[ULPIANUS libro quinquagensimo tertio ad edictum. ] §39.3.3.prApud Trebatium relatum est eum, in cuius fundo aqua oritur, fullonicas circa fontem instituisse et ex his aquam in fundum uicini immittere coepisse: ait ergo non teneri eum aquae pluuiae arcendae actione.
[ULPIANUS libro quinquagensimo tertio ad edictum.] In Trebatius's writings, it is reported that a man in whose field water arises established fulling mills around the spring and began to discharge water from them into his neighbor's field; he therefore says that the man is not liable under the action for keeping off rain water.
si tamen aquam conriuat uel si spurcam quis immittat, posse eum impediri plerisque placuit.
However, if he channels the water together, or if anyone discharges dirty water, most authorities have held that he can be prevented.
§39.3.3.1Idem Trebatius putat eum, cui aquae fluentes calidae noceant, aquae pluuiae arcendae cum uicino agere posse: quod uerum non est: neque enim aquae calidae aquae pluuiae sunt.
The same Trebatius thinks that one who is harmed by hot flowing waters can bring an action for keeping off rain water against his neighbor; which is not true, for hot waters are not rain water.
§39.3.3.2Si uicinus, qui aruum solebat certo tempore anni rigare, pratum illic fecerit coeperitque adsidua irrigatione uicino nocere, ait Ofilius neque damni infecti neque aquae pluuiae arcendae actione eum teneri, nisi locum complanauit eoque facto citatior aqua ad uicinum peruenire coepit.
If a neighbor, who was accustomed to irrigate his arable land at a certain time of the year, has made a meadow there and has begun to harm his neighbor by constant irrigation, Ofilius says that he is liable under neither the action for threatened damage nor the action for keeping off rain water, unless he has leveled the ground and, by this being done, the water has begun to reach the neighbor more rapidly.
§39.3.3.3Aquae pluuiae arcendae non nisi eum teneri, qui in suo opus faciat, receptum est eoque iure utimur.
It has been accepted, and we follow this rule of law, that no one is liable under the action for keeping off rain water unless he makes a work on his own property.
quare si quis in publico opus faciat, haec actio cessat, sibique imputare debet is, qui damni infecti cautione sibi non prospexit.
Therefore, if anyone makes a work on public land, this action ceases, and he who has not provided for himself by a security against threatened damage must blame himself.
si tamen in priuato opus factum sit et publicum interueniat, de toto agi posse aquae pluuiae arcendae Labeo ait.
If, however, the work has been made on private land and public land intervenes, Labeo says that an action for keeping off rain water can be brought for the whole.
§39.3.3.4Neque fructuarius neque cum eo aquae pluuiae arcendae agi potest.
Neither a usufructuary can bring an action for keeping off rain water, nor can it be brought against him.