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CHAP. 23: On the value given to particular, communal, or departmental properties, by works executed at the expense of the State. On the payment of this value.

FROM the facts set forth in the preceding chapters, there result two truths that seem to me to have all the character of evidence: one, that all value belongs to him who has formed it, and who has not divested himself of it; the other, that a property, whatever its nature, is estimated by the value it has, or by the services it can render, and not by the volume or extent of the matter of which it is composed.

If particular properties, if the territory of a commune or a department receive an immediate and special increase in value from works executed at public expense, such as roads, bridges, or canals, must one not draw from the first of these two principles the consequence that this increase in value belongs to the State? Will the private individuals, the communes, or the departments, whose properties will have increased in price, not be held, either to pay it an indemnity proportional to the increased value, or to reimburse it a proportional share of the expenses? Will the persons who believe they should pay it neither the increased value, nor a share of the expenses, not be able to be obliged to cede their properties to it for the price they had before the execution of the works?

These questions could not arise in a country where the government would leave to private individuals, to communes, or to provinces, the care of undertaking or having executed the works in whose execution they believed themselves interested; for, in such a country, one would agree in advance on the share for which each ought to contribute. But if enterprises of public utility were thus subordinated to the sentiment and calculations of private interest, it is probable that works useful to the entire population would rarely be undertaken, especially in countries little advanced in civilization. A people could not, without compromising its interests in the most serious manner, renounce all kinds of enterprises of general utility, until the moment when each of the proprietors to whom they could be of profit, would be enlightened enough to appreciate his interests well, and to have the will to participate in them.

Nor would one have to examine these questions among a people who would never form any but enterprises whose revenues must cover the expenses; who, for example, would have a road cut or a bridge built, only insofar as the toll duties could indemnify it for all the sacrifices to which it had submitted; who would have a canal executed only insofar as the duties established on navigation would be sufficient to cover the costs of the enterprise. In such a case, it would be those who would make use of the road, the bridge, or the canal, who would bear the expense, and each would pay in proportion to his use; it would suffice, in such a system, to concede the works one wished to have executed, to companies that would advance the costs, and that would collect the revenues.

But the utility of all public works cannot constantly be measured by the revenues they bring in when they are executed: a road, a bridge, a canal, a street, besides the services they render to private individuals for their communications, for the transport of their merchandise or their foodstuffs, for the exploitation of their properties, can be very useful to the public, by the facility they give to provisioning, to transports, to the communications that the government cannot do without, and which are often necessary, not only for the good administration of the State, but for its defense and its security. Such works, moreover, when they are well conceived, and when they are executed with economy, always give a more or less strong impetus to all kinds of improvement; for it is often only by comparing their situation to a superior situation that men make progress, and this comparison can take place only insofar as communications are easy and frequent.

Finally, there are nations whose mores little admit of enterprises by association, and among which all great works of public utility are executed under the orders and by the agents of the government. Such a state of things is far from being good; but it must be accepted as a fact as long as it exists, and until mores or laws have established a different order of things. Now, it is in the supposition of such a state that the questions found at the head of this chapter have been posed.

There is almost no landed property that cannot receive a considerable increase in value, as a result of certain public works; let a canal or a railway be established across a forest that had only difficult and costly communications, and let the wood be able, at little expense, to be transported to places where there is a great consumption of it; immediately the value of the forest will be considerably increased. The effect produced by the creation of an inexpensive means of communication would be the same on a land that contained an iron or coal mine, marble quarries, or other materials that are of great weight or great volume, compared to their value. It is sufficient, moreover, to judge the price that an inexpensive means of communication gives to a landed property, to compare the price of lands situated in the vicinity of a large city, to the price of lands that are distant from the places where great consumptions occur.

A law of 16 September 1807 foresaw the cases where, by the effect of certain public works, a part of the national territory would immediately receive an increase in value; and it determined the share of expenses that should be borne by the population to which the executed work would be profitable.

According to this law, when, by the opening of a navigation canal, by the improvement of the navigation of a river, by the opening of a great road, by the construction of a bridge, one or several departments, one or several arrondissements, are judged to be due to receive an improvement of their territory, they are held to contribute to the costs of the works; their charge cannot nevertheless rise beyond half of the expense that the enterprise requires [^200].

If there is cause for the establishment or improvement of a small navigation or a floatable canal, for the opening or maintenance of great roads of local interest, for the construction or maintenance of bridges on these same roads or on vicinal roads, the departments contribute in one proportion, the most interested arrondissements in another, the most interested communes in another, and each in the proportion of the utility it is to derive from the works to be executed; in these cases, the State furnishes a part of the funds only if it judges it suitable.

If, as a result of the previously stated works, or by the opening of new streets, by the formation of new squares, by the construction of quays, or by any other general, departmental, or communal public works, ordered or approved by the Government, private properties have acquired a notable increase in value, these properties can be charged with paying an indemnity, which can rise up to the value of half the advantages they have acquired.

The proprietors whose goods have increased in value have the faculty of paying the increased value in money or in constituted annuities at four percent net, or by the relinquishment of a part of the property, if it is divisible; they can also relinquish in their entirety the lands, terrains, or buildings whose increased value gives rise to the indemnity. If they opt for relinquishment, it takes place based on the valuation regulated according to the value the object had before the execution of the works that produced the increased value.

The indemnities are due, however, by the proprietors of the lands neighboring the executed works, only when it has been decided by a regulation of public administration, issued on the report of the minister of the interior, and after having heard the interested parties, that there is cause for the application of the preceding dispositions.

If, as a result of the alignment of a street, a proprietor acquired the faculty of advancing onto the public way, he would be held to pay the value that would result for him from the exercise of this faculty; if he refused to pay the value of the terrain that would be abandoned to him, he could be constrained to cede his own property to the administration, at the price it had before the undertaking of the alignment works.

If a proprietor were obliged to cede a part of his property for the execution of public works, and if, as a result of these works, the part that remains to him acquired an immediate and special value, this increase could be taken into consideration in the valuation of the indemnity to which he would have a right. (Law of 7 July 1833, art. 51.)

Whenever it is a matter of constructing dikes against the sea, or against navigable rivers, streams, and torrents, the necessity thereof is ascertained by the Government; but the expense thereof is borne by the protected properties, in proportion to their interest in the works, unless it is judged useful and just to grant them aid from public funds.

When there is cause to provide for the expenses of maintenance or repair of the same works, for the dredging of canals that are at the same time for navigation and for drainage, or to provide for expenses of levees, dams, sluices, or locks, in which proprietors of mills or factories are interested, the contributory share of the State and of the proprietors is fixed by regulations of public administration.

If there is cause to open or improve a road or means of navigation, whose object is to exploit with economy forests or woods, mines or ore deposits, or to furnish them with an outlet, all properties of this kind, national, communal, or private, that are to profit from it, contribute, for the totality of the expense, in the varied proportions of the advantages they are to receive from it. In these cases, as in the preceding ones, the proprietors discharge their obligation either in money, or in annuities at four percent, or by the relinquishment of the property at the price it had before the execution of the works that produced the increased value.

Finally, if it is a matter of sanitation works that concern cities and communes, they are ordered by the Government; but the expenses thereof are borne by the interested communes or cities. However, if, as a result of these works, private properties acquired an increase in value or particular advantages, the proprietors would be held to contribute to the expenses in proportion to the particular utility they would have for them.

When it is a matter of determining the influence produced by public works on the value of certain private properties, or on the territory of a commune or a department, one should not, moreover, flatter oneself that one can arrive at a mathematical exactitude; in calculations of this kind, one is obliged to be content with approximations, and to follow general rules of equity. Nor should one take into account the advantages that may result, in the future, from the execution of these works, for private individuals or for communes; one must calculate only the immediate increase in value, for that is the only one that cannot be put in doubt. If one were to throw oneself into the probabilities of the future, there would be neither limits, nor rules for the valuations; one would find, in time, no point at which it would be permissible to stop. There is no other means of knowing if, by the effect of certain works, a property has increased in value, than to compare the price at which it could have been sold before there was any question of these works, to the price one would find for it immediately after they have been executed.

The dispositions that oblige proprietors to pay a part of the expenses that have increased the value of their properties are but consequences of the principle of justice that wishes to guarantee to each his own, to nations as to private individuals; but it seems that one has derogated from this principle, when one has left to the Government the faculty, either of having executed, at the expense of the State, works destined to protect particular properties, or of not demanding the increased value that results for private, communal, or departmental properties, from the expenses made by the State.

The article of the law that places at the charge of the interested proprietors the construction of dikes destined to stop the waters of the sea, of navigable rivers, streams, and torrents, gives, in effect, to the Government the faculty of paying a large part of the costs itself; and the articles that subject private individuals, communes, or departments, to contributing to the works that are to increase the value of their properties, remain without effect, whenever that suits the views of the administration.

This faculty of making the public bear charges from which a small number of persons or some fractions of the population derive the principal advantages, was bound to produce and has often produced numerous abuses. It has been a powerful means of corruption: ministers have more than once used it in elections, to pay for the complaisance or servility of the electors at the expense of the generality of citizens. They have made use of it, not to have useful works executed, in countries where the population was not rich enough to contribute to them, but to conciliate for themselves the favor of persons whose opinion was little favorable to them. The inhabitants of the Alps or the Pyrenees have thus been condemned to pay for the monuments of luxury of some city that they will never see, while those who enjoy them every day have contributed no more to them than if they had had no particular interest in their construction.But, whatever the abuses that have resulted from this faculty, one would be wrong to think that a people must never have executed any but the works whose advantages are distributed in a more or less equal manner over the entire population; it often happens, on the contrary, that a people has the greatest interest in making expenditures whose apparent and immediate advantages fall only upon one of its fractions, and sometimes upon one of the fractions least worthy of interest.

When the various parts of which a nation is composed have not all reached the same degree of civilization, and yet they enjoy the same civil and political rights, the least advanced profit from all the advantages that are the natural consequence of the progress that the others have made. For their part, those that find themselves in the first rank by their wealth, their mores, and their enlightenment, have to suffer a part of the evils that result from the misery, the vices, and the ignorance of the other parts. In any association, there is always a sort of solidarity for ill as for good among the associates.

If, for example, a part of the population is vicious enough or ignorant enough to have itself represented in a legislative assembly by men disposed to ceaselessly sacrifice the public interest to their individual interests, the consequences of its ignorance and its corruption will not fall exclusively upon it; they will make themselves felt on all the parts that do not have similar reproaches to make against themselves. If it is blind enough or corrupt enough to be the instrument of a faction, or to become the auxiliary of the enemy in case of invasion, its blindness and its vices will not be fatal only for it, they will be so principally for those who do not share them.

Nations have sometimes thought that it was in the interest of their industry, their commerce, their security, to bring civilization to neighboring nations; and if this policy, as enlightened as it is generous, deserves to be approved, with how much greater reason should one not approve the efforts and sacrifices of a people that would seek to spread the benefits of civilization in a more or less equal manner over all the parts of its territory! If the various governments that have succeeded one another among us since the revolution of 1789 had spent, to civilize certain parts of France, half the costs they thought they should incur to watch over them, combat them, subjugate them, or corrupt them, they would have arrived at more satisfactory results than those they have obtained. The other parts of the nation would have had less heavy burdens to bear, and the expenditures they would have made would have turned to the profit of their industry, their commerce, and their own security. Thus, in admitting that the persons whose properties increase considerably in value, by the effect of works executed at public expense, must bear, in the expenditures, a share proportional to the particular advantages they derive from them, one should not draw from this principle the consequence that a people must never have executed at its expense any but the works that profit in a more or less equal manner each of the various fractions of which it is composed, or those for which it can have the expense reimbursed, when this expense turns to the particular profit of one or several persons of a commune or a department. There are certainly circumstances in which a nation, for its own interest, must make sacrifices in the interest of some of the fractions of which it is composed, and sometimes even in the interest of other nations. One must only take care that the faculty of thus making sacrifices that are to produce an immediate and special advantage for certain persons or for certain parts of society, does not become, in the hands of those who order the works, a means of corruption or a source of scandalous favors.

The law of 16 September 1807 imposed no condition, no rule on the government; it left the interests of society without guarantee; and it is in this above all that it was vicious. The law of 7 July 1833, on expropriation for reasons of public utility, placed some limits on its power, by declaring that great public works could be executed only by virtue of a law, which would be passed only after an administrative inquiry. However, the domain of the arbitrary is still quite vast, since a simple ordinance suffices to authorize the execution of roads, canals, and branch railways of less than twenty thousand meters in length, of bridges, and of all other works of lesser importance.

This latter law created very precious guarantees for private, communal, or departmental properties, against the encroachments that the government might be tempted to execute in the interest of certain enterprises; but it did not guarantee the interests of the public with the same care. One finds in it the qualities and the vices that affect most of our modern institutions: enough care for private interests, and an almost complete abandonment of the general interest. The men who govern in our time find that there is more profit and less danger in conducting their affairs at the expense of the mass of the population, than at the expense of a few individuals or a few families. They were formerly less skillful.

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Notes

[^200]: The proportions of the contribution must be determined by a special law. This is the only way to prevent arbitrary distributions.