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Justinian I · The Digest of Justinian §39.3.24.pr-39.3.24.3

Ordinary Cultivation, Artificial Ditches, and Lake Levels

Passage 6197 of 9271 · Latin

Summary

On whether normal plowing by an upper neighbor is exempt from the action for warding off rainwater, while constructing artificial water-furrows or ditches that cause harm can be compelled to be remedied, and the prohibition of neighbors artificially altering the water level of lakes.

[ALFENUS libro quarto digestorum a Paulo epitomatorum. ] §39.3.24.prUicinus loci superioris pratum ita arabat, ut per sulcos itemque porcas aqua ad inferiorem ueniret: quaesitum est, an per arbitrum aquae pluuiae arcendae possit cogi, ut in alteram partem araret, ne sulci in eius agrum spectarent.
[ALFENUS in the fourth book of the Digests epitomized by Paulus.] A neighbor on higher ground was plowing his meadow in such a manner that water came down to the lower land through the furrows and ridges; the question was asked whether he could be compelled by the arbiter for warding off rainwater to plow in another direction, so that the furrows would not point toward the neighbor's field.
respondit non posse eum facere, quo minus agrum uicinus quemadmodum uellet araret.
He replied that the lower neighbor could not prevent his neighbor from plowing his land in whatever way he wished.
§39.3.24.1Sed si quos sulcos transuersos aquarios faceret, per quos in eius agrum aqua deflueret, hosce ut operiret, per arbitrum aquae pluuiae arcendae posse cogere.
But if he made any transverse water-furrows through which water would flow down into his field, he could be compelled by the arbiter for warding off rainwater to cover them up.
§39.3.24.2Sed et si fossas fecisset, ex quibus aqua pluuia posset nocere, arbitrum, si appareat futurum, ut aqua pluuia noceret, cogere oportere fossas eum explere et, nisi faceret, condemnare, tametsi antequam adiudicaret, aqua per fossas nunquam fluxisset.
But also if he had made ditches from which rainwater could do harm, the arbiter, if it should appear likely that the rainwater would do harm, ought to compel him to fill up the ditches, and, unless he did so, to condemn him, even if, before the arbiter made his award, water had never flowed through the ditches.
§39.3.24.3Lacus cum aut crescerent aut decrescerent, numquam neque accessionem neque decessionem in eos uicinis facere licet.
Since lakes either increase or decrease, it is never permitted for neighbors to cause either an increase or decrease in them.

Notes

  1. §39.3.24.prnon posse eum facere, quo minus agrum uicinus quemadmodum uellet araret — The combination of the verb `facere` with `quo minus` means "to prevent from doing." Here, `eum` refers to the neighbor on the lower ground (the potential plaintiff), while `uicinus` (nominative) refers to the neighbor on the higher ground (the one plowing). Thus, the lower neighbor cannot prevent the upper neighbor from plowing as he wishes.
  2. §39.3.24.2arbitrum, si appareat futurum, ut aqua pluuia noceret, cogere oportere fossas eum explere et, nisi faceret, condemnare — This is an accusative and infinitive construction in indirect discourse. The subject of the infinitive `oportere` is the accusative `arbitrum` (the arbiter), and the infinitives `cogere` and `condemnare` depend on `oportere`. The clause `futurum [esse] ut...` expresses a future expectation.
  3. §39.3.24.3accessionem neque decessionem in eos uicinis facere licet — `uicinis` is a dative depending on the impersonal verb `licet` ("it is permitted for neighbors"). `accessio` (addition/influx) and `decessio` (withdrawal/outflow) refer to artificial operations altering the water level of the lakes (`eos`, accusative plural referring back to `lacus`).

Cite this passage

Justinian I, The Digest of Justinian §39.3.24.pr-39.3.24.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.24.pr-39.3.24.3

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