De la propriété, de l'usage et de l'entretien des chemins publics.

CHAP. 20: On the property, use, and maintenance of public roads.

IN considering as a whole the population formed in a great basin, one sees that it is divided into a multitude of groups, more or less numerous, more or less distant from one another, according as the land that nourishes them is more or less fertile, and as agriculture and the arts are more or less advanced. These groups, united by a common language and by reciprocal needs, can exist only by means of a continual displacement of things and persons.

Agriculture, manufactures, commerce, without which no civilized nation could subsist, require, in effect, that the men who engage in them, and most of the things that are their object, pass or be ceaselessly transported from one place to another. The family that lives in the most obscure hamlet needs to be in daily communication, not only with the fields, vineyards, or meadows from which it draws its means of existence, but also with the inhabitants of the vicinity and with the urban populations that consume a part of its foodstuffs, and which furnish it, in exchange, with a multitude of objects that it cannot do without, and which it is incapable of producing.

The inhabitants of the cities, for their part, can exist only through numerous communications, either with the countrysides that surround them, or with other cities; they need them to procure sustenance, and the raw materials of their industry; they need them, moreover, to deliver to commerce the objects they have manufactured, or to acquire those that it is more advantageous for them to buy than to produce.

The part that citizens take in government, and the action that the government often has to exercise over them or their goods, necessitate still more numerous communications between the various fractions of which a nation is composed: the persons spread throughout the countrysides need to communicate among themselves, if they have magistrates or delegates to elect; they need to communicate with public officers, to invoke their support when their rights are threatened or compromised; with the agents of the public treasury, to pay their contributions [^180].

The government, for its part, can fulfill the duties imposed upon it only insofar as it can reach the persons and things subject to its empire; its action must be felt on each of the parts of the territory, whether to protect citizens in the exercise of their rights, or to require from each of them the fulfillment of his duties, or to suppress the attacks that might be made on public order; it is necessary, finally, that, in the case where a foreign army might threaten the country, it be able to easily move large forces and transport means of defense, in the least possible time, to all threatened points.

Hence the necessity of consecrating a part of the national territory to roads that give to all parts of the population the means of communicating with one another. These communications exist among all peoples, although everywhere they are not brought to the same degree of perfection. The savages themselves, when they cannot be transported from one place to another by means of a river, make paths through the forests. As agriculture, the arts, commerce, and government make progress, the roads multiply and are perfected. When a nation has arrived at a certain degree of civilization, the routes that cut across its territory in every direction are like a vast network whose main threads depart from a common center in which the government resides, and go on to terminate at the extremities, passing through the most populous cities. The secondary threads attach to these, and are subdivided in such a way that there is not a single dwelling, however remote and however small it may be, that is not linked to the general system by a public road.

The roads that put into communication the various fractions into which a nation is divided give rise to three principal questions, which are entirely independent of one another: the first is to know whether they form part of the public domain, or whether they belong to the communes or to other parts of society; the second, in what manner it is suitable for them to be constructed, to be, as much as possible, favorable to communications, while occasioning the least expense; the third is to know what are the surest and least expensive means of providing for their conservation and maintenance.

The second of these questions is a question of engineering much more than a question of legislation: it is, in effect, for engineers more than for publicists and jurisconsults, that it belongs to know how it is suitable to construct a road so that it may be, as much as possible, short, easy, durable, and of inexpensive maintenance; it is for those who are called to make frequent use of it that it belongs to determine what its direction and width should be. It is sufficient for me to observe here that the best is always that which, with the least expense, requires for all transport the least time and the least force, and that the difficulties that must be overcome are, for private roads, of the same nature as for public roads.

The question of knowing to whom belong the roads intended to put into communication the various fractions of which a nation is composed appears little difficult to resolve, when one consults only the nature of things. If one examines it, in effect, relative to foreign peoples, it is clear that the roads form part of the national territory on which they are placed, like the rivers and streams. If one examines it relative to the inhabitants of the country themselves, and in the relations they have with one another, it appears no less evident that these roads are among the things whose use is common to all, but whose property is specially devolved to no one. They are, like the water of rivers, intended to satisfy the needs of each, and no one, consequently, can make a use of them that would be contrary to the right of all [^181].

The Roman jurisconsults had divided roads into three classes. They had put in the first those that they designated by the name of Praetorian or Consular roads. In the second, they had put those that led into the villages or hamlets, and which we call vicinal roads: "Vicinales sunt viæ quæ in vicis sunt vel quæ in vicos ducunt." Finally, the third were of two kinds: those that were established on a particular holding for the service of another holding, and those that departed from a consular road and led into the fields. The Praetorian or Consular roads, and those that were in or that led to the villages or hamlets, were public. These three kinds could therefore be reduced to two: one containing the public roads, the other the private roads [^182].

Under the feudal regime, the roads experienced the same fate as the rivers and streams. The kings claimed to be masters of the most considerable ones, of those that the Romans designated by the name of consular; the lords claimed to be proprietors of all those that led into villages or towns. Neither the kings nor the lords prevented, it is true, private individuals from making use of them for commerce or for the cultivation of their fields, because they could not, without rendering the territory uncultivated and without destroying the population; but they used them as sovereigns. They established tolls on the points that commerce could not avoid, or bordered the roads with plantations of which they then disposed as proprietors.

The abolition of the feudal regime, pronounced in 1789, should have sufficed to have all the roads intended to put the various fractions of which the population was composed into communication with one another classed among the things that belong to the public domain; but, as the laws that had suppressed feudalism had not explained themselves in this regard, the law of 10 July 1790 lifted the doubts that they might have left remaining.

This law declared that no one could henceforth claim any right of property or of voirie (road jurisdiction) over the public roads, streets, and squares of villages, towns, or cities. The right to plant trees or to appropriate the trees grown on the public roads, streets, and squares of villages, in the places where it was attributed to the lords, was abolished. The lords were nevertheless maintained in the property of the trees existing at the moment of the promulgation of the law, with the exception of those that had been planted by private individuals, and whose expropriation had not been legally pronounced. The riparian proprietors were authorized to buy back the trees planted opposite their properties, on the public streets or roads. The communities of inhabitants were authorized, for their part, to buy back the existing trees on the public squares of the cities, towns, or villages.

The law of 16 July 1790, in declaring that no one could henceforth claim any right of property or of voirie over the public roads of villages, towns, or cities, had not said whether these roads would form part of the domain of the State, or whether they would belong to the communes. The first article of the decree of the following 1 December placed all public roads among the things that belonged to the nation; it declared that the public roads, the streets and squares of cities, and, in general, all portions of the national territory that were not susceptible of a private property, were considered as a dependency of the public domain [^183].The rights that the law of 6 July 1790 had reserved for the lords over the trees planted before its promulgation, on the verges of vicinal roads and on the streets of cities, towns, and villages, were taken from them, without indemnity, by articles 14 and 15 of the law of 28 August 1792. The first of these two articles declared that all trees currently existing on the public roads, other than the national highways, and on the streets of cities, towns, and villages, were deemed to belong to the riparian proprietors, unless the communes could prove to have acquired the property thereof by title or possession. The second added that the trees then existing on the squares of cities, towns, and villages, or in marshes, meadows, or other goods of which the communities had or would recover the property, were deemed to belong to these same communities, without prejudice to the rights that private individuals, not being lords, might have acquired therein by title or possession. As for the trees planted on the national highways, article 18 of the same law declared that no one could appropriate them and fell them, until the legislative power had ruled on this matter. The riparian proprietors were nevertheless authorized to collect the fruits thereof, and to appropriate the deadwood and the prunings, on the condition of maintaining the said trees, and of replacing those that died.

Public roads were formerly maintained by means of the corvée. Two declarations, issued in 1786 and 1787, suppressed this imposition, and replaced it with a monetary contribution. The law of 6 December 1793 ordered that all great roads, bridges, and levees would be made and maintained by the Treasury, and that vicinal roads would continue to be at the expense of the administered. This obligation of the Treasury having been very poorly fulfilled, a law of 24 Fructidor year V (10 September 1797) declared that a tax would be collected on all the great roads of the republic, whose product would be specially and solely assigned to the expenses of their maintenance, repair, and construction, as well as to those of their administration. The finance law of the following 9 Vendémiaire (30 September 1797) determined the mode of collection of this tax, and the vehicles and animals that would be subject to it [^184]. The funds collected within the extent of a department were to be paid into the coffer of the receiver-general, and exclusively employed for the maintenance and administration of its great roads. In case of insufficiency of the tax collected in a department to defray the expenses of its roads, it was to be provided for by drawing upon the departments that had obtained products superior to their needs.

This law had for its sole object to provide for the maintenance, repair, and administration of the great roads; it did not remove them from the public domain to attribute the property thereof either to the departments or to the communes. The law of 25 January 1804, which forms title I of the second book of the Civil Code, in determining the goods of which the public domain would be composed, appeared to exclude from it the paths, roads, and streets that would not be at the charge of the State. The draft law stated that public roads, streets, and public squares were considered as public domain. M. Regnault (de Saint-Jean-d'Angely) claimed that this wording was flawed, in that it included in the domain of the State all public roads, streets, and public squares. He observed that the laws distinguished between the great roads and the vicinal roads, and that, according to the jurisprudence of the Conseil-d'État, the latter were the property of the communes and maintained by them. M. Tronchet replied that there were roads that, without being great roads, belonged to the State; but M. Regnault (de Saint-Jean-d'Angely) retorted that it was easy to distinguish the roads that belonged to the nation: "they are," he said, "those that it maintains." This opinion triumphed in the council; and, in consequence, art. 538 of the Civil Code considered as dependencies of the public domain, the paths, roads, and streets at the charge of the State, the navigable or floatable rivers and streams, the alluvion and dereliction of the sea, the ports, the harbors, the roadsteads, and generally all portions of the French territory that are not susceptible of a private property.

This disposition was promulgated in 1804, an epoch when all the great roads were maintained and administered by means of passage duties collected on these same roads. These duties were suppressed by the law of 24 April 1806, which replaced them with a salt tax, and which declared that the product of this tax would have the same destination as the one that was suppressed. The product of the contribution established by the present law, said article 59, is exclusively assigned to the maintenance of roads and to the works of bridges and roadways. The vicinal roads were therefore the only ones that were not maintained and administered at the expense of the public Treasury.

As soon as the salt tax, which was to provide for the expenses of the great roads and the administration of bridges and roadways, had been well established, almost all the expenses it was to provide for were cast back upon the population. A decree of 16 December 1811 divided the roads of France into imperial roads and departmental roads; the former were subdivided into three classes. This division and this subdivision had but one object, which was to free the Treasury from the burdens that the law of 1806 had imposed on it, in establishing a tax on salt. Article 6 of the decree declared, in effect, that the costs of construction, reconstruction, and maintenance of the third-class roads would be borne concurrently by the Treasury and by the departments they traversed. Article 7 added that the construction, reconstruction, and maintenance of the departmental roads would remain at the charge of the departments, arrondissements, and communes, which would be recognized as participating more particularly in their use. It is almost needless to add that care was taken to include in the third class, and among the departmental roads, those that, taken as a whole, required the greatest expenses [^185].

When the members of the Conseil-d'État were discussing the article of the Civil Code that was to give the definition of the public domain, roads were divided into only three kinds, as under the Roman laws: the great roads, the vicinal roads, and the private roads, with which I need not concern myself at this moment. The first being all maintained at the expense of the public treasury, the councilors of state saw few inconveniences in declaring that the paths, roads, and streets at the charge of the State would be considered as dependencies of the public domain, and in placing or leaving the vicinal roads in the rank of communal properties. If they had foreseen that a decree would soon place at the charge of the departments or the communes most of the great roads, they would certainly have been struck by the falsity of the definition that was proposed to them, and which they adopted with such facility.

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Notes

[^180]: An order of the government, of July 11, 1797, ordains that a general survey of local roads shall be made in each department, a survey according to which the departmental administration will designate those which, by reason of their utility, must be conserved, and will pronounce the suppression of those recognized as useless, which will be returned to agriculture. One reads, at the head of this order, the following motives: [^181]: Prætor ait: Ne quid in loco publico facias, inve eum locum immitas qua ex re illi damni detur: præter quam quod lege, senatusconsulto, edicto, decretove principum tibi concessum est....... Et tam publicis utilitatibus quam privatorum per hoc prospicitur. Dig. lib. XLIII, tit. VIII, leg. 1, in princip. et § 2. [^182]: Dig. lib. XLIII, tit. VIII, leg. 2, §§ 22 et 23. [^183]: The principles adopted by the Constituent Assembly were professed, in the sixteenth century, by one of the most enlightened jurists of that era. Loyseau did not admit that the lords, nor the king himself, were proprietors of the public roads. The distinction between royal roads and cross-country roads was suitable only when it was a matter of determining their width and ensuring their maintenance. "The roads, to be called royal," he said, "are no more the king's than the cross-country or other public roads; they are of the category of things that are outside of commerce, of which therefore the property belongs to no one, and the use is to everyone, who, for this cause, are called public roads." Des Seigneuries, ch. IX. [^184]: See title VIII of this law, which establishes a right of passage on the roads. A similar right is established on all public roads in England. [^185]: The first-class roads number 14; the second-class roads number 13; those of the third class number 202; as for the departmental roads, it was not deemed appropriate to enumerate them.