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Justinian I · The Digest of Justinian §39.3.4.pr-39.3.4.3

Defendant Standing and Ownership Changes in Rain Water Action

Passage 6177 of 9271 · Latin

Summary

This section discusses the proper defendant in the action for keeping off rain water, specifically the liability of an owner whose land became a tomb, the impact of land alienation after the trial has begun, and the distribution of liability between the owner and the actual actor (tenant or agent).

[ULPIANUS libro quinquagensimo tertio. ] §39.3.4.prQuamquam autem cum domino operis tantum aquae pluuiae arcendae actio sit, tamen Labeo scribit, si quis sepulchrum aedificauerit, ex quo aqua noceat, etiamsi operis dominus esse desierit loco facto religioso, attamen magis probandum est, inquit, aquae pluuiae arcendae eum teneri: fuit enim dominus, cum opus faceret: et si iussu iudicis compulsus opus restituerit, non esse sepulchri uiolati actionem.
[ULPIANUS libro quinquagensimo tertio.] Although, however, the action for keeping off rain water lies only against the owner of the work, nevertheless Labeo writes that, if anyone has built a tomb, from which water causes harm, even if he has ceased to be the owner of the work because the place has become religious ground, yet it is rather to be approved, he says, that he is held liable under the action for keeping off rain water; for he was the owner when he made the work. And if, compelled by the order of the judge, he restores the work, there is no action for violation of a sepulcher.
§39.3.4.1Iulianus quoque scribit, si post iudicium aquae pluuiae arcendae susceptum fundum alienauerit is cum quo actum esset, de praeterito damno et de opere restituendo id statuere iudicem debere, quod iudicaret, si nulla alienatio facta esset: nam et fundo alienato nihilominus iudicium manere et damni rationem uenire etiam eius, quod alienationem contingit.
Julian also writes that, if, after the action for keeping off rain water has been undertaken, the person against whom the action was brought alienates the land, the judge ought to decide concerning past damage and the restoration of the work what he would decide if no alienation had been made; for even when the land is alienated, the trial nevertheless remains, and the calculation of damage also comes into account, even of that which follows the alienation.
§39.3.4.2Idem Iulianus scribit aquae pluuiae arcendae actionem non nisi cum domino esse idcircoque, si colonus ignorante domino opus fecerit, dominum fundi nihil amplius quam patientiam praestare debere, colonum autem interdicto quod ui aut clam impensam quoque restituendi operis et damnum, si quod ex eo datum fuerit, praestare cogendum.
The same Julian writes that the action for keeping off rain water is only against the owner, and therefore, if a tenant has made a work without the owner's knowledge, the owner of the land ought to provide nothing more than tolerance, whereas the tenant must be compelled by the interdict 'by force or stealth' to provide also the expense of restoring the work and the damage, if any has been caused by it.
si tamen dominus desideret caueri sibi damni infecti ab eo, ex cuius praedio nocet, aequissimum erit caueri oportere.
If, however, the owner desires that security be given to him against threatened damage by him from whose land the harm comes, it will be most equitable that security ought to be given.
§39.3.4.3Item si non ego, sed procurator meus tale opus fecerit, ut aqua pluuia noceat uicino, aduersus me hactenus erit actio, quatenus aduersus colonum: ipse autem procurator interdicto quod ui aut clam conueniri poterit secundum Iuliani sententiam, etiam post opus restitutum.
Likewise, if not I, but my procurator has made such a work that rain water harms the neighbor, against me there will be an action only to the extent that there is against a tenant; but the procurator himself can be sued by the interdict 'by force or stealth' according to Julian's opinion, even after the work has been restored.

Notes

  1. §39.3.4.prloco facto religioso — An ablative absolute consisting of the noun `loco` and the participle `facto`, expressing cause or circumstance: 'because the place has become religious ground.' In Roman law, land where a tomb (sepulchrum) is established is excluded from private property and becomes a sacred/religious thing (res religiosa), causing the former owner to lose ownership.
  2. §39.3.4.1quod iudicaret, si nulla alienation facta esset — A conditional sentence in indirect speech. The apodosis `iudicaret` is in the imperfect subjunctive, and the protasis `si... facta esset` is in the pluperfect subjunctive. Although the main verb of reporting `scribit` is in the present tense (which usually requires primary sequence), the original tenses of the contrary-to-fact conditional (imperfect and pluperfect) are retained even in indirect speech.
  3. §39.3.4.1eius, quod alienationem contingit — `eius` is a demonstrative pronoun agreeing with `damni` (genitive) and serving as the antecedent of the relative pronoun `quod`. The verb `contingit` takes the accusative `alienationem` as its direct object, meaning 'which happens after or follows the alienation.'
  4. §39.3.4.2patientiam praestare — 'To provide tolerance', meaning that the owner is only bound to 'endure' or permit the restoration work without objecting to it. The owner does not have the obligation to bear the expense of removing the work (`opus restituendi`) made by the tenant without permission, but is under a negative duty not to prevent the removal.

Cite this passage

Justinian I, The Digest of Justinian §39.3.4.pr-39.3.4.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.4.pr-39.3.4.3

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