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AQUAE PLUVIAE ARCENDAE ACTIO

AQUAE PLUVIAE ARCENDAE ACTIO An owner who altered the natural course of rain-water, and by so doing (opere manu facto) injured the land of an adjoining owner, was liable to the above action. Rain-water was still treated as rain-water, although it had become mixed with other water. It was necessary that the injury caused by the water should be of a positive kind; the action could not be maintained on account of an act which deprived a neighbour of some advantage from the rainwater. The action could only be brought on account of injury done to land (ager); injury to a town or building was not covered by it.

The action might be brought by the owner of the higher land against the owner of the lower, if the latter prevented the water from flowing naturally from the higher to the lower ground, or by the owner of the lower land against the owner of the higher, in case the latter caused the water to flow into the lower land otherwise than in its natural course. An owner was not liable to this action on account of any work necessary for agricultural purposes. The action might also be successfully defended on the following grounds:--1. That the act had been done with the permission of the adjoining owner, or of a public authority. 2. That the land of the adjoining owner was subject to a servitude, which allowed the act in question. 3. That the alteration had been made since time immemorial. (Dig. 39, tit. 3, de aqua et aquae pluviae arcendae; Cic. Mur. 10, Topic. 9; Boëthius, Comment. in Cic. Top. 4.9; Windscheid, Pandekten, § 473.)

[G.L] [E.A.W]

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