of fishing shall have been appropriated and shall have come into the ownership of a certain private person, or corporation. But it is to be noted that the river is not to be confused with the water flowing in it. For although the river consists of the bed and the water, the water nevertheless is not looked at as flowing, but in so far as it fills the bed. Whence that is properly called running water which at any given time is in a certain part of the bed, while for instance it is being drawn, but it is not running water in so far as new water continually fills the same part of the bed. For in this regard it belongs to the river. And therefore this does not imply that running water is common, which is in the ownership of no one; while the river, which cannot be thought of without the water, belongs to the whole people, or is in the ownership of the same, by virtue of the present proposition, and because the use of the running water is open to all men, of whatsoever nation they are, while the use of the river is restricted to a definite nation. Obviously this is the difference between things common and things public, that the former are in the ownership of nobody, but the latter are in the ownership of some definite nation, the use of the former is common to all men, but the use of the latter is common only to some people. Likewise the difference is plain which exists between public goods and goods of a corporation. The public goods of course are in the ownership of the whole people and their use belongs in general to all, by virtue of the present proposition; but the goods of a corporation are in the ownership of some definite group or community, and their use is common to the individuals in that group or community. So public goods differ from the goods of a corporation, just as the more general from the special. But if you look at a certain group of men as a people, since each is a kind of corporation; by force of a principle of reasoning the things which we have proved of the goods of a corporation are easily applicable in their way to public goods.
[print edition page 85]
§ 99. Of the transfer of ownership of public property to the ruler of a state
§ 98.
§ 12, part 3, Jus Nat.
Since public property is in the ownership of the whole people; the people can transfer the ownership of public property to the ruler of the state, while all the use or at least some remains with the people.
So the ownership of a river can be transferred to the ruler of a state, while the use for sailing and fishing, for driving cattle to the river, and watering or washing them there remains with the people, or the right of fishing can be assigned to the ruler of the state, so that he can dispose of it, as seems best. In like manner the ownership of public roads can be transferred to the ruler of a state, their use for travelling and carrying remaining with the people.
§ 100. Of the method of using public property
§ 88.
§ 239, part 1, Phil. Pract. Univ.
§ 910, part 1, Jus Nat.
Every one ought so to use public property that he may not in any manner impair the public use or that common to all. For the use of public property belongs to all without distinction, as of course each shall have need. If, therefore, any one so uses the public property that he in any way injures the public use common to all; this is contrary to the common right of all. Therefore, since no one ought to do anything contrary to the right of another, no one indeed ought so to use public property as to injure in any way the public use, or that common to all.
So no one may build out a pier into the river, or build a mill on it, or draw the water into his own farm, because navigation is impaired, whether the river itself is navigable or makes another river navigable. To build in a public river is not allowed to a private individual for this reason also, that the bottom of the stream belongs to the whole 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.
[print edition page 86]
§ 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,
[print edition page 87]
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
