The Same, On the Edict, Book XLIX. Labeo says that a servitude may be created in such a way that a party can be permitted to look for water and convey it, if it is found; for if it is lawful to create a servitude relating to a house which is not yet built, why should it not be equally lawful to create one with reference to water which has not yet been found? Moreover, if it is lawful for us to grant a servitude for a party to seek for water, it can also be granted premitting him to conduct it after it has been found.

Paulus, 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.

Paulus, 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.

Paulus, 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.

Paulus, 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.

Paulus, 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.

The Same, On the Edict, Book XLIX. By the term “income” is understood not only the crop of grain and vegetables, but also whatever is obtained from vines, timber, chalk-pits, and quarries. Julianus says it is not true that by the term “income” is meant whatever a man uses for food; as the flesh of animals, birds or wild beasts, and the fruits of trees cannot be so-called income. Grain includes everything which is contained in ears, as Gallus has properly defined it. Beans, and other pulse, can more properly be called income, for the reason that they are not contained in ears, but in pods, which Servius, in his Treatise on Alfenus, thinks should be classed under the head of grain.

The Same, On the Edict, Book XLIX. Anything which, at the time it was given, does not become the property of him who receives it is not considered to have been given at all. 1A party who does something by order of a judge is not considered to have committed fraud, because he was obliged to obey.