Des diverses manières dont une propriété peut être partagée.

CHAP. 51: On the Diverse Ways a Property Can Be Partitioned.

A property can become common to several persons as a result of a multitude of circumstances: it is not a matter here of knowing what events can make it common; it is a matter only of observing how it can be divided or partitioned, and of determining the natural consequences that the division must have.

One of the principal elements of all property is the power it has to procure us certain enjoyments, to satisfy some of our needs: it is by this that it is especially appreciated. Now, there is no kind of utility that cannot be common to several persons, and that is not susceptible of being divided among them.

A thing that one could not materially partition without almost entirely destroying its value, such as a horse, a watch, a statue, or a painting, can nevertheless be common to several persons, and, in practice, nothing is easier than to share its advantages.

To determine the diverse ways a property can be partitioned, one must distinguish whether it is susceptible of producing fruits, like a field, a meadow, a vine, or whether naturally it produces none, like a statue or a precious stone.

If it is susceptible of producing fruits, like a land, the diverse ways one can share its advantages are almost infinite: one can make the partition of the land, of the fruits, of the time of enjoyment, of the farm-rent. If one partitions the land, one can divide the surface and the depth, so that each has a share of what is above and what is below. One can also divide it so that one has the surface, down to a certain depth, and the other has what is below to make constructions or excavations there. One can partition it again so that one has all its products, and the other derives from it only a special advantage, such as a right of view, a passage, an aqueduct, a sewer.

If, by its nature, a thing is indivisible, like a horse, a painting, a statue, there are several ways to share its advantages: one can divide the time of enjoyment, that is to say, each of the proprietors can have entire possession of it for a determined time; one can lease it, and share the price of the rent; one can sell it, and partition its value.

It is not possible to determine here the diverse ways all properties can be partitioned; for it would be necessary, for that, to make an enumeration of the diverse species of utility that can be found in each thing, and to research how each species of utility can be divided; it is enough for me to observe that the share one has in a property is in proportion to the utility one has the right to derive from it.

When a thing belongs to several persons, each of them, we say, is proprietor of the share of utility that falls to him; this share is for him a true property. However, the shares that fall to each of the co-proprietors often take different denominations; it is important to note them, because we are naturally inclined to believe that things change their nature, every time they change their names. This error is so common that the men who draft laws do not always know how to avoid it: we will soon see the proof of this.

A property belongs, I suppose, to two persons. Wishing to partition it, they agree that one will have exclusive enjoyment of it for twenty years, and that at the expiration of this term, the other will have, in perpetuity, the enjoyment and disposition of it. From the moment this agreement is fulfilled, each of the two parties has his share of the thing, and this share is for him a property of which he can dispose as he sees fit. He can sell it, exchange it, give it away like any other species of property.

It is not impossible that the one of the two proprietors who, for his share, has taken the exclusive enjoyment of the thing for a determined number of years, is better off than the one who is to have the capital later along with the enjoyment. If it is a matter, for example, of a determined object that necessarily perishes by use, such as a horse, a piece of furniture, or even a house, he who has the enjoyment for a certain number of years has a more considerable share than he who has only the bare ownership. It would be the same if it were a matter of a land or a capital: an enjoyment of thirty consecutive years, for example, would be much preferable to the bare ownership.

When a thing is thus partitioned between two persons so that one has exclusive enjoyment of it for a determined number of years, and the other is to have the equally exclusive enjoyment and disposition of it when the time during which the first is to enjoy has expired, one gives the name of usufruct to the share devolved to the first, and the name of bare ownership to the share devolved to the second.

But one must not lose sight of the fact that a usufruct, when one considers it relative to the person to whom it belongs, is a true property, or, if one prefers, a considerable share of one of those things we designate by the name of properties; the usufructuary has the right to enjoy and dispose of this share as he sees fit, provided that he does not infringe in any way upon the rights of his co-proprietor.

All things that have any value whatsoever are susceptible of being divided so that one of the proprietors has exclusive enjoyment of them for a determined time, and the other has perpetual enjoyment and disposition of them at the expiration of this time. The objects that are consumed by the first use one makes of them, such as grain, wine, firewood, are no less susceptible than others to this kind of division. He to whom the usufruct of things of this kind is deferred is bound, not to conserve them, but to return things of the same nature and the same value at the expiration of the time fixed for the enjoyment.

The usufruct of things that are consumed by the first use one makes of them is no less precious than that of a house, a land, or a sum of money. The person to whom it belongs has two ways of enjoying it: one is to alienate them and to place at interest the price he has received for them; the other, to consume them, and thus to save the revenues he would have been obliged to spend. The usufruct of a sum of twenty thousand francs for twenty years would have infinitely more value than the bare ownership of the same sum; for it would give the usufructuary twenty times a thousand francs, and moreover the compound interest.

The authors of the Civil Code attempted to give the definition of usufruct; but they succeeded no better than in their definition of property. According to them, usufruct is the right to enjoy things of which another has the property, as the proprietor himself, but on the charge of conserving its substance.

This definition, borrowed in part from Roman law, contains two palpable errors [^318]. Usufruct is a partition, a fraction of the thing we call property, and this fraction is more or less considerable relative to what remains, according as the duration of the enjoyment is to be more or less long. It results from this that, when a thing is divided between two persons, so that one has, for a given time, exclusive enjoyment of it, and the other is to have, at the expiration of this time, exclusive and perpetual enjoyment and disposition of it, neither of the two currently has the complete property of it. Both of them in reality have a greater or lesser fraction of the property.

One must not forget that, according to the nature of things, as according to the definition of the Civil Code, the right to enjoy and dispose of a thing is among the essential elements of all property. But, if the right of property necessarily includes the right to enjoy in an exclusive manner, it is not true to say that usufruct is the right to enjoy a thing of which another has the property. It would be to say, in other terms, that usufruct is the right to enjoy exclusively a thing of which another person has the right to enjoy in the most absolute manner: it would be to affirm the simultaneous existence of two rights that exclude each other.

Property, giving this word the sense that the authors of the Civil Code have attached to it, includes all the rights that a person can have over a thing; it includes, consequently, all those that can belong to a usufructuary. If one extracts from it the right to enjoy the thing for a certain number of years, it no longer exists as it was defined; it may have almost no value left. The usufruct of a house for a century, for example, would be a portion of the property so considerable that one would give little for what remained. It is therefore not exact to say that usufruct is the right to enjoy a thing of which another has the property, that is to say, has the right to enjoy and dispose of in an absolute manner.

The second part of the definition is less clear, and is no more exact than the first. It is said that usufruct is the right to enjoy a thing, on the charge of conserving its substance. But what is understood by this word? Is not the idea of substance more obscure than the word one has claimed to define? Substance comes from sub stare, to be under, but under what? Under the qualities of bodies, by which our senses are struck. And what is found under these qualities? No one could tell us; no philosophical sect has ever undertaken to explain it to us. We know of things only their sensible qualities; we do not know and we will never know what their substance is, nor even if there is a substance.

It is not exact to say, moreover, that the usufructuary is always obliged to conserve the substance of the thing of which he has the usufruct, and that he is bound to nothing more. When a usufruct is established on consumables, on grain, wine, oil, fodder, or even on a sum of money, the usufructuary is not obliged to conserve the substance of these things. He has the right to enjoy and dispose of them in the most absolute manner, as if he had the property of them; he is bound only to return, at the end of the usufruct, things of the same nature and the same value. One can have the usufruct of a horse or a life annuity; if before the expiration of the time fixed for the duration of the usufruct, the animal comes to perish or the annuity to be extinguished, what is the substance that one must conserve? He who would reduce jewels of a great price into ingots would conserve their substance; and yet he would exceed the rights that are attributed to him.

One sees, by these observations, and by those I have previously made on the manner in which property has been defined, how difficult it is, in legislation, to give exact definitions of very complicated things. These definitions are all the more dangerous, as they almost always say more or less than one intended to say, and as they compromise the authority of the legislative power. It is, doubtless, in the power of a legislator to permit or to forbid certain actions; but it is not in his power to change the nature of things. If he gives an inexact definition of it, he has no more authority than a private individual who would fall into error would have.

A usufruct, being in reality only a partition of certain properties, can be established by all the means one can use to transfer these properties from one person to another. It is evident, for example, that he who can sell, exchange, give his properties, can partition them so that one person has the entire enjoyment of them for a determined time, and that at the expiration of this time another person has the enjoyment and disposition of them. It is no less evident that one can attach to this enjoyment all the conditions one deems suitable, provided they have nothing contrary to good morals or to the prohibitions made by the laws. Finally, it is equally incontestable that one can establish it on any kind of goods, movable or immovable. This power of a proprietor over the things that belong to him is recognized by the very definition that has been given of property; the faculty of disposing of things in the most absolute manner necessarily entails the faculty of partitioning them as one deems suitable.

There are cases where the laws attribute to certain persons the temporary enjoyment or the usufruct of certain things, while they attribute to others the disposition and enjoyment of them at the expiration of the rights granted to the proprietors: it is thus that they give, for a time, to fathers and mothers the usufruct of the goods of their minor children. The authors of the Civil Code thought, in consequence, that it was necessary to determine clearly the rights and obligations of the usufructuary, and the circumstances that would put an end to the usufruct. Every time a usufruct is constituted by law, it is the law itself that determines its duration, and that regulates the obligations and rights of the usufructuary. Every time, on the contrary, that a usufruct is established by a particular agreement, by a donation, or by a testament, the act that establishes it regulates its conditions, and fixes the time at which it must end. The law intervenes only to regulate the cases not foreseen by the constitutive title: it performs the office of an act to which the parties would have referred.

The rights of the usufructuary, when no contrary conditions exist, consist in enjoying every kind of fruit, whether natural, industrial, or civil; in enjoying, moreover, the rights of servitude, of passage, of alluvion, and generally all the rights attributed to the proprietor; he can, in addition, enjoy, like the proprietor, the mines and quarries that are in exploitation at the opening of the usufruct, by submitting to the conditions prescribed by the laws; but he has no right to the mines and quarries not yet opened, nor to the peat bogs whose exploitation has not yet begun, nor to the treasure that might be discovered during the duration of the usufruct.

One understands, by natural fruits, the spontaneous products of the earth, and the increase of animals; industrial fruits are those one obtains by cultivation; civil fruits are the price of farm leases, the rents of houses, the interest of placed capitals, the annuity payments.

The natural and industrial fruits, pending by branches or by roots at the moment the usufruct is opened, belong to the usufructuary. Those which, at the moment the usufruct ends, are in the same state, belong to the proprietor. There is cause, neither in the first case, nor in the second, for any reward from either side for the plowing and seeds. But also the rights of the usufructuary, nor those of the proprietor, cannot prejudice the portion of fruits acquired by the sharecropper, if one existed at the beginning or at the cessation of the usufruct.Civil fruits, whatever their nature, are acquired day by day, and belong to the usufructuary in proportion to the duration of his usufruct. Thus, even if the prices of farm leases, the rents of houses, the interest of capitals, were not due at the moment of the cessation of the usufruct, the usufructuary would have the right to a share proportionate to the duration of his enjoyment: he would have the right to a quarter, if the usufruct had lasted only three months, and to half if it had lasted six months. The usufructuary of a life annuity has the right to collect the annuity payments, and is not bound to any restitution.

If the usufruct includes things that one cannot use without consuming them, such as money, grain, or liquors, the usufructuary has the right to make use of them, on the charge of returning, in the same quantity, of the same quality and value, or their estimation, at the end of the usufruct. If it includes things that, without being consumed at once, deteriorate little by little through use, such as linen or household furniture, the usufructuary has the right to use them for the purpose for which they are intended, and is obliged to return them, at the end of the usufruct, only in the state in which they are found, not deteriorated by his fraud or by his fault.

If the usufruct includes coppice wood, the usufructuary is bound to observe the order of the cuts, in conformity with the cutting order or the constant usage of the proprietors, without indemnity, however, in favor of the usufructuary or his heirs, for the ordinary cuts, whether of coppice, saplings, or timber, that he did not make during his enjoyment. If it includes high forest, the usufructuary still profits, always by conforming to the periods and usage of the former proprietors for the parts placed under regulated cuts, whether these cuts are made periodically over a certain extent of land, or whether they are made of a certain quantity of trees taken indiscriminately over the entire surface of the domain.

In all other cases, the usufructuary cannot touch the trees of the high forest; he may only use, to make the repairs for which he is responsible, trees uprooted or broken by accident; and if they are not sufficient for the necessary repairs, he may have some felled, after having had the necessity for it ascertained with the proprietor.

The usufructuary may take stakes for the vines from the woods; he may also take from the trees the annual or periodic products, by conforming to the usage of the country or the custom of the proprietors, as well as the fruit trees that die, and those that are uprooted or broken by accident, on the charge of replacing them with others; finally, he may appropriate the trees he can take from a nursery without degrading it, by conforming to the local usage for replacement.

The usufructuary may enjoy his usufruct himself, lease it, or even sell it, or cede it gratuitously; he is only bound, if he leases it, to conform, for the duration of the leases, and the periods when they must be renewed, to the rules established by the Civil Code for the husband, with regard to his wife's property; that is to say, that the leases he makes for a time exceeding nine years, are, in case of the cessation of the usufruct, obligatory for those to whom the bare ownership belongs, only for the time that remains to run, either of the first nine-year period, if the parties are still in it, or of the second, and so on, so that the tenant farmer has only the right to complete the enjoyment of the nine-year period in which he finds himself [^319].

The person to whom the bare ownership belongs cannot, by his act, nor in any manner whatsoever, harm the rights of the usufructuary; but also the usufructuary, for his part, cannot claim any indemnity for the improvements he might claim to have made, even if the value of the thing had been increased; he is authorized only to remove the mirrors, paintings, or other ornaments he may have had placed, on the charge of restoring the premises to their original state.

If the obligations of the usufructuary have not been determined by the act that constitutes the usufruct, they consist in taking the things in the state in which they are; in having drawn up, before entering into enjoyment, and in the presence of the proprietor, or he being duly summoned, an inventory of the movables and a statement of the immovables subject to the usufruct, and in providing security to enjoy as a good head of a family.

Security cannot, however, be required of fathers and mothers having the legal usufruct of their children's goods, of the seller or donor under reservation of usufruct, nor of the usufructuary who has been dispensed from it by the act on which his rights are founded.

If the usufructuary cannot or will not give security, the immovables are leased out or sequestered; the sums included in the usufruct are invested; the foodstuffs are sold, and their price is likewise invested; the movables that perish through use, if the person to whom the bare ownership is devolved requires it, are also sold, and their price is invested like that of the foodstuffs; nevertheless, the judges may, at the request of the usufructuary, order that a part of the movables necessary for his use be left to him, under his simple sworn oath, on the charge of presenting them at the extinction of the usufruct.

When the immovables are leased out, or sequestered, and the price of the movable objects is invested for lack of security, the rights of the usufructuary are reduced to collecting the interest on the invested sums and the price of the farm leases. The delay in giving security does not deprive him of the fruits to which he has a right; they are due to him from the moment the usufruct is opened.

Major repairs, such as those of main walls and vaults, the restoration of beams and entire roofs, that of dikes and of retaining and enclosure walls also in their entirety, are the charge of the person to whom the bare ownership belongs; all others are considered maintenance repairs, and are consequently placed at the charge of the usufructuary: neither the one nor the other is bound to rebuild what falls from old age, or what is destroyed by a fortuitous event.

Annual charges, which, in usage, are considered charges on the fruits, such as taxes, are borne by the usufructuary; as for those that are imposed on the property during the duration of the usufruct, the person to whom the bare ownership belongs is obliged to pay them; but the usufructuary must account to him for the interest: if the latter advances it, he may demand its reimbursement at the end of the usufruct.

A life annuity or maintenance pension bequeathed by a testator is the charge of the universal legatee of the usufruct in its entirety, and of the legatee by universal title of the usufruct, in proportion to his enjoyment, without any recourse on their part.

The usufructuary by particular title is not bound by the debts for which the estate subject to the usufruct is mortgaged; if he is forced to pay them, he has his recourse against the debtor, for whose discharge he has made the payment [^320].

The universal usufructuary or usufructuary by universal title, and he to whom the bare ownership belongs, contribute to the payment of the succession's debts in the following manner: the value of the estate subject to usufruct is estimated, and the contribution to the debts is in proportion to this value. If the usufructuary consents to advance the sum for which the estate must contribute, the capital is restored to him at the end of the usufruct, without interest. If he does not wish to make this advance, the person to whom the bare ownership belongs has the choice either to pay this sum, and to demand the interest for it from the usufructuary during the duration of the usufruct, or to have sold, up to the required amount, a part of the thing on which the usufruct is established.

If the property gives rise to lawsuits, the usufructuary is bound only for the costs of those that concern the enjoyment, and for the judgments to which they may give rise; the costs and judgments that may be the consequence of the others are the charge of the bare ownership. It must be remarked, however, that a lawsuit in which the entire property was called into question would affect at the same time the bare ownership and the usufruct. The interested parties should therefore contribute to it in proportion to their interests.

The usufructuary is bound to report to the person to whom the bare ownership belongs the encroachments committed on his estate during the duration of the usufruct; if he does not fulfill this obligation, he is responsible for the consequences these encroachments may have, as for the damages he would have committed himself.

If an animal on which the usufruct is established perishes without the fault of the usufructuary, the latter is not bound either to pay its estimation or to return another. It would be the same if a herd perished entirely, by accident or by disease, without the fault of the usufructuary; only, in this latter case, the usufructuary would be bound to account for the hides or their value. If the herd did not perish entirely, the usufructuary would be bound to replace, up to the number of the increase, the heads of the animals that had perished.

The usufruct is extinguished by the expiration of the time for which it was constituted; by the natural or civil death of the usufructuary; by the consolidation in the same person of the capacities of usufructuary and proprietor; by the total loss of the thing on which the usufruct is established; by the non-use of the right for thirty years; finally, by the renunciation of the usufructuary.

The usufruct may also cease by the abuse the usufructuary makes of his enjoyment, either by committing damages to the estate, or by allowing it to fall into decay for lack of maintenance. If its extinction is demanded for one of these two causes, the creditors of the usufructuary may intervene in the dispute for the conservation of their rights, and offer reparation for the damages committed, and guarantees for the future. The judges may, according to the gravity of the circumstances, either pronounce the absolute extinction of the usufruct, or order the proprietor's re-entry into the enjoyment of the object encumbered by it, only on the charge of paying annually to the usufructuary, or to his assigns, a determined sum, until the moment the usufruct should have ceased.

A usufruct that is not granted to private individuals, but to collective bodies, lasts only thirty years, if its duration is not otherwise fixed by the constitutive title. If it is granted until a third party has reached a fixed age, it lasts until that time, even if this third party died before having reached the determined age.

The usufructuary may always renounce his usufruct; but his creditors have the right to have the renunciation made to their prejudice annulled.

If only a part of the thing subject to the usufruct is destroyed, the usufructuary conserves his rights over what remains. If the usufruct is established only on a building, and if this building is destroyed by a fire or other accident, or if it collapses from old age, all the rights of the usufructuary are extinguished; the latter has nothing to claim, either on the soil or on the materials. However, the usufructuary would enjoy the materials and the soil, if the building were part of a domain on which the usufruct was established.

The sale made of his rights by the person to whom the bare ownership belongs produces no change in the rights of the usufructuary, who continues to enjoy his usufruct, unless he has formally renounced it.

It may happen that a proprietor, instead of partitioning his property so that, for a time, one person has exclusive enjoyment of it, and at the expiration of this time, another person has absolute enjoyment and disposition of it, divides it so that a private individual, for a determined time, may make use of it for his personal needs and those of his family, and that all the other advantages the thing can produce belong to a third party. This mode of enjoyment takes the name of right of habitation, when it applies to a house, and the name of use, when it applies to any other immovable.

The rights of use and habitation are established and extinguished in the same manner as usufruct. The persons to whom they belong are bound, like usufructuaries, before entering into enjoyment, to give security, and to make statements and inventories. The extent of these rights is determined by the very title that established them, that is to say, by the will of the parties.

If the constitutive title does not determine their extent, and does not fix their conditions, they are regulated as follows: he who has the use of the fruits of an estate may demand only as much as he needs for his needs and those of his family; he may demand them for the needs of the children who have been born to him since the concession of the use.

He who has a right of habitation in a house may dwell there with his family, even if he was not married at the time the right was constituted; but also he can demand nothing beyond what the needs of his family require. If the user absorbs all the fruits of the estate, or if he occupies the entirety of the house, he is subject to the costs of cultivation, to maintenance repairs, and to the payment of taxes, like the usufructuary. If he takes only a part of the fruits, or if he occupies only a part of the house, he contributes pro rata to what he enjoys.

The user and he who has a right of habitation must enjoy as good heads of a family; they can neither cede nor lease their rights.

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Notes

[^318]: Ususfructus est jus alienis rebus utendi fruendi, salvá rerum substantiâ. Instit., bk. II, tit. IV, in princ. [^319]: Civil Code, art. 595 and 1429. [^320]: See art. 120 of the Civil Code.