De la faculté de jouir et de disposer d'une propriété.

CHAP. 38: On the faculty of enjoying and disposing of a property.

There exists, within a civilized nation, an infinite variety of things to which we give the name of properties. Among these things, there are several that we employ to satisfy our needs immediately, or to procure for ourselves certain enjoyments, and which are consumed by the use we make of them; there are others that serve us to procure, by exchanges, the diverse objects we need, and which we do not have the means to produce by ourselves; there are others, finally, that cannot immediately satisfy any of our needs, but which produce or serve to produce those that are necessary for our conservation or our well-being.

In observing how most of these things that we call properties are formed, we have seen that in general there are found in them diverse elements of matter, which it is not in our power either to create or to annihilate; that, in their primitive state, and before the hand of man has contributed to modify or combine them, these elements of matter are of no use to us, that is to say, they are not fit to satisfy any of the needs that nature has given us; finally, that if several are furnished to us gratuitously by nature, there are others that we can procure only by painful labors.

We have then observed that man, sometimes by his sole efforts, sometimes by making use of the forces that nature furnishes him, sometimes by directing the power of production that is in it, gives to matter the qualities that must be found in it to satisfy his needs, or to produce the diverse objects that are necessary to him; we have designated these qualities given to matter, by the power they have to serve our use, by the word utility; we have designated by the word value the esteem of a thing that one compares to another, against which it can be exchanged.

Finally, we have observed that if man gives to matter the qualities it must have to be useful to him, it is only with a view to profiting from it or to assuring the existence of the members of his family or of other persons in whom he is interested; that all labor is for him a pain, and that he submits to a pain only to avoid another that he judges more grave, or to procure for himself pleasures that exceed the evils by which he buys them.

Men do not place in the class of properties only the things whose utility they have created, or those that have been regularly transmitted to them by the producers and which must assure their existence; they place in the same rank the things by means of which they were born and have developed; those which they have long and peacefully enjoyed under title of proprietor, without contestation on the part of those who could have disputed them, by opposing to them titles prior to their possession: it is thus that nations, even the most barbarous, consider themselves and are considered by all others, as proprietors of the lands, the rivers, and even the parts of the sea by means of which they have always lived, and without which it would be impossible for them to continue to live.

It is not enough for us, therefore, to place a thing in the rank of properties, to see in it matter and qualities fit either to satisfy some of our needs, or to produce other things that would be useful to us; it is necessary, moreover, that we consider this thing in the relationships it has, either with the person who has produced it or to whom it has been regularly transmitted by the producer, or with the person to whom it has in some sort given life, and whose existence it must continue; it is necessary that we see in the individual who has given it the qualities it possesses or to whom the producer has transmitted it, or in the one whom it has itself brought into being and whose habits it has formed, the power or the faculty of enjoying and disposing of it exclusively. It is, in effect, only by considering the relationships that exist between certain things and certain persons, that we give to the ones the name of properties, and that we designate the others by the word proprietors.

To form a property is to give utility to any matter; to enjoy a property is to draw from a thing the utility that is found in it, to make it serve the satisfaction of one's needs or one's pleasures; it is to draw from it the advantages it can give, whatever their nature. If it is a matter of alimentary substances, to enjoy them is to consume them to satisfy our tastes or our appetites; if it is a matter of clothing, to enjoy it is to employ it to cover or to adorn ourselves; if it is a matter of a house, to enjoy it is to make it our dwelling or to collect the rent, when one has judged it suitable to lease it; if it is a matter of a parcel of land, it is to collect, by oneself or by the hands of another, all the productions, all the profits that it gives.

To dispose of a thing is either to make it undergo the modifications one judges suitable, or to transmit it to another person so that she may conserve it, enjoy it, or dispose of it in her turn; a proprietor disposes of his house if he has it demolished, as he disposes of it when he leases it, when he sells it, or when he gives it; he disposes of his land if he converts it into a forest or a pasture, as he disposes of it if he exchanges it for a mansion or for a sum of money.

To give complete ideas of the diverse ways in which one can dispose of a property by modifying it, it would be necessary to undertake a treatise that would have no end, and which would be without utility, at least for the object of this work. It would likewise be necessary to undertake a very extensive labor if one wished to expose, in a complete manner, how a property can be transmitted from one person to another. It would be necessary, in effect, to treat of successions, testaments, donations, sale, exchange, loan, deposit, and many other contracts. The rules relative to the transmission of properties form, among all polished nations, a very considerable part of their civil laws.

The simplest means of making known the power that a proprietor can exercise over his property is to seek to determine the limits placed on this power by the nature of things or by the nature of man. If these limits were once well determined, each would know, by that very fact, in what consists the power of a proprietor over the things that are his. One would know that he can do everything, except what is positively forbidden to him.

It rarely happens that the power of a proprietor has no other limits than those that are given to it by the nature of things or by the nature of man. Among most nations, the public authority has given more or less arbitrary bounds to the faculty of enjoying and disposing of certain properties. These bounds, placed on the power of man over the thing that is his, are not all equally baneful; but there are several that are veritable obstacles to the progress of civilization.

The quality of proprietor is subordinated neither to the age nor to the capacity of a person; a child, in coming into the world, or even from the moment he is conceived, can have properties; a man fallen into insanity can likewise have them, although he is of such an incapacity that one is obliged to confine him. When such cases occur, one leaves neither to the child, nor to the insane person, the administration of his goods; both, however, have the enjoyment of them, in the legal sense of this word; that is to say, their properties are administered for their account, and the products are employed to satisfy their needs. The faculty of disposing of them is suspended until the moment when they can act with entire liberty and with full knowledge of the facts.

There exists, however, a great difference between the enjoyment of a person completely developed and endowed with reason, and the enjoyment of a child or an individual whose intellectual faculties have vanished. A person whose physical and moral faculties are all developed determines for herself what portion of her goods she wishes to apply to the satisfaction of this or that of her needs. She can enjoy her properties in such a manner as to absorb their value in a few years, or in such a manner as to increase them more or less rapidly, by keeping her consumptions below her revenues. A child or an individual deprived of reason is not the judge of the manner in which he must enjoy his goods, nor of the share he must consume for his needs.

The aggregations of persons that the English name corporations almost always have properties, and the manner in which they can enjoy them is necessarily determined by particular laws. A company, a commune, a department, a nation considered as a body, are always proprietors; for it is only to enjoy certain goods in common that they are generally formed. But it is clear that each of the members of which these bodies are composed cannot have the faculty of applying to the satisfaction of his individual needs the things that are the property of all. It is necessary that each of these bodies be organized in such a way that some of its members have the administration of the common goods and apply them to general needs, or distribute to each of its members the share that is his in the products, whenever a share can, in effect, be distributed.

The faculty of disposing, like the faculty of enjoying, is limited by the incapacity of the proprietor or by the circumstances in the midst of which he is placed.

This faculty is suspended in children and in individuals who are deprived of the use of reason. The peoples who have best guaranteed properties have forbidden the disposition of their goods to persons who have not reached a certain age. All have admitted that there can be no alienation without consent, and that consent is valid only when it is given with full knowledge of the facts. In several countries, in France, for example, women placed under marital protection do not have, in certain circumstances, the free disposition of their goods. The quality of proprietor therefore does not always and necessarily suppose the power or the actual faculty of disposing of the things of which one has the property.

A political body, such as a commune or a nation, does not dispose of its properties with the same facility that a private individual disposes of his. There is always, in a body, a more or less large number of persons whose rights are equal to those of the others, but who do not have the same capacity to defend their interests. One is therefore obliged to subject the enjoyment and the disposition of common goods to rules that guarantee to each his particular interests and rights.

We have to concern ourselves here only with things considered in the relationships they have with persons; we must therefore concern ourselves with the limits placed on the faculty of enjoying and disposing of them only insofar as these limits pertain to the nature of things. As for those that pertain to the nature of man, it will be time to concern ourselves with them when we have to treat of persons considered in an individual or collective manner.

There are, as has already been seen, things that can be considered the common property of the human race, because they are necessary to the existence of all men and are given to us without measure: such are the light of the stars, the atmospheric air, the heat of the sun, the water of the sea; there are others that are the common property of all the members of which a nation is composed, such as great roads, rivers, seaports, arsenals, and other public establishments; there are some that belong to more or less considerable fractions of a people, as to communes, to cantons, to departments; there are, finally, some that belong to families or to individuals, and these are always the most considerable among a civilized people.

Thus, every person, besides the faculty she has of enjoying and disposing of her particular goods, has, moreover, as a member of a commune, the faculty of enjoying the common goods in the same measure as the other inhabitants; as a member of a department or a province, she must enjoy the departmental or provincial properties; as a member of the State, she has a right to the enjoyment of the national properties; finally, in her quality as a human being, she has a right to the enjoyment of the goods that nature has given to all men.

If now we wish to indicate in a general manner the limits placed, by the very nature of things, on the enjoyment and disposition of all individual property, it will suffice for us to say that the proprietor can do with it all that he judges suitable, provided that he does not use it to infringe upon the security of persons, or upon the faculty that belongs to each, either to enjoy and dispose of his particular goods, or to make use, within the measure of his rights, of the goods that belong to his commune, his department, his nation, or to all of humanity.

All property, whatever its nature, is limited by other properties. There is not a field, not a vine, not a forest, not a house, that does not touch other fields, other vines, other forests, other houses. If an individual property is not bounded on all sides by other individual properties, it is by properties that belong to collective bodies. It has, for example, for its limits, a road, a river, a great river, which are also properties for the nations that possess them. Finally, all goods, whether movable or immovable, are plunged in the atmosphere that we breathe, and which we have considered as the common property of the human race.

The rights that all proprietors have over their properties, being equal among them, are limited by one another. I can therefore make on a parcel of land that belongs to me the plantations, the constructions, the excavations that I judge suitable; but I can do nothing there that harms the right that others have to enjoy and dispose of their properties. I could not, for example, engage in a kind of cultivation there, establish manufactures there, or deposit there materials that would vitiate the air of the vicinity. It is no more licit, in effect, for a person to infect the air that others have the right to breathe, or to vitiate it by materials that would offend the organ of sight, than to throw poison into their food. The need that men have to breathe and to see is as imperious as the need to nourish themselves [^290].

If it is not permitted for a person to make use of her property to infringe upon the right that all men have to enjoy the things that are the common property of the human race, it is not permitted for her either to use it to infringe upon the properties that belong to a nation, a province, a commune. Thus, no one can make use of a thing that is his to degrade a road, a river, a great river, or to hinder its use. The things that belong to aggregations of persons are neither less precious nor less worthy of being respected than those that belong to private individuals. The latter often have value or utility only by the existence of the former; what advantage could one draw from a parcel of land, if one had, to arrive there or to leave, neither roads nor rivers?We must therefore be careful not to consider as infringing upon private properties the acts of the public authority that tend to guarantee to each of the members of a commune, a department, or a nation the free enjoyment of the things that belong to the entire body. The care taken to protect from all infringement the properties that belong to all men, or to more or less considerable fractions of the public, is, on the contrary, what distinguishes a civilized people from one that is not. In uncivilized countries, such as those subject to the Turkish empire, no one watches over the conservation of common or public properties; everyone infringes upon them with impunity: thus everything there decays, even private properties.

Among a civilized nation, the mass of private properties is always much more considerable than the mass of communal, provincial, or national properties. The right that each private individual has to enjoy and dispose of his property is therefore limited by the right that all others have to enjoy and dispose of the things that belong to them. The laws and jurisprudence of each country determine the limit of all these rights. A few examples will suffice to make these observations clearer.

Every proprietor can make on his land the plantations he judges useful to his interests; but it is evident that he who planted high-stemmed trees on the limits of his property would thereby encroach upon the properties of his neighbors; the roots and branches of his trees would extend over lands that were not his, and would strike them with sterility. It is therefore to prevent an individual, in enjoying or disposing of his goods, from infringing upon neighboring properties, that the laws of all peoples determine the space beyond which it is not permitted to plant high-stemmed trees. According to our Civil Code, for example, it is permitted to plant trees of this nature only at the distance prescribed by the regulations that existed on 10 February 1804, or by constant and recognized usages; and, in the absence of regulations and usages, only at a distance of two meters from the dividing line of the two heritages; the distance is only half a meter for other trees and for live hedges. The neighbor can demand that trees and hedges planted at a lesser distance be torn out, and that the branches that advance onto his land be cut; he can himself cut the roots that encroach upon his property. As for the trees that are in a party hedge, they are considered as party property, and each of the two proprietors has the right to require that they be felled [^291].

One can harm a neighboring property by certain constructions or by certain establishments, as by plantations; thus the proprietor who has a well or a cesspool dug near a party wall or not; he who wishes to build there a chimney or hearth, forge, oven or furnace, to place a stable against it or to establish there a store of corrosive materials, is obliged to leave a certain distance, or to do certain works to avoid harming the neighbor; the distance or the prescribed works are determined by police regulations or by particular usages [^292].

The proprietor of a wall immediately adjoining the heritage of another cannot establish views over this heritage without the authorization of him to whom it belongs. He can practice windows there only by submitting to certain conditions that deprive him of the view over his neighbor's property, without depriving him of light. According to the Civil Code, a proprietor cannot have direct views or windows for looking out, nor balconies or other similar projections over the enclosed or unenclosed heritage of his neighbor, if there are not nineteen decimeters (six feet of distance) between the wall where they are practiced and the said heritage [^293].

The proprietor of a parcel of land can make above it all the plantations and constructions he deems appropriate, provided that he does not infringe upon the rights that others possess; he can, under the same condition, make below it all the excavations he judges useful, and draw from these excavations the products they can furnish [^294].

The faculty of enjoying and disposing of a thing is so essential an element of property, that, if it were to disappear irrevocably, the property would no longer exist. Let a man drop the most precious object in the middle of the sea, and let all means of recovering it be forever taken from him, and he will no longer be considered as having the property of it. It would be the same for the merchant who saw one of his ships taken by corsairs: to lose without return the power of enjoying and disposing of a thing is, in effect, to lose the property of it.

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Notes

[^290]: A decree of October 15, 1810, determines which workshops and manufactories spread an unhealthy or inconvenient odor, and fixes the conditions under which it is permitted to establish them. [^291]: Civil Code, art. 671, 672 and 673. [^292]: Ibid, art. 674. - See the decree of March 10, 1809. [^293]: Very extensive works have been written on the rights or obligations that result from the vicinity of properties. I speak of them here only to make it understood how the rights of proprietors are limited by one another. [^294]: The faculty of making excavations in a property and of extracting certain materials from it is limited in France by the laws on mines.