CHAP. 26: On the limits imposed on each property by the properties that surround it.

From the faculty that every person has to enjoy and dispose of the thing that belongs to him, it necessarily results that no one can make a use of his property that degrades that of another. Among a civilized nation, there is no property that does not immediately touch, on all sides, other properties. The field that does not have other fields for its limits is bounded by a road, by a river, or by other national, communal, or private properties.

But as there is no interval between two territorial properties, and as one begins at the point where the other ends, it would be impossible for a person to dispose in an absolute manner of the confines of his land, without infringing upon that of another. It is clear, for example, that he who planted tall-growing trees at the extremity of his garden or his field would deprive his neighbor of the faculty of planting them at the extremity of his own terrain. It would not, moreover, be in his power to prevent the trees he had planted from drawing a part of their sustenance from the land they touched.

The obligation in which each proprietor finds himself to respect the property of another, therefore, gives limits to the faculty he has to dispose of his own goods. Thus, for example, according to French law, it is not permitted to plant tall-growing trees except at the distance of two meters from the dividing line of the two holdings, and living hedges or trees that are not tall-growing, except at the distance of half a meter. The neighbor can demand that the trees and hedges planted at a lesser distance be torn out, and that the branches that extend over his terrain be cut. He can himself cut the roots that have advanced onto his property [^203].

It is also to guarantee the properties of certain persons from the damages they could experience as a result of the disposition of neighboring properties, that every proprietor is forbidden from digging near the wall that separates his property from that of another, a well or a cesspool, or from building there a chimney or hearth, oven or furnace, or from backing a stable against it, or from establishing there a store of salt or a pile of corrosive materials, without leaving the distance or making the works necessary to avoid harming the neighbor [^204].

The authors of the Civil Code, in classing these reciprocal obligations of proprietors among the servitudes, have certainly committed an error. A man is not a slave because he is forbidden from making a use of his person that would infringe upon the person of another. Such a prohibition is, on the contrary, an essential condition of the liberty of all. Nor can one say that a property is subject to a servitude, for the sole reason that the proprietor cannot make a use of it that would harm the neighboring properties. There would truly be a servitude if such a use could not be prevented; and this servitude could even become very onerous.

Among nations where there exist no lands that have not been appropriated, all properties being contiguous, doubts often arise, either on the question of knowing where the properties of each begin and end, or on the question of knowing to which of the two proprietors belong the works or the trees placed on the limits that separate them. To prevent these doubts, or to make them cease when they have not been prevented, the authors of the Civil Code have established that every proprietor could enclose his holding, or oblige his neighbor to the boundary marking, at common expense, of their contiguous properties. They have then established certain rules by means of which one could judge to whom certain litigious objects belong, such as walls, ditches, hedges, or separating trees.

They have again erred here in placing among the servitudes the reciprocal obligations of proprietors, whose object is to determine well where the property of each begins and ends, and to guarantee it from usurpation or damage. Can one consider, for example, as a servitude deriving from the situation of the places, the obligation imposed on every proprietor to determine by permanent marks the points where his property ends, and those where that of his neighbor begins? Can one place in the same class of servitudes the right to enclose his holding, that is to say, the right to raise a wall, to dig a ditch, or to plant a hedge on a holding that belongs to him? This right to enclose his holding is no more a servitude for the neighboring properties than the right to sow it, to plant trees on it, or to construct buildings on it. It is also without any foundation that one has placed among the servitudes deriving from the nature of the places, the faculty that every proprietor has, either to use at his will a spring situated in his holding, or to employ for the irrigation of his properties the running water that traverses them, on the condition of returning it to its ordinary course [^205].Hedges, ditches, and walls that are found between two holdings are sometimes common to both proprietors, and sometimes they belong to only one of the two. The authors of the Civil Code adopted, for judging the questions of property that arise in this regard, rules whose wisdom cannot be contested; but they erred in classing among the servitudes established by law the obligations that result from these rules for the proprietors. They declare, for example, that any party wall serving as a separation between buildings up to the point where the roofs separate, or between courtyards and gardens, and even between enclosures in the fields, is presumed to be jointly-owned, if there is no title or mark to the contrary; they likewise consider as jointly-owned, unless there is proof to the contrary, the hedges and ditches that separate the two holdings; but the undivided ownership of a property between two persons does not constitute, properly speaking, a servitude for one or the other: it gives to each the faculty of enjoying it to the extent of his rights, on the condition of contributing to the expenses in the same proportion [^206].

Having admitted that walls, ditches, and hedges placed between two holdings are jointly-owned, unless there is proof to the contrary, some of the facts that would serve to establish non-joint ownership have been determined. There is a mark of non-joint ownership for a wall, for example, when its top is straight and plumb with its face on one side, and presents an inclined plane on the other; there is also a mark of non-joint ownership when there is on one side only either a coping or stringcourses and corbels of stone placed when building the wall: in these cases, the wall is deemed to belong exclusively to the proprietor on whose side are the runoff or the corbels and stringcourses of stone. There is a mark of non-joint ownership for a ditch when the bank or the spoil of the earth is found all on one side; the ditch is deemed to belong exclusively to him on whose side the spoil is found.

When one says that a thing belongs to two persons, one says, by that very fact, that each of the two must bear a part of the burdens of the property, and enjoy a part of its advantages. Thus, the repair and reconstruction of a party wall are at the charge of all those who have a right to it, and in proportion to the right of each; likewise, the maintenance of a jointly-owned ditch must be done at common expense. In this case, as in all, each can however escape the burdens by renouncing the benefits, that is to say, by abandoning the property, and by ceasing to derive any profit from it.

The advantages are distributed like the burdens: each of the two proprietors can therefore build against the party wall, and place beams or joists within the entire thickness, within fifty-four millimeters (2 inches); but these beams must be reduced to half the wall's thickness, in the case where, on the opposite side, the proprietor should wish to have beams in the same place, or to place a chimney against it.

One sees well in these dispositions rules for the enjoyment of a thing common to two proprietors whose holdings are contiguous; one does not see servitudes, properly speaking, therein.

The Civil Code recognizes for each of the co-proprietors of a party wall the faculty of having it raised; but the one of the two who uses this faculty owes the other an indemnity for the burden by reason of the raising; he alone bears the costs of construction and provides for the expenses required for the maintenance of the part he has constructed. If the party wall were not in a state to support the raising, he who wished to raise it would have to have it rebuilt entirely at his expense, and the excess thickness would have to be taken from his side. The neighbor who has not contributed to the raising can acquire joint ownership of it by paying half of the expense it cost, and the value of half the soil furnished for the excess thickness, if there is any. He whose property adjoins a wall likewise has the faculty of making it jointly-owned, in whole or in part, by reimbursing the person to whom it belongs for half the value of the entire portion he wishes to make jointly-owned, and half the value of the soil on which it is built.

One of the neighbors cannot make, in the body of a party wall, any recess, nor apply or rest any work against it without the consent of the other, or without having, upon his refusal, had it determined by experts what means are necessary so that the new work is not harmful to the other. He is likewise forbidden from making therein, without the consent of his co-proprietor, any window or opening, even with fixed glass.

The proprietor of a non-jointly-owned wall, immediately adjoining the holding of another, may, to receive light, make, in this wall, lights or windows with iron mesh and fixed glass; but he cannot make openings therein fit to give him a view of the neighboring property. The windows he is permitted to make must be furnished with an iron lattice, whose mesh must have an opening of one decimeter at most, and a fixed glass frame. They can be established only at twenty-six decimeters (eight feet) above the floor or ground of the room one wishes to light, if it is on the ground floor, and at nineteen decimeters (six feet) above the floor for the upper stories. A proprietor cannot have direct views, windows for looking out, balconies, or other similar projections over the holding of his neighbor, unless there is between the wall where he makes them, and that holding, a distance of nineteen decimeters (six feet), nor oblique views, unless at a distance of six decimeters. These distances are measured from the exterior face of the wall where the opening is made, or from the exterior line of the balcony or projection, to the dividing line of the two properties.

A proprietor can also not make the water from his roofs run onto the property of his neighbor; he must direct it in such a way that it falls on his own holding. He is likewise not obliged to divert that which falls on his lands, and which flows naturally onto the lower properties. Each is bound to receive on his holding the waters that descend there from higher lands, without any participation of men, as he is obliged to receive the rain that falls there directly.

The prohibition against opening windows in a party wall, establishing direct views over a property of which one is not the master, or artificially making the waters that fall on one's own property run onto it, does not constitute servitudes; it is, on the contrary, a means of freeing properties: it is a limit for all proprietors. There would be a servitude if a proprietor were obliged to receive the waters that fell on the properties of his neighbors, and which were artificially sent to him, or to suffer balconies, projections, or even simple windows, immediately above his property.

One would speak improperly if one said that a man is enslaved, because he is subject to the laws of his own nature, and because he is forbidden from infringing upon the liberty of his fellow men. It seems also that one expresses oneself inaccurately when one considers as servitudes the burdens that result, for each property, from the nature of things, and the prohibition against using them to harm one another. A prohibition that applies to all properties in their common interest, and which, consequently, establishes no privilege in favor of any, is a guarantee of liberty, and is not a cause of enslavement.

The drafters of the Civil Code have therefore erred when they classed among the servitudes the limits given to each property, whether by the disposition of the laws, or by the nature of things.

The limits given to a property, in the interest of the neighboring properties, are not always reciprocal; when there is no reciprocity, there is a servitude of one for the benefit of the other. This servitude can be the result of the dispositions of the law or of the will of the proprietors. In the latter case, it is regulated by the very act that established it; in the former, it must be so by the public interest.

The properties that adjoin the woods and forests subject to the forestry regime, for example, are subject to burdens that do not weigh upon others. A proprietor cannot, without the authorization of the Government, establish on his property any lime or plaster kiln, whether temporary or permanent, within one kilometer of the forests, under penalty of a fine of five hundred francs, and of demolition of the establishments.

He is likewise forbidden from establishing there, without the authorization of the Government, under any pretext whatsoever, any house on stilts, hut, shack, or shed, without observing the same distance, under penalty of demolition and a fine of fifty francs.

No construction of houses or farms can be carried out without the same authorization, at a distance of less than five hundred meters from the woods and forests, under penalty of demolition.

It is forbidden to establish, without a special authorization, in houses situated less than five hundred meters from the woods and forests, any workshop for fashioning wood, any yard or store for the wood trade, under penalty of confiscation of the wood and a fine of fifty francs.

No factory for sawing wood can, without authorization, be established less than two kilometers distant from the woods and forests, under penalty of demolition and a fine of one hundred to five hundred francs.

These latter dispositions are not, however, applicable to the houses and factories that are part of cities, villages, and hamlets forming a concentrated population, although they may be within the distance determined by the law [^207].

The lands that surround fortified places are also subject to burdens that do not weigh upon other properties. These burdens generally consist in doing nothing there that could be detrimental to defense. Constructions and plantations fit to favor the approach of an enemy army are therefore generally forbidden there [^208].

Burdens of this nature imposed on some particular properties, whether for the conservation of other properties, or for national defense, or for any other public interest, truly constitute servitudes, and must not be confused with the reciprocal limits that exist between all properties.

When one wishes thus to establish burdens on some particular properties, whether for the conservation of other properties, or in a general interest, one begins by indemnifying the proprietors on whom one imposes sacrifices for all the damages one causes them: the refusal of an indemnity would have for them the effects of a partial confiscation.

End of the first volume

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Volume II

Notes

[^203]: This rule is, however, subordinate to local customs. Civil Code, art. 671. [^204]: This distance and these works are generally determined by local customs and regulations. (Civil Code, art. 674.) One can see in this regard, articles 188, 189, 190, 191, and 192 of the Custom of Paris. Desgodets, Lois des bâtimens. [^205]: “In cities and suburbs, everyone can compel his neighbor to contribute to the construction and repair of the enclosure separating their houses, courtyards, and gardens situated in said cities and suburbs: the height of the enclosure is fixed according to particular regulations and constant and recognized usages; and in the absence of usage and regulations, any party wall between neighbors, which shall be built or rebuilt in the future, must be at least thirty-two decimeters (six feet high), including the coping, in cities of fifty thousand souls and above, and twenty-six decimeters (eight feet) in the others.” (Civil Code, art. 663. [^206]: Article 664 of the Civil Code provides, under the title of servitudes, for the case where the different floors of a house belong to different masters. The questions that arise in such a case are almost all questions of property. [^207]: See art. 151-158 of the Forestry Code of May 21, 1827. [^208]: See ordinance of December 9, 1713; laws of July 7 and 10, 1791, and July 17 and 25, 1819.