Page:The Green Bag (1889–1914), Volume 19.pdf/520

 ANCIENT LAWYERS "If a stream is navigable the Praetor ought not to grant the right that water be taken from it in such quantity as that the stream becomes less navigable; so says Labeo. And the same rule holds if even by such act another stream becomes itself navigable." Pomponius. There is nothing to prevent anyone taking water from a public river, unless the sovereign or the senate forbids it, provided that the water so taken is not in public use. But if the river is either navi gable, or makes something else navigable, the water is not permitted to be so used. Ulpian. But even if some advantage does come to him who has done a work in a public river — for instance, if the river is accustomed to do his estate great damage, and he has built strong levees or other de fenses to protect it, and by reason thereof the course of the river has been somewhat deflected — why should he not receive con sideration? I know that many have di verted rivers entirely and changed their beds in consulting the interests of their estates. We ought to look at the usefulness of things and the safety of him who does the work, provided that those who dwell along the river are not injured. He who wants to strengthen the bank of a public river must give security against future damages, or else satisfaction, ac cording to his property. It is also expressed in this interdict that upon the award of a jury a bond must be given against appre hended injury for ten years or else satis faction. Javolemus. If the site of a private road, footpath, or driveway be occupied by the current of a river for a length of time less than is fixed for the loss of a servitude by nonuser, and during such time the condition is restored by the formation of alluvion, the servitude is restored in its original force. If time enough has run to destroy the servitude, then the right of way must be legally renewed. Paulus. An island which has formed in a river does not become the common

487

property, in undivided shares, of those having estates on the river side, but in definite parts. For each shall have as much as lies in front of him, measured by a straight line through the island in pro longation of the boundaries of his estate. Proculus. Question: — "In the river fronting me an island formed in such manner that it did not extend beyond the boundaries of my estate; afterwards the island grew little by little, until it fronted the estates of my neighbors above and below. I seek to know whether the accre tion from end to end belongs to me because it has joined itself to mine, or whether to him to whom it would have belonged if the whole length of the island had appeared at the same time." Proculus responded: "If this river of yours about which you write, and in which an island is formed opposite your field, is a river in which the right of alluvion is recognized, and if the island so formed does not exceed your field in length, and if the island in the beginning was nearer your estate than of his estate across the river, the island is wholly yours, and whatever of alluvion afterwards attaches to the island is also yours, even if it is so added that the island extends in front of your neighbors above and below, or even if it had grown closer to the estate across the river than to yours." Mucius. Ditches made for drying the fields are also made for the purpose of cultivating the estate, but ought not to be so made as to cause the water to flow, in channels. One ought to so improve his own land as not to injure the land of his neighbor. Antilictnus. A decree of the emperor addressed to Statilius Taurus was in these words : "Those who were accustomed to convey water from the Sutrino estate came before me and alleged that the water which through many years they had been using from spring in said estate they could no longer use because the spring had become dry, but