Учебный год 22-23 / Watson - The Evolution of Western Private Law

Namusa would allow the action even when water flowing in a natural channel became blocked, but only to compel the proprietor to allow it to be cleared, not to force him to clear it. Labeo, however, would refuse the action to clear a natural channel, but, as we know from other texts (D. . . . , , ), would grant the action to clear a man-made ditch or allow it to be cleared even when no record existed of when the ditch was made. 6 Alfenus took the rather more restrictive position that no action would lie when a man-made dam burst if no record existed of when it was constructed (D. . . . ).

This discussion alerts us to a further point: the work in question need not have been done by the defendant proprietor. Thus, for example, Sabinus and Ulpian agree that if an owner is injured by a neighbor next- but-one, he can sue either the constructor or the intervening proprietor through whose land the water flowed (D. . . ; Ulpian, Edict ).

One further comment on this Digest passage is appropriate. Immediately after citing Labeo for the proposition that the actio aquae pluviae arcendae would not lie if the condition of land changed without human intervention (for instance, if there were an earthquake or great storm), Paul says that even in this case he would admit the claim of fairness (D. . . . ). What he means is not further explained, but by admitting the claim of fairness Paul hints that an action or an ad hoc remedy might be given sometimes even beyond the scope of the law.

As demonstrated by the texts so far examined on opus factum, the law remained remarkably static; the opinions expressed in the republic in the first century B.C. were valid in the classical law of the third-century Roman Empire as well as in sixth-century Byzantium when Justinian’s Digest was published. Odder still, perhaps, is the inescapable conclusion that issues disputed in the first century B.C. were no nearer settlement in the sixth century A.D. But the most surprising fact of all is the wide interpretation given in this context of opus factum. Virtually any operation on land, except the most basic agricultural use, that increased the flow of rainwater onto a neighbor’s land, or changed its course so that the water did damage, would give rise to the actio aquae pluviae arcendae, an action whose primary purpose was the restoration of the status quo ante. No encouragement whatever was given to the improving landlord. Alternatively, one might find the surprising fact to be the very opposite: some agricultural uses of land would not give rise to the action even if a neighbor suffered loss as a result. Certainly, if the law was that a neighbor had a right to an action for loss caused by water flowing onto his land because of opus factum, there was no logical rea-

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son for refusing the action where the work done was plowing for the cultivation of grain while granting it on account of other plowing, or for refusing the action where the work done was making channels for the purpose of planting while granting it where the channels were for irrigation.

Law frequently develops with a logic of its own that seems independent of social and economic needs, and so it was in regard to yet another aspect of the availability of this action. The Twelve Tables’ wording provided legal redress “si aqua pluvia nocet” (if rainwater does damage), and all subsequent juristic attention for wrongful damage by water in the country focused on this provision. But water actually injured only when it increased or flowed in a different channel, not when it diminished or disappeared. Hence, the actio aquae pluviae arcendae did not apply when your neighbor cut off or reduced your water supply:

D. . . . . The same jurists [Sabinus and Cassius] say that everyone has the right to retain rainwater on his own land or to channel surface water from his neighbor’s onto his own, provided no work is done on another’s land (for no one is prohibited from benefiting himself provided he does not injure another) and no one is liable on this account. . Then Marcellus writes that no action, not even the action for fraud, can be brought against one who, while digging on his own land, diverts the stream of his neighbor. And certainly the latter ought not to have an action7 if he acted not with the intention of injuring his neighbor but to improve his land. . . .

D. . . . . But just as work done in such a way that rainwater does one damage gives rise to this action, so likewise the opposite question arises whether one can bring the action for warding off rainwater if the neighbor does work that prevents water which otherwise, flowing onto my land, would be beneficial, from conferring this benefit. Ofilius and Labeo think the action cannot be brought even if it be in my interest that the water comes to me: for this action lies if rainwater damages, not if it fails to confer a benefit.

So, for reducing a neighbor’s water supply the actio aquae pluviae arcendae did not lie, nor did any other action except perhaps the action for fraud (actio de dolo) when one acted deliberately to injure one’s neighbor and not to benefit oneself. This law dated from the earliest times and remained the law in the age of Justinian. Just as the scope of the action for increasing the flow of water seems extraordinarily wide, that for diminishing the flow seems extraordinarily narrow. And not only is it obvious that a water supply is needed, but we know from nu-

merous texts on the servitude of drawing water or of aqueduct that water from a neighbor’s land was frequently wanted.8 No satisfactory explanation for this phenomenon can be drawn from economic or social conditions. An explanation must be sought within the law itself.9 The wording of the Twelve Tables and the name of the action were directed to warding off rainwater, and governments were so little interested in private law that the Roman state never again intervened to provide a further remedy (except for the interdicts still to be discussed).10 And jurists were so blinkered by their legal culture that they never sought to interpret the Twelve Tables’ clause to include damage caused by deprivation of water.

Similarly, only legal tradition can explain why the law did not change to allow the judge in some circumstances to award compensation to the injured neighbor, rather than to order the defendant to destroy or permit to be destroyed the offending works. Obviously, it would frequently happen that potential gain to the maker of the work would be greater than loss to the neighbor, yet the latter would not agree to any deal. In other contexts judges were given discretion in the way the decision was formulated.11 In still others, they were able to issue a money judgment for a sum equal to what the defendant ought to give or do in accordance with good faith.12

One related area in which the law and legal terminology are not clear should be addressed. A number of texts use the terminology of servitudes. Thus, Paul states, “in short there are three ways by which lower land is under a servitude to higher: by an agreed regulation, by the nature of the place and by a long period of time” (D. . . ; Paul, Edict ). But the classical Roman legal concept of servitude was properly applicable only to one of the three—namely, where the neighbors reach agreement that an increased flow from the dominant land will be accepted by the servient, and the servitude is then created in proper legal form. Thus, Paul’s first manner of creating a servitude presents no problems for us. But under the classical scheme no legal servitude really existed by the “nature of the place,” although the basic outline of Paul’s thought is plain. By the very nature of things, without human intervention, some water flows from one person’s land to another and it is reasonable that the owner of the land onto which the water flows is bound to accept it, and not bar its progress in such a way that the water injures the higher neighbor.13 The classical Roman approach, though, seems to have had at least one legal consequence: if there was a manmade construction and it was removed, and the water consequently

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flowed in its natural channel more vigorously, then the owner receiving the water had no right to an action (D. . . . ; Ulpian, Edict ).

Moreover, in Roman law there was no legal servitude by the lapse of a long period of time after the lex Scribonia (of around B.C.) abolished the usucapion of servitude.14 It is precisely here, however, that difficulties arise, because the jurists in the later classical period did give some effect to the passage of time. Thus Ulpian wrote: “If no servitude is found to have been imposed, the person who made use of a ‘servitude’ for a long time, and did so not by force or by grant at will [precarium] nor stealthily, seems to have acquired a servitude by long custom just as if it had been lawfully imposed.”15

The limits of Ulpian’s notion are by no means clear. What is involved, however, is not really a servitude acquired by prescription. Acquisition by prescription in classical law was by usucapio and required physical control begun in good faith by someone holding with the intention of being owner. For the requirement of good faith (bona fides) Ulpian substituted “not by force or by grant at will or stealthily,” a formulation found in various other contexts. Moreover, in classical law the period of usucapio was two years for land and one year for movables, and both Paul and Ulpian clearly have in mind a much longer, if not indefinite, period of time, which they express by the term vetustas. The development of the notion of vetustas here is unclear.16 Yet indications are that in late classical law, as Ulpian’s words suggest, very long use created a presumption of previous grant, provided the use was not by force, stealth, or precarium. By the time of Justinian, the acquisition of servitude was wholly under the regime of longi temporis praescriptio: the right was acquired by use in ten years if the owner of the servient land was present in the region, in twenty if he was not.

This question of a servitude right by vetustas might arise in various contexts. Perhaps the most important was that of the landowner who suffered the increased water flow for some long time without protest but then, wishing to use his land differently, required a reduced flow; because of vetustas, however, he might find that his right to have the flow reduced was blocked. For if a servitude was found, however it was created, the important opinion of Ofilius, approved by Paul, would apparently apply: when land was under such a servitude, its owner lost the right to the actio aquae pluviae arcendae “so long as the damage is not excessive” (D. . . . ; Paul, Edict ). Reasonableness seems to have been the test.

So far we have been concerned only with private law. The Roman ju-

rists, in fact, drew a remarkably sharp distinction between private law and public law, and dealt almost exclusively with the former,17 by which they meant the interaction between one individual and another. In this instance consideration of a public-law dimension turns out to be illuminating. The Romans treated some rivers as public, and the praetor issued an interdict concerning these: “Do not do anything in a public river or on its bank, do not put anything into a public river or onto its bank, by which its position or its course for shipping becomes worse” (D. . . ; Ulpian, Edict ). What counted as a public river was not entirely settled, but for Cassius, Celsus, and Ulpian it was a river that flowed all year round (D. . . . ). Because this edict dealt only with interference with navigation, its effects were restricted to navigable rivers (D. . . . ) or, in the view of Labeo, to public rivers that visibly contributed to making navigable the river into which they flowed. For such public (or navigable) rivers, then, the right of landowners to use the water was restricted in the public interest. But this restriction would also benefit their neighbor. The landowner could not divert the public river or reduce its flow considerably. Thus, for such rivers the neighbor would in practice have equal right to a reasonable use.

Much more to our purpose would seem to be the second interdict. Ulpian gives its wording: “The praetor says: ‘I forbid anything to be done in a public river or on its bank or anything to be put into the river whereby the water flows in a different manner than it flowed in the previous summer.’”18

This interdict applied to any public river, including those that were not navigable (D. . . . ). Ulpian explains its purpose in a text in which the manuscript reading is insecure: “The praetor provided by this interdict that rivers do not dry up [exarescant] by channels that are not allowed or that a changed river bed does not cause some injury to neighbors” (D. . . . ). Exarescant is the reading of the inferior manuscripts,19 and it seems to be generally preferred. But the prime manuscript, the Florentine, actually reads the questionable word as excrescent, “that rivers do not increase in volume.” If that were accepted as the proper reading, this part of the provision would be similar to the law for the actio aquae pluviae arcendae. In either case, however, the interdict seems to have been given a very limited scope, for Ulpian explains that it was not applicable where a neighbor changed the volume of the water’s flow alone, but only where a neighbor changed the manner and direction of the current (D. . . . ; Ulpian, Edict ). Thus, provided the neighbor did not use up all of the water in the public river, he could use

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and diminish the supply, as long as he did not change the manner of the water’s flow. There was no attempt to strike a balance in the amount of use of water by, or of injury to, neighboring proprietors.20 This interdict contained only a prohibition, but it was closely associated with another interdict ordering restitution where something had already been done that changed the water’s flow (D. . . . f. ; Ulpian, Edict ).

These last two interdicts thus did have an impact on the water rights of neighboring proprietors. What seems surprising, however, is the lack of interest shown in them in Justinian’s Digest, and hence apparently by the classical jurists. There is none of that detailed and subtle discussion that we find for the actio aquae pluviae arcendae. The relevant Digest title is very short and consists of only one text, by Ulpian in thirteen fragments, and he refers only once to another jurist, Labeo (D. . . . ). The title on the actio aquae pluviae arcendae is much larger, with twenty-six texts. The thrust, then, was always on that action. The neglect of the interdicts is most easily explained on the basis of the sharpness of the distinction between public and private law and the jurists’ emphasis on the latter.21 At any rate, this juristic focus on the actio aquae pluviae arcendae had a great impact on subsequent discussion in French law.

French Law

Now I turn to the law as it was in France at the time of the promulgation of the Code civil in . My aim will be to explain the law as it was then after centuries of development by local customs and the Reception of Roman law, to estimate the impact of the Justinianian formulations, and finally to relate the Code civil’s provisions to preceding French law, to the draft codes of Cambacérès, and to the discussion of, and debates on, the draft codes.

The most striking thing about the relevant French law on the eve of codification must be how little it had developed since the time of Justinian. Our starting point for warding off rainwater should be Robert Pothier ( ‒ ),22 whose works have long been recognized as a source of inspiration for the draftsmen of the Code civil. In his Traité du contrat de société, Pothier claimed that the actio aquae pluviae arcendae—he kept the Latin name—lay to the proprietor or possessor of a lower-lying field against his neighbor in a higher field when the latter, as a result of some work done on his land, collected water that fell onto the lower field in greater quantity and with greater rapidity than it naturally would have fallen, and so caused the proprietor of the lower

field some loss. But if the water descended naturally onto the lower land there was no action, for it was not the higher proprietor but the nature of the land that caused the fall. Nor could the lower landholder complain on account of furrows that the superior landholder made when the furrows were only the ordinary furrows necessary for the plowing of the field. The superior landholder could not make the furrows deeper or more on a slope than was necessary, however, even if by doing so he would improve his land; he could not improve his own land to the detriment of his neighbor. Pothier then quoted Quintus Mucius: “Thus, one ought to make one’s own field better in such a way that one does not make one’s neighbor’s worse.” In the following article, Pothier claimed that, vice versa, the holder of the higher ground had an action against the lower proprietor who, by building a dam, caused the water to flood the higher ground. The plaintiff brought the action, said Pothier, for the destruction of the work that caused his loss: the destruction was to be at the cost of the defendant if the work was done by his order or by that of someone from whom he inherited; otherwise the defendant only had to allow the destruction at the cost of the plaintiff.23

Thus, all the law Pothier gave was to be found in the Digest title on the actio aquae pluviae arcendae and, indeed, he gave references to no other sources. He made no mention, however, of the creation of a servitude right. Pothier also said nothing about the Roman rule that held that there was no remedy if a proprietor by work on his land caused an injurious reduction of water to his neighbor. Nor did he say anything akin to the content of the Roman interdicts.

The case of Jean Domat is different. As already noted, in Les Loix civiles dans leur ordre naturel he did not deal with the water rights of neighboring proprietors. But Domat was inclined to draw a sharp distinction between private law and public law,24 and in his Le Droit public, which is a continuation of his work on civil law, the following passage occurs:

The use of rivers being public, no one can make any change that is harmful to that use. Thus, one cannot make the current of the water slower or faster, if this change injures the public or individuals. Thus, one who has property divided by a watercourse or who possesses two distinct properties on the two banks cannot for his use make a bridge which joins his two properties. Likewise, although one can divert water from a stream or a river to water one’s meadows or other land, or for mills or other uses, he must use that freedom in such a way that he does no harm either to the navigation in the river whose water he diverts, or in another that is made navi-

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gable by the water of the first, or to some other public use, or to neighbors who have similar need and a like right. And if there is not enough water for all, or if the use that some make of it is injurious to others, all will be provided for, according to need, by the officers who have that responsibility. 25

Thus, in general, Domat incorporated the law found in the Roman interdicts and, indeed, all his references were to the relevant Digest texts. Two innovations occurred at the end of the passage, however. As we have seen, a Roman remedy was not available against a proprietor who simply reduced the volume of water to a neighbor, thus causing him injury. The two Roman texts that Domat cited as authority for his whole sentence were not relevant for this point. Further, Domat cited no author- ity—such did exist, but not in Roman law—for the other important innovation: when there was not enough water for the use of all, officers would be charged with deciding the relative needs and uses.

The Roman failure to rationalize and reconcile the sources on water rights thus resulted in a split tradition in French juristic writing. The principal source of the innovation in French law was Colbert’s Ordonnances des eaux et forets of April , written for Louis XIV. Title , article forbade any individual to erect a mill or other structure, or to throw anything that might cause loss in navigable rivers. The penalty was a fine.26 Article of that title forbade anyone to divert the water of navigable rivers, to lessen their flow, or to alter their course under penalty of having to restore matters to the way they were before. The law was thus not quite that set out by Domat, primarily in its restriction of application to navigable rivers rather than all those whose use was public. Domat’s inclusion of all public rivers, of course, was influenced by the concepts of Roman law.

Domat’s “river whose use is public” was, of course, a wider notion than “navigable river” and was, indeed, imprecise. Case law was to bring precision to the notion of “river whose use is public,” producing a solution that still exists but can hardly be justified on social or economic terms. A person on whose land a spring arises could use it as he willed, even diverting it or using it up completely, according to cases from different parts of France, of August , of September , and of August , set out by P. A. Merlin in his celebrated Répertoire de jurisprudence.27 In the last case, the Parlement of Paris judged that the baron de Vitry had the right to change the course of springs that were on his land despite the immemorial possession of enjoyment that the

curé of Chide had for watering a meadow of his cure. In the case of all other rivers that passed through or bordered a person’s land, the rule was that the landowner could not divert them but could use them for irrigation.28

The law that was thus developing is well set out in the three draft codes that were prepared by Cambacérès for the French revolutionary assemblies but never accepted. It is enough for our purposes to quote the third, of .

. Lower-lying places are subject to the higher places, to receive the water that flows by itself from them; to suffer all the disadvantages that the position of the higher ground can cause them naturally and without the work of man.

. The owner of the higher land cannot divert the course of water whose spring is not in his property.

He is not free to increase the rapidity of flowing water, nor to hold it back in such a way that it can cause damage by its sudden release.

He can use it as he judges appropriate, for the irrigation of his property, as it passes through.29

Before codification France was a land of very many different legal systems. The main legal divide in the nation was between the southerly pays de droit écrit, where by custom Roman law was subsidiary law, and very potent; and the northerly pays de droit coutumier, where Roman law was either not so directly law or not so influential, or both. On this point of water law, however, the difference between the regimes seems not to have been great.

The Conseil d’Etat’s definitive redaction of the Code civil was presented on January :

. Lower-lying lands are subjected to those which are higher to receive the water that flows naturally therefrom, to which the hand of man has not contributed.

The lower owner cannot erect a dam that hinders this running off. The higher owner can do nothing that aggravates the servitude of the

lower land.30

This article corresponded exactly to article of the previous draft, which came before the Conseil d’Etat on October and was accepted without discussion.31 It had very much the thrust of the Roman actio aquae pluviae arcendae. The servient land was required to receive naturally flowing water from the dominant land, and the proprietor had a remedy only if the hand of man contributed to the flow. The stress in

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the article was on the burden on the lower-lying land, and the second sentence showed that the owner of the lower-lying land could not create an obstruction that caused flooding on the higher ground. The law was that of Rome, but its formulation corresponded to that of Pothier and Gabriel Argou. Even the specificity of digue (dam), for the obstruction on the lower land, was the wording of Pothier.32

The article, however, did not seem to free the superior owner from liability where the damage by water was caused to his neighbor as a result of plowing. This seems intentional and corresponds to subsequent interpretation. The substance of the article was, as noted already, adopted without discussion in the Conseil d’Etat on October , and none of the three projets of Cambacérès showed any sign of the Roman exception for plowing; nor did the work of Argou.33 Earlier, as we have seen, Pothier had allowed the exception for plowing, but to a very limited extent: only when the furrows were ordinary furrows and were necessary for the plowing of the land; and the furrows could not be deeper or more sloping than was necessary, even when to make them so would have improved the superior land. Moreover, before the Code civil there was no reference to the exception in the case law which was cited by Merlin.34

The next five articles of the definitive redaction should be considered together.

. He who has a spring in his lands can use it as he wishes, except for the right that the owner of lower-lying land might have acquired by grant or prescription.

. Prescription in this case can be acquired only by uninterrupted enjoyment for a period of thirty years, counting from the moment when the owner of the lower land made and completed obvious works intended to facilitate the fall and course of the water on his property.

. The owner of the spring cannot change its course when it furnishes to the inhabitants of a commune, village, or hamlet the water that is necessary to them: but if the inhabitants have not acquired or prescribed the use, the owner can claim an indemnity that is fixed by experts.

. He whose property borders on running water, other than that which is declared a dependency of the public domain by article , . . . can use it as it passes for the irrigation of his properties.

He who had property through which water passes may similarly use it during the time it passes through, but on the condition of restoring it, when it leaves his land, to its ordinary channel.