De la propriété des richesses minérales, et des limites qui en résultent pour les propriétés de la s

CHAP. 22: On the property of mineral wealth, and the limits that result therefrom for the properties of the surface.

AS long as a people leaves uncultivated the territory it occupies, and continues to nourish itself on game or fish, the land on which it finds its subsistence remains entirely a national property. The soil is converted into private properties only when individuals or families, renouncing the vagabond life, appropriate certain parts of it by means of cultivation. This appropriation of a part of the soil causes no one to lose anything, since he who becomes a proprietor, far from encroaching on the share of others, renounces, on the contrary, as has been seen previously, the greater part of what was previously necessary for his subsistence.

If the appropriation of the space of land that a man puts into cultivation is not a usurpation, the value that he gives to the terrain he has appropriated by labor is even less a usurped property: it is a wealth that belongs only to him, because it is only by him that it has been formed. But the works that convert into private property a terrain that was common when it was uncultivated add no value to the minerals that the earth contains in its bosom. A mine situated under flourishing countrysides is no easier to exploit than one that is found placed under the most uncultivated or most barren soil. The gold that is extracted from the flanks of the most sterile mountain has no less value than that which one goes to seek in the depths of the best cultivated land.

The man who appropriates, by labor, a certain extent of the soil, therefore does absolutely nothing to acquire the property of the wealth that is buried in the bowels of the earth. Between it and him, there exists no relationship of creation; it is not by it that he has lived, and that his habits have been formed; nor is it by his labor or by his capital that it has acquired value. He has received nothing from it, he has put nothing of his own into it: nature has done everything, without his having meddled in anything.

Thus, publicists, like jurisconsults, have generally agreed in recognizing that, to acquire the property of a mine, it is not sufficient to become proprietor of the soil under which it is situated. One of the wisest philosophers of the last century, who was at the same time a very enlightened administrator, Turgot, did not hesitate to proclaim the principle admitted by the greatest number of jurisconsults, that subterranean wealth does not belong by full right to the proprietors of the surface. He demonstrated that they did not have the property of it, either by the nature of things, that is to say, by occupation and labor; or, among most nations, by the dispositions of the laws.

He thought that the legal guarantee, given, in general, to all territorial properties, did not extend to subterranean materials; because occupation itself had not extended to them; because the reason of equity and common interest, which had guaranteed to the first cultivators the fruit of their labors, had no application to subterranean materials, which are neither the object of cultivation, nor the product of labor; because the proprietor receives neither damage nor disturbance from the search for these materials, when the openings are not in his holding; finally, because, in the times neighboring the origin of landed properties, society itself lacked the means to give this legal guarantee of the possession of subterranean materials [^193].

But if a mine does not belong, as a product of labor, to the proprietor of the surface, whose property will it be? Must one admit that it belongs to the first occupant, or that it forms part of the public domain? The Roman jurisconsults and most modern jurisconsults have admitted, in principle, that mines are the property of the State in which they are situated. Among all the nations of the European continent, this principle is consecrated by practice: it is not for the profit of the State, it is true, that mines are everywhere exploited; but everywhere it is recognized that exploitation can take place only by virtue of a concession made by the public authority.

The abuse that several governments had made of the faculty of conceding mines or of having them exploited in an interest that was not that of the public, has caused it to be doubted whether subterranean wealth really belonged to the domain of the State. Some writers have thought that it was necessary to class them in the rank of things that belong to no one, res nullius, and which become the property of the first occupant. The wise Turgot himself had adopted this opinion.

The principle of occupation, which plays such a great role in the origin of societies and in countries where the interests of the population are not protected by a regular government, could hardly be applied without danger to a great mass of wealth, which can be put into circulation only with the aid of extensive knowledge, sustained works, and considerable capital; if mines were delivered to the first occupants, the most precious materials they contain would soon be lost through squandering; thus, in no passably organized society has the principle of occupation been applied to this kind of good.If it is true that the territory on which a nation has developed and has always lived forms its national property; if all that does not pass, by means of labor, into the domain of private individuals, remains in the public domain, it is evident that subterranean materials continue to form part of the domain of the State, and that the nation can have them exploited in its interest, without any of its members being able to complain that it is infringing upon his property, if, in effect, the exploitation is not a cause of damage for any private property.

There exist, among all nations, more or less considerable parts of the territory, which have never fallen into the domain of private individuals and which form part of the domain of the State. Of this number are, not only the shores of the sea, the ports, the rivers, but also pastures, forests, or even cultivated lands. But, if a forest, for example, can form part of the public domain, why would not subterranean deposits of coal or stone also form part of it, when no one has yet appropriated them? The adoption of a principle or a measure that would deliver to the first occupant the trees that compose a national forest would be an act devoid of reason and justice. Why would it be more reasonable or more just to deliver to the first occupant the combustible materials deposited in the interior of the earth? Why would the wealth that is below the soil be less protected than that which is above?

A nation can, doubtless, attribute to the proprietors of the surface all the wealth that the soil conceals in its greatest depth; but this measure, which would be for the proprietors a purely gratuitous gift, would be, in general, of little profit for those who would be its object, especially in countries where properties are very divided, as in France; and it could cause great damage to the mass of the population. It would be unprofitable, not only to all those who possess no landed property, but to all those whose properties do not have a very great extent. There is no one, in effect, who would want to attempt to exploit a mine, solely to search the underside of a vineyard or a field; one does not venture into such enterprises except when one can push one's research far, and when one does not have to fear being stopped at the moment one is on the point of reaping the fruit of one's labors.

A nation could also guarantee to the proprietors of the soil, either a proportional share of the products that would be extracted from the bosom of the earth, or a fixed royalty, which would last as long as the exploitation carried out beneath their properties; but, if this share or this royalty did not have for its sole object to repair the losses that would be caused to them, one could still consider it only as a gratuitous gift; it would be a genuine favor.

Mines being considered, in the States of the European continent, as a part of the public domain, cannot be exploited by private individuals or by companies, except by virtue of the concessions that are made to them by the governments. The public authority, when it makes a concession, ordinarily determines the extent within which the concessionaires will be required to confine themselves, and sometimes also the time that the exploitation must last. It also often reserves for itself the supervision, and in some sort the direction of the works, and a share in the profits.

It is not possible to engage in the exploitation of a mine without executing great works, and without incurring considerable expenses. It is not even very rare to see entrepreneurs ruin themselves, before having reached the ore deposits that could compensate them for their expenses. Mines, being knowable only through exploitation, have the inconveniences and the advantages of games of chance; they ruin a great number of those who attempt to exploit them, and assure to some very great profits, compared to their stake. One would not, therefore, be justified in considering as a gift from the State the wealth that concessionaires extract from the bosom of the earth; the greatest part of the value they have, after extraction, is almost always the result of the works and capital of the entrepreneurs.

It is a very difficult question to resolve, that of knowing what is, for a people, the best means of taking advantage of the mineral wealth that its territory contains. The industrial enterprises that a government undertakes rarely turn to the profit of the nation that pays the costs. The agents of the exploitation bring neither enough economy to the expenses, nor enough activity to the works, nor enough care in the sale of the products, to make them lucrative, unless it be for themselves. If they grant favors, it is the public treasury that bears the cost; but it is to them that the gratitude profits. They willingly persuade themselves that no one suffers from a damage that falls on everyone, and of which no individual feels particularly wounded. They are therefore led, by a natural tendency, to turn to their particular advantage the profits of the enterprise, and to make heavier the burdens that must fall upon the public [^194].

On the other hand, the risks that are inseparable from the search for and exploitation of mines, and the expenses to which the concessionaires must commit, without having the certainty of being reimbursed by the products of the enterprise, make it difficult for a government to impose rigorous conditions on the persons to whom it makes concessions; only men who imagine they have the chance to make great profits will consent to expose themselves to great losses.

A government thus finds itself, relative to the exploitation of mines, in the alternative of either throwing itself into perilous enterprises that will be lucrative only for its agents, or of conceding, for a meager profit, assets of great value; it must place itself between the accusation of employing the resources of the taxpayers to execute sterile projects, and the accusation of delivering gratuitously to speculators, or even to favorites, a considerable part of the public domain: it could not escape this, unless it were to find the means of reconciling the interests of the State with those of the concessionaires, that is to say, it would be necessary to make disappear from the search for and exploitation of mines all that is hazardous.

The laws that have been made on this subject in various countries, and particularly in Germany, are very extensive and very complicated: those of Prussia, for example, form an entire code. It would not, therefore, be possible to expound their content here, and especially to show what is good or vicious in them; but it will not be useless to make some observations on those that have been passed in France, since the beginning of the revolution. This will be the best means of showing into what difficulties one throws oneself whenever one ceases to take for a guide the laws that result from the nature of things. It must not be forgotten, moreover, that, in this chapter, it is a matter of determining whether the proprietor of the surface is, by full right, proprietor of the wealth placed beneath in the greatest depth, and not of researching what are the rules according to which mines must be exploited to derive the best advantage from them.

Before the revolution of 1789, subterranean wealth was generally considered as forming part of the domain of the State; but, the government having abused the power of conceding its exploitation, there was mistrust of a principle that seemed to have engendered unfortunate consequences. The Constituent Assembly therefore took a middle ground, between the opinion of those who wanted mines to be considered as part of the public domain, the opinion of those who put them in the rank of things belonging to no one, and the opinion of those who considered them as belonging to the proprietors of the surface.

It declared, by the law of 12 July 1791, that mines and ore deposits were at the disposal of the nation, in the sense only that they could not be extracted except with its consent, and on the condition of indemnifying the proprietors of the surface. The indemnity was to be limited to the reparation of the damages that would result from the exploitation; it consisted in paying double the intrinsic value of the surface of the soil that would have been the object of damages and loss of use.

The government, which attributed to itself the right to concede the exploitation of mines, therefore reserved for the nation no share in the profits; it attributed none to the proprietors of the surface; in this respect, one can say that it considered subterranean wealth neither as forming part of the public domain, nor as belonging to the proprietors of the surface.

The rights of the latter over the mines situated beneath their properties were not, however, completely null; for if a proprietor wished to exploit a mine placed beneath his property, the concession could not be refused to him, unless his land did not have enough extent to form an exploitation.

A law of 21 April 1810 adopted principles different from those of the Constituent Assembly; it classed the masses of mineral or fossil substances, contained in the bosom of the earth, or existing on the surface, relative to the exploitation of each of them, under the three qualifications of mines (mines), minières (ore deposits), and carrières (quarries) [^195].

Mines can be exploited only by virtue of an act of concession deliberated in the Conseil-d'État. This act regulates the rights of the proprietors of the surface over the product of the mines. Besides the rights due to the proprietors of the surface, the concessionaires of mines are required to pay to the State a fixed royalty, and a royalty proportional to the product of the extraction. The fixed royalty is annual: it is ten francs per square kilometer. The proportional royalty is an annual contribution, to which the mines are subject on their products. If it is not fixed by a fixed-sum agreement, it is determined each year by the budget of the State, without being able, however, to rise above five percent of the net product. The government can grant a remission for a determined time, if it judges that this is necessary on account of the difficulty of the works [^196].

The royalty due to the proprietor of the surface is independent of the indemnities to which he may have a right, if the exploitation of the mine causes him damages.

The government is not required, according to this law, when it is a matter of making the concession of a mine, to give preference to the proprietors of the surface. Any man, whether he be French or foreign, can obtain a concession, if he fulfills the conditions prescribed by the law. These conditions are to justify, either the faculties necessary to undertake and conduct the works, or the means of satisfying the royalties and indemnities imposed by the act of concession. If there were works to be done under houses or places of habitation, under other exploitations, or in their immediate vicinity, the concessionaire would have, in addition, to give surety to pay any indemnity, in case of accident. These conditions fulfilled, the government is the judge of the motives or considerations according to which the preference must be granted to the various applicants for concession, whether they be proprietors of the surface, inventors, or others.

It results clearly from these dispositions that mines, as long as they have not been conceded, are considered as belonging jointly to the domain of the State, and to the private individuals under whose properties they are situated. The royalty paid to the proprietors of the land is the representation of the share that the law recognizes for them in the property. The royalties that are paid to the State represent the share that belongs to it according to the law. As for the products that the concessionaires derive from them, they ought to be only in proportion to the capital they engage in them, the works they devote to them, and the risks to which they expose themselves. All that they receive beyond this is only a gratuitous gift that is made to them at the expense of the public.

As long as a mine has not been conceded, it therefore forms part of the domain of the State, and no one can take anything from it, not even the proprietors of the surface. As soon as it has been regularly conceded, it is, according to the law of 21 April 1810, the property of the concessionaires, and is subject to the same rules as all other immovable properties. It differs from them, however, in that it cannot be sold in lots, or divided, without a prior authorization of the government, given in the same forms as the concession, and in that it can be exploited only under the supervision of the agents of the public authority, specially appointed for this purpose. This property is distinct from that of the surface, even when both are in the same hand. The royalty to which the concessionaire is subject in favor of the proprietor of the surface is considered as forming part of this latter property.

The minières, the pyritic and calaminous earths, are considered by the law as belonging to the proprietors of the land in which they are situated; nevertheless, they cannot be exploited without permission. The government, in permitting them to be exploited, determines the limits of the exploitation, and the rules that will be observed with respect to public safety and health. The proprietor who has on his land alluvial iron ore cannot fail to exploit it, or prevent it from being exploited by an ironmaster, if the latter needs it. If he does not wish to exploit it, an ironmaster can put it into exploitation himself, after having given him one month's notice, and having obtained the authorization of the prefect of the department, upon the advice of the mining engineer. The price of the ore is regulated by mutual agreement, between the proprietor of the land and the ironmaster, or fixed by experts chosen by the parties or appointed by the court.

Quarries also belong to the proprietors of the lands in which they are situated, and who can exploit them under the simple supervision of the police, with the observance of the general or local laws or regulations. If the exploitation takes place by subterranean galleries, it is subject to the same supervision as that of mines; but it takes place only for the profit of the proprietor of the surface, who is not subject to any royalty.

Finally, peat also belongs to the master of the soil, who alone has the right to exploit it, or to permit others to exploit it; nevertheless, it can be put into exploitation only after a declaration has been made to the sub-prefecture of the arrondissement, and the authorization to exploit it has been granted.

The authors of the law of 21 April 1810 having admitted that mines form a part of the public domain, they ought, to be consistent with the principles they had adopted, to have recognized that they could be conceded only in the forms used for the sale of the goods of the State. It would therefore have been necessary that, after having determined the conditions to which the concessionaires would be subject, the mines be awarded by public auction to those who would offer to pay the highest royalties, or who would consent to give to the State the most considerable share in the profits. The faculty that the government has arrogated to itself of arbitrarily choosing the concessionaires, and of determining at its will the extent of the concessions, has been and can still be the source of a multitude of abuses, and one can even say of dilapidation. It is, in effect, to squander the public fortune, to deliver the wealth of the State to men who have no other claim to it than favoritism. Several times one has seen the necessity of revoking alienations of the goods of the State made without a just cause. If one were to subject the concessions of mines to a revision, one would probably find more than one that it would be difficult to justify [^197].

The government, which can concede mines already discovered, can also concede the right to search for them, even on the land of others; but, according to the law of 21 April, this consent can be given only after having consulted the mining administration, after having heard the proprietor, and on the condition of a prior indemnity. The proprietors of lands, nor the persons to whom they have conceded their rights, have no need of authorization to make searches on their lands; the authorization becomes necessary for them only when it is a matter of engaging in exploitation. If the author of the discovery does not obtain the concession, he is indemnified by the one to whom it is made.

No permission for searches, nor concession of mines, can, moreover, without the formal consent of the proprietor of the surface, give the right to make soundings, and to open shafts or galleries, nor that of establishing machines or storehouses in walled enclosures, courtyards or gardens, nor in the lands adjoining habitations or walled enclosures, within the distance of one hundred meters from these enclosures or habitations.

From the distinction made between the property of the surface and the property of the mines, it follows that the property of a piece of land is often limited, not only by the properties that surround it on all sides, but also by the property that is situated beneath.

The limit that separates the property of the surface from the property of the mine that is beneath is not very easy to determine. To what depth can the proprietor of the soil descend, without infringing upon the property of the mine, or to what height can the proprietor of the mine rise, without the proprietor of the surface having the right to complain?

The law of 21 April 1810 forbids the concessionaires of mines from opening shafts or galleries, or from establishing machines in walled enclosures, courtyards or gardens, or in the lands adjoining habitations and enclosures, at a distance of one hundred meters; it thus provides for the safety of persons, by guaranteeing from all infringement the properties on which they make their habitual residence.The question of the natural limits between the property of the surface and the property of what is beneath can therefore arise only for lands on which there are neither habitations nor enclosures. In general, the appropriation of the surface has long preceded the appropriation of mines. The earth furnished men with means of existence before it was discovered that it concealed minerals. It is therefore natural to have the most ancient possessions, and the properties that were created first, respected. The man who appropriates, by labor, a certain holding of land, appropriates by that very fact the matter that supports it, and which is necessary for its existence.

It follows from this that if, by their works, the concessionaires of a mine degrade the surface of the soil, or diminish its value, they must be held to repair the damages they cause; their rights extend as far as they can go, without harming the cultivation of the land.

For his part, the proprietor of the surface may carry out, on his land, all the works he deems suitable, provided that, by his excavations, he causes no damage to the mineral wealth that the soil contains, and especially to the works of the miners.

In questions of this kind, to resolve the difficulties that present themselves, one must examine which properties were created first. If, before the exploitation of a mine, the soil that covers it has received, by cultivation or by the works executed on it, a certain value, the families to which it belongs must be protected in their means of existence. If, on the contrary, the exploitation of the mine preceded the cultivation of the soil, the subterranean property must be protected against the enterprises that might be formed on the surface. The evils that result, for families, from the suppression of their means of existence, are infinitely more grave than the evils produced by a measure that slows the growth of their wealth.

It is true that the wealth buried in the bowels of the earth can be infinitely more precious than that which results from the cultivation of the soil; but when men, to create great values, are obliged to destroy or degrade certain properties, they must begin by acquiring them from those to whom they belong.

The English government, composed of great proprietors of lands, has not admitted in principle that the mineral wealth contained in the territory belongs to the entire body of the nation; it considers it as belonging to the proprietors of the surface.

Any man who wishes to exploit a mine, whatever its nature, must therefore begin by acquiring the right from those to whom the soil under which it is situated belongs; but also he needs no other authorization. He is subject, in his exploitation, to no special supervision; the industry of the miner is no less free than that of the farmer. It does not appear, if one relies on the testimony of the most enlightened engineers of the country, that this liberty produces any inconvenience.

In Mexico, Peru, and New Granada, the property of mines has never been separated from the property of the surface. The proprietors of the soil who have had them exploited for their profit have not even permitted the government to meddle in the exploitation. M. de Humboldt, by whom this fact is attested, does not remark that this liberty has had, in America, more unfortunate results than in England [^198]. The immense fortunes of some Spanish-American families have been the product of the exploitation of mines. According to the testimony of the same writer, a single lode produced, for a single family, in the space of a few months, the enormous sum of twenty million francs [^199].

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Notes

[^193]: Turgot, vol. 4, p. 406. The English admit in principle that the proprietor of the surface has the property of what is above and below. Everyone can therefore build on his land, or make excavations there, without the government having the right to interfere. There exist among them neither laws on mines, nor privileged engineers for the exploitation of mines. Subterranean wealth is protected by the same laws as all other properties. The public authority may well have attributed to the proprietor of the surface the property of the mineral wealth that the soil contains; but this is not by virtue of the principle that serves as the foundation for all property. [^194]: “For the exploitation of a mine for the profit of the sovereign to be advantageous to him,” says Turgot, “two conditions are necessary: one, that the mine be exceedingly rich, the other, that the State be very small.” Vol. 4, p. 420. [^195]: Considered as mines are those known to contain, in lodes, layers, or masses, gold, silver, platinum, mercury, lead, iron; in lodes or layers, copper, tin, zinc, calamine, bismuth, cobalt, arsenic, manganese, antimony, molybdenum, plumbago, or other metallic materials, sulfur, coal or stone coal, fossil wood, bitumens, alum, and metallic-based sulfates. (Law of April 21, 1810, art. 2. [^196]: A decree of May 6, 1811, regulates the assessment and method of collection of fixed and proportional royalties. [^197]: On January 18, 1832, M. Voyer d'Argenson proposed the repeal of the provision of the law of April 24, 1810, which authorizes the government to grant mines, and the revision of concessions already made. In the printed detailed arguments of his proposal, he pointed out some of the numerous abuses of this law. [^198]: Essai politique sur le royaume de la Nouvelle-Espagne, vol. IV, bk. IV, ch. XI, p. 29. [^199]: Ibid. p. 1.