The Law of Nations Treated According to the Scientific Method. Christian von Wolff
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people, and in it a private individual has no right, as to him belongs only a right to the use, not harmful to the other uses, which belong to the people. In like manner if any one desires to surround with a ditch a field adjacent to the public road, he ought to dig the ditch in his own land, nothing being taken from the public road, nor may he pile up a mass of earth, which he digs out, upon the public road.
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§ 101. Of the private right of fishing in a public stream
§ 216, part 2, Jus Nat.
§ 88.
If the right of fishing is subjected to private ownership, the river itself nevertheless remains public. For the uses of a public river, among which is the right of fishing, are such that one can exist without the other. Therefore nothing prevents any use from becoming private, while the rest remain common. Therefore, since the right of fishing can be subject to ownership, if the right of fishing is subjected to private ownership, it by no means follows from this that the river itself is under private ownership. Therefore if that alone is subjected to private ownership, the river itself remains public.
§ 88.
§ 216, part 2, Jus Nat.
§ 88.
Fish in a river are properly common property; but the right of catching them, that is, the right of fishing, can be subjected to ownership, and naturally it seems to have been acquired by the people with the river itself. And for this reason the right of fishing passes to the state just as does the river, and on this account fishing is related to the use of the river, just as is the taking of birds flying in the air to the use of the air, or, if it is done in the fields, you may relate it to the use of the fields. Therefore nothing prevents rivers from becoming public property, and the right of fishing remaining common, so that any one, even a foreigner, may fish in a public river. And in like manner the right of fishing can become private, the river itself remaining public. Fish of themselves do not belong to a river, just as birds do not belong to the air in which they fly, or to the fields on which they alight, nor do wild animals belong to the forests in which they wander about. Therefore the use of the river as such must be distinguished from that which it can have as regards things capable of appropriation in it.
§ 102. Of sovereignty and eminent domain over public property
§ 42, part 8, Jus Nat.
§ 35, part 8, Jus Nat.
§ 175, part 2, Jus Nat.
Sovereignty over public places and eminent domain over public property belong to the ruler of a state. Civil sovereignty which the ruler of a state exercises is properly the right to actions of individuals of the people, so far as concerns the common or public property of the state. And since the people have made a territory their own by taking possession of it, sovereignty must be exercised in every part of it, and in every place,
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whether the ownership has passed over into private hands or whether it has remained public. Therefore sovereignty belongs to the ruler of the state in every place which is to be considered as public property. Which was the first point.
§ 92.
But that eminent domain holds over public property is plain from the same argument by which we have proved that point concerning the property of a corporation. Which was the second point.
§ 99.
§ 111, part 8, Jus Nat.
§ 99.
§ 88.
§ 166, part 8, Jus Nat.
§ 495, part 1, Jus Nat.
So the ruler of the state has sovereignty over the rivers and public roads, in desert places, or those not yet under cultivation, although ownership of those places is with the people, and it is not held to have been transferred to the ruler of the state. For sovereignty always remains distinct from ownership nor are these two rights ever necessarily of themselves united. And so although ownership of public property may belong to the ruler of the state, nevertheless the sovereignty over public places does not therefore belong to him, which of itself is extended to all places, so far as in them individuals can do certain acts, the right to do which belongs to the one having sovereignty. But inasmuch as eminent domain is contained in this sovereignty itself as a potential part thereof, so it is not to be confused with the ownership of public property transferred from the people to the ruler of the state, and the things which by force of this he can do are rightly to be distinguished from those which are done by force of eminent domain, a thing which must be kept in mind, if you wish accurately to prove details and get at the true reasons for all those things which the ruler of the state does as concerns public property. For we desire that those things be drawn from the source whence they flow. But public rivers and public roads may be looked at from two standpoints, either in so far as men can do in them the things which have no bearing at all upon their use, for example, if any one should kill another in the river or on the road, or assault him with blows, or speak ill of him; or in so far as they serve a definite use, for example, sailing on the river, or driving cattle to it to be watered or washed, or walking or driving on the public road. With respect to the former, public rivers and public roads are properly speaking public places; but with respect to the latter, they are public property. And therefore over these the ruler of the state has sovereignty as over public places and the public places
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belong to his territory. Since this distinction is based on the concepts of property and sovereignty, by force of what has just been said, it is properly made.
§ 103. Of the effect of eminent domain over public property
§ 102.
§ 111, part 8, Jus Nat.
Since eminent domain over public property belongs to the ruler of the state, since, moreover, by force of eminent domain disposition is made of property for the public welfare in case of necessity, the ruler of the state for the public welfare in case of necessity can dispose of public property, as shall seem best to him.
§§ 98, 99.
So by power of eminent domain he can connect two navigable rivers by an artificial channel for the aid of commerce, or even direct the waters of one stream into another, to make it navigable, even if there should be some injury to the common use. And hence will be clearer the difference which exists between eminent domain over public property and ownership of the same, which is either with the people or transferred to the ruler of the state.
§ 104. Of the passing of civil laws concerning the use of public property and that of a corporation
§ 977, part 8, Jus Nat.
§ 978.
§§ 94, 99, and § 170, part 1, Phil. Pract. Univ.
The ruler of the state can pass laws concerning the use of public property and that of a corporation. For by civil law the ruler of a state can make obligatory or forbidden what is allowed by nature; moreover he can make a perfect obligation out of that which before was imperfect, as is best for the purpose of the state, and if anything can be done in several ways, he can direct that it be done in one way or another. Therefore, since the use of public property and that of a corporation is allowed by nature, and since that use can be exercised in several ways, as is plainly proved before, the ruler of a state can make laws concerning the use of public property and that of a corporation, by which a thing formerly allowed may be made forbidden or obligatory, or by which an imperfect obligation is made perfect and by which the use of that property is limited in a certain manner.
§ 5, part 8, Jus Nat.
So he can pass laws concerning fishing in rivers, for example, that common fishing should be forbidden in a certain part of a river, or
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that the smaller fish shall not be taken, and that one may not fish with nets, except such as allow the escape of fish not of a proper size, or that fishing should be forbidden at one time and allowed at another.