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Justinian I · The Digest of Justinian §43.20.7.pr

Security to Be Provided in Rights of Way and Water Disputes

Passage 7118 of 9271 · Latin

Summary

This section prescribes the terms of security (cautio) to be provided during disputes over rights of way or water diversion, both while proving one's right and when denying the adversary's right.

[PAULUS libro quinto sententiarum. ] §43.20.7.prSi de uia itinere actu aquae ductu agatur, huiusmodi cautio praestanda est, quamdiu quis de iure suo doceat, non se impediturum agentem et aquam ducentem et iter facientem.
If there is a dispute concerning a road, a footpath, a driving way, or a watercourse, a security of this kind must be provided, to the effect that, as long as one is proving his right, he will not obstruct the person who is driving, drawing water, or passing.
quod si neget ius esse aduersario agendi aquae ducendae, cauere sine praeiudicio amittendae seruitutis debebit, donec quaestio finietur, non se usurum.
But if he denies that his adversary has the right of driving or of drawing water, he must give security, without prejudice to the loss of the servitude, that he will not use [the right] himself until the question is decided.

Notes

  1. 43.20.7.prdoceat — Subjunctive present. Introduced by quamdiu (as long as), it carries a conditional and limiting nuance, implying the expectation or goal of completing the proof of one's right in the future.
  2. 43.20.7.prnon se impediturum — The subject accusative se refers to the party providing the security (the defendant), and the accusatives agentem et aquam ducentem et iter facientem (the plaintiff's side) serve as the objects of the future infinitive impediturum.
  3. 43.20.7.prsine praeiudicio amittendae seruitutis — The phrase amittendae seruitutis is a gerundive construction modifying praeiudicio. This reservation ensures that temporary non-use during litigation does not lead to the loss of the servitude by non-use (non usus) to the prejudice of the party.
  4. 43.20.7.prnon se usurum — An infinitive clause expressing the content of cauere (to give security). It means that the party denying the adversary's right must guarantee that they themselves will not use the disputed right until the dispute is resolved.

Cite this passage

Justinian I, The Digest of Justinian §43.20.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.20.7.pr

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