Humanitext Reader

Justinian I · The Digest of Justinian §8.6.12.pr

Preservation of Servitude by Possessors or Natural Waterflow

Passage 1498 of 9271 · Latin

Summary

The text discusses how a servitude of way is retained when exercised by a possessor of an estate regardless of the lawfulness of the possession, and how a right to draw water is similarly preserved even if water flows through the channel naturally.

[CELSUS libro uicensimo tertio digestorum. ] §8.6.12.prQui fundum alienum bona fide emit, itinere quod ei fundo debetur usus est: retinetur id ius itineris: atque etiam si precario aut ui deiecto domino possidet: fundus enim qualiter se habens ita, cum in suo habitu possessus est, ius non deperit, neque refert, iuste nec ne possideat, qui talem eum possidet.
[CELSUS, from the twenty-third book of the Digests.] A person who has bought another's estate in good faith has used a right of way that is owed to that estate; that right of way is retained. This is also the case even if he possesses by precarious tenure, or after having dispossessed the owner by force. For when an estate is possessed in its own condition, just as it is, the right does not perish; nor does it matter whether he who possesses it in such a state possesses it lawfully or not.
quare fortius et si aqua per riuum sua sponte perfluxit, ius aquae ducendae retinetur, quod et Sabino recte placet, ut apud Neratium libro quarto membranarum scriptum est.
Therefore, all the more so, even if water has flowed through a channel of its own accord, the right to draw water is retained, which also rightly pleases Sabinus, as is written in the fourth book of Neratius's Parchments.

Notes

  1. §8.6.12.prui deiecto domino — An ablative absolute construction where the perfect passive participle deiecto agrees with the noun domino, accompanied by the ablative of means ui ('with the owner having been ejected by force'). It explains the unlawful nature of the current possessor's acquisition.
  2. §8.6.12.prqualiter se habens ita — A participial phrase modifying the preceding fundus. The relative adverb qualiter and the demonstrative adverb ita function correlatively to mean 'just as it is' or 'in whatever state it is', referring to the estate being possessed in its factual and functional state as a dominant tenement.
  3. §8.6.12.prfortius — A comparative adverb used in a logical argument to mean 'more strongly' or 'with stronger reason' (a fortiori). It marks the transition from the case of active human use (right of way) to the case of natural occurrence (water flowing of its own accord) as an even clearer instance of retaining a servitude.

Cite this passage

Justinian I, The Digest of Justinian §8.6.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:8.6.12.pr

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