nd appropri-
ted rivers,
£ the exen
ce of the
roprietors.
pelled but fuch as are able to work; and fuch as are not able to work,
and are rich, muft pay a certain fum, according to their particular
ftation and ability.*—With refpect to the fecond kind of river, it muft
be cleared, when requifite, at thé expence of the proprietors, without
any fupply from the public treafury; for the right of the river particularly
belongs to them, as does alfo the ufe of it.— If, therefore, any
one of them fhould refufe to affift in digging, the chief may compel
him, to the end that the others may not fuffer any injury by his
refufaL
O bjection.— It would appear that, in being thus forced to work,
the refufer fuffers an injury.
R e p l y .—‘Such injury is particular, and is not without its ufe, for
in recompence thereof the party obtains his fhare of the water; it is
not, therefore, to be put in competition with the common injury that
would otherwife be fuffered by the reft.
— If, alfo, feme of the proprietors of the river be defirous of ftrength-
ening the banks, from an apprehenfion that they might give way,
and it be probable that bad confequences may enfue from their decay,
..(fuch as inundating the neighbouring country, and breaking up the
roads,) the chief may in that cafe ufe compulfion with any of them
who refufe to affift in the undertaking. He muft not, however,
ufe force where the decay of the banks cannot produce any bad con-
fequence; for the fall of the banks is an event merely probable. It is
-otherwife with refpeft to clearing a river in a cafe of neceffity; for
that is a matter o f certainty,— whence it is that compulfion may be
ufed to effeft it.— With refpeft to the third kind of rivers, they are
particularly appropriated, and therefore the digging of them is entirely
th e duty of the proprietors.— Some have alleged that the magiftrate
may employ force with any who refufe to dig; in the fame manner
as in the cafe of the fecond kind o f rivulets. Others, again, have
maintained that the magiftrate has not a power of this kind; fince
both of the injuries, namely, that of the partner on whom compulfion
is ufed, and alfo that which the other partners fuftain in confequence
o f
©f his refufal, are private; and the injury to the other partners may
be remedied by their taking from the one who refutes to work a part
of the expence incurred in digging the rivulet, proportionately to his
lhare; (provided, however, that the work be executed at the inftance
of the magiftrate.)— It is otherwife with refpedt to the fecond kind of
rivers, as there one of the injuries is public.
O bjection.— Here likewife is a conjunction of two injuries; and
as one of thefe (namely, that fuftained by thofe who have a right to
drink the water) is public, it would follow that, to prevent this
public injury, compulfion may be ufed in the cafe of private rivers
likewife.
R e p l y .—No compulfion is ufed in digging towards obtaining water
to d r i n k t h u s if the whole fhould refufe to dig, the magiftrate cannot
employ force *.
In digging a watercourfe, the expence incurred in the upper part
Is equally defrayed by the whole of the partners: but when the work
is carried beyond the land of any one of them, he is then, according
to Haneefa, exempt from all further charge. T h e two difciples maintain
that the expences of digging from the head to the end of the watercourfe
is jointly defrayed by the feveral partners, according to the
extent of their fhares; becaufe the partner pofleffing the higher fhare
has likewife a right in the lower ones, they being needful to him, in
receiving the difcharge, from his part, of the fuperfluous water. Haneefa,
in fupport of his opinion, argues that the end o f digging the
watercourfe being to obtain water for the purpofe o f cultivation, the
objeft of the higher fharer is confequently obtained when his part is
finifhed; and he is not, therefore, under any obligation after that to
aflift m profecuting the work folely for the benefit of others.— With
* When water is wanted, towards moiftening lands for cultivation, the magiftrate
may then employ force in caufing a rivulet to be dug; but not where the water is wanted
Only to drink.
Vox.. IV.
Rules with
refpeft to
drains, wa-
tercourfes,
&c.
u refpeft,