restricted access 22. SPRINGS
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114 BOOK FORTY-THREEISPRINGS containment of the water that he cannot be prevented with impunity. I think this also applies in the opposite case of turning it into a culvert, unless the adversary can show it is for greater convenience. 1. Servius and Labeo write that if he wishes to make a watercourse through the earth, because it did not hold the water, cemented, he should be heard. But also if he wishes to make a watercourse that was of masonry into an earthen one wholly or partly, he should equally not be prohibited. My view is that urgent and necessary repair must be allowed. 2. If someone wishes to place a new channel or pipe into the watercourse when it never had one, Labeo says this interdict will effectively avail him. Aild I think that here too the convenience of the person who draws off the water should be considered, as long as no inconvenience is caused to the owner of the field. 3. This interdict applies to all watercourses, whether on public or on private land. 4. If the water is conducted into one lake and from there drawn off by several ducts, this interdict will effectively lie for repair of the lake itself. 5. This interdict applies to all watercourses, whether on public or on private land. 6. Even if it is a watercourse of warm water, this interdict will lie for its repair. 7. Aristo thinks that an actio utilis will lie for the repair of a steam conduit for steam baths. And it must be said that an effective interdict will lie for this purpose. 8. This interdict will be granted for and against the same persons who are the subject of the interdicts on water enumerated above. 9. If someone serves notice on a person who is repairing a watercourse that it is a new work, it has been neatly explained that this notice should be disregarded. For since the praetor forbids the use of force against him, it is absurd that a notice of new work should stop him. But plainly, it must be said that he can be stopped by an action on the thing. A vindicatio of "his having no right" may undoubtedly be made against him. 10. There cannot be the least doubt that he must give a cautio for threatened damage. 11. If anyone prevents him from carrying or transporting what are necessary for the repair, Ofilius thinks this interdict lies in his favor, which is true. 4 VENULEIUS, Interdicts, book 1: Interdicts will be granted for the repair of watercourses without inquiry about whether the person taking the action is entitled to draw off the water. For the repair of ways is not as necessary as that of watercourses, since if watercourses were not repaired, all use of the water would be lost and people would die of thirst. But when a way is not required, all that could happen is difficulty in walking and driving, which would be less serious in summer time. 22 SPRINGS 1 ULPIAN, Edict, book 70: The praetor says: "Insofar as you have used water from the spring in question this year not by force, stealth, or precarium, I forbid the use of force to prevent your using it in this manner. I will give the same interdict on lakes, wells, and fishponds." 1. This interdict is provided for someone who is prevented from using the water of a spring. For servitudes are normally not only for drawing water but also for raising it; and just as servitudes for drawing and raising water are distinct, so the interdicts are granted separately. 2. This interdict applies if someone is prevented from using water, that is to say, from raising it or watering herd animals from it. 3. And the same things are to be said with respect to persons as have been said of the interdicts above. 4. This interdict does not apply to cisterns. For a cistern does not have a perennial state or fresh water. From this it appears that a requirement in every case is that the water should be fresh, whereas cisterns are filled by rainwater. Hence, it is settled that the interdict no longer applies, if a lake, fish pond, or well has no fresh water. 5. Plainly if someone is prevented from going to raise water, the interdict will be just as adequate. 6. The praetor goes on to say: "I forbid 114 BOOK FORTY-THREE / SPRINGS containment...


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