Suite du précédent. De la propriété des chemins publics, et des droits qui en résultent.

CHAP. 21: Continuation of the preceding. Of the property of public roads, and of the rights that result therefrom.

The question of the property of public roads is more serious than the jurisconsults who have dealt with it seemed to have believed.

In their eyes, it draws all its importance from the difficulties that can arise when a road is suppressed, and it is a matter of disposing of the land of which it was formed. The question of knowing whether this land should be adjudged to the commune, to the department, or to the State, depends, according to them, on that of knowing whether the suppressed road belonged to the State, to the department, or to the commune.

If the question were reduced to these terms, it would rarely present itself in practice, and would have but a weak interest; but it has a much higher import. The most extensive power that a man can exercise over a thing that belongs to him is, according to the laws of all civilized peoples, the power of a proprietor over his property; this power is even all the more respected, the more advanced the civilization. If, therefore, one were to admit that the communes and the departments are proprietors of the roads for whose maintenance they must provide, it would be necessary either to recognize for them a power and an independence destructive of national unity, or to give to the word property a meaning contrary to that which it has always had. One could not, in effect, admit that the communes and the departments are proprietors of the roads they are charged with maintaining, without recognizing that each commune and each department are sovereign over their territory, and without breaking the principal bonds that unite among themselves all the parts of which a nation is composed.

The faculty of seeing to the maintenance of a thing, or of letting it perish by preventing others from maintaining it, can be considered as a sign of property, when the free exercise of this faculty is guaranteed by public authority. One cannot say as much of the obligation to contribute to certain expenses, to keep in good condition a thing that, by its nature, is destined for a public use. A burden is not a right; it is not always and necessarily a mark of property.

In the current state of our legislation, the communes are obliged to provide for the maintenance of vicinal roads; the departments must provide for the maintenance of departmental roads, and contribute to that of third-class roads. But what can one conclude from this? Does it follow that each commune and each department have the exclusive use and disposition of the roads they maintain? Do they have the faculty of narrowing or suppressing them? Can they forbid them to all the other inhabitants of France? Can they establish passage duties there, which would weigh exclusively on persons foreign to the commune or the department? One could not support such a system, unless one were to claim that each commune is sovereign in its own domain.

But, if the inhabitants of a commune or a department have, over the roads placed at their charge, only the rights that belong to everyone, in what sense could it be true to say that they are their proprietors? When the use of certain things belongs indistinctly to all the members of a nation, and no one can exercise a right therein that does not belong to all, is it not clear that these things are common? The burden of maintaining them, imposed on those who make the most frequent use of them, and who are the most interested in keeping them in good condition, therefore proves absolutely nothing relative to property.

There were various ways of providing for the expenses that public roads require: one could subject the inhabitants of the parishes or communes to the corvée, or compel each riparian proprietor to keep in good condition the road that traverses or borders his property, or establish tolls on all the roads, and employ their product to maintain them, or provide for their maintenance by means of a tax on the entire mass of the population, or else divide them into a certain number of classes, and adopt for each a particular mode of maintenance: whatever the mode adopted, only two questions were resolved: the establishment and the employment of a tax.

According to the current laws, each commune provides alone for the maintenance of its vicinal roads; each department provides for the maintenance of its roads; but if the inhabitants of a commune do not have, over the roads for which they bear the costs, more extensive rights than those that belong to all other citizens, they have the right to make use of the roads of the other communes and the other departments, although they contribute nothing to maintaining them; there is here a reciprocity of rights and obligations; and it is this reciprocity that contributes to forming the unity of the nation and its territory.

The object of public roads, as has been seen, is to facilitate communications between private individuals who need one another, between persons and the things proper for their use, between citizens and the agents of public authority, and reciprocally; but while rendering the services for which they were made, they can be useful in another manner: they can, for example, be bordered with fruit trees or high forest.

These secondary advantages, independent of the object for which they are formed, can be attributed by the laws to the riparian proprietors, to the communes, or to the State, without any consequence being able to be drawn from this attribution relative to the property of the roads. A law of 9 Ventôse year XIII (28 February 1805), for example, obliged the riparian proprietors to plant trees on the verge of the great roads, or had them planted at their expense, and then abandoned the property thereof to them, under certain conditions. Although these plantations were made on public land, and although they were attributed to the riparian proprietors, they did not have the effect of conferring upon them the property of the soil on which they took place.

In the case of the suppression of a vicinal road or a great road, a law could attribute the property of the soil to the riparian proprietors or to the communes, without one being able to conclude therefrom that, before the suppression, the soil on which the road was placed did not belong to the State. It is thus that, when a river withdraws from one bank to move toward the other, the abandoned part of the bed is attributed to the riparian proprietor, although it is incontestably the property of the State, so long as it is not uncovered by the retreat of the water. The motives that have caused this principle to be adopted for the abandoned bed of rivers, can cause it to be adopted, whenever it is a matter of the land of a road suppressed as useless.

We must therefore admit today the principles that the jurisconsult Loyseau professed in the sixteenth century; we must recognize that, if it is useful to divide roads into various kinds, when it is a matter of determining their width and of ensuring their maintenance or good administration, one need not divide them when one explains to whom they belong and what persons may make use of them; it is evident that they form part of the public domain, and that the use of them is common to all persons who inhabit the territory.

Public roads being a part of the national territory, specially consecrated to communications between persons, and to the transport of things necessary for the satisfaction of public and private needs, it follows that every person who inhabits the French territory has the right to make use of them, either to travel, or to send his merchandise or his foodstuffs from one place to another [^186].

The right that we recognize for every private individual to make use of public roads gives rise to several questions: the first is to know whether every person has an action against those who are obliged to maintain them, to compel them to fulfill this obligation; the second, whether the right to bring to justice the individuals who degrade a public road, or who commit usurpations there, belongs to every injured person; the third, whether, when a public road becomes impassable at some points, private individuals have the right to pass over the properties that border them.

Although public roads are maintained by the communes, by the departments, or by the State, they are not established to satisfy solely the general needs of the State, of the departments, or of the communes; they are no less necessary for the satisfaction of private needs than for the satisfaction of the public needs that the constituted bodies are charged with providing for. The right that a farmer has to make use of a vicinal road to transport his foodstuffs to the neighboring city is, in effect, as evident as the right that belongs to the mayor to make use of it to send his dispatches to his superior in the administrative hierarchy: exchanges, without which a civilized society could not subsist, can no more be suspended than an administrative correspondence.

But if, on the one hand, one admits that this collective body, to which one gives the name of commune, and which is represented by one or several agents, is bound to maintain the roads that traverse its territory, and which ordinarily lead to a great road; and if, on the other hand, one recognizes that every person has the right to make use of them, either for his personal communications, or for the cultivation of his properties, or for the transport of his foodstuffs or his merchandise, does it not necessarily follow that each has the right to bring an action against a commune to oblige it to fulfill the obligations that are imposed upon it? If a commune has an action against private individuals to compel them to pay the taxes destined for the maintenance of its roads, must not private individuals, for their part, have one to oblige the commune to fulfill the engagements that are imposed upon it in their favor?

This is, in effect, what is practiced in England and in all countries where the men who make laws pride themselves on a bit of logic; but it is not the same among us. Here, nothing is more common than to see the legislature sometimes impose obligations on the administration or its agents, and give no one the right to demand their fulfillment; sometimes recognize rights for the citizens, and refuse them, at the same time, any action to exercise them. Absolute power, destroyed as theory, is religiously preserved in practice; for this power exists in fact, wherever citizens cannot demand of public functionaries that they fulfill their obligations. The revolutions that pass this power from one hand to another do not change its nature.

The observations I have just made on the obligations imposed on the communes, relative to vicinal roads, and on the rights that private individuals have to demand that these obligations be fulfilled, can be applied to the obligations imposed on the departments and on the State, relative to the roads that are at their charge: if some have more importance than others, there is no difference in their nature.He who degrades or usurps a public road infringes upon various kinds of interests: he first harms the general interests of the commune, the department, or the State, whose conservation is entrusted to certain public officials; he harms, secondly, the individual interests that each has reserved the right to defend. The official who represents the commune, the department, or the State alone has standing to act in the name of the body he represents and to demand reparation for the damages caused to it. But if the degradation or usurpation of a public road causes a special damage to private individuals, they are certainly justified in taking the authors to court. Citizens have not stripped themselves, for the benefit of the agents of public authority, of the right to defend their particular interests. One could not, therefore, deprive them of all action, unless one were to claim either that they do not have the right to make use of public roads, or that they can be deprived of the exercise of this right without any damage resulting for them.

The question of whether, when a public road is impassable at some points, private individuals can pass over the properties that border it, seems at first to present more difficulty. It is a matter, in effect, of invading private properties, before there has been either indemnity or expropriation, and even before the necessity has been legally ascertained. However, such are the need and urgency of communications, that the laws authorize passage over private properties whenever the roads cease to be practicable, even when, to use this faculty, it is necessary to remove or break down enclosures [^187]. The conservation of more or less considerable properties, the existence of one or several persons, and even the provisioning of a city, sometimes depend on the promptness of communications. The prohibition of passing over a private property, before having ascertained that the public road is impassable, would therefore not be observed; for the first of all laws is that which commands men to watch over their preservation. It would not even be good for it to be so, because the harm that can result, in such circumstances, from the violation of property by the opening of a passage, is less grave than that which would be the consequence of an interruption of communications.

But if everyone must have the faculty of passing over a private property when the public road that borders it is impassable, the proprietor whose holding is thus invaded must be indemnified for the damage caused to him. It is not from the men to whom the passage is owed that the indemnity can be justly demanded; it is from those who are charged with keeping the road in good condition, or with re-establishing it, if it is destroyed by some accident. The proprietor on whose holding a passage has been opened must therefore direct his action against the commune, the department, or the State, according as the road that became impassable was at the charge of the State, the department, or the commune. He could also direct it against him who might have caused the damage, by rendering the public road impassable.

Public roads do not have the same width in all countries; however, as they have the same object everywhere, and as the laws of gravity and motion are the same among all nations, there should not exist between them other differences than those that are commanded by the nature of the terrain, and of the means of transport that one is obliged to employ. When one gives a road more width than is required by the ease and safety of communications and transports, one incurs a double loss. One first takes from agriculture precious lands; for the roads necessarily pass over the most fertile, best cultivated, and most populous lands. One commits oneself, secondly, to such considerable maintenance expenses that it is rare to always have the means to provide for them. For a long time, travelers have made the observation that the nations that give their roads only the width commanded by public needs are those that maintain them the best, and which, for this object, incur the least expense. Whatever, moreover, the width one gives them, it is important to all the proprietors whose holdings they border that it be well determined.

In France, no law passed since the revolution has fixed the width of the great roads or the vicinal roads; but edicts issued in the last two centuries had provided for it. The ordinance of 1669 gave seventy-two feet of width to the great roads that passed through the forests; but this disposition was never well executed. An ordinance of the finance bureau of the generality of Paris, of 29 March 1754, fixed the width of the great roads from province to province at sixty feet of width. The roads from city to city were to have at least forty-eight feet, and the cross-country roads from village to village, thirty feet at least. In 1776, a decree of the council of 6 February fixed the width of first-class roads at forty-two feet, and that of second-class roads at thirty-six feet, between the ditches and the footings of the embankments or slopes. The width can, however, be less considerable when the nature of the places requires it, as sometimes happens in the mountains.

It was believed that it was not enough to have determined the width of public roads, and to have prescribed the repression of the degradations and usurpations of which they could be the object. Proprietors have been forbidden from making any construction on the verges before having obtained the alignment, under penalty of a fine and demolition of the works undertaken [^188]. They are likewise forbidden from making plantations there, before the alignment has been given to them by the prefect [^189].

The Civil Code does not permit the planting of tall-growing trees near the boundary that separates two holdings, except at the distance prescribed, either by the particular regulations that existed at the moment of its promulgation, or by constant and recognized usages; and in the absence of regulations and usages, only at the distance of two meters from the dividing line of the two properties, for tall-growing trees, and at the distance of half a meter for trees and living hedges.

This rule has not been followed with regard to the properties that border public roads. The law of 9 ventôse year XIII (28 February 1805), relative to the plantations of great roads and vicinal roads, after having established that the great roads not planted and susceptible of being so, will be planted with forest or fruit trees, according to the localities, by the riparian proprietors, orders that the plantations be made within the interior of the road, and on the land belonging to the State, with a counter-ditch that will be made and maintained by the administration [^190].

As for vicinal roads, the same law provides (article 6) that the administration will have their old boundaries researched and recognized, and will fix, based on this recognition, their width, according to the localities, without being able, however, when it is necessary to increase it, to carry it beyond six meters, nor to make any change to the vicinal roads that currently exceed this dimension. In the future, adds article 7, no one may plant on the verge of vicinal roads, even in his own properties, without preserving for them the width that will have been fixed for them in execution of the preceding article.

The first of these two articles is very obscure; it appears to have no other object than to put an end to the usurpations committed on vicinal roads, and to preserve for them the width they originally had. It wishes, in effect, that the administration have their boundaries researched and recognized, and that it fix their width, based on this recognition and according to the localities. However, if it resulted from the research it prescribes, that a vicinal road has been narrowed by usurpations, one should take from the usurped land only what would be necessary for public needs, according to the localities, without being able to give it more than six meters of width. In the case where a vicinal road would currently have more than six meters, the administration could not reduce it to a lesser dimension; it would have to limit itself to recognizing and fixing its boundaries.

When the boundaries of a road have been regularly determined, the riparian proprietors are not held to observe, for their plantations, the distance that is prescribed for them in the interest of the private properties that adjoin them. They can plant tall-growing trees without placing them two meters from the road, and other trees or living hedges, without observing the distance of half a meter. It is sufficient, for the ones as for the others, that they be entirely on their holdings.

When the boundaries of a road have not been legally fixed by the administration, it may be wise to make the plantations in such a way that one can, without destroying them, give the road six meters of width; however, if it were constant that no usurpation has ever been committed, the riparian proprietor would not be held to leave six meters of width for the road.

The law that permits the administration to give six meters of width to a vicinal road only authorizes it to do so when this can be done without exceeding the old boundaries. It wishes, in effect, that this width be fixed after these boundaries have been recognized, and that it be so based on this recognition. The fixing of six meters is a maximum that it is not permitted to exceed, and takes place only in the interest of the riparian proprietors. If they have formerly usurped upon the road, they can be held to restore only the extent necessary to give it the prescribed width.

It must not be concluded from this that, when it is necessary to widen a road, one cannot take from private properties; this is a faculty that the public always has, but which it can exercise only by means of a just and prior indemnity, that is to say, by paying for all the values of which it takes possession.

The only case where there is no cause for indemnity is that in which, to give a public road the width prescribed by law, it is sufficient to retake lands that were formerly part of it, and which have been usurped by the riparian proprietors.

It would not be possible to provide for the maintenance of public roads if one did not draw from the properties that border them the materials that are needed; but the value of these materials must be paid for by the public that profits from them.

Thus, the law of 28 September 1791 declares that the agents of the administration may not dig in a field to search for stones, earth, or sand, necessary for the maintenance of the great roads or other public works, until they have first warned the proprietor, and he has been justly and previously indemnified amicably or by expert appraisal [^191].

The law of 16 September 1807 adds that the lands occupied to take the materials necessary for roads or for public constructions may be paid to the proprietors as if they had been taken for the road itself; that there will be cause to include, in the estimation, the value of the materials to be extracted, only in cases where one would take possession of a quarry already in operation, and that then these materials will be valued according to their current price, abstracting from the existence and the needs of the road for which they would be taken, or of the constructions for which they are destined.

When it is a matter of taking from private properties materials necessary for the maintenance of public roads, one does not follow the forms prescribed for cases where there is cause for expropriation for reasons of public utility; the necessity of observing these formalities would often render the maintenance of roads impossible [^192].

Numerous disputes can arise between the proprietors whose holdings are bordered by public roads, and the persons to whom the maintenance and guard of these roads are entrusted. Whatever the difficulties that arise, there is one truth that must never be lost from view, which is that a people exists, and that private properties have value, only because of communications. The public must, doubtless, make the sacrifices that the formation and maintenance of roads require; but when it makes these sacrifices, there are no interests that are superior to its own.

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Notes

[^186]: The law on passports, which only permits the use of roads with the permission of the police, is it not an infringement of this right? [^187]: Cum via publica, vel fluminis impetu vel ruina, amissa est, vicinus proximus viam præstare debet. Dig. leg. 14, §. 1, quemadmodum servitutes amittuntur.—Law of September 28–October 6, 1791, tit. II, art. 41. [^188]: Decree of the council of May 26, 1705; regulation of June 17, 1721; ordinance of the bureau of finances of the generality of Paris, of March 29, 1754; decree of the council of February 27, 1765; law of September 16, 1807, art. 50. [^189]: In reading such motives, would one not be tempted to believe that in the eyes of the authors of this order, communications between the towns and the countryside were useless, and that the agricultural population could be perfectly governed, even though no means of communication existed between it and the government?Decree of December 16, 1811, art. 91 and 92. [^190]: We have seen that these trees belong to the riparian proprietors, who cannot, nevertheless, cut or uproot them without authorization. [^191]: Section VI, art. 1.— Forestry Code, art. 145. [^192]: Decree of the council of April 25, 1820.