restricted access 20. DAILY AND SUMMER WATER
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108 BOOK FORTY-THREE /DAILY WATER the servitude is settled need not show evidence of his right; for what is lost by the person who suffers him to do what he has done this year? But he who wishes to repair is doing something new and should not be allowed to carry out this work in property not his own unless he really has the servitude. 14. It may happen that someone who has the right of way on foot and with cattle does not have the right to repair it, because it was provided when the servitude was drawn up that he should not have the right of repair, or so provided that if he should wish to repair, his right of repair should only be to a certain limit. So the praetor has rightly referred to repair in the words "repairing as is your right." "As is your right" means as is permitted to you by an imposed servitude. 15. By repairing we understand reducing the way on foot or with cattle to its original state, that is to say, not widening or lengthening, lowering or raising it. Repairing is a long way from building, which is quite a different thing. 16. In Labeo there is a question whether, if anyone wishes to build a bridge in order to strengthen a road, he should be permitted to do so. He said he should, because strengthening of this kind is a part of repair. And I think this opinion of Labeo true, provided that traffic would be impossible without it. 4 VENULEIUS, Interdicts, book I : The old jurists used to add that no force should be used against anyone bringing what was useful for repair. This is superfluous, because not allowing to be brought what is indispensable for repairing the way is held to be using force to prevent its repair. 1. But if someone entitled to bring what is necessary for repair by a short route should wish to use a longer way which would cause damage to a farm, force will be used against him with impunity, because he is actually hindering himself from repairing the way. 5 ULPIAN,Edict, book 20: Therefore, it appears that anyone who does not allow the piling up of materials is using force to prevent repair. 1. Plainly, if anyone could have brought up materials in one part of a field without inconvenience to the owner and deliberately brought them in another, it is held that force can rightly be used against him. 2. This interdict can undoubtedly be granted to a person's successors and not just to himself. It can also be granted in favor of a buyer and against a buyer. 3. If anyone does not have a legally imposed servitude, but has the prerogative of long possession on the grounds of long use of a servitude, he may avail himself of this interdict . 4. Anyone who is going to avail himself of this interdict must give a cautio to his adversary for any fault in the work. 6 PAUL,Edict, book 66: Just as having made wrongful use in the same year will not harm anyone who is making use that is not wrongful, so their having made wrongful use will not harm a buyer or heir, if the vendor or testator made rightful use. 7 CELSUS,Digest, book 25: If someone has been passing through your farm not by force or stealth or precarium, nor as though he had any right to do so, but with the intention of not doing so if prohibited, the interdict on right of way on foot or with cattle is no use to him. For in order that this interdict should lie, he should have possessed the right of way. DAILY AND SUMMER WATER 1 ULPIAN,Edict, book 70:The praetor says: "Insofar as you have this year drawn off water in question not by force or stealth or precarium from such a one, I forbid force to be used to prevent you from drawing it off in this manner." 1. This interdict is for prohibition and for restitution in the meantime, and applies to daily water. 2. Daily water is not that water which is drawn off every day, but that which someone could use every day if he wished, including such water as it is not expedient to draw off every day even though it could be drawn off. 3. There are two kinds of water: daily 108...


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