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THE GREEN BAG
CORRESPONDENCE MODERN INTEREST IN THE PANDECTS OF JUSTINIAN FOUND BY HON. Eue; EN E F. WARE TOPERA, KAN., Feb. 28, 1905. Editor GREEN BAG: We of the present do not give full credit to the past. In the days of Rome they had great lawyers and great judges, lawyers and judges who were the equals of lawyers and judges now; men who wanted to do that which was right and did it. It is true that matters of personal status, of voting and privilege, were not then the same as now, but as to questions of property and as to private rights between man and man, the lawyers and judges of Rome had met about every proposition and decided it rightly. Having been obliged recently in some irri gation matters to look hurriedly through the Civil Law which was derived from the law of ancient Rome, it became necessary to make some translations from the Corpus Juris. Be it known that the Pandects of Justinian have never been translated into English and that they contain a mine of most useful informa tion and law. As the river Po was something like the Missouri River, constantly making changes in its bed, and as litigation is constant along the line of the Missouri, I take the lib erty to send you two translations, one con cerning irrigation and one concerning rivers, which have never appeared in English before, and which are interesting as showing how questions arose during the days of old Rome similar to those arising to-day, and the trans lations show what was the origin of our present laws. Yours very truly, E. F. WARE. (Opinion by Proculus.) " In the river front ing me, an island formed in such a 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 accretion from end to end belongs to me because it has joined itself to mine, or
whether it belongs 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 begin ning was nearer your estate than 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 neigh bors above and below, or even if it had grown closer to the estate across the river than to yours." (Opinion by Proculus.) " Several persons were accustomed by right to bring through the same channel, water from a neighboring source, in such a way that each had his own day of taking the water; first, by the same channel common to each, thence by a smaller channel which was the separate property of each. One of these persons did not take water during the statutory period prescribed for its loss. "I think he lost his right to the water by non-user, and that the right was not main tained through the use of water by the others, because the right of each was separate and could not be upheld by the use which the others made. If, however, the water right pertained to an estate owned by several in common, the use by one of these would main tain the right as to all. Also, if one of these referred to who owned a water right, employ ing a common channel to convey the water, had lost the right by non-user, the right would not go to the others who used the channel in common with him. The benefit is his who owns the land through which the canal passes, conveying the water which by non-user has been lost as to one. Such owner of the land enjoys the benefit of freedom from that por tion of the servitude."
