DELICT AND THE ANCIEN DROIT

Now I turn to the law as it was in France just before the promulgation of the Code civil in 1804. My aim will be to explain the law as it was then after centuries of development by local customs and the reception of Roman law, to estimate the impact of the Justinianic formulations.

The most striking thing about the relevant French law on the eve of codifi­cation must be how little it had developed since the time of Justinian. Our starting-point for warding off rainwater should be Robert Pothier (1699­1772),^[38] whose works have long been recognised as a source of inspiration for the draftsmen of the Code. In his Traite du contrat de societe (1765), Pothier claimed that the actio aquae pluviae arcendae - he kept the Latin name - lay to the proprietor or possessor of a lower-lying field against his neighbour in a higher field when the latter, as a result of some work done on his land, collected water which fell onto the lower field in greater quantity and with greater rapidity than it naturally would have fallen, and so caused the propri­etor of the lower field some loss. But if the water descended naturally onto the lower land there was no action, for it was not the higher proprietor but the nature of the land that caused the fall. Nor could the lower landholder complain on account of furrows that the superior landholder made when the furrows were only the ordinary furrows necessary for the ploughing of the field. The superior landholder could not make the furrows deeper or more on a slope than was necessary, however, even if by doing so he would improve his land; he could not improve his own land to the detriment of his neighbour.^[39] Pothier then quoted Quintus Mucius: “Thus, one ought to make one's own field better in such a way that one does not make one's neighbour's worse.”^[40] In the following article, Pothier claimed that, vice versa, the holder of the higher ground had an action against the lower proprietor who, by building a dam, caused the water to flood the higher ground.³⁹ The plaintiff brought the action, said Pothier, for the destruction of the work that caused his loss: the destruction was to be at the cost of the defendant if the work was done by his order or by that of someone from whom he inherited; otherwise the defendant only had to allow the destruction at the cost of the plaintiff.⁴⁰

Thus, all the law Pothier gave was to be found in the Digest title on the actio aquae pluviae arcendae and, indeed, he gave references to no other sources.

The case of Jean Domat is different. In his famous Les Loix Civiles Dans Leur Ordre Naturel he did not deal with the water rights of neighbouring proprietors. But Domat was inclined to draw a sharp distinction between private law and public law,⁴¹ and in his Le Droit Public⁴² - which is a continu­ation of his work on civil law - the following passage occurs:

The use of rivers being public, no one can make any change which is harmful to that use. Thus, one cannot make the current of the water slower or faster, if this change injures the public or individuals. Thus, one who has property divided by a watercourse or who possesses two distinct properties on the two banks cannot for his use make a bridge which joins his two properties. Likewise, although one can divert water from a stream or a river to water one's meadows or other land, or for mills or other uses, he must use that freedom in such a way that he does no harm either to the navigation in the river whose water he diverts, or in another that is made navigable by the water of the first, or to some other public use, or to neigh­bours who have similar needs and a like right. And if there is not enough water for all, or if the use that some make of it is injurious to others, all will be provided for, according to need, by the officers who have that responsibility.⁴³

Thus, in general, Domat incorporated the law found in the Roman inter­dicts and, indeed, all his references were to the relevant Digest texts. Two innovations occurred at the end of the passage, however. As we have seen, a Roman remedy was not available against a proprietor who simply reduced

39 Pothier, Traite (n 37) § 237.

40 Pothier, Traite (n 37) § 239.

41 See A Watson, Failures of the Legal Imagination (1988) 11 (describing Domat's grand plan to set out a scheme of law in an easily comprehensible arrangement, his view that public “crime” should not be mixed with civil matters, and his primary concern with civil law).

42 J Domat, Le Droit Public, Suite des Loix Civiles Dans Leur Ordre Naturel (1702).

43 Droit Public, liv 1, tit VIII, sec II, § 11.

the volume of water to a neighbour, thus causing him injury. The two Roman texts that Domat cited as authority for his whole sentence were not relevant for this point. Further, Domat cited no authority - such did exist, but not in Roman law - for the other important innovation: when there was not enough water for the use of all, officers would be charged with deciding the relative needs and uses.

Thus, law was changing, but very slowly, in France following the Byzantine Corpus luris Civilis that was based on Roman law of the third century AD that was only interpretation of a legislative provision of the fifth century BC Tradi­tion is all important. Even here we should note the route of the modifications. They come from Domat, relying here on Roman law, but not on private law but Roman public law.

Again one must ask whether social, geographical and other conditions were so similar for ancient Rome, early Byzantium and eighteenth-century France.

D.