Bracton: Thorne Edition: English. Volume 3, Page 193

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Volume 3, Page 193

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[001] a cistern does not have a perpetual source nor running water, since it is filled by
[002] rains, and so a lake, a fish pond or a well sometimes do not have running water.¹⁴ If
[003] one is prohibited from going to a spring¹⁵ he has the action quare quis obstruxerit,
[004] because he to whom a right to draw water is granted, is also granted a right of way to
[005] the spring and access to it, and though he may use it, ¹⁶he may not seek or open new
[006] springs, because he may not use it otherwise than he is accustomed to use it in any
[007] other year.¹⁷ ¹⁸ A channel is a place sunk throughout its length in which water runs.
[008] A water-hole is a place looked down upon; from it public exhibitions (spectacula)
[009] derive their name.¹⁹ To repair means to restore what has fallen into decay to its
[010] former state.²⁰ He is permitted to repair and cleanse a channel who has the right to
[011] the servitude and who makes the repairs for the purpose of conducting water.²¹ I say
[012] ‘to its former state’ because ²²if one lowers or raises a channel, widens or extends it,
[013] covers or uncovers it,²³ he transgresses by committing excess. A water-course is sometimes
[014] owed and ²⁴ granted to lands, sometimes to persons; if to lands, it is not extinguished
[015] with the death of the person; if to persons it dies with them, and thus does
[016] not pass to a successor.²⁵ If I have the right of conducting water during the day or
[017] night, I may not conduct it at an hour other than that to which I have the right.²⁶
[018] Water may be divided not only by time but also by quantity.>²⁷ as in the case of the
[019] detention of beasts against gage and pledge, because of the common welfare, lest
[020] animals, kept too long confined, should perish.²⁸ And so with regard to pasture and
[021] fishery and the having of rightful estovers in wood and heath,²⁹ as to which he does
[022] not have the power to take cognisance without a warrant, only with respect to the
[023] road obstructed, but without a writ provided he does so immediately, while the wrong
[024] is still fresh, at the complaint [but after a long interval he must not intermeddle without
[025] a warrant and a writ. It will not be lawful for the sheriff to intervene without a
[026] writ after the time granted to a disseisee [for self help].]³⁰ of the person wronged.³¹
[027] The form of the writ directed to the sheriff with respect to the road is as follows.

Form of writ for justicing a person to permit another to have a right of way.

[029] ‘The king to the sheriff, greeting. We order you to justice such a one that rightfully
[030] etc. he permit such a one to have a certain right of way in his land of such a vill which
[031] he ought to and is accustomed to have, as he says, according as he may reasonably
[032] show that he ought to have it there. Lest we hear further etc.’ A writ of pasture is
[033] sometimes directed to the sheriff in this form. ‘We order you to justice such a one
[034] that rightfully etc. he permit such a one to have his common of pasture in his land

Notes

15. D. 43.22.1.5

16-17. D. 43.22.1.9,8

18-19. D. 43.21.1.2-3

20. D. 43.21.1.6

21. D. 43.21.1.8

22-23. D. 43.21.1.11

24-25. D. 43.20.1.43

26. D. 43.20.2

27. D. 43.20.5.pr.; om: ‘Et in . . . iustitiarius’

28. Supraii, 439

29. Supra 188

30. Om: ‘et hoc . . . querela,’ a connective

31. Supra 24-5