The Law of Nations Treated According to the Scientific Method. Christian von Wolff

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СКАЧАТЬ since by nature the right of each is equal, the ownership and sovereignty of either nation extend from either side to the middle of the stream, as shown above. Which was the second point.

      § 94, part 1, Jus Nat., and § 2.

      If it does not appear whether one nation has taken possession of the river before the other, or whether anything has been laid down by stipulations concerning the ownership and sovereignty over the river, that is presumed which is the most natural. Therefore, since nature gives precedence to no nation over another, moreover since by natural equity it is especially fitting that ownership and sovereignty reach from either side just to the middle, this is presumed in this doubtful case. Which was the third point.

      § 789, part 2, Jus Nat.

      Finally, since agreements must be observed, whatever shall have been determined by agreements concerning the ownership and sovereignty over a river must be observed. Which was the fourth point.

      §23.

      Since our times are very far away from the first occupation, the law of nations existing at the present time will scarcely be anything other than the stipulative. To be sure a case can be conceived, in which nations dwelling on either side of the same river have left the river in its original common holding, or have made it the common property of either nation, but since either case is scarcely consistent with

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      sovereignty, as is easily understood, it will hardly be possible, and is easily considered as morally impossible. It more usually happens that a river is without ownership than without sovereignty, and positive common holding so far as regards the use of the river more usually happens than joint exercise of sovereignty. But since in either case very troublesome difficulties easily arise, the nations themselves take pains to make definite arrangements by agreements with each other. But it is evident, whether a river belongs to a single nation or the ownership and sovereignty of either extend from either side to the middle of it, that concerning the use of the river and the exercise of sovereignty over it various arrangements can be made, which then become matters of stipulative law.

      § 107. Of the abandoned channel of a river

      § 372, part 2, Jus Nat.

      If the river which separates two territories shall have left its channel and broken through another way, a nation retains the ownership and sovereignty over the channel which it had in the river, and the ownership and sovereignty extend from either side to the middle of the channel, if they extended to the middle line of the river. For the natural channel abandoned by a river flowing in another direction belongs to the one by whom it had been before occupied. Therefore if the ownership and sovereignty in a river which separates two territories belonged to one nation, when the channel is abandoned by the river, the ownership and sovereignty of this nation remains. Which was the first point.

      And in the same manner it is evident that the ownership and sovereignty of either nation ought to extend to the middle line of the channel, if before they extended to the middle line of the river. Which was the second point.

      De Jure Belli ac Pacis, lib. 2, c. 3, § 17.

      Grotius gives this reason, that the intention of the people must be considered to have been that if the river shall cease to be, then each should hold what it had held. But it does not seem to be necessary for us to seek a reason far away. For since a river consists of the channel and flowing water, the nation has such a right in the channel as it has in the river. Therefore, even if the river flowing in another direction should leave the whole channel and consequently should vanish so that there would be no river any longer where it had been before, nevertheless

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      there is no reason why this should destroy the right in the part which still exists. Indeed if a building burns, your right in the foundation is not taken away by its destruction, but you retain ownership in it. The case is certainly the same if a river abandons its entire bed.

      § 108. Of territories having the river as their boundary

      § 363, part 2, Jus Nat.

      If the territories separated by a river have the river as their boundary, the nations on either side have the right of alluvium.⁶ This is plain from the same proof which we have given in regard to land having a river as boundary.

      § 585, part 2, Jus Nat.

      §§ 357, 358, part 2, Jus Nat.

      Of course the land which is added by alluvium to either territory belongs to the territory to which it is added. The loss, which the nation dwelling on the opposite bank suffers, arises from the destruction of its own property, nor can it be said that the nation which has the right of alluvium is made the richer at the expense of the other, a thing which is opposed to the law of nature. See what we have noted concerning that point.

      § 109. Whether any change is made in the right in a river by alluvium

      § 108.

      § 362, part 2, Jus Nat.

      Since nations whose territories have the river as their boundary have the right of alluvium, the right which they have in the river is not changed by alluvium; since the river, as the natural boundary separating their territories, does not disappear but remains, on which ever side the alluvium increases or decreases the territory. Therefore, if a river shall have belonged wholly to one nation, it retains the entire ownership and sovereignty after the alluvium is made; but if the ownership and sovereignty extend to the middle line from either side, they still will extend to the middle line of the river after the alluvium is made.

      In a doubtful case territories which are separated by some river are presumed to have the river as their boundary, since for marking their boundaries nothing is better than that which is not easily crossed. And

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      those things which we have said of rivers are likewise understood of mountains which divide territories, but not with the same pertinence of forests, especially open ones, where the matter must be determined by agreements.

      § 110. Of the building of a bridge on a river, belonging half and half to neighbouring nations

      § 120, part 2, Jus Nat.

      If a river separating two territories belongs half and half to the nations dwelling on either side of the river, a bridge cannot be built upon the river without the consent of each nation, for since the owner by the right which he has in the property excludes all others who have not the right of ownership in it, a nation which has ownership only of half of a river, the other half of which belongs to the neighbouring nation, cannot build a bridge. If then a bridge is to be built upon the river, that cannot be done except with the consent of each nation.

      The same is plain concerning any other thing which ought to be done in regard to the half which is understood to belong to the neighbouring nation, as e.g. the construction of a dam across the river for the purpose of building a mill.

      § 111. Of the right of anticipation in the use of public property or that of a corporation

      § 180, part 1, Phil. Pract. Univ.

      If public property or that of a corporation does not admit of simultaneous use by all, he who is in fact using it cannot be deprived of this use by another, but the other ought to wait until the use shall have been ended. For if public property or that of a corporation СКАЧАТЬ