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Justinian I · The Digest of Justinian §8.5.18.pr

Possession of Property Against an Evasive Water Obstructor

Passage 1483 of 9271 · Latin

Summary

Regarding a defendant who blocks a neighbor's water access and hides to avoid a lawsuit, Julianus advises that the praetor should grant the plaintiff possession of the defendant's property until the right is established and damages are paid.

[IULIANUS libro sexto ex Minicio. ] §8.5.18.prIs, cuius familia uicinum prohibebat aquam ducere, sui potestatem non faciebat, ne secum agi posset: quaerit actor, quid sibi faciendum esset.
[IULIANUS, book 6 from Minicius.] A person whose slaves were preventing a neighbor from drawing water did not make himself available so that an action could not be brought against him. The plaintiff asks what he ought to do.
respondi oportere praetorem causa cognita iubere bona aduersarii possideri et non ante inde discedere, quam is actori ius aquae ducendae constituisset et, si quid, quia aquam ducere prohibitus esset, siccitatibus detrimenti cepisset, ueluti si prata arboresue exaruisset.
I answered that the praetor, after investigating the case, ought to order the possession of the adversary's property, and that [the plaintiff] should not depart from there before the adversary established the right of drawing water for the plaintiff and [made good] any damage [the plaintiff] might have suffered from the drought because he had been prevented from drawing water, as for example if meadows or trees had dried up.

Notes

  1. §8.5.18.prsui potestatem non faciebat — Literally 'he did not make power of himself available,' a legal idiom indicating that the defendant was hiding or keeping out of the way to prevent being summoned or sued.
  2. §8.5.18.prnon ante inde discedere — The accusative subject of the infinitive `discedere`, namely `actorem` (the plaintiff), is omitted. The context is that the praetor grants the plaintiff possession of the defendant's property (missio in possessionem) and orders that the plaintiff should not withdraw from it until the defendant fulfills his obligations.
  3. §8.5.18.prsi quid ... detrimenti cepisset — In the `quam` clause, a verb meaning to make good or compensate for the damage (such as `sarsisset` or `soluisset`), which would stand parallel to `constituisset`, is omitted. The syntax is elliptical: 'until he should establish the right... and [should compensate] if he had suffered any damage'.

Cite this passage

Justinian I, The Digest of Justinian §8.5.18.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.5.18.pr

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