.

Ulpianus, On the Edict, Book LXX. If security is furnished to the agent of a person who was present, there is no doubt that an action on the stipulation will lie in favor of the principal.

Ulpianus, On the Edict, Book LXX. There are three kinds of prætorian stipulations; namely, judicial, cautional, and common. 1We call those stipulations judicial which are interposed on account of a judgment, in order to procure its ratification, so that it may be paid, or notice served with reference to the construction of a new work. 2Cautional stipulations are those which take the place of a lawsuit, and are introduced to permit a new action to be brought; such are stipulations with reference to legacies and guardianships, to enable ratification to be made, and for the prevention of threatened injury. 3Common stipulations are those which are entered into for the purpose of causing a party to appear in court. 4It should be remembered that all stipulations are in their nature cautional, for in agreements of this kind the intention is that, by means of them, a person may be rendered more secure and safe. 5Some of these prætorian stipulations require security, others merely a promise; but there are very few of them which require a mere promise, and, when they are enumerated, it will be evident that those which are mentioned are not promises, but obligations with security. 6A stipulation made with reference to notice of a new work sometimes includes security, and sometimes a promise. Hence, after what kind of a notice to discontinue a new work should security be given? How should it be given? Security must be given for a work which is constructed on private property, but where it is constructed on public lands, a mere promise will be sufficient. Those, however, who contract in their own names promise; those who contract in the name of another furnish security. 7Likewise, in a case of threatened injury, sometimes a promise is made, and at others security is given; for when anything is built in a public stream, security is furnished, but a mere promise is made with reference to houses. 8Stipulation for double damages is a promise, unless an agreement was made that security should be furnished. 9Where, however, there is some controversy, as, for instance, if, for the purpose of annoying an adversary, it is stated that a stipulation should be interposed, the Prætor himself should decide the case summarily, and either order security to be furnished, or refuse it. 10But where anything is to be added, taken from, or changed in the stipulation, this belongs to the jurisdiction of the Prætor.

Ulpianus, On the Edict, Book LXX. When the parties to a suit are guilty of the same crime, the plaintiff labors under a disadvantage, and the position of the possessor is preferable; as is the case when an exception is filed on account of the fraud of the plaintiff, and a reply is not granted to the latter, even if the defendant committed fraud in the same transaction. He who himself is not guilty should be permitted to collect a penalty from the other party.

Ulpianus, On the Edict, Book LXX. No one can be compelled to defend another against his will. 1Anyone can say that the party to whom we grant actions has much more reason to plead an exception. 2When one person succeeds another, it is not just that whatever might have prejudiced the individual whom he succeeded should not also prejudice him. 3Generally speaking, a purchaser should have the same right to bring an action, or defend it, that the vendor has. 4What is granted to anyone for his own benefit is not bestowed upon him if he refuses to accept it.