THE LANDSCAPE OF ROMAN
WATER LAW
While working on water projects in two regions
of the world , South Asia and North America, I
began to notice common norms, practices, and
landscapes of water development. These included distinctions between "public" and "private"
waters , and references to servitudes, usufrutary
rights , and the public trust. Some of these similarities are explained by centuries-long processes of exchange between North America and
South Asia (Wescoat 2000) . Others may have
deeper roots in Roman and Islamic water institutions , technologies , aesthetics, and laws that
diffused through millennia of trade , colonization ,
and inquiry.
Previous research has examined landscape
dimensions of Islamic water systems (e.g.,
Butzer, 1994; Petruccioli , 1985; Tabbaa, 1989;
Wescoat, 1995ab, 1997b). This paper explores
the connections between Roman water laws
and landscape change . It . begins with cases
where the legacy of Roman water laws are
important in landscape controversies today.
The paper then examines five fields of inquiry
that are relevant for research on "Landscapes
of Roman Water Law" and that help construct a
conceptual framework for investigation . The largest section of the paper examines the landscape dimensions of water laws in the Digest of
Justinian. The concluding section of the paper
then identifies priorities for further study of
Roman water laws and landscape change.
well established , the Roman legacy seems evident in rural and urban servitudes that provide
for private access to water between neighboring
properties.
These examples raise fascinating historicalgeographic questions about the international
diffusion of water laws and institutions over the
past two millennia. Roman water laws were
studied , adapted and supplemented in
Byzantine and Islamic law schools (Crone,
1987); civil law regimes of Europe; and subsequently Spanish , French, Dutch, and English
imperial bureaucracies (e.g., Maine [1876)) .
From West Bengal to Louisiana, Roman principles of alluvia have shaped the ownership of
shifting riverbanks and bars. From Silt,
Colorado to Swat, Pakistan , persons have a
right to construct a ditch across a neighbor's
land to carry water from its source to their property. Navigable rivers - whether in Denver,
Delhi , or Rome itself - are accessible to
everyone provided no harm is done to the
banks, a principle which is contradicted in practice by eviction of homeless people camped on
public riverbanks and widespread degradation
of riparian habitats.
The aim of this paper is not to reconstruct the
diffusion of Roman water laws, but rather to
Problem Statement
LANDSCAPES OF ROMAN WATER LAW
Many, if not most, modern nations make distinctions between "public" and "private" waters , a
distinction deeply rooted in Roman law, which
has material consequences for human access,
use, and development of watercourses. The
end of the 20th century witnessed important
debates about the environmental and social
consequences of public versus private water
control , with advances in both state regulation
and privatization of water resources. In the
U.S. , for example , the "public trust doctrine,"
rooted in Roman laws on the inherently public
character and state responsibility for navigable
waters and submerged lands, was rediscovered
and employed to protect the natural landscape
of Mono Lake in California. States around the
world have justified large-scale river development and environmental protection on similar
legal grounds.
At the same time , there is increasing pressure
in many regions to establish private rights and
markets in water, institutions that also existed in
ancient Rome. However, there are concerns
about the landscape consequences of private
water markets, especially in irrigated and urbanizing regions. Even where water rights are not
Landscape
Coasts
Usufruct
Rivers
Urban Servitudes
Roads
Rustic Servitudes
Springs
Rural lands
Urban Lands
Public places
88
Legal mechanism
Treaty
Interdict
Possession/Ownership
two millennia of scholarship on water systems.
It provides a wealth of primary and secondary
evidence. However, landscape information is
often missing from Roman legal sources. To
what extent is it possible to imagine the landscapes of Roman water laws and institutions?
Imagery of Roman sacred springs, river crossings, and aqueducts is certainly widespread in
the historical imagination of many peoples. To
what extent were these imagined and actual
landscapes shaped in fact by Roman water
laws? On what types of waters and places were
Roman laws silent? Would a deeper knowled ge of Roman water laws advance our understanding of historic landscapes?
focus on their "landscapes." Landscapes of
water law include the geographic situations that
the law addresses, land and water features it
denotes, spatial relations it describes, alternative actions it envisions, environmental and
social consequences , creative adjustments ,
and the consequent geographic contexts in
wh ich it evolves. This definition encompasses
the broad geographic contexts , contents , and
consequences of water law.
It reflects the interests of landscape designers
as well as scholars. The designer strives to
imagine situations that individuals and groups
have faced in the past to open up variables ,
alternatives , and competing interpretations relevant for current situations (Wescoat, 1997b).
Sch olars seek to discern the geographic logic of
Roman water laws, a logic that includes normative distinctions between public and private
waters, but that may be silent about other geographic issues, linkages, and conflicts among
water norms. This dual attention to interests of
designers and scholars must be wary of historicist pitfalls while it seeks to shed light on Roman
innovations that have continuing significance
for modern societies.
In addition to being an extraordinary laboratory
for water experiments, Rome has stimulated
Conceptual Framework
To address these questions (they cannot be
fully answered) , we need a conceptual framework on the types of legal evidence that exist
and their relevance for landscape research .
The conceptual framework used in this study
includes six components listed under the broad
headings of context, content and silence:
1. Context I: Landscape changes that shaped
Roman water laws (e .g., changes in land use
that contributed to changes in water-related servitudes) .
2. Context II: Aquatic landscapes associated
with Roman law making (e.g. , the riverfront and
island loci of Cicero's De legibus) .
3. Content I: Landscape situations and water
features explicitly addressed in Roman water
laws (e.g. , riverbanks and channel changes).
4. Content II : Landscape effects mentioned
Roman water laws (e .g. , impairment of navigation or access) .
5. Silence I: Landscape issues that are not
addressed in any body of Roman water law.
6. Silence II: Gaps between the treatment of
landscape issues in different bodies of water
law (e.g. , water rights and se rvitudes).
To develop a sound perspective on these six
components , it is useful to review previous legal
research on Roman water law, and to proceed
to related fields of geographic and landscape
architectural research.
URBAN SERVITUD ES
FIGURE 2: URBAN SERVITUDES L>i THE DIGEST
Right of use (usus) of a house or
land includes water, but not the
right to fruits -- 7. 8.12.1
Drain water (/lumen)
But usufructary
may not attach
gutter--7 .1.61
Right to draw water, e.g..
from a well, implies right 01
way-- 8.2.10; but there is nc
perpetual right to channel
water from a tank -- 8.2.28
Liability for
damage by water
pipes--8.2. 18
Previous Research
Right to lead a drain
(ius cloacae) 8. 1.7
Five bodies of modern research speak to the
issues and topics raised above:
1. Research on Roman law and water law
2. Research on Roman waterworks and landscapes
3. Research on the modern legacy of Roman
water law and waterworks .
4. Research on geography and law
_,,_,,_,,_,,_, - ·---- ·-··-.. -?
/
Public ground (or way):
no servitudes--8.2.1
I
/
Usufructary of a building
should not set up a public
bath or fuller's workshop
in it -- 7.1.13.8
-··- ··------- .. - ··----·/
89
5. Research on landscape architecture and law
In the space of th is article, it is possible to briefly mention examples from each of these fields.
1. Research on Roman law and water law examines the sources and structures of Roman
legal thought. Underscoring the significance of
law in Roman society, Richard Baumann (1989,
p. 16) writes that:
"Law reform was rooted in one of the deepest
well-springs of the Roman ethos. Time and
again in their turbulent history the Roman people had turned to their law as the one sure
shield against dissolution and decay, and when
they criticized a regime it was for its lawlessness more than for anything else ... It is no
exaggeration to say that the Romans had the
same profound , almost mystical belief in their
law as the Greeks had in liberty."
Substantial literatures address the historical
development of th is legal ethos, and its complexity cautions against overreliance upon formal classifications that were , in fact, continuously disputed , reshaped , and resituated over
time (Robinson , 1997; Stein , 1988; TellegenCouperus , 1993). One of the earliest sources,
the Twelve Tables (c. 450 BCE) contains a
phrase to the effect that, "If rain water damages ... « he is to contain it»" (Table VII , 8, cited
in Crawford , 1996, v. 2, p. 581 ). Eventually, the
sources of Roman water law would include
acts, plebian statutes, senate resolutions , imperial pronouncements, magistrates' edicts, and
answers by jurists - many of them codified
under orders from the emperor Justinian in the
6th century CE. Other contemporary literature
by Roman authors, e.g., philosophers and politicians who were not jurists, provides valuable
commentary. These codifications retain vestiges of their diverse origins, authority, and landscape referents .
Notwithstanding the long record of Roman legal
development and change , there were enduring
categories that served to define problematic
situations and the norms that applied to them.
Every textbook on Roman law, from Gaius writing in the second century CE to Borkowski
(1994) writing for modern law students in the
twentieth century, repeats that Roman private
law had three main divisions: persons (personae), things (res) , and actions (actiones)
(Gordon and Robinson , 1988; Honore, 1962;
Nicholas, 1962).
How different might the Roman legal world and
its legacy have been if, in addition , jurists had
also recognized a category of laws concerning
places (loci), perhaps following Hippocrates'
Airs , Waters , and Places? But they did not and ,
as a resu lt, places and landscapes of different
types fall under disparate categories of law.
Perhaps the most profound gaps, or silences in
our framework above, concern relationships
between public and private law, the former dealing with state and religious matters and the latter with economic relations among landowners
and citizens. Distinctions between the civil law
of Rome (ius civile) and law of all peoples and
of nature (ius gentium and ius naturale) also
constitute gaps in the deep structure of legal
institutions (e.g. , between national and international waters). These gaps between sacred,
natural , and profane spaces have persisted in
modern debates over the spiritual and utilitarian
character of rivers.
Private law is the focus of most research on
Roman water law. Because Roman sources
treat different waters under different categories
of law, this literature focuses on specific topics
rather than "water law" at large. Topics receiving
detailed discussion fall under the general categories of servitudes, public waters , and actions
(Capogrossi Colognesi , 1966, 1969; and
Rodger, 1972). Specific topics include "actions to
ward off rainwater" (actio aquae pluviae arcendae)(Sargenti , 1940; Watson , 1968) and ownership of shifting riverbanks (alluvia, avulso)
(Lewis, 1983). To develop a landscape perspective on Roman water laws, these specific laws
and investigations need to be pieced together.
2. That task is facilitated by a separate literature on Roman waterworks and landscapes by
classical archaeologists, philologists, and historians (Mattingly, 1993). Where shall we begin?
With Aeneas landing near the river Numicus;
the early king Tiberius who drowned in a river
that took his name; the infant twins Romulus
and Remus , set out to drown in the Tiber, who
landed safely in receding floodwaters in the
forum; or the springs of Egeria, where a pious
law-giving king Numa Pomphilius received his
inspirations from a nymph? The possibilities
are endless.
The modern literature ranges from the imperial
scale of Nicolet's Space , Geography, and
Politics in the Early Roman Empire (1991 ),
which explores the geopolitical context of
Rome , its provinces, and administrative regions ; to the literary spaces of Vasaly's
Representations: Images of the World in
Ciceronian Oratory (1993) and Leach's, The
Rhetoric of Space: Literary and Artistic
Representations of Landscape in Republican
and Augustan Rome (1988) ; and ultimately to
the more concrete local scale of archaeological
sites discussed below.
The archaeological literature on Roman
waterworks is vast , and the aim here is just to
indicate some of its relationships to water law.
Research on boundary markers (cippi) lining
the Tiber, Anio , and aqueduct rights-of-way
sheds light on demarcations of public and private realms (Lanciani , 1899; Le Gall , 1953;
90
Mari , 1991 ). Public riverbanks were in principle
accessible to all and subject to the control and
public works projects of the state. Research on
Roman river crossings reminds us, however, of
their complex religious and political , as well as
legal, significance (Holland, 1961; Taylor, 1995).
A large body of research has been published on
baths and bathing, though its connections with
laws of sanitation and purity are less well developed (Yegul, 1992). The literature on sewers
includes servitudes as well as surveys
(Capogrossi Colognesi , 1969; Narducci , 1889).
Grimal is one of the few authors to study both
Roman aqueducts and gardens (1978 ,
1990)(see also Gleason , 1994; and Jashemski
and Ricotti , 1992). O.F. Robinson (1992) has
written a broad synthetic perspective on Roman
urbanism and administration, which includes
waterworks. Perhaps the broadest landscape
perspective on Roman waterworks is emerging
in an Internet website titled , Aquae Urbis
Romae, constructed by Katherine Rinne (2000)
(for law, cf. the Roman law branch of the LawRelated Internet Project at the University of
Saarbrucken.
http ://www.ju ra. uni-s b. de/Rec htsg esc hi chte/
lus.Romanum/english .html).
One expects research on aqueducts to be
linked with detailed discussion of laws concerning the landscapes they transformed (e.g ., the
depleted headwater streams, irrigated villas ,
and urban baths and fountains) , but that literatu re depends upon surprisingly few contempora ry sources (esp., Frontinus)(Bruun, 1991;
Hodge, 1991 ). No Roman author has stimulated more research on water than Sextus Julius
Frontinus whose De aquaeductu urbis Romae
describes his administrative experience and
aspirations in 97-98 CE (Bruun, 1991; Evans,
1993, 1994). But even research on that text
has proven difficult to relate to urban water laws
governing access, use, and conflicts over water
in specific areas of the city.
neer Clemens Herschel (1899) translated
Frontinus' De aquaeductu urbis Romae . Ware
was about to argue the case of Kansas v.
Colorado before the U.S. Supreme Court to
assert Kansas's claim to the Arkansas River.
Herschel was inspired by Frontinus to propose
amendments to the New York State constitution
for the protection and provision of municipal
water supplies. Later legal scholars applied
principles of Roman law to disputes over shifting riverbanks , water rights , and the public trust
in natural waterbodies and submerged lands
(Baade , 1992; Herman , 1995; Jaffee, 1971 ;
Sax, 1971 ; Vetter, 1993; Wescoat, 1997a).
Although these works on the legacy of Roman
water law have modern professional aims, they
have not as yet extended to geographical or
landscape architectural research , to which we
now turn .
4. Geographic research helps sheds light on the
"contexts" in our conceptual framework. Some
historical geographers such as Ellen Churchill
Semple (1931) and George Kirk (1953) explored the cultural landscapes, waterworks , and
built environments of Rome , but they showed
less interest in legal institutions that shaped
those landscapes (cf. Comune di Roma , 1986;
and Cosgrove, 1995). The more pertinent literature for this paper is the geography of law. It
includes two groups of scholars who concentrate on the human geography of law and on geographic aspects of water law.
The field of law and geography arose from progressive social movements on issues of racism ,
labor relations , immigration , and zoning
(Blomley, 1989; Clark, 1989). However, it also
sought broader theoretical perspectives on the
social and spatial contexts of law, and it engaged in debates about where law functions as a
vehicle of social change and where it serves as
a laggardly epiphenomena! handmaiden for the
exercise of power (cf. Scobie , 1986, on social
deprivation in Roman times). Research on law
and geography has sought to discern the spatial
structures, struggles, and interpretive problems
that are treated implicitly or superficially in
mainstream legal inquiry. It has dealt almost
exclusively with contemporary legal theory and
practice in the West.
Geographic research on water laws , by contrast, has been less theoretical and more broadranging in its historical and geographic coverage (Emel and Roberts ,' 1995; Templer, 1997;
Wescoat, 1995a). It has concentrated on property rights in water, giving little attention to the
landscapes of water law and even less to
Roman antecedents of modern water laws.
5. Landscape architects, by comparison , deal
with law primarily as a practical consideration in
professional practice. They regard law less as a
3. Over the course of centuries , a third literature has developed that seeks to relate Roman
water laws and waterworks to modern concerns. It reflects the diffusion and adaptation of
Roman law and engineering in European countries and the imposition of those traditions on
colonies in the 17th through 20th centuries
(e. g. , Maine, 1876, who was influential in both
England and India).
The first scholarly works on Roman water law in
the U.S. were undertaken not by scholars but by
professionals - lawyers and engineers - who
used their knowledge to fight court cases and
draft legislative proposals in their respective
states.
Lawyer Eugene Ware (1905) culled the
Pandects of Justinian for water laws, while engi91
source of landscape evidence or creative tool of
landscape transformation , than as a body of
design constraints. Some of the more creative
literature approaches laws as problems and
variables to be addressed , fought over, and
resolved through landscape design .
Kwasniak (1996) developed a framework for
analyzing landscape consequences of laws
based on simple oppositions between land use
and non-land use regulation , macro and micro
landscape effects , and active and passive
effects which she applied to rangeland management. Smardon and Karp (1992) conducted
a more detailed survey of environmental , building , and aesthetic laws relevant for landscape
planning and design in the late-20th century
United States. A relatively large literature deals
with local aesthetic ordinances.
However,
these landscape architectural works have a
rather shallow historical perspective on law,
dating back only to the 1960's with few references outside North America and none to Roman
law, even on such obviously relevant topics as
the right to light and prospect.
In light of the limited intersections among these
five fields of inquiry, we can only begin to identify the types of inquiry that shed light on the
"Landscapes of Roman Water Law" relevant for
modern environmental design. The following
section of the paper introduces three projects
that employ landscape research methods to
develop a perspective on Roman water laws,
and to reflect back, in turn , upon modern environmental problems.
water - and to enjoy their fruits without impairing their substance). This book contains a few
provisions on the use of flooded lands and the
stewardship of land including watercourses .
Modern references to water rights as "usufructary" are actually closer to the Roman concept
of usus than usufruct.
Book 8: Rustic and Urban Praedial Servitudes
(rights acquired between neighboring landowners, including rights to search for, draw, and
drain off water).
Book 39 : Notice of New Work (obligation to give
notice and assurance about new construction ,
including that which may affect watercourses) ;
and Actions to Ward off Rainwater (which today
would fall under the rubric of drainage law).
Book 41: Ownership and Possession (includes
ownership of shifting riverbanks, channels ,
beds, and islands). Less is said about water as
a property right than modern readers might
expect, given its importance in water law today.
Book 43: Interdicts (magistrates' edicts that forbid the use of force to prevent someone from
doing something permitted or productive, e.g.
use a public watercourse , draw water, or clean
a drain ; or that require someone to restore
things to their earlier condition, including riverbanks and channels). This book has the largest body of water laws.
My method is to read through these books and
fill journals with notes and sketches, trying to
disc~rn vestiges of the contexts in which
various rules might or might not apply - precisely what 6th century legal codifiers stripped out
of source materials to obtain the most general
rules possible.
Eugene Ware organized passages of the Digest
by types of water body and water uses, including springs, rivers , aqueducts, irrigation ,
sewers, and so on. Figure 1 shows how different sources and categories of law in the Digest
addressed those types of waters. I won't go
through these relationships in detail , but will
instead briefly examine three types of water
laws, beginning with rustic and urban praedial
servitudes, which concern relations between
land owners and neighbors and which are therefore squarely matters of private law:
Urban Servitudes are relatively few in number
compared with rural servitudes, in part because cities had lower-level magistrates to establish local rules and regulations , few of which
have survived as evidence. However, the principal legal concerns among city dwellers were
not so much water supply as drainage.
Drainage from roofs , stillicidium , translated as
"drip" seems to have been a big problem , as
were drain pipes that caused damage to walls
and foundations. There was a right to lead a
drain from out of your house (ius cloacae) to a
public drain.
A Preliminary Exploration of the Digest
In light of the complexities in Roman legal
history noted above , the first question is
whether there are sources of Roman law that
lend themselves to landscape research? This
portion of the paper conducts an experiment
with the Digest of Justinian , the largest compilation and codification of Roman law that exists
(Mommsen and Kreuger, 1985). Eugene Ware
(1905) culled the Digest for water laws and
organized them by types of water bodies which ,
although useful, lost sight of the legal and spatial structure of those laws. Here we maintain
the Roman legal categories in the Digest while
giving close attention to the spatial referents of
praetor's edicts and jurists' responses .
One way to build upon Ware's analysis is to relate the types of water bodies mentioned in the law
to the sources and categories of Roman law that
address them . To do that, we need to focus on
the books that contain water laws. Five books of
the Digest contain most of its water laws.
Book 7: Usufruct (the right to use and enjoy the
things of another - their house, land , trees , or
92
was open to access by all , whether on the
water's surface or along its banks, fo r whatever
economic and recreational activities caused no
harm to navigation and other publ ic uses.
Similar concepts , principles, and inferences
operate today in struggles over the demarcation
and regulation of floodplains , wetlands , and
other waterscapes that are in some way linked
with the "navigable waters" of the State. They
are constitutional principles used to justify national involvement in local water projects, and to
expand or contract the public realm .
These brief illustrations of landscape dimensions of water laws in the Digest point to the
need for more detailed studies of individual passages, and for other types of analysis of Roman
water law, two of which are outlined below.
Rural Servitudes receive more attention , and
they balance concerns about drainage with
issues of water supply, including rights to search for water (aquae quaerere) , to lead or channel water (aquae ductus) , and to draw or lift
water (aquae haustus). If there is a right to draw
water from a well or tank that right implies a servitude for access by foot, vehicle , or animal to
the water source. One could acquire a servitude to lead cattle to water, which also implied a
ri ght for the shepherd to build a little hut for
shelter during storms. These rights for animal
owners, however, stopped far short of the right
of thirst for animals themselves that developed
later under Islamic law (Wescoat, 1995a).
Special problems arose when a servitude for a
water channel encountered a public or sacred
place or way over which no servitude could be
granted. But on matters of drainage, the servitor had few constraints. As a water user one
had a right of access to neighbors' lands to
clean and maintain water channels and drains
and to dump debris mucked out along its banks .
One could lead a drain through a neighbor's
house if necessary!
Modern students of landscape architecture
learn about the "right to ward off rainwater,"
actio aquae pluviae arcendae , though not in
that language. The basic design principle is to
drain water off one's land without causing it to
back up on upslope neighbor's lands or changing the pattern, volume , or velocity of runoff
onto lateral and downslope properties. These
principles are subtly elaborated in book 39 of
the Digest.
Public Waters. Book 43 takes us from private
servitudes to the realm of praetors' interdicts on
private and public water rights. The Praetor's
interdicts follow a common formula: "If a person
with the characteristics a, b, or c uses some
public waters with characteristics d, e, or f in
such a way that it does no harm and/or makes
not changes from the manner of last year, then
I fo rbid the use of force to prevent him from continuing that pattern of use." This interdict formula restricts the private behavior of individuals in
a public realm , and it secures the status quo in
patterns of land and water use. It does not articu late aims or principles for managing public
resources, so the continuing discharge of raw
sewage from the Cloaca Maxima and of dead
bodies into the Tiber, and frequent flooding of
the Campus Martius, should come as no surprise.
One of the key questions, then as now, is to
determine what the "public waters" are. Where
do they begin and end? What makes them
public? Book 43 of the Digest distinguishes
perennial and intermittent flows. If a river was
"perennial ," then it was "public", and if public, it
Extensions of Roman Water Law
Analysis of the Digest opens up a range of
subjects for further investigation . The two topics
briefly mentioned below are stimulated by passages in the Digest attributed to the creative
Roman jurist, Marcus Antistius Labeo. One
research topic focuses on the geographic logic
of Labeo's commentaries. Another project com pares Labeo's contributions with those of his
chief legal rival , Gaius Ateius Capito , who was
curator aquarum for the city of Rome and thus
responsible for water administration within the
city, a topic that is largely absent from the
Digest.
Labeo: Geographic Extension and Analogy in a
Progressive Roman Jurist. Marcus Antistius
Labeo (born around 50BC , died around 20AD)
was one a brilliant jurist of the Augustan era
(Jars, 1894; Lenel , 1960; Melillo, Palma and
Pennacchio, 1995; and Pernice, 1963). He was
the second-most-cited lawyer in the Digest,
after Julian , and was known for his legal innovations and vehement Republican opposition to
Augustus (Honore , 1982). He was a legal liberal and political conservative . Culling through
water laws in the Digest, it is striking how Labeo
pushed established water laws into new landscape situations using arguments that involve
various types of geographic extension and analogy.
Some examples:
1. Labeo held that a servitude can be created to
allow a person to search for water and , if found ,
channel it to one's property, using the analogy
of servitudes created in buildings that have yet
to be built (8.3.10).
2. Regarding public lands and waters , Labeo
suggested that "if that which arises in a publ ic
place is public, an island that arises in a public
river ought to be public" (41.1 .65.4) . 3. With
93
RURAL SERVITUDES IN THE DIGEST
SERVITUDES ONLY APPLY TO AN ESTATE HOLDER (FUNDUS)
'
Right of way around water
body (circa eam aquam late
pedes dee/in).
,,. ....
Fishing products belong to a
usufructary- 7.1.9.5;
But permanent flooding or
drying up eliminates a usufruct
- 7.4.102-3
-
'
Aright to lead cattle to water
(pecoris ad aquam adpulsam)
' ,
8.3.l; also implies a right to a hut
', for shelter- 83.6
'
''
Aright to draw water
(aquaehaus'!'S)--:
I /
1
: Right to lead off water (aqua
1 ducendae; aquae ductus) -
, ~ ,'
""I
1
Right to search
for water (aquae
quaerere}-8.3.10
.p,
,
( ? ::
/
~:
~~ /
~ :
/ / -
(j'
~
/
'
.
I~
.
/l /
I
I
,'
I
I
,
~
~
I~
, V
II
I
"()
.q_,
,'
Aquae ductus implies right of access and spoil
disposal along entire length of a channel - 8.4 .11
I
I
1
I
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J
,~.:..
I ,. --. fliij]
/
...... ......_____
,'
,
Types ofWater
Rights:
I
I ,·---
·.;:; I . .
/
• ~ I ,.__ ,. __
I
I
Irrigators have correlative
water rights - 8.3.17
I
.t
I
I
I
I ~~
---. ..... - - -
Aquae ductus for a servitor may
constrain land development by the owner -8.3.20-, aservitude is limited to the original
location for which it was obtained·- 8.3.24
/ .~ /
· t: '
I
--·-..
....
: - (__)
.· Ifyougrantaquaeductustoone,you· · - · · - · · - · - - . j
cannot grant a right of way (via) to another
-8.3.14
I
,,
i~ /
,'
I~
f Water withdrawn
/, should be taken
from source ··
: 8.3.9
Aright to lead off water
(~ae educendae) can be
aqwred
Alignment cannot be changed
- 8.1.9~ but a channel can be improved
8.3.15; if alignment is not specified,
it applies to the entire estate, 8.3 21
~ -· - - ••
,:
/
,
8.3.l; provided no injury to
others- 83.17
/ ::j,
J.
··,j ''
/
/
~- -..
I
'',
8.3.3.l; al.so implies
••
' '
arightofaccess(e.g.
byviaoriter
:'··· •• , \
[walkway}) 8.3.3.3 ····- ••••• J.
'~
I
:: i
I
' ,,
t
/
"Natural" overflow from
a channel may be
acceptable-· 8320.1
----
·---.
/
:
'
:
I
I
----- - ------~ ~
:
!
\ - ~\-- ~\......__ ............. _,I
I
I
There is a right to drain water
beneath a neighbor's house
and land - 83.2
~
~
•
I
The right to ward off rainwater - aclio aquae
pluviae arcendae - applies only to fields (ager)
I
I
,
I
.I
,
I
I
I
I
94
l. Daily (quotidiana)
2.Nightly
3. Summer
PUBLIC WATERS IN THE DIGEST
.... . ..
:v:i~: :a~~:f (·····················-····-~-
(avulso), the old \
....··--··----················
bed is not public \
!
43 .12.1. 7
. .\..... \.,\
"Worsen" means withdrawals that make
a river shallower, narrower, swifter, etc.
43.12.1.15; nothing prevents
withdrawals, however, except imperial or
senatorial acts, or injury. 43.12.2. New
cuttings that change a river channel are
ok unless they cause injury 43 .13.1.5-7
..'·...•..)
A river bank is that which
Even a person who owns a house on both
sides of a river cannot build a private
bridge across it. 43.12.4
contains the river in its
natural course (not the
floodplain)-43 .12.1.5; the
bank begins at the top of the
slope--43.12.3. The only
defense against the interdict
is "keeping up the banks"
43.12.1.16, 43.13.1.6.
\
\
I
,,
I
A new island is not public; it belongs to the
first occupant or to riparian(s) -- 43 .12.1.6
Perennial rivers are everflowing;
torrential rivers are winter-flowing.
Public rivers are perennial --
Praetor: you cannot prevent
someone from protecting
river banks, or fields that
protect riverbanks--41.15 .1
Ulpian extends this
principle to public lakes,
pools and canals-- 43 .15.1.6
~
~
~
~
Praetor: do not do anything in a
/
•/ ;_'
••• ~
•
/
\,;
43 .12.1.2-3.
Fishing contractors and animal
herders are covered by these
interdicts 43.14.1.7-9
public river or on its banks that
worsens the landing or passage of
boats-- 43.12.1; this interdict only
applies to public rivers-- 43.12.1.4;
11
what is done in a river" means "in
the water"--43.12.1.11 ; only things
covered are those that hamper
navigation--43.12.1. 12; Labeo says
the interdict also applies to 11 nonnavigable public rivers" and the
sea -- 43.12.1 .12, 43.12.1.17-18.
;' 8
/
·,
/ '1
/
Flooding can destroy a usufruct
or bare ownership; but recession
of flood waters can restore ii -7.4.23-24
~
.: ,a
~
Pool
~
.:
Flooded land is not a public
river 43 .12.1. 9
A stream is distinguishe.d from a
river by its size, or the opinion of
the inhabitants-- 43 .12.1.1
A canal is public if river flows
through it -- 43.12.1.8
,.r--··-·--··1
I
.·
s.4.13
Praetor: no one should be prevented from travelling in a boat or
raft in a public river ... or from
loading or unloading on its banks .. .
the same rule applies to a public
lake, canal, or pool--43 .14.1.
\
.1-----------:..--:
1.....______
No servitudes exist on the sea, which is open
to all; fishing agreements may be made.
:
Praetor: you are to make good any
aspect of navigation that is
worsened--43 .12.19. Nothing
should be done to make the flow
otherwise than last summer -43 .13 .1. This interdict also applies
to non-navigable rivers--43 .13 .1.2,
43 .13.1.8.
A breakwater is allowed only if it
does no injury to others--43 .8.2.8
95
treatises on religious law; and both had antiJ ulian ancestors.
But while Labeo opposed Augustus' pretensions to "republican reform ," Capito supported
Augustus , and profited by it. His expertise lay in
public law and administration, rather than private law and practice (Bruun , 1991 , p. 155; Cary,
1949; Jors, 1896). He was the first lawyer in 40
years to be appointed consul. After he finished
that role , he became curator aquarum in 13 CE .
The death of Agrippa, a great water planner,
and broader processes of legal reform led to
bureaucratization of water management and to
an expanding role for lawyer-bureaucrats in
water administration (Evans, 1982).
After severe flooding of the Tiber in 15 CE ,
Capito and Arruntio were asked to prepare proposals for the banks and bed of the Tiber.
Among other things they proposed a college of
five senators to be entrusted with administration
of the river. Although the senate did not act
upon their physical plans, a college of curators
for the banks and beds of the Tiber was establi shed. This new institution contributed to the
bureaucratization of water management, but it
also helped coordinate public management of
the Tiber channel , banks , and floodplains .
Capito was an early curator aquarum , who
expanded its scope and stature. The position
was described in greatest detail , however, by
his famous successor in that post in 97-8 CE ,
Sextus Julius Frontinus, in his De aquaeductu
urbis Romae. Another promising extension of
this research would focus on the landscape
content and context of Frontinus' treatise.
The term rivalis meant, "one who shares the
use of a stream with another" (Oxford Latin
Dictionary, 1968) and , figuratively, it referred to
rivals in love. Research on the landscapes of
water law embraces the full range of humanenvironment relations in this definition: sharing ,
conflict and love.
respect to water rights , Labeo wrote that the
interdict protecting agricultural water rights
applies to urban as well as rural places, and
that an interdict for cold stream waters also
applied to warm springs as those waters are
often mixed with cooler ones for irrigation
(43.20.1.12-13) .
In each case , Labeo extended a legal principle
established in one context to related situations
in the water, land , and social system .
Some extensions might have a progressive
effect on land and water conservation. For
example , Labeo wrote that if someone wants
to cement an unlined earthen channel because it leaks water, he should not be prevented ,
an early argument for water conservation
through conveyance efficiency (43.21.3.1 ).
Most surprising for its foresight , Labeo thought
that according to the interdict protecting water
rights , ".. . someone may be prohibited from
doing , digging , sowing , cutting down , and pruning in a farm , where by so doing he may pollute , vitiate , spoil , or worsen the water"
(43.20 .1.27). This represents one of the earliest legal arguments against non-point source
pollution , which became the top priority for
U.S. water quality policy in the 1990's. It is an
intractable problem precisely because it
affects private land ownership and land use
practices .
A final passage from Labeo introduces the second project for future research. Labeo is said to
have written that the cleaning or repair of a
drain already built should be permitted by the
praetor's interdict, but that the building of a new
drain was for the curator of public ways , a public
official , to concede (43.23.2). This curious separation between private law and public administration remains prevalent, and problematic, in
modern cities . How did it arise in Rome?
Rivales : Labeo v. Capito. The private law
approach to water and landscape emphasized
by Labeo, and Roman law generally, stands in
contrast with a public adm inistration approach
emphasized in the literature derived from
Frontinus , discussed earlier in this paper.
Labeo would be warmly appreciated by water
lawyers in the American West, while his archrival Gaius Ateius Capito, a water administrator
of the Augustan period, would feel at home in
the modern bureaucracies of ACEA in Rome or
its equivalent in Denver and Los Angeles.
In the introduction to the Digest, a passage from
Pomponius describes Capito as the leader of a
rival "school" of law to Labeo (1.2 .2.1 et seq.).
However, the origins and identity of those
schools , not to mention their leadership , succession , and implications are topics of longstanding debate (Horsfall , 1974). There are
some similarities between the two jurists: both
had modest fam ily backgrounds; both wrote
Conclusion
Several scholarly careers could be spent on
these aspects of Roman water law and thei r
implications for both Roman and modern landscapes. My final aim is to return from the
ancient rivalries of Labeo and Capito to the
modern landscape challenges of the U.S. and
South Asia, the places where I live and work.
Controversies in these regions still resonate
with their Roman antecedents .
Tensions between public and private approaches to water management, for example, are
very much alive. Every water utility in the U.S.,
Europe , and Asia is coming under pressure to
increase its regulatory efforts, and , at the same
time , to privatize its functions and assets. In
96
distinctions can be helpful and progressive, or
constraining and regressive. I hope to show
how the landscape contexts , contents, and
silences in Roman water laws raise cautions
about modern landscape situations, and help
design creative responses to them. I hope to
show how Roman antecedents may be studied,
reworked, and sometimes adamantly rejected
to address the landscape problems emerging in
the North America and South Asia today - from
the scale of international water policy down to
the design of the individual fountain and drain .
1997, the Communist Party in Rome put up
poste rs descrying the proposed privatization of
ACEA, a state organization it might ordinarily
oppose. What difference do these institutional
struggles make for the landscapes of water use
and experience?
Another set of policy struggles involves definitions of "navigable waters" and thereby the
public realm. At stake are public water resources, including most wetland environments
(National Research Council, 1995). Does
Roman water law help explain these struggles
and suggest any creative alternatives?
Even more challenging , from a theoretical and
methodological standpoint, are reflections of
Roman water law in modern landscape planning and design. Designers seek to link historical-geographic insights with their explorations
of water alternatives. Some current design
experiments are located in the regions where
pioneering studies of Roman water law were
undertaken a century ago. In a recent agreement between New York City and upstate communities in its watershed, for example , New
York will finance community planning, landscape design, and watershed protection in exchange for water quality benefits that enable New
York City to meet drinking water standards and
avoi d
expensive
filtration
downstream
(Landscape Architecture , 1996). This project is
very much in the spirit of what engineer
Clemens Herschel (1899) envisioned for New
York when he translated Frontinus De aquaeductu urbis Romae 100 years ago.
In Colorado, the artist Cristo plans to erect a
fabric sculpture over the Arkansas River, a river
hard hit by economic depression, environmental
deg radation , and legal conflict. Downstream farmers have sold out or moved on as groundwater levels decline and wind erosion depletes
soi ls from formerly irrigated lands. It was
already one of the poorest areas of the state
when Kansas won a U.S. Supreme Court case
which determined that the Colorado farmers
had cheated them of their rightful share of the
river and had to pay damages. The same issue
existed at the beginning of the 20th century
whe n Eugene Ware (1905) , advocate for
Kansas , prepared the one and only treatise on
Roman water law in English. Crista's project
might speak to these deeply rooted legal and
human problems on the river, or it might miss
the point (as Lawrence Halprin's cascade fountain of the TVA in the Franklin Roosevelt memorial in Washington , DC, misses TVA's . aim of
encompassing the entire basin , as Labeo urged
two millennia ago).
These types of landscape projects could help
guide the way we think about distinctions
between public and private, land and water, persons and things, and the ways in which such
James L. Wescoat Jr.
Acknowledgments
A generous Garden Club of America Rome Prize Fellowship
in Landscape Architecture enabled me to begin this research in 1996-1997. I am grateful to the American Academy in
Rome and its directors, classicists, and librarians for helping
me begin to navigate Roman laws and landscapes. My
landscape colleagues Mirka Benes and Walter Hood greatly enriched my view of the discipline. And I thank
Professore Attilio Petruccioli for his warm encouragement
over the past 15 years.
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