refpeft, moreover, to what the two difciplea urge, k may be replied
that, although the higher partner do indeed Hand in need of the lower
fhares, for the palling awây of the fuperfluous water from his lhare,
yet he is not, on that account, obliged to dig thefe lower fhares:;— in
the fame manner as where a perfon has a right of palling the water
from his houfe upon the terrace of another; in which cafe he is not
under any obligation to unite in building or repairing fuch terrace.—•
Befides, the higher partner may at any time prevent the water from
overflowing his land, by occafionally damming up the fource or
fpring, thereby preventing the flow of any fuperftuity of water into
his lhare.
W hen, in digging a watercourfe common to feveral partners, the
work is carried beyond the lhare of one of them, who is thus exempted
from any further charge, fome have alleged that he may then immediately
open the fpring-head, or inlet, in order to obtain water for
cultivation, as the watercourfe, with refpeét of him, is wholly dug.'
Others have faid that he cannot do fo until the fhares of the other
partners be likewife completed ; in order to prevent any preference
among them.
Such perlons as have only a right to drink the water, are not fub-
ject to pay any part of the charges of digging,, as thofe are numberlefs,
and are, moreover, fubordinate to the actual fharers.
S E C T . HI.
O f Claims o f S h i r b *; and o f Difputes and particular Privileges
with re/ped to it.
A c l a i m of Shirb, or right to water, is valid independant of any A nSht t0
property in the ground, upon a favourable confirmation of the law ; exift inde-
for a perfon may become endowed with it, exclufive o f the ground, Aground,
either by inheritance or bequeft ; and it fometimes happens that when
a perfon fells his ‘lands he »referves to himfelf the right of Shirb. Befides,
Shirb being a definable objeft, and alfo capable of yielding advantage,
the claim to it is therefore valid.
I f a nerfon be poflefled of a rivulet running through lands which SEj Peifon
are the property o f another, and the proprietor of thefe lands, being obftruft the
deflrous that it fhould not run through them,, attempt to prevent it, ttr^nnnLg*
on the plea of its being his property, he mult not be permitted to
do fo, but the rivulet mult be fuffered to flow in its ulual channel
for, as the rivulet is in the. pofleffion of the perfon who has the property
of it, becaufe of his'water running in the bed of it, his word,
in cafe of a litigation, is therefore to be credited in preference to that
of the other whereas, i f the rivulet were not in his pofleffion, (as
if it Ihould contain no water,) in that cafe the word of the proprietor
of the-lands would be credited;— unlefs the other could prove by
witnefles that the'rivulet is his propèrty, or that he formerly con-
* This term, which is purely technical, the tranflator, for the convenience of the
Jinglijk reader, has rendered, in general, a right to water.