The actio de pastu in Roman law
Even less than about the edictum de feris is known about a third remedy that was available for damage caused lj>y animals. It dealt with a specific form of damage—depasturization of another person's land—and is known as the actio de pastu.
It must have been of considerable importance at a time when Rome was still a predominantly agrarian society and in fact it is said to have been part and parcel already of the decemviral remedies.[5784] [5785] [5786] [5787] Whether only deliberate depasturization was actionable (in the sense that the defendant had to have driven his animals onto the plaintiff's land)" or whether we are dealing with another instance of strict liability, based on the principles of noxality"10 is a matter of uncertainty. Of our three sources which allude to the actio de pastu one appears to support the former,1"1 and two the latter proposition.[5788] The most explicit of the three is Pauli Sententiae I, XV, 1 ("Si quadrupes pauperiem fecerit damnumve dederit quidve depasta sit, in dominum actio datur, ut aut damni aestimationem subeat aut quadrupedem dedat..."); and although there are certain indications that Paulus' original text may have suffered somewhat at the hands of the post-classical compilers of the Sententiae, the reasons to suspect the clause "quidve depasta sit" cannot really be regarded as conclusive. But even if, as appears likely, the owner of the cattle was under a strict noxal liability, the practical importance of the actio de pastu dwindled considerably when liability under Aquilian principles came to be extended, by means of actiones in factum and actiones utiles, to cases of indirect causation of damage.[5789] Diocletian and Maximian specifically encouraged plaintiffs to use the actio legis Aquiliae in cases of depasturization when they decreed: "De his, quae per iniuriam depasta contendis, ex sententia legis Aquiliae agere minime prohiberis";[5790] and as long as fault could be established on the part of the defendant, this was indeed the more convenient remedy for the plaintiff.1"[5791] It may, however, also be concluded, e contrario, from C. 3, 35, 6, that where the land was not "depasta per iniuriam" the actio de pastu was thought to remain available.[5792]5.
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