Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XLIII13,
Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit
Liber quadragesimus tertius
XIII.

Ne quid in flumine publico fiat, quo aliter aqua fluat, atque uti priore aestate fluxit

(Concerning the Interdict to Prevent Anything From Being Built in a Public River or on Its Bank Which Might Cause the Water to Flow in a Different Direction Than it did During the Preceding Summer.)

1Ulpianus libro sexagensimo octavo ad edictum. Ait praetor: ‘In flumine publico inve ripa eius facere aut in id flumen ripamve eius immittere, quo aliter aqua fluat, quam priore aestate fluxit, veto’. 1Hoc interdicto prospexit praetor, ne derivationibus minus concessis flumina excrescant vel mutatus alveus vicinis iniuriam aliquam adferat. 2Pertinet autem ad flumina publica, sive navigabilia sunt sive non sunt. 3Ait praetor: ‘quo aliter aqua fluat, quam priore aestate fluxit’: non omnis ergo, qui immisit vel qui fecit, tenetur, sed qui faciendo vel immittendo efficit aliter, quam priore aestate fluxit, aquam fluere. quod autem ait ‘aliter fluat’, non ad quantitatem aquae fluentis pertinet, sed ad modum et ad rigorem cursus aquae referendum est. et generaliter dicendum est ita demum interdicto quem teneri, si mutetur aquae cursus per hoc quod factum est, dum vel depressior vel artior fiat aqua ac per hoc rapidior fit cum incommodo accolentium: et si quod aliud vitii accolae ex facto eius qui convenitur sentient, interdicto locus erit. 4Si quis ex rivo tecto per apertum ducere velit vel contra qui ante aperto duxit, nunc operto velit, interdicto teneri placuit, si modo hoc factum eius incommodum circa colentibus adferat. 5Simili modo et si incile ducat aut alio loco faciat aut si alveum fluminis mutet, hoc interdicto tenebitur. 6Sunt qui putent excipiendum hoc interdicto ‘quod eius ripae muniendae causa non fiet’, scilicet ut, si quid fiat, quo aliter aqua fluat, si tamen muniendae ripae causa fiat, interdicto locus non sit. sed nec hoc quibusdam placet: neque enim ripae cum incommodo accolentium muniendae sunt. hoc tamen iure utimur, ut praetor ex causa aestimet, an hanc exceptionem dare debeat: plerumque enim utilitas suadet exceptionem istam dari. 7Sed et si alia utilitas vertatur eius, qui quid in flumine publico fecit (pone enim grande damnum flumen ei dare solitum, praedia eius depopulari), si forte aggeres vel quam aliam munitionem adhibuit, ut agrum suum tueretur eaque res cursum fluminis ad aliquid immutavit, cur ei non consulatur? plerosque scio prorsus flumina avertisse alveosque mutasse, dum praediis suis consulunt. oportet enim in huiusmodi rebus utilitatem et tutelam facientis spectari, sine iniuria utique accolarum. 8Is autem hoc interdicto tenetur, qui aliter fecit fluere, quam priore aestate fluxit. et idcirco aiunt praetorem priorem aestatem comprehendisse, quia semper certior est naturalis cursus fluminum aestate potius quam hieme. nec ad instantem aestatem, sed ad priorem interdictum hoc refertur, quia illius aestatis fluxus indubitatior est. aestas ad aequinoctium autumnale refertur. et si forte aestate interdicetur, proxima superior aestas erit intuenda: si vero hieme, tunc non proxima hieme aestas, sed superior erit inspicienda. 9Hoc interdictum cuivis ex populo competit, sed non adversus omnes, verum adversus eum, qui deneget, ut aliter aqua flueret, cum ius non haberet. 10Hoc interdictum et in heredes competit. 11Deinde ait praetor: ‘Quod in flumine publico ripave eius factum sive quid in flumen ripamve eius immissum habes, si ob id aliter aqua fluit atque uti priore aestate fluxit, restituas’. 12Hoc interdictum restitutorium proponitur: superius enim prohibitorium est et pertinet ad ea, quae nondum facta sunt. si quid igitur iam factum est, per hoc interdictum restituetur: si quid ne fiat prospicitur, superiore interdicto erit utendum, et si quid post interdictum redditum fuerit factum, coercebitur. 13In hoc interdicto restitutorio non est iniquum, ut Labeo ait, venire etiam, quod dolo factum est quo minus haberes.

1Ulpianus, On the Edict, Book LXVIII. The Prætor says: “I forbid anything to be built in a public river or upon its banks, or anything to be placed in such a river or on its banks, by means of which the water may be caused to flow in a different direction than it did during the previous summer.” 1By means of this interdict, the Prætor makes provision against the drying up of a river, due to improper concessions for drawing off the water; and to prevent the beds of streams from changing and injuring the neighbors. 2This refers to public rivers, whether they are navigable or not. 3The Prætor says, “by which the water may be caused to flow in a different direction than it did during the previous summer.” Hence, not everyone who built or placed an obstruction in the river will be liable, but only he who, by building or placing it there, caused the water to take a different course than it had done during the previous summer. However, where he says, “a different direction,” this does not have reference to the amount of the water, but to the power, manner, and course of its current. And, generally speaking, it must be said that a person will only be liable under the interdict, if the channel is changed by what he has done, provided it is rendered lower or more narrow, and, in consequence, the current becomes more rapid, and causes inconvenience to those residing in the neighborhood. If the neighbors suffer any annoyance from the act of the party in question, there will be ground for the interdict. 4If anyone who formerly conducted water from a river by means of a covered aqueduct now desires to conduct it by an open aqueduct or vice versa, it has been settled that he will be liable under the interdict, provided that by doing so he causes any inconvenience to persons living near the river. 5In like manner, if he conducts it by means of a ditch, or does so in any other place, or changes the bed of the river, he will be liable under this interdict. 6There are some authorities who hold that an exception to this interdict can be pleaded on the ground that the work was only done for the purpose of repairing the banks, so that if anyone causes the water to flow in a different direction for the purpose of repairing the banks, there will be no ground for the interdict. This opinion is not accepted by other authorities, for the banks should not be repaired if it causes inconvenience to those living in the neighborhood. We are, however, accustomed to have the Prætor decide, after investigation, whether he ought to grant this exception, for very frequently it is advantageous to permit this to be done. 7If, however, any other advantage is obtained by the person who did something to a public stream (suppose, for instance, that the water usually caused him a great deal of damage, and that his land was overflowed), and he raised levees, or took other measures to repair the banks, so as to protect his land, and this, to some extent, altered the course of the river; why should not his interest be consulted? I know that several persons, with a view to the protection of their land, have absolutely diverted the course of streams, and changed their beds, for it is necessary in cases of this kind to take into consideration the benefit and safety of the party interested, if no injury is sustained by other persons in the neighborhood. 8He also is liable under this interdict who causes a river to flow in a different direction from that in which it flowed during the previous summer. Therefore, the authorities say, the Prætor included the previous summer, because the natural course of a river is more certain in summer than in winter. This interdict has reference to the past, and not to the present summer; because the course of the river during the past summer is less subject to doubt. The summer extends to the autumnal equinox. If recourse is had to the interdict, during the summer, the previous season should be considered; and if this is done during the winter, not the summer which will follow the winter, but the past one must be taken into account. 9This interdict will lie for the benefit of any of the people, but it cannot be employed against everyone, but only against him who has caused the water to flow in a different direction, when he had no right to do so. 10This interdict is also available against heirs. 11The Prætor finally says: “You will restore everything to its former condition, if you have anything in your possession which has been built or placed in a public river, or on the bank of the same, by means of which the water is caused to flow in a different direction from that in which it flowed during the previous summer.” 12The interdict in question is restitutory; the former one is prohibitory and has reference to work not yet performed. Hence, if anything has already been done, restoration to its former condition can be obtained by means of this interdict; and if it is desired that nothing shall be done, the former interdict must be employed; and if anything is done after the interdict has been granted, the person responsible shall be punished. 13It is not unjust, as Labeo says, to include in this restitutory interdict whatever was done to avoid remaining in possession of the structure with reference to which the interdict was issued.