[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.3.1.prSi cui aqua pluuia damnum dabit, actione aquae pluuiae arcendae auertetur aqua.
[ULPIANUS libro quinquagensimo tertio ad edictum.] If rain water causes damage to anyone, the water shall be diverted by the action for keeping off rain water.
aquam pluuiam dicimus, quae de caelo cadit atque imbre excrescit, siue per se haec aqua caelestis noceat, ut Tubero ait, siue cum alia mixta sit.
By rain water we mean that which falls from the sky and increases with a shower, whether this celestial water causes harm by itself, as Tubero says, or is mixed with other water.
§39.3.1.1Haec autem actio locum habet in damno nondum facto, opere tamen iam facto, hoc est de eo opere, ex quo damnum timetur: totiensque locum habet, quotiens manu facto opere agro aqua nocitura est, id est cum quis manu fecerit, quo aliter flueret, quam natura soleret, si forte immittendo eam aut maiorem fecerit aut citatiorem aut uehementiorem aut si comprimendo redundare effecit.
Now this action has place in regard to damage not yet done, where, however, a work has already been made, that is, concerning that work from which damage is feared: and it applies as often as water is likely to harm a field because of a man-made work, that is, when someone has made something by hand whereby the water flows otherwise than it was naturally accustomed to flow, if, for example, by letting it in, he has made it more abundant, or faster, or more violent, or if, by compressing it, he has caused it to overflow.
quod si natura aqua noceret, ea actione non continentur.
But if the water should cause harm by nature, such cases are not covered by this action.
§39.3.1.2Neratius scribit: opus, quod quis fecit, ut aquam excluderet, quae exundante palude in agrum eius refluere solet, si ea palus aqua pluuia ampliatur eaque aqua repulsa eo opere agris uicini noceat, aquae pluuiae actione cogetur tollere.
Neratius writes: as for a work which someone has made to exclude water which is accustomed to flow back into his field when a marsh overflows, if that marsh is enlarged by rain water and that water, being repelled by that work, harms the neighbor's fields, he shall be compelled by the action for keeping off rain water to remove it.
§39.3.1.3De eo opere, quod agri colendi causa aratro factum sit, Quintus Mucius ait non competere hanc actionem.
Concerning a work which has been made with a plow for the purpose of cultivating a field, Quintus Mucius says that this action does not lie.
§39.3.1.4Trebatius autem non quod agri, sed quod frumenti dumtaxat quaerendi causa aratro factum solum excepit.
Trebatius, however, excepted only what was done with a plow not for the sake of the field, but solely for the purpose of obtaining grain.
§39.3.1.5Sed et fossas agrorum siccandorum causa factas Mucius ait fundi colendi causa fieri, non tamen oportere corriuandae aquae causa fieri: sic enim debere quem meliorem agrum suum facere, ne uicini deteriorem faciat.
But Mucius also says that ditches made for the purpose of draining fields are made for the sake of cultivating the land, yet they ought not to be made for the purpose of collecting water together; for in this way a person ought to make his own field better so as not to make his neighbor's worse.
§39.3.1.6Sed et si quis arare et serere possit etiam sine sulcis aquariis, teneri eum, si quid ex his, licet agri colendi causa uideatur fecisse: quod si aliter serere non possit, nisi sulcos aquarios fecerit, non teneri.
But also if anyone is able to plow and sow even without water furrows, he is held liable if any damage is caused by them, although he may seem to have done it for the purpose of cultivating the field; but if he cannot sow otherwise than by making water furrows, he is not held liable.
§39.3.1.7Ofilius autem ait sulcos agri colendi causa directos ita, ut in unam pergant partem, ius esse facere.
Ofilius, however, says that it is lawful to make furrows for the purpose of cultivating a field directed in such a way that they go in one direction.
§39.3.1.8Sed apud Seruii auditores relatum est, si quis salicta posuerit et ob hoc aqua restagnaret, aquae pluuiae arcendae agi posse, si ea aqua uicino noceret.
But it is reported among the pupils of Servius that if anyone has planted a willow grove and because of this water should stagnate, the action for keeping off rain water can be brought, if that water harms the neighbor.
§39.3.1.9Labeo etiam scribit ea, quaecumque frugum fructuumque recipiendorum causa fiunt, extra hanc esse causam neque referre, quorum fructuum percipiendorum causa id opus fiat.
Labeo also writes that whatever things are done for the purpose of gathering crops and fruits are outside of this case, and it does not matter for the gathering of which fruits that work is made.
§39.3.1.10Item Sabinus Cassius opus manu factum in hanc actionem uenire aiunt, nisi si quid agri colendi causa fiat: Sulcos tamen aquarios, qui ἕλικες appellantur, si quis faciat, aquae pluuiae actione eum teneri ait.
Likewise, Sabinus and Cassius say that a man-made work comes under this action, unless it is made for the purpose of cultivating a field: however, they say that if anyone makes water furrows which are called helices, he is held liable under the action for keeping off rain water.
§39.3.1.11Idem aiunt, si aqua naturaliter decurrat, aquae pluuiae arcendae actionem cessare: quod si opere facto aqua aut in superiorem partem repellitur aut in inferiorem deriuatur, aquae pluuiae arcendae actionem competere.
The same writers say that if water flows down naturally, the action for keeping off rain water ceases to apply; but if, by a work having been made, the water is either repelled to the upper part or diverted to the lower part, the action for keeping off rain water lies.
§39.3.1.12Idem aiunt aquam pluuiam in suo retinere uel superficientem ex uicini in suum deriuare, dum opus in alieno non fiat, omnibus ius esse (prodesse enim sibi unusquisque, dum alii non nocet, non prohibetur) nec quemquam hoc nomine teneri.
The same writers say that to retain rain water on one's own property, or to divert water overflowing from a neighbor's property onto one's own, as long as no work is made on another's land, is a right common to all (for everyone is not prohibited from benefiting himself, so long as he does not harm another), and no one is held liable on this account.
§39.3.1.13Denique Marcellus scribit cum eo, qui in suo fodiens uicini fontem auertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo uicino nocendi, sed suum agrum meliorem faciendi id fecit.
Finally, Marcellus writes that no action can be brought, not even the action for fraud, against one who, by digging on his own land, has diverted a neighbor's spring: and indeed he ought not to have one, if he did this not with the intention of harming his neighbor, but of making his own field better.
§39.3.1.14Item sciendum est hanc actionem uel superiori aduersus inferiorem competere, ne aquam, quae natura fluat, opere facto inhibeat per suum agrum decurrere, et inferiori aduersus superiorem, ne aliter aquam mittat, quam fluere natura solet.
Likewise, it must be known that this action lies either for the upper owner against the lower, lest the latter, by a work having been made, prevent the water which flows naturally from running down through his land, and for the lower against the upper, lest the latter send down water in a manner other than it is naturally accustomed to flow.