the said Lake, whoseWaters being received by Whittater, did at last run withWhittater intoTweed.The Fishers upon that River, pretending that theWater which came from that Lake did kill their Salmond, and occasion their leaving the River, do crave that Haining may be ordain’d to close up that Passage.This being the State of the Case it was alledged for Haining. That since Men had receded from that first Community, which seem’d to be establish’d amongst them by Nature, the Law made it its greatTask, to secure every Man in the free and absolute Exercise of his Property, and did allow him to use his own as he thought fit, and whatever did lessen this Power and Liberty, is by the common Law term’d a Servitude, or Slavery; nor can a Servitude be imposed upon a Man without his own Consent. And suitably to this Principle, every Man may raise his own House as high as he pleases, tho’ he should thereby obscure the Lights of his Neighbour’s House: Or if I should abstract from my Neighbour’s Ponds, thatWater which formerly run into them from my Lands, the Law doth not think him prejudged, nor me obliged to prefer his Conveniency to my own Inclinations, as is clear by l.26.ff. de damno infect.For as that Law very well observes, he is not prejudged who loses a Benefit, which flow’d from him who was noWay ty’d to bestow it, l.26.ff. de dam. infect. Proculus ait, Cum quis jure quid in suo faceret quamvis promisisset damni infecti vicino, non tamen eum teneri ea stipulatione:Veluti si juxta mea aedificia habeas aedificia eaque jure tuo altius tollas, aut si in vicino tuo agro cuniculo, vel fossa aquam meam avoces. Quamvis enim et hic aquam mihi abducas. Et illic luminibus officias, tamen ex ea stipulatione actionem mihi non competere: scil. quia non debeat videri is damnum facere, qui eo veluti lucro quo adhuc utebatur, prohibetur: Multumque interesse utrum damnum quis faciat, an lucro quod adhuc faciebat, uti prohibeatur.And if I dig aWell in my own House,which may cut off those Passages wherebyWater was conveyed to my Neighbour’sWell, one of the greatest Lawyers has upon this Case resolved, that my Neighbour will not prevail against me; For, saith he, no Man can be said to be wrong’d by what I do upon my own Ground, for in this I use my own Right, l.24. §12. ff eod. In domo mea puteum aperio quo aperto venae putei tuo praecisae sunt, an tenear?Ait Trebatius, Me non teneri damni infecti, neque enim existimari operas mei vitio damnum tibi dari, in ea re, in qua jure meo usus sum:Where the Gloss observes, that in suo quod quisque fecerit, in damnum vicini id non animo nocendi facere presumitur. And if by a Wall or Fence upon my Land, the Water was kept from overflowing my Neighbour’s Land, I may re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 340
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