Экзамен зачет учебный год 2023 / Resta, Systems of Public Ownership

anchorages and generally all parts of French territory, which are not capable of private ownership, are deemed to be dependencies of the public domain”.

In order to better understand the rationale of such provisions on public things, it is necessary to provide a short historical introduction. As Yan Thomas (2015: 21-84; 2002: 1431-1462; 2004: 40-71) has masterfully shown, in Roman law public things (res publicae), as well as sacred and religious things, were conceived of as things external to the sphere of individual dominium. Roman law had an inherently patrimonial conception of the “things”: the expressions res (thing) and bona (property), res and pecunia (money), res and pretium (price) are often used in the sources as equivalent. Moreover, res meant at the same time the trial, as well as the litigated thing; it designated the value, as well as the procedure used to determine it (Thomas, 2015: 22, 66). Such a patrimonial perspective became immediately visible through an intellectual mechanism of contrast and opposition with ‘things’ lacking such characters, and falling under the categories of the res nullius in bonis and res extra commercium. The domain of property and exchange, in other words, was delineated by way of exclusion. All is appropriable and alienable, paradoxically, because some things are not. And what cannot be owned and disposed of is not mandated by the ‘nature’ of things, but by a normative determination of the political community, which devotes such things to be used by gods or by the city. With regard to things dedicated to public use, like the Campus Martius, the rule against alienation was absolute. They were considered “public” because they could be freely accessed and used by everybody. As such, a remedy was granted to any individual enjoined from accessing or making reasonable use of the ‘public thing’ at issue (actio popularis). 12 It is worth remarking that the “public” of the res publicae in publico usu was not the state. Rather, at least in the Republican era, it was the ‘unorganized public’: every member of the populus had, over such things, a right inherently attached to her capacity as citizen (Di Porto, 2013: 40-41).

The intellectual framework underlying the Roman law of property has left a deep mark on the history of ideas and of legal institutions (Yiannopoulos, 1962: 760; Gambaro: 2011: 215). However, the actual content of such categories changed significantly, mainly as a result of the transformation of the social and institutional context. In particular, the category of “public things devoted to public use” has lost its original characters and has gradually been superseded by a conception of public ownership focused on the role of the state, which established itself definitively in the 19th century (Di Porto, 2013: 14-24; 77-89).

The evolution of French law mirrors such a development. As it is well known, the “public domain” of art. 538 of the French Civil Code13 is the modern equivalent of the Old Regime’s crown patrimony (domaine de la Couronne) (Biermann, 2009: 125-126). The crown patrimony grew in extension and importance together with the centralization of power and the creation of the absolutist state. With the consolidation of the monarch’s central power, things originally owned by feudal lords, from mines to waterways (Chamard, 2004: 96), were gradually attracted into the royal domain. The two main

12Such an action could lead to an injunction or to an order providing for the restitution of things as they were in their original conditions. Besides that, any citizen impeded in the enjoyment of a public thing could claim compensation for damages on the basis of the actio iniuriarum (Di Porto, 2013: 26-35; Thomas, 2015: 29)

13The notion of “public domain” was originally used as a synonymous of “nation’s domain” and it did not have the more specific meaning of domaine public, as used in contemporary law.

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factors pushing in this direction were military considerations and commercial needs (Biermann, 2009: 120; Barckhausen, 1902: 406). As a matter of fact, at the time of Louis XIV, natural resources of supra-regional importance, like navigable waterways, fortresses, important roadways, seashores, were removed from the seigniorial domain and vested in the crown. 14 Special bodies of public administration were created for the management of such assets, like the famous corps de ponts et chaussés, in charge with the maintenance of public routes of transportation (Biermann, 2009: 120); also, controversies on public property had gradually been withdrawn from ordinary courts and attributed to special tribunals (Yolka, 1997: 86). At the meantime, the crown patrimony itself was declared inalienable – with the exception of war needs – by the 1566 Édit sur l’inaliénabilité du domaine de la couronne (édit des Moulins), and imprescriptible by the 1579 ordonnance de Blois, as well as by royal edict of April 1667 (Cabannes, 2014: 47; Yolka, 1997: 82-85). Since the Crown was not anymore confused with the King’s person and could not be disposed of by the monarch (on the theory of the King’s two bodies, see below § 6.3), as already happened with regard to property vested in the Catholic Church (Yolka, 1997: 46-48), the principle of inalienability of crown property had a clear instrumental character. It allowed for the continuity of the crown and the preservation of its assets, working as a safeguard against the King’s notorious prodigality (Yolka, 1997: 74-75, 81; Biermann, 2009: 121-122; Chamard, 2004: 112). Indeed, the rule against alienation was not restrained to property dedicated to public use, and namely to natural resources, but applied to the whole gamut of crown property. 15

Against this background, it is not surprising that the French Revolution, striving to dismantle the old feudal privileges, kept on expanding the scope of public ownership and making its management even more centralized. The old crown patrimony ended up being vested in the Nation, the new political subject now embodying the sovereignty (Yolka, 1997: 94; from a comparative perspective see Pravilova, 2014: 44). Defined by the Décret of December 1790 (commonly referred to as Code domanial) as “national domain”, it consisted of the whole gamut of properties belonging to public persons. 16 Among the most important modifications from the pre-revolutionary model, is the almost complete

14See for instance Art. 41, Tit. 27 of the 1669 Ordonnance des eaux et forêts: “Déclarons la propriété de tous les fleuves et rivières portant bateaux de leurs fonds sans artifices et ouvrages de mains dans notre royaume et terres de notre obéissance, faire partie du domaine de notre couronne, nonobstant tous titres et possessions contraires, sauf les droits de pêche, moulins, bacs et autres usages quel es particuliers peuvent y avoir par titres et possessions valables ausquels ils seront maintenus” (Yolka, 1997: 60, note 7).

15Its rationale was therefore essentially a financial one: by preventing the impoverishment of the royal domain, which was one of the main sources of revenue for the Crown, the rule against alienation represented a supplementary control device on the amount of taxation imposed upon the citizens (Yolka, 1997: 80). In practice, however, the rule against alienability was frequently derogated, or at least circumvented by resorting to complex legal arrangements (Yolka, 1997: 88-90); so much so that Louis XIV expressly declared his intention to purchase back lands alienated by his predecessors (Yolka, 1997: 90).

16Décret de l’Assemblée Nationale du 22 novembre-1er décembre 1790, in Lois et actes du gouvernment, t. II, Octobre 1790 – Février 1791, Paris, 1806, 164, available at http://gallica.bnf.fr/ark:/12148/bpt6k56364h/f169.pleinepage.langFR, art. 1: “le domaine national proprement dit s’entend de toutes les propriétés foncières et de tous les droits réels ou mixtes qui appartiennent à la Nation, soit qu’elle en ait la possession et la jouissance actuelle, soit qu’elle ait seulement le droit d’y rentre par voie de rachat, droit de réversion ou autrement. Les chemins publics, les rues et les places des villes, les fleuves et rivières navigables, les rivages, lais et relais de la mer, les ports, les havres, les rades, et en général toutes les portions du territoire national qui ne sont pas susceptibles d’une propriété privée, sont considérées comme des dépendances du domaine public”.

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elimination of the rule against alienation. Art. 8 of the Code domanial provided that things vested in the national domain “are and shall remain inalienable without the consent of the Nation”. This meant that they could be alienated with the Nation’s consent, consistently with the principle – enshrined in the preliminary considerations of the Code (whereas nr. 2) – that “the power to alienate, as an essential incident of ownership, resides in the Nation”. Public ownership was considered as just another form

– “the most perfect conceivable, since there is no superior authority, which could modify or limit it” (whereas nr. 2) - of private ownership. However, an important exception was explicitly made for national forests, which were declared inalienable.17 The reasons for the abandonment of the rule against alienation were twofold. On the one hand, it was considered deleterious for public finance, since it precluded the valorisation of public assets (see whereas nr. 3), and made access to credit – essential in a time of war – significantly more difficult. On the other hand, given the huge amount of expropriations and alienations – especially of ecclesiastical and royal property – carried out since the revolution, it appeared necessary to introduce specific safeguards for the purchasers in good faith (Gambaro, 2012: 305).

The solutions adopted by the Code domanial starkly influenced the Civil Code of 1804 (Biermann, 2009: 124). In particular, art. 5372, indirectly confirmed the alienability rule, providing that “property which does not belong to private individuals is administered and may be transferred only in the forms and according to the rules which are peculiar to it”. At the same time, art. 538 included in the domaine public things like roadways, navigable waterways, beaches and harbours, referred to as “incapable of private ownership”. Furthermore, art. 539 reproduced the principle enshrined in art. 3 of the Code domanial, providing that vacant and unowned things belong to the nation and are included in the public domain (as we shall see below, § 8, such a principle will be further developed by the colonial legislation).

This was not a particularly sophisticated normative framework (Gambaro, 2012: 306). Rather than looking at public things from a functional perspective, as to differentiate their legal regime on the basis of the different uses of which such things are capable, it overemphasized the subjective element of the government as owner. In this way, different problems of regulation ended up being confused under the same label of “public domain”. Legal scholars were called upon to supplement the civil code with a more accurate theory of public ownership. Such a task was accomplished, in particular, by Jean-Baptiste-Victor Proudhon (Gaudemet, 2008: 40). He introduced a critical distinction between the state’s inalienable public domain (domaine public) and the state’s alienable private domain (domain privé) (Proudhon, 1835: 1-6; 84). The domaine public, according to Proudhon, consists of things, which are devoted to public use or public service, like highways, navigable waterways, bridges, and buildings in use of the public administration. Given their destination, such things are subjected to a derogatory legal regime, being withdrawn both from alienation and prescription (Proudhon, 1835: 89). This raises the question concerning the nature of the interest held by the government in relation to public property. Proudhon denied in the clearest terms that things in the public domain belong to the state (Proudhon, 1835: 85-86). Indeed, according to

17 Décret de l’Assemblée Nationale du 22 novembre-1er décembre 1790, art. 12: “Les grandes masses de bois et forêts nationales demeurent exceptées de la vente et aliénation des biens nationaux, permise ou ordonnée par le présent décret et autres décrets antérieurs ».

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Proudhon, ownership is characterised by the right to exclude. The public domain, by contrast, is inherently inclusive: nobody can exclude others – not even the foreigners! – from the enjoyment of goods devoted to public use (Proudhon, 1835: 86). Therefore, the state is not in the same position of an owner of the public domain. On the contrary, it has only an inherently limited power of regulation aimed at the protection of such resources. Thus, it should be regarded simply as an administrator and guardian of things vested in the public at large (Iskrow, 1930: 675).

Although the distinction between the state’s domaine public and domain privé found readily acceptance in the case-law (Biermann, 2009: 130), and was faithfully transposed in the land-law legislation concerning Algeria (see § 8), the very idea of the government as a simple fiduciary of the unorganized public was met with scepticism. Indeed, it was neither in line with the French tradition of a strong state, nor with the centrality of the property paradigm, which took hold in the 19th century. Indeed, it is revealing that in one of the most detailed analyses of the theory of public domain, published at the dawn of the 20th century, H. Barckhausen (1902: 439-440) openly criticized Proudhon’s idea of the public as ultimate owner of the domaine public as a nebulous theory, opposing to it the model of state ownership subject to a public easement.

In the long run the proprietary model (on which see Iskrow, 1930: 676) prevailed, leading to the disappearance of the unorganized public under the shadow of the state’s “administrative ownership”. The 2006 GCPPB rests on the same conception, formally adopting the proprietary label (Chretien, 2009: 313), and confirming a system of management and protection of public things centred on the role of the public administration (Chamard-Heim, 2011: 324-325). Irrespective of the labels and concepts adopted, French law has undoubtedly developed a peculiar approach to public ownership, based on the equation between the “public” and the “state”, which has proven particularly influential on an international scale (Sand, 2014a: 44).

6.2. THE GERMAN MODEL

More or less at the same time when Proudhon was developing his theory of the domaine public, two of the most prestigious German jurists had been involved, as legal counsels, in a high-profile legal dispute concerning the nature of state’s rights over public property (Biermann, 2009: 13-40). Following the administrative reorganization of the canton Basel, Switzerland, the patrimony jointly held by the city and the canton had to be divided. Matter of controversy was the attribution of the fortress located in the city of Basel. According to the canton, it had to be considered property, and its financial value taken into account within the division proceedings. The city objected. In order to settle the issue, legal opinions were asked to Heinrich Dernburg and Rudolph von Jhering.

Jhering sided with the city of Basel, arguing, on the basis of Roman law sources, that public things dedicated to public use, like a fortress, are not capable of ownership (Biermann, 2009: 34-36). In particular, they may not be included in the state’s patrimony (patrimonium fisci), being extra commercium. As he also explained in his Spirit of Roman Law, it is the public at large who has a subjective right to enjoy the things destined to public use. The state’s interest is nothing more than the flip side of such a collective right to use; its role is closer to custodianship than to ownership (Biermann, 2009: 59-68).

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Such a thesis had a close resemblance to the theory sponsored by Proudhon in France (Biermann, 2009: 133); however, it was not successful.

The solution supported by Dernburg, who sided with the canton, ultimately prevailed (Biermann, 2009: 36-39). He strongly opposed the idea that things dedicated to public use are not capable of public ownership. Referring both to Roman sources and to scholarly writings of the first half of the 19th century, he tried to demonstrate that state ownership had been widely accepted, also as a means of protecting things relevant to the public interest. This does not mean, he added, that this kind of ownership is perfectly equivalent to private law ownership. Being strongly affected by public law, it could be regarded as a form of “modified private ownership”.

Dernburg’s perspective on public property faithfully mirrored the intellectual trends of the time, and namely the centrality of the concept of (private) “ownership” within the Pandectist legal culture. This was one of the factors that ultimately led to the rejection of the French model of domaine public.18 Indeed, around the 1900’s, both courts and legal scholars increasingly resorted to the categories of private law to give legal form to the relationship of the state to natural resources and things dedicated to public use. The idea that the state is the owner of public things just like any other individual owner, being bound at the same time to a sort of usufructuary interest of the citizens (as it was under the old Germanic law concept of “Regalien”), took hold in the German legal culture (Kube, 1997: 858-860). Therefore, when Otto Mayer tried to transplant into Germany the French conception of a “truly public state ownership”, far removed from the forms of private law, its attempt was met with scepticism and ultimately failed (Pappermann et al., 1987: 15).

The contemporary approach to public property is based on a modified private law model, in the sense that no distinct public law conception of ownership – and in particular no category of domaine public – is recognized (Pappermann et al., 1987: 17; Schmidt, 1987: 1025). Cornerstone of the German framework is the idea the dedication to public use is compatible with different proprietary regimes. Completely independent from ownership, the German system of “public things” (öffentliche Sachen) is focused on the regulation of the use of certain resources, which might equally be vested in the state, in private individuals or even remain in the condition of unowned property (Kube, 1997: 861).

A major dichotomy exists between property held by the state in its private capacity for the purpose of exercising its public functions (Finanzvermögen, or public financial assets), and public things proper (öffentliche Sachen). The former group is subject to private law regulations, like things that are factually used as if they where public, but in the absence of a dedication to public use (Habdas, 2011: 636). The latter comprises things “which through their use directly and specifically serve the common good or the particular needs of the public administration on a permanent basis, and which, at least to the extent that they are bound to a purpose, are subject to the provisions of public law

18 It is worth recalling that, when the Code Napoléon was enacted in the provinces of Baden and Rheinhessen, the notion of “domaine public” (art. 538) was translated into German as “Staatseigentum” (where Eigentum is the closest German equivalent to the French notion of propriété) (Biermann, 2009: 114116). As explained by Zachariä von Lingenthal (1808: 99-101), public things are withdrawn from private exclusive appropriation. Yet, they are not res nullius, but things vested in the state, which has a duty to

manage them in accordance with public utility.

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and specifically the public dominion over things” (Papperman, 1979: 794; Raff, 2003: 162).

Public things proper consist of two main categories: a) things devoted to direct use by citizens, either with of without previous permission of public authorities (an example of the former being water used for commercial purposes, and of the latter public roads, squares or rivers) (Sachen im Bürgergebrauch); b) things dedicated to administrative use and employed by public administration authorities to perform their duties, such as office buildings, vehicles, fire brigade stations, police weaponry (Sachen im Verwaltungsgebrauch). Some scholars add, as a third group, the things devoted to religious use (Lorenz, 1989: 813; Schlink, 1987: 633).

The special status of public things is dependent on the dedication (Widmung), which results either from statute, from an administrative act, or even from custom (as is the case of beaches and tidelands). It is through dedication that both the content and the extent of the public function are determined (Pappermann et al., 1987: 3, 11). Unlike French law, however, German law does not provide for a separate, comprehensive regulation of the whole gamut of public property. Examples of “public things” are to be found in a myriad of special statutes, enacted in particular on the field of public environmental law (Pappermann et al., 1987: 1).

It is worth remarking that the dedication to public use is independent from state ownership. Although public things are commonly vested in the state and its political subdivisions, this is not a requirement for their public property status (Habdas, 2011: 636). Public things, differently from the French model and similarly to the common law or to pre-revolutionary Russian law (Iskrow, 1930: 672, 674), may be owned in Germany by private individuals, and still maintain a public property status, due to the dedication and the function performed (as is often the case with forests). In this hypothesis, private property is affected by a public servitude (öffentliche Dienstbarkeit), in conformity with the conditions set by the act of dedication.

As a result of the dedication, the public use acquires priority over individual or private use (Habdas, 2011: 637). Consequently, the exercise of ownership is inherently restricted, and the owner cannot use the thing in a way incompatible with the conditions and purposes set through the dedication. If the property is vested in private hands, this is still considered private law ownership, although impressed with a public easement. As a result, public things are not considered extra commercium: the owner can validly sell or encumber his or her right, but this will not affect the existence of the servitude, which runs with the property and binds subsequent buyers (Chamard, 2004: 151; Kube, 1997: 862).

This is a peculiar model, different from the French one, and which has some latent similarities with the common law concept of public trust (as will be detailed below, § 7. 3) (see Kube 1997: 879; Gambaro, 2012: 323). Indeed, it is based on the functional separation between the dimensions of ownership and use, the former being subjected to a private law regime and the latter to public law principles (Cascione, 2013: 64). In this way, public utility is taken into account, even when the thing is vested in private hands, ownership being reduced to a ‘qualified’ one for the ‘use’ of the public at large. Furthermore, the ‘public’ thing is not withdrawn from legal transactions, with the consequence that economic valorisation is not impeded. According to Magdalena Habdas (2011: 638-639), this model is intimately coherent with a normative framework that emphasizes the social obligations (Sozialpflichtigkeit) connected to ownership (see

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art. 142 of the German constitution), not making it necessary – as in France – to introduce a separate regulation of ‘public’ or ‘administrative’ ownership.

6.3. THE COMMON LAW MODEL

Compared with the continental, and in particular with the French approach, the legal treatment of public ownership in the common law tradition displays distinctive features. Although it would be misleading to assume perfect homogeneity among the various systems belonging to such tradition, some elements are widely shared (Godin, 2005: 3).

In general it is worth remarking that “public ownership” is not an autonomous category of English law,19 and it would be extremely difficult to articulate in general terms the distinction between public and private property law (Gray and Gray, 1999: 1213; Ball, 2006: 9). Even leaving aside the vexed question of the actual scope of the public/private divide (Allison, 1996: 101), it cannot be overlooked that the very idea of the “state” as a juristic public person is traditionally foreign to the common law tradition (Beaud, 2012: 270). As Martin Loughlin (1999: 43) has observed, England, despite being Hobbes’ home country, is “unusual within western Europe in forming a ‘stateless society’, a society which lacks a state tradition”. Any conception of the state as an “institutionalized power” being absent, English law has never adopted solutions similar to European public law in matters like the attribution of a patrimony to the state (Beaud, 2012: 281; Chamard, 2004: 162). The very idea of public things being subject to an exorbitant legal regime by the simple fact of being owned by the state seems to be foreign to the English, and more generally Anglo-American, culture. As remarked by Gray and Gray (1999: 13), “in the strict common law tradition, even government-owned property is regarded, technically, as still subject to ‘private ownership’. Thus, when in 1991, in The Queen v. Committee for the Commonwealth of Canada, the Supreme Court of Canada was called to rule upon public-access to a government-owned airport terminal concourse, Justice La Forest was driven to agree that the government’s proprietary rights were in no way different from those of a private owner”. 20

However, two factors have to be considered, which alter the overall impression that there is no distinctive law of public property – in the civilian sense – in the common law systems.

First, although the state tradition is absent or extremely weak, the Crown has played since long an equivalent role (Loughlin, 1999: 33; Maitland, 2003: 32-48). Incidentally, it is worth recalling that the very distinction between the King’s two bodies,

19This element is captured by the following remark by John Bell (1992: 5-6): “When I went to Paris in 1985 as a visiting professor, I was asked by a member of the Conseil d’Etat to help with the production of a comparative study on ‘le domaine public’ which was being conducted by the Section du Rapport et des Etudes. My first problem was that, after a mere 14 years of legal study on the common law, I had no idea where to start. No chapter on ‘public property’ in any administrative law or land law textbook. Not even the words ‘public property’ in the index to the 40-volume encyclopedia of English law, Halsbury’s Laws of England. After much thought, I ended up looking into ‘Crown Lands’, ‘Royal Forces’, and ‘Local Government’ for the barest hints of what might amount to a law on public property”.

20The case referred to is Her Majesty the Queen in Right of Canada v. Committee for the Commonwealth of Canada, [1991] 1 R.C.S. 139.

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that is the crown’s public and private dimension, was starkly influenced by changing conceptions of property held by the monarch, and namely by the introduction of the principle of inalienability of the public domain (see, also on the legacy of canon law and theological ideas, Kantorowicz, 1957: 166-192; 1954: 488; Loughlin, 1999: 51). As is well known, one of the basic tenets of English law consists of the assumption that all lands originally had been owned by the monarch by virtue of the Norman Conquest, and that all title was derived from his grant (Deveney, 1976: 39). It was only when Henry II established an inalienable complex of rights and lands, which came to be known as “ancient demesne”, that the notion of an impersonal Crown was eventually given substance (Kantorowicz, 1957: 167). However, this is not only a matter of historical significance. The fact that the Crown still holds in its public capacity a wide range of assets – such as agricultural land and forests, minerals, urban properties (the most valuable of them being located in London), around 55% of UK’s foreshore and all of the UK’s seabed (Pugh, 1960: 1; Jessel, 1998: 110; Simonati, 1996: 702) – has important consequences in terms of the applicable legal regime. On the hand, assets included in the Crown estate are managed by a peculiar Commission – the Crown Estate Commission -, established by the Crown Estate Act, 1961, and operating within a distinctively ‘public law’ framework (Simonati, 1996: 709-715). On the other hand, the traditional immunities and privileges of the crown may command the application of a derogatory regime, whose main features are the immunity from taxation, immunity from distraint, and, at least in some jurisdictions (such as Canada), imprescriptibility (Godin, 2005: 7-9; Chamard, 2004: 170-172).

Second, although it is undeniable that “the general rules governing Crown property are the same as for the property of private persons” (Jessel, 1998: 71), and the disputes concerning both are tried before the same courts, some categories of things – like forests (for historical references Coquillette 1979: 804-805) and highways (Simonati, 1995: 498523) – are subjected to peculiar regulations, in consideration of the public utility that may be derived from their usage. Some of these rules derive from the common law, others have a statutory basis (see Simonati 1996: 719-724; Jessel, 1998: 75). For instance, the seashore, tidal waters and submerged lands beneath them are presumed vested in the crown, in the absence of evidence to the contrary (Simonati, 1996: 718-719; Rose, 1986: 728; Deveney 1976: 41). This evidentiary presumption is based on the theory of the king’s allodial title to all lands and on the historical patterns of grants (Deveney 1976: 53). However, both crown property and private ownership of such natural resources are impressed with a sort of public servitude aimed at protecting the public’s right to access and use for purposes such as navigation and fishing (Deveney, 1976: 36; Rose, 1986: 728729). 21

Transposed into North America, the English model of public ownership has retained some of its original features, but has also undergone significant changes.

In the United States, the colonies were held to succeed in the rights of the English Crown (Kearney and Merrill, 2013: 1064-1065). When the original 13 states ceded title to about 40% of their western lands, the category of federal public lands was created. This was further expanded through acquisition of new territories (like Louisiana and Alaska) by purchases and treaties. Art. IV, § 3, Clause 2 of the Federal Constitution gives Congress authority over land and other property of the United States, explicitly

21 Among the earliest cases see Blundell v. Catterall, 106 Eng. Rep. 1190 (K.B. 1821).

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recognizing the “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”. The Congress started soon thereafter to make use of such power to dispose, transferring many federal lands to private and state hands for financial reasons, and to encourage the settlement of the territories and their economic development. This has always been considered a policy decision, 22 and throughout the last two centuries the opposite strategies of disposal and retention have periodically characterised the American landscape, leaving behind many laws and decrees concerning the use and preservation of natural resources and cultural property (Sax, 1983: 313; Geisler, 2000: 68; Resta and Cascione, 2010: 445). As regards the newly formed states, the Supreme Court held in 1845 that they stood on an equal footing with the original states, and namely that they were entitled to the same rights of ownership as regards submerged lands beneath navigable waters. 23 However, the original English rule underwent significant modifications. As we have seen above, the Crown is presumed to own land beneath tidal waters, whereas submerged land under waters not washed by the tides is owned by the riparian landowner up to the middle (Deveney, 1976: 54). Given the English geography, with its long coastline and short rivers, many navigable waters were also washed by the tides, but not so in the United States, where many rivers and lakes critical to interstate commerce were not technically tidal waters (Kearney and Merrill, 2013: 1065). Therefore American courts accepted a liberal interpretation of state’s ownership of beds of navigable waterways, holding that “navigable” in the U.S. means navigable in fact (Kearney and Merrill, 2013: 1065). In this way the presumption of sovereign ownership was extended beyond tidal waters, including all lands beneath navigable waters.

In Canada as well territory is distributed between the provinces and the federal government. The Constitution Act, 1867, details the property attributed to the federal government (like canals, public harbours, lighthouses, rivers and lake improvements, railways, public buildings, and military roads),24, while granting the provinces all residual proprietary rights (Dussault and Chouinard, 1971: 22-28) 25. Rather than focusing on the many issues posed by Canadian federalism, it is worth recalling briefly the Quebec experience, which is particularly interesting given the convergence of the English model of crown property and the French model of propriété publique.

Property vested in the state domain – such as land and its resources, roads, highways, ports and defence facilities, government buildings – is in principle subjected to private law rules (Godin, 2005: 6). This applies irrespective of the nature of property. Indeed, there has been much controversy in Quebec as regards the theory of domanial duality (Dussault and Chouinard, 1971: 9-11). Relying on French authors and on the literal wording of art. 400 Civil Code of Lower Canada, several Quebec scholars maintained that a distinction between the state’s public domain – comprising goods destined to public use and not subject to alienation, prescription of seizure as long as the affectation persists – and the state’s private domain should be recognized as part of Quebec’s positive law (Dussault and Borgeat, 1989: 15-16). However it was objected that

22In Gibson v. Choteau, 80 U.S 92, 99 (1872) the Supreme Court held that Congress has the “absolute right” to decide about the disposal of public lands and “no State legislation can interfere with this right or embarrass its exercise”.

23Pollard v. Hagan, 44 U.S. 212 (1845).

24See Art. 108 and the Third Schedule to the Constitution Act, 1867.

25Art. 117.

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such a distinction makes sense in France, where the legal regime applicable to each category of property is different, and where two separate court systems – administrative courts and ordinary courts – have jurisdiction over the public and the private domain, respectively. By contrast, it is not purposeful in Quebec, given the absence of such a duality both with respect to the issue of jurisdiction and applicable rules (Dussault and Chouinard, 1971: 9; Godin, 2005: 6). The Quebec Court of Appeal endorsed this interpretation in Richard Lasalle Construction v. Comcepts Ltd, where it was held that “the theory of domanial duality […] is inoperative and sterile in Quebec law. The expression ‘Crown domain’ encompasses all Crown property without distinction. All that it is not a part of it constitutes the private domain, that is to say, the domain of individuals”. 26

On the one hand Crown ownership of property does not fundamentally differ from ownership by individuals (Dussault and Borgeat, 1989: 17). On the other hand, as in English law, the traditional privileges and immunities of the crown imply a deviation from ordinary rules, in particular in respect of imprescriptibility (art. 916, sec. 2, QCC) and immunity from distraint (art. 94.9 QCPC) (Dussault and Borgeat, 1989: 17; Godin, 2005: 7).

Moreover, art. 916 QCC introduces a distinction between property vested in the state and property belonging to legal persons established in the public interest, such as municipalities. As regards the latter, the inherent logic of the French domaine public seems to re-emerge: according to art. 916, nobody can “acquire for himself property of legal persons established in the public interest that is appropriated to public utility [affectés à l’utilité publique]”. The courts have been called upon to clarify the meaning of the expression “appropriated to public utility” and have frequently opted for a flexible interpretation. It has been decided, for instance, that a warehouse for the storage of sand and salt to be employed for road maintenance by a municipality during the winter was appropriated to public utility and therefore withdrawn from seizure by creditors. 27 A similar result was reached in a case dealing with the seizure of part of a subway station, 28 as well as in another one concerning property belonging to the Ferry Service Society of Quebec. 29 By contrast, in a controversy dealing with the buildings of the police headquarters, the Superior Court of Quebec affirmed the validity of the hypothec, on the basis of the consideration that the Urban Community of Montreal, owner of the buildings, had been granted very extensive borrowing powers under the provisions of its constituting statute; 30 in another interesting case, the validity of a legal hypothec over an hospital has been affirmed by the Superior Court of Quebec, on the basis of art. 916 and the legislation concerning health services. 31

7. THE PROBLEM OF TRANSFER

Any theory of public ownership cannot limit itself to the determination of the type of property vested in public hands, and of the rules concerning its management and

26Richard Lasalle Construction Ltée v. Comcepts Ltd., [1973] C.A. 944, 949 (Que. C.A.).

27Bâtiments Kalad’Art inc. v. Construction D.R.M. inc., [2000] R.J.Q. 72 (Que. C.A.).

28Maçonnerie Demers inc. v. Agence métropolitaine de transport, [2004] R.D.I. 288 (Que. C.A.).

29Société des traversiers du Québec v. Produits d’acier Écan inc., [2002] R.L. 320 (Que. S.C.).

30Construction Socam ltée v. Ece électrique inc., [2001] B.E. 2001BE-851 (Que. S.C.).

31Centre hospitalier Sainte-Marie de Trois-Rivières v. Roy, R.E.J.B. 1997-03097 (Que. S.C.).

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