Humanitext Reader

Justinian I · The Digest of Justinian §43.21.2.pr

Covering Open Water Channels and Landowner Privileges

Passage 7121 of 9271 · Latin

Summary

It discusses the opinions of Labeo and Pomponius regarding whether an open water channel can be converted into a covered one, and the legal nature of the landowner's convenience in drawing water or watering cattle.

[PAULUS libro sexagensimo sexto ad edictum. ] §43.21.2.prLabeo non posse ait ex aperto riuo terrenum fieri, quia commodum domino soli auferetur appellendi pecus uel hauriendi aquam: quod sibi non placere Pomponius ait, quia id domino magis ex occasione quam ex iure contingeret, nisi si ab initio in imponenda seruitute id actum esset.
[PAULUS, from the sixty-sixth book on the edict.] Labeo says that it is not possible for a covered channel to be made out of an open channel, because the owner of the land would be deprived of the convenience of driving cattle to it or drawing water; Pomponius says that this does not please him, because that convenience accrued to the owner of the land rather by opportunity than by right, unless this had been agreed upon from the beginning when the servitude was imposed.

Notes

  1. §43.21.2.prterrenum — The adjective terrenus (earthen, of earth) is used here in contrast to ex aperto riuo (from an open channel) to mean making a channel "covered with earth" or "underground." Although some suspect it to be a corruption of subterraneum, in this context it refers to converting an open channel into a covered one.
  2. §43.21.2.prid actum esset — The passive subjunctive imperfect of ago, used here in a legal sense meaning "had been agreed upon" or "had been intended." It refers to a situation where, at the time of imposing the servitude (imponenda seruitute), it was negotiated and agreed between the parties that the channel would remain open for the landowner's use.

Cite this passage

Justinian I, The Digest of Justinian §43.21.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:43.21.2.pr

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