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Justinian I · The Digest of Justinian §39.3.8.pr

Consent of Interested Parties in Granting Water Rights

Passage 6181 of 9271 · Latin

Summary

Ulpian argues that when granting a right to conduct water, the consent of all interested parties, including both the landowners where the water rises and those holding servitudes or rights of use over the water, must be obtained, as their rights are affected.

[ULPIANUS libro quinquagesimo tertio ad edictum. ] §39.3.8.prIn concedendo iure aquae ducendae non tantum eorum, in quorum loco aqua oritur, uerum eorum etiam, ad quos eius aquae usus pertinet, uoluntas exquiritur, id est eorum, quibus seruitus aquae debebatur, nec immerito: cum enim minuitur ius eorum, consequens fuit exquiri, an consentiant.
[ULPIANUS libro quinquagesimo tertio ad edictum.] In granting the right to conduct water, the consent is required not only of those on whose land the water rises, but also of those to whom the use of that water belongs, that is, of those to whom a servitude of water was owed; and not without reason: for since their right is diminished, it was a natural consequence that it should be inquired whether they consent.
et generaliter siue in corpore siue in iure loci, ubi aqua oritur, uel in ipsa aqua habeat quis ius, uoluntatem eius esse spectandam placet.
And generally, whether someone has a right in the physical body or in the legal right of the place where the water rises, or in the water itself, it is accepted that his consent must be regarded.

Notes

  1. §39.3.8.prIn concedendo iure aquae ducendae — The preposition in is followed by the gerundive construction concedendo iure in the ablative, meaning "in granting the right." The genitive aquae ducendae is also a gerundive construction modifying iure, literally "of water to be conducted," referring to the right of conducting water (aqueductus).
  2. §39.3.8.prquibus seruitus aquae debebatur — The verb debebatur is the imperfect passive of debere ("to owe"). In a legal context, a servitude being "owed" (deberi) to someone means that the servitude is legally established or due to them as a right.
  3. §39.3.8.pruoluntatem eius esse spectandam placet — The impersonal verb placet ("it is approved/accepted") takes the accusative and infinitive clause uoluntatem eius esse spectandam as its subject. Spectandam is a gerundive forming a passive periphrastic conjugation with esse, expressing necessity or obligation ("his consent must be regarded").

Cite this passage

Justinian I, The Digest of Justinian §39.3.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.8.pr

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