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 p115  Aquae Pluviae Arcendae Actio

Article by George Long, M.A., Fellow of Trinity College
on pp115‑116 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

AQUAE PLUVIAE ARCENDAE ACTIO. That water was called aqua pluvia which fell from the clouds, and overflowed in consequence of showers, and the prevention of injury to land from such water was the object of this action. The action aquae pluviae was allowed between the owners of adjoining land, and might be maintained either by the owner of the higher land against the owner of the lower land, in case the latter by any thing done to his land (manu facto opere) prevented the water from flowing naturally from the higher to the lower  p116 land; or by the owner of the lower land against the owner of the higher land, in case the latter did any thing to his land by which the water flowed from it into the lower land in a different way from what it naturally would. In the absence of any special custom or law to the contrary, the lower land was subject to receive the water which flowed naturally from the upper land; and this rule of law was thus expressed, — ager inferior superiori servit. The fertilising materials carried down to the lower land were considered as an ample compensation for any damage which it might sustain from the water. Many difficult questions occurred in the application to practice of the general rules of law as to aqua pluvia; and, among others, this question, — What things done by the owners of the land were to be considered as preventing or altering the natural flow of the waters? The conclusion of Ulpian is, that acts done to the land for the purposes of cultivation were not to be considered as acts interfering with the natural flow of the waters. Water which increased from the falling of rain, or in consequence of rain changed its colour, was considered within the definition of aqua pluvia; for it was not necessary that the water in question should be only rain water, it was sufficient if there was any rain water in it. Thus, when water naturally flowed from a pond or marsh, and a person did something to exclude such water from coming on his land, if such marsh received any increase from rain water, and so injured the land of a neighbour, the person would be compelled by this action to remove the obstacle which he had created to the free passage of the water.

This action was allowed for the special protection of land (ager): if the water injured a town or a building, the case then belonged to flumina and stillicidia. The action was only allowed to prevent damage, and therefore a person could not have this remedy against his neighbour, who did any thing to his own land by which he stopped the water which would otherwise flow to that person's land and be profitable by it. The title in the Digest contains many curious cases. (Dig. 39 3; Cic. Pro Muren. 10, Topic. 9; Boëthius, Comment. in Cic. Top. IV.9.)

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