Case 2.8 The Channeling Of Water

The channeling of water was employed in Rome for purposes relating to farming and irrigation. To allow for a sensible and practical distribution of water, rules were drawn from actual cases to set precedents for future reference. For example, the servitude of aquaeductus was created to grant a right of use that allowed a right holder to legally channel water from a source upon an adjacent neighbor’s land, providing that they themselves held an estate. In Case 2.28, Julian establishes three different situations under which the servitude of aquaeductus can be utilized to serve the needs of two or more parties who share a source of water. He rightly asserts that neither party would forfeit their right of use if they decided to swap the times allotted
to them for the sharing of the water source even though both parties would be actively deviating from the prior agreement. Julian’s ruling is a good law because it adheres to the rules expressed in the other cases regarding servitudes, which allows for a consistent legal basis upon which implementation of servitudes can be streamlined, in addition to providing protection for the dominant and servient estates.
Additionally, Julian’s ruling makes for a good law because it offers protection to the owner of the dominant estates while staying consistent with the definition of what it means to use a servitude.
In Case 2.11, it says that “a man is not considered to be making use of a servitude unless he believes that he is exercising a right which belongs to him.” Julian’s ruling is consistent with this because upon swapping times, the two parties involved in Case 2.28 continue to draw water, and from this it could easily be concluded that both parties believed themselves to be exercising a right which they still possess. It is unlikely that they would have agreed to exchange times if they thought doing so would endanger their servitude because that would have risked their access to water that they might have needed for livestock, crops or personal use. Therefore, by allowing the dominant estates to retain their servitudes, Julian has followed suit to the rule expressed in Case 2.11. This is important because the rule established in Case 2.11 and followed in Julian’s ruling works to add an element of fairness to the matter and protect the dominant estate owner. Since Roman water rights could be complicated legal matters, some dominant estate owners might not have comprehended all the laws regulating servitudes. So, by allowing the definition of using a servitude to rely on whether the owner of the dominant estate believes they are exercising a right, the dominant estates are protected
from potentially being unfairly of unwittingly victimized by the rigorous regulations regarding Roman water rights. Another reason that Julian’s ruling is a good law is because it protects the economic interest of the dominant estates that are involved.
When dominant estates share a water source, it could “be stated that the right is to be exercised on different days or at different time”, likewise it could also be stated that “each may exercise the right on the same days or during the same hours,” (Case 2.26). This case establishes that agreements can be constructed with a various form of time allocations for the water source, however it does give any rules or regulations regarding how to construct those time allocations. This is arguably done on purpose to grant dominant estate owners more freedom, which could be directly proportional to economic success. The needs of a right holder may change over time, and it might reach a point where the original agreement is no longer beneficial for them and in these instances, an adjustable agreement would provide the dominant estate with the most streamlined method for best meeting their changing needs. For example, if the first party decides to start growing more plants it would increase their water requirements, while the second party might also choose to downsize their estate. In this case, it would be beneficial to allow the right holders to come to a revised agreement over how to best distribute their share of water. In the second situation proposed by Julian, the water source is split seasonally, so the decision to grow new crops the
flourish in a different season might be another occasion where the right holders might want to exchange times. In both examples, switching times might provide more economic value to the involved parties. This is important because to contribute to the overall productivity of Rome, individuals need to possess the ability to amend their current circumstances to best be successful. Without this ability, the dominant estates would have to again undergo the process of acquiring a servitude and potentially obtaining an agreement with other dominant estates if the new servitude was also shared. This extra process which would be an unnecessary drain of resources considering that could be avoided by the alternative, a revision of an existing agreement. Like Case 2.26, Julian’s ruling leaves the dominant estates with more autonomy that can be utilized to better serve their economic interest.