restricted access 23. DRAINS
In lieu of an abstract, here is a brief excerpt of the content:

BOOK FORTY-THREE / D R A I N S 115 the use of force to prevent you from cleaning and repairing the spring in question, so that you may extract water from it and use it, provided that you use it in no other way than you did this year not by force, stealth, or precal-ium." 7. This interdict has the same usefulness as that for the repair of watercourses; for unless permission is given to clean and repair a spring, it will be unusable. 8. Its cleaning and repairing is for the extraction of water, so that the person concerned may use its water, provided that he does not use it other than in the way he used it this year. 9. To extract water is to contain it so that it does not flow or ooze away, provided that it is not permitted to seek out and open new veins; for that is an innovation beyond the previous year's use. 10. The interdict also lies for the repair and cleaning of a lake, well, or fish pond. 11. And it will be granted to all persons who are eligible for the interdict on summer water. 23 DRAINS 1 ULPIAN,Edict, book 71:The praetor says: "I forbid the use of force to prevent you from cleaning and repairing the drain in question, which reaches from his house to yours. I will give orders for a cautio to be furnished for threatened damage by any faulty carrying out of the work." 1. Under this title, the praetor has placed two interdicts : one for prohibition, the other for restitution. The first is for prohibition. 2. The praetor has taken care by means of these interdicts for the cleaning and the repair of drains. Both pertain to the health of civitates and to safety. For drains choked with filth threaten pestilence of the atmosphere and ruin, if they are not repaired . 3. This interdict is provided for private drains, as public drains deserve public care. 4. A drain is a hollow place through which certain waste matter should flow. 5. In this interdict, what is set out first is prohibitory and forbids the neighbor from using force to prevent the cleaning and repair of the drain. 6. Under the term "drain" are included tubes and pipes. 7. Because the repair and cleaning of drains is held to affect public welfare, it was therefore decided not to add in the interdict "which such a one has used not by force or stealth or precarium," so that, even if someone did have such a use, he should still not be forbidden to repair and clean a drain if he wished. 8. Then the praetor says: "which reaches from his house to yours." By "house" you should here understand any building; so it means from his building to your building. In addition, Labeo thought this interdict would apply if there was an open space on either side of the house, and if it should happen that the drain leads from an urban building into a neighboring field. 9. Labeo also writes that protection against force should be given to anyone wishing to conduct a private drain into the public drain. And Pomponius also writes that if anyone wishes to make a drain so that it has an outlet into the public drain, he is not to be hindered. 10. When the praetor says, "reaches," this means what reaches from his house to yours, that is, "is directed, extends , stretches." 11. And this interdict applies both to the next door neighbor and to more distant ones, through whose houses the drain runs. 12. Hence, Fabius Mela writes that this interdict entitles him to enter the house of his neighbor and take up the paving so as to clean the drain. But Pomponius says that it is to be feared in this case that the stipulation for threatened damage may come into effect. But this will not happen if he is prepared to restore what he took up because it was necessary for repairing the drain. 13. If anyone serves notice on me when I am cleaning or repairing a drain that it is a new work, it will quite rightly be said that I can disregard the notice BOOK FORTY-THREE/DRAINS 115 the use of force to prevent you from cleaning and repairing the spring in question, so that you may extract water from it and use it, provided that you use...


pdf