restricted access 21. WATERCOURSES
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BOOK FORTY-THREE1 WATERCOURSES 113 go on foot or with cattle or to draw off water, the latter is to give a cautio without prejudicing his claim to the servitude that he will not use it. 8 SCAEVOLA, Definitions, sole book: Anyone to whom a way through a farm for water is due may make a conduit in it along the line he wishes, provided that he does not change the line of the water channel. WATERCOURSES 1 ULPIAN,Edict, book 70: The praetor says: "I forbid the use of force to prevent such a one from repairing or cleaning for the purpose of drawing off water, watercourses, culverts, or sluices, provided that he does not draw off water in any other way than he drew from you last summer not by force, stealth, or precarium." 1. This interdict is of the greatest usefulness. For unless someone is allowed to repair, no other arrangement will prevent impairment of use. 2. The praetor says: "watercourses, culverts, and sluices." A watercourse (rivus) is a place sunk lengthways along which the water runs, so named from the Greek rhein, to flow. 3. A culvert (specus) is a place from which one looks down (despicitur). Spectacula (shows) have the same derivation. 4. Sluices are what are set against an incile (cutting) for taking and extracting water from a river, made either of wood or stone or some other material, and devised to contain and transmit water. 5. An incile is a place sunk at the side of a river, so called because it is cut (incidatur). The cutting is made into stone or earth so that through it water may first be brought from the river. But canals and wells are also included under this interdict. 6. The praetor then says: "Repair or clean." To repair is to restore to its original state what has been impaired. The verb repair comprises covering, underlaying, and making good, and also transporting and bringing up whatever is needed for the work. 7. The word "clean" many people think applies to a watercourse that is in good repair. But it obviously also applies to one in need of repair. As a rule, a watercourse in need of repair needs cleaning too. 8. He says: "for the purpose of drawing off water." This is rightly added, because one may only be permitted to repair and clean a watercourse for the purpose of drawing off water. 9. This interdict also applies to someone who does not have the right to draw off water, provided that in the previous summer or the same year he drew off water, the only requirement being that he did not do so by force, stealth, or precarium. 10. If someone wishes to turn an earthen watercourse into one of opus Signinum, that is, stone, it is held that he cannot rightly avail himself of this interdict; for he is not repairing if he is doing this; and so Ofilius holds. 11. Furthermore, if he wishes to conduct it through some other place, he can be prevented with impunity and even if he sinks or raises or enlarges it or covers it when open or vice versa. Indeed, I think others may be prevented with impunity , including anyone who covers a watercourse when open or vice versa, unless his adversary can show it is for greater convenience. 2 PAUL, Edict, book 66: Labeo says it is not possible to take an open watercourse through the earth, because this detracts from the convenience of the owner of the ground in watering cattle or raising water. Pomponius did not agree with this, because the owner of the ground was benefiting more by chance than by right, unless this had been provided for from the beginning when the servitude was imposed. 3 ULPIAN,Edict, book 70: Servius writes that it is a case of drawing off water in another way if what was previously drawn off through a culvert is now drawn off in an open watercourse. For it is [only] if someone's work improves the conservation and BOOKFORT~THREE/WATERCOURSES 113 go on foot or with cattle or to draw off water, the latter is to give a cautio without prejudicing his claim to the servitude that he will not use it. 8 SCAEVOLA, Definitions, sole book: Anyone to whom a way through a farm for water is due may make a conduit in it along the line he wishes, provided that he does not change the...


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