De la loi sur le desséchement des marais qui appartiennent à des particuliers ou à des communes.

CHAP. 25: On the law on the draining of marshes that belong to private individuals or to communes.

THE RIGHT that each has to enjoy and dispose of the things that belong to him is limited by the right that others have to enjoy and dispose of the things that are theirs. No one can therefore make a use of his goods that would disturb his neighbors in the enjoyment or in the disposition of those whose property is devolved to them. Now, among the objects whose free use one cannot with justice contest for anyone, there is none more necessary than the air. Lands that, by the state in which they are found, vitiate the air one breathes in the vicinity, not only alter a thing whose enjoyment belongs in common to all men, but they furthermore depreciate all the goods on which their influence makes itself felt. When such lands exist, the private individuals or the communes to which they belong must therefore be held to put them in such a state that they cannot do harm; if they do not have the means, the administration must fulfill this duty for them, and make them bear the charges.

The law that prescribes the draining of marshes, whether they belong to private individuals or to communes, has had for its object, in effect, to prevent the harmful exhalations that properties of this kind spread from corrupting the air necessary for the existence of the inhabitants of the vicinity, and thus disturbing the enjoyment of a thing that belongs to all men; it has furthermore had for its object to prevent the properties situated near the marshes from being depreciated by the sole effect of this vicinity; finally, it has sought to deliver to cultivation lands that the habitual state of inundation in which they are found renders almost useless even for those who are their possessors.

The law, to be perfectly just, had to watch over three kinds of interest: the interests of private individuals affected in their persons or in their goods by the vicinity of marshy lands; the interests of the proprietors of the marshes, and those of the State which has the drainings executed by entrepreneurs, or which executes them itself at its own risk. The legislator had to determine by which persons a draining could be instigated, in what forms its utility or necessity would be ascertained, by what authority the difficulties to which the operation would give rise would be resolved. The interests of these three classes of persons being liable to be in conflict, it was necessary that the forms according to which one would have to proceed, and the authorities that would be called upon to rule, be equal guarantees for all.

[Translator's note: The reference to the law of 7 July 1853 is likely a typographical error in the original text. The major law on expropriation being discussed is that of 7 July 1833.] [^201] See above, chap. 20. [^202] Law of 7 July 1833, art. 52.No one can know better whether, by the exhalations it spreads, a marsh vitiates the air of the vicinity, than those who are exposed to experiencing its baneful influences. Any man who proves that he is harmed in his person or in his goods by the existence of such and such a marsh, ought therefore to have been admitted to instigate its draining. The silence kept by himself or by his ancestors, for a long series of years, could not be a reason to refuse him this faculty; for, in admitting, which is not proven, that a person can, by his silence, contract the obligation to breathe unhealthy air until the end of his life, one cannot recognize that he has the right to make such an engagement for his descendants, to the most remote posterity. A private individual and a commune may well acquire, by prescription, things that are part of the private domain, such as lands, houses, movables; they cannot acquire, by the same means, the right to vitiate things that are the common property of the human race. A father cannot disinherit his children of the right to breathe, or condemn them to live in an unhealthy atmosphere, as he can impose a servitude on the fields or on the house that he transmits to them.

The law of 16 September 1807, which gives the government the power to judge whether it is useful or necessary to drain a marsh, determines neither the persons who can request the draining, nor the forms to follow to ascertain its necessity. Doubtless, it was not thought necessary to indicate the persons by whom the request could be made; for here, as everywhere, the action belongs to any man having an interest and standing to act. But it could not likewise be believed that it was useless to determine the forms by means of which the private individuals or the communes harmed by the existence of a marsh could ascertain the damage, and the necessity of the draining. The government has therefore remained free to act or not to act, according as it would suit its views.

Marshy lands have infinitely less value than those that are fit for cultivation; if the proprietors let marshes exist, it is therefore not as a result of a calculation on their part; it is either because they do not know how to drain them, or because they do not have sufficient means, or because they cannot come to an agreement among themselves. There is therefore no fault to impute to them, nor any penalty to inflict upon them: thus the law limits itself to prescribing measures to effect the draining, without concerning itself with the damages that the marsh may have caused.

If, when the draining of a marsh is ordered, and the conditions thereof have been regulated, the proprietors consent to undertake it, the law wishes that the concession thereof be awarded to them; if not, the government awards it to the entrepreneurs who make the most advantageous bid; it can have it executed at the expense of the State, if no entrepreneurs present themselves. Neither the ordinance that prescribes the draining, nor that which awards it to a company or to the State, has for its object or effect to strip the proprietors of their properties; but as the works to be executed must have for their result to increase their value, it is important that one can well ascertain in what the increase consists, so that, after the operation, each can retake the share that is his in the total value of the drained lands.

It never happens that all the parts of a vast marsh are equally unproductive, or equally difficult to put into cultivation; they are worth more or less, according as, to give a determined revenue, they require more or less considerable capital. It is therefore necessary, before the clearing works are begun, that the terrains of diverse values that are to profit from them be classed and appraised. The law requires that a general plan be made of them, that each property be distinguished therein, and that its extent be exactly circumscribed. The terrains are then divided into various classes, according to the various degrees of inundation. The number of these classes can be neither below five, nor above ten. If the presumed value of the different parts experiences variations other than those that come from the various degrees of submersion, the classes are formed without regard to these degrees. In all cases, the lands that are presumed to be of the same value are put in the same class. The perimeter of the various classes is traced on the cadastral plan that served as the basis for the enterprise.

When this plan has been approved by the administration, which rules only after having heard the interested parties, or at least after having given them the time and the means to be heard, experts appointed by the proprietors and the entrepreneurs proceed to the appraisal of each of the classes composing the marsh, with regard to its real value at the moment of the estimation in its state as a marsh. On their report, and after having heard the parties, a special commission irrevocably fixes the value of the terrains of each class.

The draining works begin as soon as the definitive valuation of the terrains has been made; as soon as they are terminated, their verification is proceeded with. Experts are again appointed, and they proceed, in concert with engineers, to the classification of the drained lands, according to their new value, and the kind of cultivation of which they have become susceptible.

When the estimation of the drained lands is settled, the entrepreneurs of the draining present to the commission formed at the beginning of the enterprise, a roll that contains the name of the proprietors, the extent of their properties, the classes in which they are placed according to the cadastral plan, the statement of the first estimation calculated by reason of the extent of the classes, the amount of the new value of the properties since the draining; finally, the difference between the two estimations.

The portions of terrain that could not be drained give rise to no claim on the part of the entrepreneurs.

The amount of the increased value obtained by the draining is then divided between the proprietors on the one hand, and the concessionaires on the other, in the proportions fixed by the act of concession.

If the draining has been done at the expense of the public Treasury, the portion that reverts to the State is fixed in such a way that it is reimbursed for all its expenses. It could therefore happen that the entire value of the property, after the draining, would be taken up by the costs that were incurred to put the terrain into a state of cultivation.

The proprietors whose lands have been drained can discharge their obligation for the indemnity due to the State by relinquishing a portion of the lands whose value is calculated on the basis of the last estimation. If they do not wish to relinquish lands in kind, they can constitute an annuity on the basis of four percent, without deduction. This annuity is always redeemable, even in portions, provided, however, that these portions are not below one-tenth.

The indemnities due to the concessionaires or to the Government, by reason of the increased value resulting from the drainings, have a lien on the entire increased value, by means of the transcription at the mortgage office of the arrondissement in which the goods are situated, of the act of concession or of the ordinance that orders the draining on account of the State.

If it should happen that the draining of a marsh could not be effected by the means established by the law, or that one could not achieve it because of the obstacles of nature or the opposition of the proprietors, there could be cause for expropriation for reasons of public utility, by means of a prior indemnity.

As long as the works are not terminated, the canals, ditches, trenches, dikes and other works, are guarded and maintained at the expense of the entrepreneurs; but, from the moment they are finished, and they have been received, the maintenance and guard are at the expense of the proprietors.

The administration fixes the kind and extent of the necessary contributions, on the proposal of the delegates of the proprietors, and of two or four of them, who are adjoined to them by the administration itself.

The law commits to the administration the conservation of the draining works, that of the dikes against torrents, rivers and streams, and on the shores of lakes and the sea.

Repairs and damages are prosecuted by administrative means, as for matters of major public works jurisdiction. Offenses are prosecuted by the ordinary means.

There are, in this law on the draining of marshes, two kinds of dispositions that it is important not to confuse: some are relative to the forms to be followed to achieve the draining; the others touch upon the very principle of property.

The former are far from being beyond all criticism; they seem to have been combined much more to second the views of the administration than to guarantee the rights of all interested persons.

The law wishes that, when a draining is to take place, a syndicate be formed among the proprietors; but it is to the prefect that it gives the appointment of the syndics. It prescribes the appointment of three experts to proceed with the estimation of the terrains; but one of these experts is appointed by the syndics elected by the prefect; another is chosen by the prefect himself; a third by commissioners appointed by the Government, on the presentation of the prefect. If the draining is effected at the expense of the State, the minister appoints one expert; the prefect whom the minister has chosen appoints a second; the syndics appointed by the prefect appoint the third.

Before beginning the draining works, a commission of seven members, which cannot rule on the objects of its competence unless five of them are present at its deliberations, is formed. It must take cognizance of all that is relative to the classification of the various properties, before or after the draining of the marsh, to their estimation, to the verification of the exactness of the cadastral plans, to the execution of the clauses of the acts of concession relative to the enjoyment, by the concessionaires, of a part of the products, and to the verification of the roll of increased value of the lands after the draining. It must furthermore give its opinion on the organization of the mode of maintenance of the draining works, settle the estimations, in the case where the Government would have to dispossess all the proprietors of a marsh, and take cognizance of the same objects, when it is a matter of fixing the value of the properties before the execution of works of another kind. But the members of this commission, who rule on the estimations made by the experts, are themselves chosen by the Government; so that it is always the delegates of the authority who control one another.

If the proprietors of the marshes are poorly represented or not at all, in the operations that prepare or follow the draining, the individuals or the communes that may be affected by the existence of the marshes or by the draining are no more so; it does not seem to have been thought that they may have interests to defend in operations of this nature.

One cannot make, against the dispositions that relate to the very principle of property, the same reproaches as against those that constitute the authorities called upon to resolve all the difficulties. These dispositions are perfectly just, whether when they make a duty of the draining, or when they regulate the division of the property, after it has been put in a state to be cultivated. The principle that no one can, by means of a thing that belongs to him, vitiate a thing whose enjoyment belongs in common to all men, such as the atmospheric air, has been formally recognized. It has likewise been recognized that all value is the property of him who gives it existence; for it is according to this principle that the division of the profits that result from a draining has been regulated.

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