1Ulpianus, On the Edict, Book XLIII. Where rain-water causes damage to anyone, he will be entitled to an action to compel his neighbor to divert it from his premises. By rainwater we mean that which falls from the heavens, and increases after a heavy rain, whether it does the damage of itself, or, as Tubero says, is mixed with other water. 1This action can be brought before the damage has been sustained, and after some building has been constructed, on account of which damage is apprehended. It will lie whenever water will probably result in injury through human agency, that is to say, whenever anyone does something which will cause the water to flow in some other way than it is naturally accustomed to do, that is, if by allowing it to run, he causes the amount to become greater, or the current to become more rapid, or stronger, or if, by confining it, he causes it to overflow. If, however, the water, by its nature, should cause damage, it cannot give rise to an action. 2Neratius says a certain man constructed a levee to exclude the water which ordinarily flowed from a marsh upon the land; if the marsh should be filled with rain-water, and it, having been turned aside by the levee which he constructed, should damage the field of his neighbor, he can be compelled to remove it by an action brought for that purpose. 3Quintus Mucius says that this action will not lie with reference to work performed with a plow, for the purpose of cultivating land. Trebatius, moreover, only allows this exception where the work done with the plow is only performed for the purpose of obtaining a better crop of grain, and not merely for the benefit of the land. 4Where ditches are dug for the purpose of draining fields, Mucius says that this is done for the sake of cultivation, but it must not cause the water to flow in a single stream; for a man has a right to improve his land, but he must not do so by damaging that of his neighbor. 5Moreover, if anyone can plow and sow his fields without making furrows for drainage, he will be liable if he makes any, even though he may be held to have done so for the purpose of cultivating his land. But if he could not sow his seed without opening furrows to carry off the water, he will not be liable. Ofilius, however, says that a person has a right to dig ditches for the purpose of cultivating his land, provided they all follow the same course. 6It is said by the authors on Servius, that if anyone has planted willows, and the flow of the water is arrested by them, and damages a neighbor, the latter can bring an action on this account. 7Labeo, also, says that this action does not apply to anything which is done for the purpose of gathering grain and fruit, and it makes no difference what kind of crops are to be gathered by means of the work performed. 8Both Sabinus and Cassius hold that this action is applicable to any work performed by the hand of man, unless it is done for the purpose of cultivating the soil. 9They also say that a party will be liable to this action if he makes any water-course on his land which the Greeks call helikes. 10The same authorities say that an action to control rain-water will not lie where the water flows naturally, but if by means of any work it is turned back, or falls on land below, suit can be brought. 11They also say that everyone has the right to retain rainwater on his own premises, or to use for his own benefit any which flows from those of his neighbor, provided he performs no work on the land of another; for no one is forbidden to profit by anything so long as he does not injure some one else, nor can anyone be held liable on this ground. 12In conclusion, Marcellus says that when anyone, while excavating upon his own land, diverts a vein of water belonging to his neighbor, no action can be brought against him, not even one on the ground of malice. And it is evident that he should not have such a right of action, where his neighbor did not intend to injure him, but did the work for the purpose of improving his own property. 13It must be remembered that this action can be brought by one owning land situated above against one owning land situated below, to prevent water which flows naturally from running over his fields as the result of some work which has been constructed, and by the owner of the land below to prevent him from diverting the water from its natural course. 14It should also be noted that this action will never lie where the nature of the ground causes the damage. For (properly speaking), it is not the water, but the nature of the ground which causes it. 15In short, I think that this action will only lie where the rainwater itself causes the damage, or where, having been allowed to collect it is the source of injury, and this occurs not naturally, but through human agency; unless the work is done for the purpose of cultivating the soil. 16Water is said to be increased by the rain, when it changes its color, or the quantity is greatly augmented. 17Ad Dig. 39,3,1,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 11.It must also be remembered that this action will not lie except where the water causes some injury to land, for it cannot be brought if it injures a building, or a house in a town; as, in the latter instance, suit can be brought on the ground that the neighbor has not the right to let the water drip or flow upon our premises. Therefore, Labeo and Cascellius say that an action of this kind is a special one, and that which has reference to canals and the dripping of water is one of general application, and can be brought everywhere. Hence, when water injures land, the party who is responsible can be sued to compel him to retain the water in its proper channel. 18We do not inquire from what source the water is derived; for if it has its origin in a public or a sacred place, and runs through the land of a neighbor, and he, by some means, diverts it upon my premises, Labeo says he will be liable to this action. 19Cassius also says that if water from a building in a city injures either land or a building in the country, an action must be brought under the law having reference to canals and the dripping of water. 20Moreover, I find it stated by Labeo that if water flowing from my field injures land situated between two buildings, an action cannot be brought against me to compel me to take care of the rainwater. This action, however, can be brought where the water flows from a place of this kind upon my land and damages it. 21Moreover, as where any work that is performed in such a way that rain-water causes me damage, this action can be brought; so, on the other hand, the question arises whether an action of this kind will lie if my neighbor should do some work to prevent the water from running over my land, and which is a benefit to him. Ofilius and Labeo hold that it cannot be brought, even if it was to my interest that I should have access to the water, because it will only lie where rain-water causes damage, and not where it is a benefit. 22Ad Dig. 39,3,1,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 473, Note 7.If a neighbor should remove the structure which he had erected, and, after its removal, the water following its natural course should injure the field belonging to the owner below, Labeo thinks that this action cannot be brought; since it is a perpetual servitude enjoyed by land situated below to receive water pursuing its natural course. Labeo, however, acknowledges that it is evident if, on account of the work having been removed, the water should flow more rapidly, or collect in its channel, an action of this description can be brought. 23Ad Dig. 39,3,1,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 473, Note 7.Finally, he says that certain laws have been enacted with reference to the different conditions of land; so that if on certain tracts there are large accumulations of water, I may be permitted to build levees or excavate ditches on your ground, for my own protection. Where, however, there is no condition mentioned with reference to land, the natural condition of the same must be preserved, and the lower tract will always be subject to the upper one; and this inconvenience must be naturally endured by the one situated below, for the benefit of the upper tract, and should be compensated for by other advantages; for, as all the fertile soil of the upper tract is carried upon the lower, so, also, the inconvenience of the water flowing upon it must be tolerated. But if no special law relating to the tract of land in question can be found, ancient custom is held to take the place of law. For, indeed, with reference to servitudes, we follow this rule that where a servitude is not found to have been imposed, and one has been enjoyed for a long time without force, or by a precarious title, or clandestinely, the servitude is held to have been created by a long-established custom, or by law. Therefore, we cannot compel a neighbor to build levees, but we ourselves can build them on his land, and to obtain the enjoyment of this species of servitude we are entitled to either a prætorian action or an interdict.

2Paulus, On the Edict, Book XLIX. In short, there are three causes by which a lower tract of land may be subject to an upper one; namely, a law, the nature of the ground, and ancient custom, which is always regarded as law, that is to say, for the purpose of terminating disputes. 1The following case was suggested by Labeo. An old ditch was in existence for the purpose of draining certain fields, and no one remembered when it was made. The neighbor below did not clean it out, and, for this reason, the water, being obstructed in its course, injured our land. Hence Labeo says that suit can be brought against the person owning the land below, to compel him to clean out the ditch himself, or to permit you to restore it to its former condition. 2Again, if the ditch is on the boundary line, and the neighbor does not permit the part which is on your side to be cleaned out, Labeo says that you can bring this action against him. 3Cassius states that if any works are constructed by public authority for the purpose of conducting water, this action will not lie; and that matters will be in the same condition as where ancient usage transcends the memory of man. 4It is, however, stated by Ateius that the neighbor above can be compelled to clean out a ditch by which the water flows upon the land of the neighbor below, whether the memory of its construction survives or not. I myself think that this opinion should be approved. 5Varus says the force of the current has broken the levee on the land of a neighbor, and the result is that the rain-water causes me damage. He holds that if the levee was a natural one, that I cannot bring this action against him to compel him to repair the levee, or to permit it to be repaired. He also holds that if the levee was built by human agency, and it is remembered when this was done, the neighbor will be liable to this action. Labeo, also, says that if the levee was built by the hand of man, the action can be brought to compel it to be restored, even if it should notbe remembered when it was constructed; for no one can be compelled by this proceeding to do something to benefit his neighbor, but only to prevent him from injuring him, or to force him to permit us to do what can be done by law. Although the action to compel him to take care of the rain-water cannot be brought, still I am of the opinion that I will be entitled to a prætorian action or an interdict against my neighbor, if I desire the levee to be rebuilt upon his land, which, if done, will be of advantage to me and at the same time will not cause him any injury. This course is suggested by equity, although we have no law which authorizes it. 6It is said by Namusa that, if water flowing through its regular channel is obstructed by a deposit of soil, and on account of being arrested injures land situated above, an action can be brought against the owner of the land below, to compel him to permit the channel to be cleaned out; for this action is not only available in the case of work performed by human agency, but also has reference to all obstacles which do not owe their existence to our will. Labeo does not agree with Namusa, for he says that the nature of land can be changed by itself; and therefore where the nature of a field is changed in this manner, both parties should endure it with equanimity, whether their condition is improved, or made worse. Hence, if the nature of the ground is changed by an earthquake, or by the force of a tempest, no one can be compelled to permit the land to be restored to its former condition. We also adopt the principles of equity in a case of this kind. 7Labeo adds that if the accumulation of water excavates a hole on your land, an action to divert the water cannot be brought against you by your neighbor. It is, however, clear that if a channel has been dug in accordance with law, or the right to it has been established by custom beyond the memory of man, an action of this kind can be brought against you to compel you to make repairs. 8Labeo also says that when inquiry is made to ascertain whether the work was constructed within the memory of man, the exact date and the Consulate should not be required, but it will be sufficient if anyone knows when the work was constructed, that is to say, if there is no doubt on the subject; nor is it necessary that the persons who remembered it should be living, but only that others should have heard those who remembered its construction state the fact. 9Labeo also says that if a neighbor turns aside a torrent to prevent the water from reaching him and, by doing so, his neighbor is injured, an action cannot be brought against him for diverting the water from its course; since, in order to divert it, it must be prevented from flowing upon his premises. This opinion is perfectly true, provided he did not act with the intention of injuring you, but to prevent injury to himself. 10Ad Dig. 39,3,2,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 211a, Note 11.I also think that the opinion of Ofilius is correct, namely, if your land owes that of your neighbor a servitude, on account of which it receives its water, this action will not lie unless the damage sustained is excessive. The result of this is, and it coincides with the opinion of Labeo, that if anyone should transfer to his neighbor the right to allow water to flow upon his land, he cannot bring an action of this kind against him.

3Ulpianus, On the Edict, Book LIII. It is related by Trebatius that a certain person, on whose land there was a spring, established the business of a fuller near the said spring, and permitted the water, after being used in this way, to flow upon the land of his neighbor. He says that he would not be liable to an action of this kind brought by his neighbor, but many authorities hold that if he confines the water to a channel or throws any filth into it, he can be prevented from doing so. 1Trebatius also thinks that where anyone is damaged by a flow of warm water, he can bring a suit of this kind against his neighbor, but this is not true, for warm water is not rain-water. 2If a neighbor who was accustomed to irrigate a field during a certain season of the year should make a meadow of it, and by constant irrigation should cause his neighbor damage, Ofilius says that he will not be liable to an action on the ground of threatened injury, or for the diversion of rain-water, unless he has levelled the ground so that, in this way, the water will be carried more rapidly upon the land of his neighbor. 3It has been established, and we adopt the rule, that a person is not liable to this action, except when he does the work, which causes the damage, upon his own land. Therefore, if anyone performs any work upon public land, this action will not lie; and he who did not provide against threatened injury by obtaining the execution of a bond has no one to blame but himself. If, however, the work is performed upon private premises, as well as upon public land, Labeo says that an action of this kind can be brought for everything. 4Ad Dig. 39,3,3,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 473, Note 17.An usufructuary cannot bring this action, nor can it be brought against him.

4The Same, On the Edict, Book LIII. Moreover, although this action can only be brought against the owner of the work, still Labeo says that if anyone builds a sepulchre, and the water from it injures a neighbor, it is preferable to adopt the rule that the owner will be liable to this action, even if he had ceased to be such because of the ground having become religious, for he was the owner at the time when the structure was erected. If he should be compelled by order of court to restore the work to its former condition, an action for the violation of the sepulchre will not lie. 1Julianus also said that, if after proceedings had been instituted to compel him to take care of the rain-water, and he against whom suit had been brought for damages previously sustained, and for the restoration of the property to its original condition, should alienate the land, the judge must render the same decision which he would have done if no alienation had taken place; for, after the land had been alienated, the case remains the same, and the account of the damage should include any which had been suffered after the alienation took place. 2Julianus also says that this action cannot be brought against anyone but the owner of the property, and therefore, if a tenant should erect any structure without the owner of the land being aware of it, the latter is not compelled to do anything except to suffer the structure to be destroyed. The tenant, however, can, by the interdict Quod vi aut clam, be compelled to restore the property to its former condition, and to pay any damages which may have been sustained. If, however, the owner should wish to obtain security against threatened injury from the owner of the land, it would be perfectly just for it to be given him. 3If, however, I did not construct such a work, but my agent did, and my neighbor is injured by the water, the action can be brought against me, just as it can be against the tenant. The agent, however, can, according to the opinion of Julianus, have proceedings instituted against him under the interdict Quod vi aut clam, even after the property has been restored to its former condition.

5Paulus, On the Edict, Book XLIX. If a tenant, without the knowledge of the owner, should construct a work by means of which the water injures a neighbor, Labeo gives it as his opinion that the tenant will be liable under the interdict Quod vi aut clam, and that the action relating to the care of rain-water can be brought against the owner of the land, because he alone can restore the property to its original condition; but, in this instance, he can only be compelled to allow it to be restored where a bond of indemnity providing against threatened injury has been obtained by a stipulation. If he should incur any expense in restoring the property to its former condition, he can recover it from the tenant in an action on lease, unless someone should decide that he cannot do so, because it was not necessary for him to restore it. If, however, he acted by the direction of the owner of the land, the latter will also be liable to the interdict.

6Ulpianus, On the Edict, Book LIII. If the neighbor next above the one adjoining me constructs a work by which the water, running over the land of my nearest neighbor, causes me damage, Sabinus says that I can bring an action either against the one immediately above me, or against the one above him, if the former fails to do so. This opinion is correct. 1If the water flowing from land owned by several persons causes damage, or if it injures land belonging to several persons, it has been decided, and we adopt the same rule, that where it belongs to several owners, suit can be brought by each one in accordance with his interest, and judgment can be rendered proportionally; or where the action is brought against several persons, judgment shall be rendered against them individually in proportion to their respective shares. 2Hence the question arises, if water from your land should cause damage to a field held in common by yourself and me, whether this action can be brought. I think that it can, in such a way, however, that only a portion of the damage shall be paid by the party who loses the case. 3On the other hand, where the water from a field held by joint-owners damages land owned by one of them, an action of this kind can be brought, but the party who brings it can only obtain damages in proportion to his share. 4If anyone, before instituting proceedings, should transfer the ownership of the land to another, he will cease to have a right to bring this action, and it will pass to the person to whom the field belongs, for the action has reference to injury which may, in the future, be sustained the owner; although the work may have been done when the land belonged to the former proprietor. 5It must be remembered that this action is not a real, but a personal one. 6It is the duty of the judge, in a case of this kind, where any work has been done by a neighbor, to order him to restore the property to its former condition, and to pay all damages sustained after issue has been joined. If, however, any damage was caused before issue was joined, he should only compel him to restore the property to its original condition, and not to pay any damages. 7Celsus says, that if I build anything by which rain-water may cause you any damage, I can be compelled to remove it at my own expense. If anyone else, over whom I have no authority, should do this, it will be sufficient if I permit you to remove the structure. But if my slave, or anyone whose heir I am, should do the work, I will be obliged to surrender the slave by way of reparation; but if the person whose heir I am, did it, it is just the same as if I myself had erected the building. 8The judge must estimate the damage in accordance with the truth of the matter; that is to say, according to the amount of damage which appears to have been sustained.

7Paulus, On the Edict, Book XVIII. He against whom suit is brought to compel him to take care of rain-water, and who has performed the work rendering him liable to such an action, will be compelled to join issue in the case, even if he is ready to abandon it, since he is sued personally in his own name to compel him to remove the structure. 1The case is different with a bona fide purchaser, for he can only be compelled to permit the destruction of the work; and therefore if he abandons the property he should be heard, for he offers to do more than is required of him.

8Ulpianus, On the Edict, Book LIII. In granting the right to conduct water, the consent, not only of those on whose ground the source of the water is situated, but also of those who have the use of the same, must be obtained; that is to say, the consent of the persons to whom the servitude of said water is due. This is not unreasonable, for their right is diminished, and hence their consent is required. Generally speaking, it is held that the consent of all those who have any right to the water itself, or any interest in the land through which it flows, or on which its source is situated, must be obtained.

9Paulus, On the Edict, Book XLIX. In the case of the conditional sale of land, the consent of both the purchaser and the vendor must be obtained; so that it may be certain that the transfer of the right to the water is made with the permission of the owner, whether the property remains in the hands of the purchaser, or is returned to the vendor. 1Therefore, consent is required to prevent the owner from being injured without his knowledge, for he who has once given his consent cannot be considered to have sustained any injury. 2In the transfer of the right to use water, the consent not only of him to whom the right to the water belongs, but also that of the owner of the land is required, even though the latter cannot at present make use of the water, because the right to do so may afterwards revert to him absolutely.

10Ulpianus, On the Edict, Book LIII. When there are several owners of the same land in which a stream of water has its source, there is no doubt that the consent of all of them must be obtained; for it would be unjust if the consent of one who is the owner of, perhaps, a very small share, should prejudice the rights of the other joint-owners. 1Let us see whether subsequent consent can be obtained. It is established that it makes no difference whether the consent precedes or follows the conducting of the water, because the Prætor must also take into consideration consent afterwards given. 2Labeo says that, if a river is navigable, the Prætor must not grant permission for enough water to be taken from it to render it less navigable. The same rule applies where another river is rendered navigable by means of the water of the one in question.

11Paulus, On the Edict, Book XLIX. An aqueduct cannot legally be constructed so as to interfere with a right of way. Nor can a person who is entitled to a right of way legally build a bridge for the purpose of enjoying his right. But if, for this purpose, he should conduct the water by means of a covered, and not an open canal, the water will become deteriorated, because it remains under ground, and the stream will dry up. 1Cassius says that if water flowing from a tract of land owned in common, or upon one owned in common, causes any damage, one of the joint-owners can bring an action against one of the proprietors of the other tract, or can sue each of them separately; or, on the other hand, each of them can sue one of their number, or they can all individually sue one another. If one of them brings suit, and the damage is estimated and paid in court, the right of action of the others is extinguished. Likewise, where one of them is sued and makes payment, the others will be released from liability, and whatever has been paid by him for the benefit of his fellow joint-owners can be recovered by an action in partition. The action, however, cannot be brought by the person who did the work against his fellow joint-owners, as he who was responsible for it must make restitution for all damages sustained. 2Proculus says it is stated by Ferox that if an action of this kind is brought against one of several joint-owners, who did not himself do the work, he must be reimbursed for his expenses, because he is entitled to an action in partition. He, however, holds that this joint-owner can only be compelled to allow the land to be restored to its former condition, because it was the fault of the plaintiff that he did not sue the person by whom the work had been performed, and it is unjust for him who did not perform it to be compelled to restore the land to its former condition, as he has a right to bring an action in partition. But what course must be pursued if his fellow joint-owner should not be solvent? 3Julianus says that he is in doubt as to what course should be pursued by the judge, where the structure to which the injury is attributed belongs to two joint-owners, and the land damaged by the water belongs to one alone. If the land on which the work was done belongs to several persons, and suit is brought against one of them, shall judgment be rendered against all on account of any damage sustained after issue has been joined, and restoration of the property to its original condition has been refused; just as in the case of a slave owned in common, where a noxal action is brought against one of his owners, and judgment is rendered against both of them, since whatever one of them paid he can recover from his fellow joint-owner? Or shall we say that the owner who is sued on account of his share, and has judgment rendered against him for damages sustained and failure to restore the land to its original condition, as is done in an action for threatened injury where several persons own the land which it is feared will be damaged, and only one of them is sued, even though the work from which damage is apprehended is indivisible, and neither the building itself nor the ground can partially cause damage, the owner against whom the action is brought can, nevertheless, have judgment rendered against him in proportion to his share of the property? Julianus thinks that the same course should be pursued in an action to compel anyone to take care of rain-water, as is done to provide against threatened injury; because, in both instances, proceedings are instituted, not with reference to damage which has already been sustained, but on account of that which is apprehended. 4If the land injured by rain-water belongs to several persons, each one of them can bring suit against his neighbor; but he can not, after issue has been joined, obtain damages on account of injury sustained for an amount greater than his share. Moreover, if the land is not restored to its former condition, judgment must not be rendered against each one of the joint-owners for a larger sum than the value of his interest in the property. 5Ofilius says that one joint-owner can bring an action against another, where water is conveyed from the private premises of one of them upon land belonging to both in common. 6Trebatius thinks that if suit is brought on account of work due to human agency, the land must by all means be restored to its original condition by the party against whom the suit was brought. If, however, the land should be injured by the force of the water, or the ditches should be filled with gravel, or soil, then the owner of the land will only be compelled to permit this to be removed.

12The Same, On Sabinus, Book XVI. The purchaser, as well as the other successors (unless the sale is a fictitious one), must either restore the property to its original condition, if they are willing to do so, or must permit this to be done; for it is clear that the plaintiff will be prejudiced by delay. The joint-owner of the person who performed the work is in the same position if he himself had nothing to do with it. The same rule also applies where land is acquired by donation or devise.

13Gaius, On the Edict of the Urban Prætor; Title, The Action Having Reference to Taking Care of Rain-water. The vendor, or the donor, however, will be liable for damages sustained as well as for expenses incurred by the plaintiff through the interdict Quod vi aut clam.

14Paulus, On the Edict, Book XLIX. Ateius says that if anyone, after having constructed a work which causes damage, should sell the land to a more powerful person in order to cease to be the owner of the same, proceedings may be instituted against him under the interdict Quod vi aut clam, and after the expiration of a year, an action based on fraud can be granted against him. 1When an action is brought to compel another to take care of rain-water, the question arises whether or not the injury results from some act already performed; and hence, if through some defect in the ground a part of the soil has settled, even though on this account damage may be caused by rain-water to a neighbor below, the action will not lie. The same rule will also apply where anything attributable to human agency is deposited upon the land. 2In this action, as well as in that relating to threatened injury, anticipated damage is taken into consideration; while in almost all others payment is made for damages already sustained. 3With reference to damage caused before the action was brought, proceedings should be instituted under the interdict Quod vi aut clam; and with regard to that which may occur after the decision has been rendered, security against threatened injury must be furnished, or the property must be placed in such a condition that there will be no longer any danger of injury. 4A new action must be brought where a work has been constructed after issue has been joined in the case.

15The Same, On Sabinus, Book XVI. Sometimes the work which has been constructed after issue has been joined is removed, where that which was constructed before it cannot be removed without destroying the other.

16Pomponius, On Sabinus, Book XX. After the sale and transfer of land which has been injured, before judgment has been rendered in an action of this kind, the vendor can still obtain damages under the judgment; not because he has sustained any injury, but because the property has been damaged, and he must pay anything which he may recover to the purchaser. If, however, the party who was sued should sell the land before any damage was done, suit must either immediately be brought against the purchaser, or within a year against the person who sold the land, if he did so for the purpose of avoiding a judgment.

17Paulus, On Plautius, Book XV. If the servitude to draw water at night should be granted me, and afterwards, by another transfer, I should also obtain the privilege of drawing water by day, and, during the time prescribed by law, I should only make use of my privilege at night, I will lose the servitude to draw water during the day, for the reason that in this instance there are two servitudes derived from different causes. 1It has been very properly decided that water cannot be conducted by means of stone aqueducts, unless this was included in the grant of the servitude, for it is not customary for a person who has water to conduct it through a channel made of stone. However, what is customary in cases of this kind can be done, as, for instance, water can be conducted through pipes, even if nothing on this point was stated in the grant of the servitude, provided always that no damage is caused to the owner of the land by doing so. 2It has been decided that the servitude of drawing water can be granted where there is a public highway between two tracts of land; and this is true. This is not only the case where there is a public highway between the two tracts, but also where they are divided by a public stream, in case the servitude of driving or of passage can be established, notwithstanding that the public stream divides the two tracts of land, that is to say, where the width of the stream does not prevent it from being crossed. 3The rule is the same where my neighbor owes a servitude to my land, which does not join his but joins another belonging to me, as I can bring an action against him, and maintain my right to pass through his premises to my land beyond, although I may not have a servitude attaching to my intermediate tract; just as where a public road, or river which can be crossed by fording, lies between two separate tracts of land. None of these servitudes, however, can be imposed where the intervening tract is sacred, religious, or holy, and cannot be used. 4If there is an intermediate tract of land which belongs to a third party between your premises and mine, I can impose the servitude for drawing water upon your land if the owner of the intermediate tract grants me the right of way through his premises; just as when I wish to obtain the perpetual right to take water from a public stream which forms the boundary of your land you can grant me a right of way to the stream.

18Javolenus, On Cassius, Book X. If the work which causes damage by rain-water is erected in a public place, the action cannot be brought; but where the two tracts are separated by a public place, it can be. The reason for this is that the owner alone is liable under this action. 1Water cannot be conducted across a public highway without the consent of the Emperor.

19Pomponius, On Quintus Mucius, Book XIV. Labeo says that if I construct any work and my neighbor does not object, and in consequence he suffers damage from rain-water, I will not be liable to an action of this kind.

20The Same, On Sabinus, Book XXXIV. This, however, only applies where he is not deceived through mistake or ignorance, for anyone who makes a mistake does not give consent.

21Ad Dig. 39,3,21Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 465, Note 6a.The Same, On Quintus Mucius, Book XXXII. If water which has its source on your land rushes with great force upon mine, and you intercept its course, so that it ceases to flow upon my premises, you will not be considered to have acted with violence, if I was not entitled to any servitude for the use of the water; nor will you be liable to an interdict Quod vi aut clam.

22The Same, Various Passages, Book X. If the usufruct of land is bequeathed, the action to compel care to be taken of the rain-water will lie for, as well as against the heir of him to whom the property belonged. If the usufructuary should suffer any inconvenience on account of some work which has been performed, he can sometimes avail himself of the interdict Quod vi aut clam. If the action cannot be brought by the usufructuary, the question arises whether equitable action should be granted him, as the owner, to compel the water to be taken care of; or whether he can also maintain that he has the right to enjoy the property. The better opinion, however, is that an equitable action to compel care to be taken of the rain-water should be granted. 1He who constructs a new work will not be considered to have restored the property to its former condition, unless he intercepts the course of the water of which complaint is made. 2But even if the usufructuary should construct the work by which the rain-water may cause damage to anyone, the legal action against the owner of the property will lie; but the question arises whether an equitable action to compel the water to be taken care of should not be granted against the usufructuary. The better opinion is that it should be granted.

23Paulus, On Sabinus, Book XVI. Any work which is performed by order of the Emperor, or the Senate, or by those persons who have first rendered the land capable of cultivation, is not included in this action. 1This action is also available with reference to lands owned and leased by the State. 2Levees made upon private lands along the banks of streams are also the object of this action, even though they cause damage on the other side of the stream, provided they have been constructed within the memory of man, and there was no right to make them.

24Alfenus, Epitomes of the Digest by Paulus, Book IV. A man who owned a field situated above that of another plowed it in such a way that the water was carried by the furrows and ridges upon the land of his neighbor below. The question arose whether he could be compelled by an action requiring him to take care of the rainwater, to plow in a different direction, so that the furrows would not be turned toward the premises of the neighbor. The answer was that he could not do anything to interfere with his neighbor plowing in any way that the latter desired. 1If, however, anyone plows across a water-course, and by means of the furrows, the water should be diverted upon the land of a neighbor, in such a way as to obstruct the water-course, he can be compelled to open it by means of this action. 2But if he should dig ditches by which the rain-water could injure a neighbor, he can be compelled by the court to fill them up, if it appears that the rain-water might afterwards cause damage, and judgment could be rendered against him, unless he did so; even though, before a decision was rendered, the water had not yet begun to flow through the ditches. 3When lakes either rise or fall, the neighbors have no right to do anything to affect either the increase or the diminution of the water.

25Julianus, On Minicius, Book V. Where a right of way is imposed upon the land of anyone, the person entitled to it can bring an action to compel care to be taken of rain-water for the benefit of the land, because by damaging the right of way the land also will be injured.

26Scævola, Opinions, Book IV. Scævola gave it as his opinion that those who have the right to render judicial decisions are accustomed to authorize the continuance of aqueducts, whose use has been confirmed by time, although the legal right by which they exist cannot be established.