these being the common Porters is their natural Use.Thus (my Lords) you see that we contend for what is natural to Rivers; they for what is but casual; we are founded upon the Nature and Privilege of Property, they upon mere Conjectures. With regard to the substance of the lawsuit, the speech is simple. But the history of the argument is not.The speech is from17thcentury Scotland which was undergoing a reception of Roman law. It should be noted at the outset that the climatic, financial and political circumstances of early Rome, Justinian’s Byzantium, and Mackenzie’s Scotland were all very different. The case is a Scottish one and, therefore, the law that governs is Scots law and, at that, of the 17th century. But the sources cited are all from Roman law and, at that, from Justinian’s Digest. In that format they were, of course, legislation; but in their origin they were interpretation. The first reference is to Justinian’s Digest of 533A.D.,39.2.26.A translation that I regard as satisfactory is: I have set out Sir George Mackenzie’s speech, as we have it, in full. Sadly, we do not have his opponent’s speech, but clearly that did not prevail. Mackenzie admits that by statute there are some restrictions on how we may use our own property. But these are limited and not to be extended to other situations. He admits that the plaintiffs have some apre cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 344 The Lords enclin’d to sustain Haining’s Defence; but, before Answer, they granted Commission for examing upon the Place, What Prejudice was done. Proculus says that when somebody carries out work legally on his own property, even if he has made an undertaking to his neighbor against anticipated injury, nonetheless, he is not bound by this stipulation; for example, if you have buildings next to buildings of mine and you increase their height in accordance with your rights or if you divert my water supply by means of a canal, open or closed, on a field of yours, even though in the latter case you deprive me of my water and in the former case you block my light, nonetheless, no action is available to me under this stipulation; the grounds for this are that a person who prevents somebody from enjoying an advantage which he has hitherto enjoyed should not be held to be causing injury, there being a great difference between the causing of injury and the prevention of enjoying of an advantage previously enjoyed. I consider Proculus’s view to be correct.
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