Cover for Traité de la propriété: VOL I

De la dépréciation causée à des propriétés particulières par des travaux exécutés dans un intérêt pu

Translated by Thothica

CHAP. 24: On the depreciation caused to private properties by works executed in the public interest.

THE EFFECT ordinarily produced by public works on properties situated near the places where they are executed is to increase their value. A house in front of which a beautiful street or a public square is made, a piece of land near which a great road or a canal is run, have more value after the execution of these works than they had before. It can happen, however, that certain properties are depreciated by the execution of certain public works: one can, for example, by canalizing a river or constructing dams on it, deprive certain properties of the water they need, or cause more to flow back onto others than they require. It is just that in such a case the damages caused be repaired by those to whom the works profit, or by those who have undertaken to have them executed.

The law of 16 September 1807 foresaw some of the cases in which private properties are depreciated by the execution of certain enterprises formed in the public interest. If, for example, to carry out a draining, open a new navigation, or construct a bridge, it is necessary to infringe upon private properties such as mills or other factories, the proprietors must be indemnified by the State, when it is the one undertaking the works, or by the concessionaires, when they are executed by concession. There is cause for an indemnity, however, only insofar as the establishment of the mills and factories is legal, or the title of establishment does not subject the proprietors to seeing their constructions demolished without indemnity, if public utility so requires.

The lands necessary for the opening of canals and drainage ditches, of navigation canals, of roads, of streets, the formation of squares, and other works recognized as being of general utility, must, according to the law, be paid to the proprietors according to the value they had before the undertaking of the works, and without increase in the estimated price. But one must not appraise the land taken as if it were isolated, and did not form part of the land that the State does not judge it useful to seize: the indemnity, to be just, must be calculated according to the depreciation that the entire property experiences by the effect of the works executed.

It can happen that the part of the property that the State seizes is so considerable compared to that which it does not need, that the proprietor no longer cares to keep what remains. This case, which the law of 16 September 1807 did not foresee, was foreseen by that of 7 July 1853 [sic]: article 50 of the latter provides that the property will be acquired in its entirety when the proprietor so demands, if, as a result of the fragmentation, it is reduced to a quarter of the total area, provided, however, that the proprietor possesses no immediately contiguous land, and that the parcel, thus reduced, is less than ten ares. The law admits no distinction as to the nature or the destination of the lands; it is clear, however, that if a road or a canal cut in two an enclosure adjoining a house, the proprietor who was not a farmer might not wish to keep the part detached from his dwelling, even if this part were more than ten ares. Sometimes, instead of taking a part of a private property to make a road, the State needs only to take materials from it to maintain a road already made. The law of 28 September 1791 had declared, as has been seen previously, that the agents of the administration could 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 the proprietor had first been warned and indemnified [^201]. Art. 55 of the law of 16 September 1807 added that the lands occupied to take the materials necessary for roads or for public constructions could be paid to the proprietors as if they had been taken for the road itself. It is therefore the value of the occupied land and not the value of the materials extracted from it that must be paid to the proprietor. If, however, the State were to seize a quarry already in operation, there would be cause to include in the estimation the value of the materials to be extracted. They would be valued, in this case, according to their current price, abstracting from the existence and the needs of the road or the constructions for which it is destined.

A house is not susceptible of being divided in the same manner as a piece of land on which no construction exists. Thus, the law of 16 September 1807 and that of 7 July 1833, declare that houses and buildings of which it is necessary to acquire a portion for reasons of public utility, will be purchased in their entirety if the proprietors so require. It was well understood that a house from which a part was taken to make a public square or widen a street might no longer suit the needs of the proprietor. One could not, without injustice, have left to his charge the cares of having it rebuilt, or of selling it in a state of demolition.

If a proprietor voluntarily has his house demolished, or if he is forced to have it demolished for reasons of dilapidation due to age, and he is forced to set back his construction to observe the alignment prescribed by the competent authorities, what will be the indemnity to which he will be entitled? The law of 16 September (art. 50) grants him an indemnity only for the value of the land relinquished; and he could not in fact demand more. Constructions can increase the value of a piece of land as long as they exist; but from the moment they have disappeared, the land has no more value than it would have, if no building had ever existed there.

Proprietors who had made plantations, constructions, or other works on their lands only in the foresight that they would be dispossessed for reasons of public utility, and with a view to obtaining a greater indemnity, would have a right, in reality, only to a value equal to that which their land had before these works [^202]. If it is not just that the State enrich itself at the expense of private individuals, neither is it just that private individuals enrich themselves at the expense of the State.

It often happens that, without touching certain private properties, the State causes them to experience a considerable depreciation by means of the works whose execution it orders. A canal that diverts commerce from a road it was accustomed to follow lowers the value of most of the properties that are situated on that road. If a railway then diverts from another direction the merchandise that the canal transported, other properties will again find themselves depreciated. It is true that some of those that will find themselves placed near the new road will have acquired an increase in value.

The depreciation that, in such cases, results for certain properties from the works executed in the interest of the State, is analogous to that which results for manufacturers from the introduction of new machines. Whenever a means of production more powerful or less expensive than those that already existed is introduced, the old ones lose a great part of their value. A road that one can travel only by means of considerable expense can, like a bad machine, be replaced by a means of communication that is less costly or more rapid.

Before bringing about such a change, a government must doubtless calculate the inconveniences and the advantages that will result from it; and it is consequently held to take into consideration the damages that the properties situated on the old road will experience, as well as the increase in values that will take place for the properties situated on the new road; but independently of these two classes of interests that are only incidentally harmed or favored, there are interests of another order to which all others must yield, these being those of the public for whose profit all great works are executed.

In a society very advanced in civilization, all interests are so linked to one another that a man cannot make great modifications to his properties without causing his neighbors some profit or some damage. A man who transforms a sterile or marshy land into a smiling countryside gives value to all the properties in the vicinity; he who, in a large city, covers a magnificent garden with buildings, depreciates all the houses whose view extended over his property. The first cannot demand any indemnity from his neighbors for the advantages he procures for them; the second cannot be condemned to any damages for the harm he does them. Each has used his right.

The State is, with regard to private individuals, in the position where they find themselves with regard to one another: when it has certain works executed in its interest, it can favor or indirectly harm some private individuals; but if it hinders no one in the faculty of enjoying and disposing of his properties, or in the exercise of his industry; if it uses its rights as a private individual uses his, no one is justified in demanding from it the payment of an indemnity.

Notes

[^201]: Art. 1, sect. IV, title 1. [^202]: Law of July 7, 1833, art. 52.