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Justinian I · The Digest of Justinian §8.3.31.pr

Water Servitude Over Intermediate Land and Merger

Passage 1440 of 9271 · Latin

Summary

In a case involving three adjacent estates, where the owner of the lowest estate held a water servitude from the highest estate through the middle estate, the text discusses how the servitude is not extinguished by merger (confusio) when he purchases the highest estate and then sells the lowest, as long as the middle estate remains owned by a third party.

[IULIANUS libro secundo ex Minicio. ] §8.3.31.prTria praedia continua trium dominorum adiecta erant: imi praedii dominus ex summo fundo imo fundo seruitutem aquae quaesierat et per medium fundum domino concedente in suum agrum ducebat: postea idem summum fundum emit: deinde imum fundum, in quem aquam induxerat, uendidit.
[JULIANUS, From Minicius, Book 2] Three continuous estates belonging to three different owners were adjacent to one another. The owner of the lowest estate had acquired a water servitude from the highest estate for the lowest estate, and, with the consent of the owner [of the middle estate], was conducting the water through the middle estate into his own field. Afterwards, the same person bought the highest estate; then he sold the lowest estate, into which he had conducted the water.
quaesitum est, num imus fundus id ius aquae amisisset, quia, cum utraque praedia eiusdem domini facta essent, ipsa sibi seruire non potuissent.
The question arose whether the lowest estate had lost that right to water, because, since both estates had become the property of the same owner, they could not owe a servitude to themselves.
negauit amississe seruitutem, quia praedium, per quod aqua ducebatur, alterius fuisset et quemadmodum seruitus summon fundo, ut in imum fundum aqua ueniret, imponi aliter non potuisset, quam ut per medium quoque fundum duceretur, sic eadem seruitus eiusdem fundi amitti aliter non posset, nisi eodem tempore etiam per medium fundum aqua duci desisset aut omnium tria simul praedia unius domini facta essent.
He replied that it had not lost the servitude, because the estate through which the water was conducted had belonged to another; and just as a servitude could not otherwise have been imposed on the highest estate in order for water to come to the lowest estate, except by conducting it through the middle estate as well, so that same servitude of the same estate could not otherwise be lost, unless at the same time water had also ceased to be conducted through the middle estate, or all three estates had at the same time become the property of one owner.

Notes

  1. 8.3.31.prutraque praedia — The phrase 'both estates' refers contextually to the 'highest estate' (summus fundus) and the 'lowest estate' (imus fundus), which came under the ownership of the same person. Since the middle estate (medius fundus) remained under third-party ownership, the issue is whether the merger (confusio) of ownership affecting only these two estates extinguishes the entire servitude.
  2. 8.3.31.prnegauit amississe — The subject of the verb negauit ('he denied / replied that ... not') is the jurist Julianus, and the subject accusative of the infinitive amississe ('to have lost') is imum fundum ('the lowest estate'), which is omitted as it is clear from the context.
  3. 8.3.31.prsummon fundo — The manuscript reading summon is a scribal error for summo. The phrase summo fundo ('on the highest estate') is in the dative, dependent on the passive infinitive imponi ('to be imposed').

Cite this passage

Justinian I, The Digest of Justinian §8.3.31.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.3.31.pr

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