13. THAT NOTHING SHOULD BE DONE IN A PUBLIC RIVER WHICH MIGHT CAUSE THE WATER TO FLOW OTHERWISE THAN IT DID LAST SUMMER
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94 BOOK FORTY-THREE/A PUBLIC RIVER or introduced anything who is liable, but whoever has what is done or introduced. Moreover, Labeo writes that if your agent drew off the water, you are liable under the edict if you use the water. 2 POMPONIUS, Sabinus, book 34: Nothing prevents water from being drawn off from a public river (unless the emperor or the senate forbid it), provided that it will not be water in public use. But if the river is navigable or another river derives its navigability from it, it is not permissible to do this. 3 PAUL,Sabinus, book 16: Public rivers are those which are always flowing, and their banks are public. 1. A bank is held to be what contains a river at its fullest. 2. Along the banks not all places are public, because the banks begin where the slope first starts to bear down to the water from level ground. 4 SCAEVOLA, Replies, book 5: The question arose whether someone who had a house between the two banks of a public river could build a bridge for his private use. He replied that he could not. 13 THAT NOTHING SHOULD BE DONE IN A PUBLIC RIVER WHICH MIGHT CAUSE THE WATER TO FLOW OTHERWISE THAN IT DID LAST SUMMER 1 ULPIAN, Edict, book 68: The praetor says: "I forbid anything to be done in a public river or on its bank, or anything to be introduced into a public river or on its bank, which might cause the water to flow otherwise than it did last summer." 1.By this interdict the praetor has made provision against a river's drying up because of unauthorized tapping by watercourses, or bringing any injury to neighbors by changing its bed. 2. It applies to public rivers, navigable and unnavigable. 3. The praetor says: "which might cause the water to flow otherwise than it did last summer." So not everyone who introduced or did something is liable, but only one who by doing or introducing something causes the river to flow otherwise than it did last summer. The words "flow otherwise" do not refer to the volume of the water, but to the manner and direction of its current. So it is generally to be said that someone is liable under the interdict if what he has done changes the current by making the water deeper, or narrower and hence swifter, to the inconvenience of the neighborhood. And if the neighbors suffer some other harm because of what the person has done, the interdict will apply. 4. If anyone wishes to conduct water from a covered watercourse through an open channel or, on the other hand, wishes to conduct through a covered watercourse what he conducted through an open channel before, it is held that he is liable under the interdict in the event of this action of his bringing inconvenience to those living around it. 5. In the same way, if he digs an incile (cutting) or transfers one to another site or changes the bed of the river, he will be liable under this interdict. 6. There are some who think that to this interdict a defense can be made too. namelv. "if it is not done " 7 ~ ~~ for building up its banks," on the supposed ground that if something is done to cause the water to flow otherwise. there is no scoDe for the interdict if it is done for building. up the bank. But others do ;lot accept this,'as not even banks are to be built up at thz cost of inconvenience to those living around. But we follow the practice of having the praetor decide from the case whether he should grant this defense; for convenience often dictates that it should be eranted. 7. But if attention is drawn to the conve- " nience of the person who did something in a public river (suppose, for example, heavy damage has commonly been caused him by the river, and lands devastated) and if he built up dikes and other protections to safeguard his fields and this has caused some change to the river's course, should not his interest be consulted? I understand that many have diverted rivers altogether and changed their beds for the good of their lands. In matters of this kind, it is right to take into account the convenience and safety of the doer, but only if he does no injury to those living around. 8. The interdict...


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