Intervju med Jorge Paolinelli om den nuvarande lagstiftningen In general, all of these questions allow joint treatment and development of a common answer.
First we must make some reflection on the legal structure of the Argentine State.
It is a federal state, in the manner of the United States, but whose federalism is morigered, for two central reasons:
One, of historical-political roots, refers to the idea that from the first moment of the struggle for independence two great ideas were forged: Unitary and Federal. Neither of them achieved a hard-hitting victory, neither in arms nor in ideas, for this reason both sectors arrive at the time of the national organization (forty-three years later, in 1853) without victors or vanquished.
The other is the notorious disproportion of Buenos Aires with the rest of the Federated States, which determines that, despite the federal state organization, the center (Buenos Aires) has a hegemonic predominance, which threatens federalism.
On the subject that interests us, legislation, we have to dwell on the structure of the Argentine State, which has three levels: the federal or national, the state or provincial and the local or municipal. The distribution of the powers of each State, is made by the National Constitution (CN).
Article 121 of the CN states: "The provinces retain all the power not delegated by this
Constitution to the federal government, and that expressly reserved by special pacts at the time of their incorporation."
The Federal State is then competent only to exercise the powers delegated by the provinces at the time of the Union.
And among the delegated powers is the power of the Federal Legislative Power (Congress of the Nation) to dictate the substantive legislation. It arises from Article 75 which lists the
competence of the Congress, in subsection 12: "To dictate the Civil, Commercial, Criminal, Mining, and Labour and Social Security Codes, in unified or separate bodies, without such codes altering local jurisdictions, corresponding their application to federal or provincial courts, depending on whether things or people fall under their respective jurisdictions"
The 1994 reform also incorporated environmental rights into the constitution and delegated to the Nation the power to issue minimum budget standards on environmental issues. Article 41 of the CN provides: "All inhabitants enjoy the right to a healthy, balanced environment suitable for human development and for productive activities to meet the present needs without
compromising those of future generations; and have a duty to preserve it. Environmental damage will primarily generate the obligation to recompose, as required by law.
The authorities shall provide the protection of this right, the rational use of natural resources, the preservation of natural and cultural heritage and biological diversity, and environmental information and education.
It is for the Nation to dictate the rules containing the minimum protection budgets, and the provinces, the necessary to supplement them, without altering the local jurisdictions.
The entry into the national territory of current or potentially hazardous waste and radioactive waste is prohibited."
Thus, the minimum budget rules for environmental protection, and most of the rules governing domain restrictions, correspond to federal legislation incorporated into the Civil Code (Real Rights, with particular implications for dominance or ownership)
With the exception of those restrictions placed on behalf of the public interest that are governed by administrative law, i.e. public law; and because public law is governed by local rules, these aspects are regulated by provincial or municipal rules, as appropriate.
In this regard, it says Article 1970 of the CCC (Civil and Commercial Code): "Administrative rules. The limitations imposed on private domain in the public interest are governed by administrative law. The use and use of the property domain must be exercised in accordance with the administrative rules applicable in each jurisdiction."
But as the most important legal institute, in terms of transit on the margins of watercourses, is the "path of the tow", and this is the common and proper status of the property right on properties adjoining bodies of water, is regulated by substantive legislation, i.e. federal rules.
Either way, we must start with the legal nature of water.
Water in any form is considered the public domain of the state. And it is up to the Provinces to have original control of the natural resources existing in their territory. (Conf. Article 124 CN), except water is interjurisitionation.
Cn Article 124: "Provinces may create regions for economic and social development and establish bodies with powers for the fulfilment of their purposes and may also conclude international conventions as long as they are not inconsistent with the foreign policy of the Nation and do not affect the powers delegated to the federal government or the public credit of the Nation; with knowledge of the National Congress. The city of Buenos Aires will have the regime established for this purpose. It is up to the provinces to have original control of the natural resources existing in their territory."
That water is the public domain of the State, implies that they are goods: Unembarkable, unenseachable and imprescriptible.
The quality of the public domain of water is established by the Civil and Commercial Code (CCC) in Article 235: "Goods belonging to the public domain. They are goods belonging to the public domain, except as provided by special laws:
(a) the territorial sea to the extent determined by international treaties and special legislation, without prejudice to the jurisdictional power over the adjoining area, the exclusive economic zone and the continental shelf. Territorial sea means water, bed and subsoil;
(b) inland waters, bays, gulfs, insenadas, ports, anchorages and maritime beaches; maritime beaches means the portion of land that tides bathe and vacate during the highest and lowest normal tides, and their continuation to the appropriate distance in accordance with the special national or local legislation applicable in each case;
(c) rivers, estuaries, streams and other waters running through natural waterways, navigable lakes and lagoons, glaciers and the periglacial environment and any other water that has or acquires the ability to satisfy uses of general interest, including groundwater, without prejudice to the regular exercise of the right of the fund owner to extract groundwater to the extent of his interest and subject to local provisions. River means the water, the beaches and the bed through which it runs, bounded by the riverside line that sets the average of the maximum ordinary floods. By lake or lagoon water, its beaches and its bed, respectively, are understood to be delimited in the same way as rivers;
(d) islands formed or formed in the territorial sea, the exclusive economic zone, the
continental shelf or in all kinds of rivers, estuaries, streams, or in navigable lakes or lagoons, except those belonging to individuals;
(e) the airspace superjawing to the territory and to the jurisdictional waters of the Argentine Nation, in accordance with international treaties and special legislation;
(f) streets, squares, roads, canals, bridges and any other public works built for common utility or comfort;
(g) official State documents;
(h) the ruins and archaeological and paleontological sites."
Before we begin, with the analysis of the institute "towpath", it is important to clarify some terms that we will use, since some may be ambiguous, confusing, vague, etc. So, in order to avoid unnecessary discussions, it is appropriate to establish the meaning in which the
technical terms are used.
It is very common that by referring to the boundary of the waters and the deslination between the public domain of the State over the course, or mirror, or body of water, and the dominance of the adjacent land, which may eventually belong to individuals, we call it indistinctly coast, river or shore.
In reality, these words are not synonymous, but each of them represents a specific idea or concept. It is therefore essential to determine exactly what we mean when we use them, in order to avoid confusion and in turn to try to clarify a very vague language.
In order to complete this terminological clarification, it is also necessary to incorporate a definition on the word limit.
To do this we follow the work carried out by the Espínola Agrimensor, which defines:
Coast: It is referred to as the edge or shore of the oceans or seas, it also refers to the steep banks.
Ribera: Used to define the boundary of both seas or oceans as well as other courses and bodies of water.
Limit: Represents the end of a thing, which is embodied by a line that can be straight, broken, curved etc. The boundary strictly marks the separation between two things. In the aspect that we are interested in it shows us the separation between two inheritances, between two domains.
And river line: means the determination of the boundary between water and the space that contains it, whether it is the domain of the State or the individuals (coastal owners). Its importance lies in the difference between two domains. That, eventually, it may separate the public domain from the private domain (that of the private owners of the property adjacent to the water spaces).
Water course: These are rivers, streams, torrents. They are made up of two elements, one the flowing water and the other is the bed.
The water of the course, can occur in a liquid state (which is the normal situation) or in solid state, as happens in glaciers or blizzards. "A glacier or blizzard is nothing more than a river or a stream whose waters are characteristically frozen; that mass of ice is constantly under renovation, as evidenced by its very slow displacement. The blizzard water, however frozen it is, is still water; so that the blizzard is, in short, a watercourse."
The bed, also called a channel or alve, refers to the land surface that the waters usually occupy, and has as its limit the normal or ordinary floods. It is formed by the bottom or floor, on which the water flows, and by the banks, which constitute the demarcations between which the water flows. "The bed of a watercourse consists of two parts: by the
"floor" or "bottom" and by the "banks". The floor or bottom is the surface on which the water runs; the banks are the sides of the bed between which the water runs."
The banks can be called coasts or beaches, depending on their physical structure. The beaches are the flat banks, which are normal to be exposed, by the lowering regime of the course or the mirror. And, coasts are those vertical or oblique banks that enclose the water course or mirror.
Margin: is the immediate and contiguous area of the water courses and mirrors, which are not part of its bed and on which the tow restriction is established. "To graphically explain the above principles, imagining a river of theoretically symmetrical lines, I will use the following example: Suppose a street in a city. On the sides there are buildings of the same height. All of which end on top end on extensive terraces or rooftops. The street, proper, would be the floor or bed of the river, the fronts of the houses would be the banks and the roofs or terraces would constitute the margins."
Lakes and lagoons are about seemingly asleep waters, as they do not significantly form a course, through which the waters flow. They are defined as a vast accumulation of water in perennial form. "Dr Bibiloni argued that lakes crossed by rivers or that serve as birth to them are part of the rivers and that, on their merit, they are ordinary and non-stagnant
waters. I do not share such a criterion, because, as I said, the fact that a lake is crossed by rivers or by birth to them does not alter its status as a lake..."
We find the observation made by Bibiloni very interesting, especially by observing the Nahuel Huapi. At first glance it can be observed that it is not stagnant or dormated waters, as it is formed by the tribute of countless rivers, streams, torrents, slopes, (in addition to the contributions of other lakes, such as the Gutierrez) and finally gives beginning to the
tumultuous Limay.
Finally, from this situation we can draw from a first principle, which provides that, because the mass of water is a good in the public domain of the State, it is imprescriptible,
inalienable, and unsealable, which is why, any overlap that may exist between the two domains, it is the private one that must yield.
The riverside line, then, is defined by the average of the ordinary highs.
The risings of a body of water are ordinary, at their altimetric levels, as it manifests itself on a recurring basis assiduously and regularly. The one expressed by the determination of a dimension, which establishes a fixed line without prejudice to the irregularities of the terrain, is therefore manifested as contours.
For rivers and some large lakes, it should be borne in mind that the dimension varies along its route, taking into account the height of the sites that contain it. (For example, the
dimension of the Limay River at the height of the amphitheatre, must necessarily be different from that which it has in the vicinity of the Neuquén.
The dimension is determined by administrative decision. The competent authority for establishing this measure is under discussion. We consider that the competent authority to establish the riverside line is the Provincial State, by virtue of the reservation it has made at the time of the National Organization, with the exception of the rivers and the
interjurisdictional water mirrors, which corresponds to the Federal State; and those locals, whose demarcation corresponds to the government of the city (Municipality). In Bariloche, Laguna El Trébol.
The determination of the riverside line is essential for our theme as it is the starting point from which the tow restriction is established, to the interior of the affected property.
Without a riverbank line it is not possible to determine the tow restriction.
The towpath is an old institute of civil law that is eventually consolidated as a restriction to dominance, affecting riverbed fundos. The Code of Velez regulated it in article 2639, which provided: "Owners bordering rivers or canals serving water communication are obliged to leave a street or public road of thirty-five metres to the river bank, or the canal, without any compensation. The coastal owners cannot make any construction in that space, repair the old ones that exist, nor deteriorate the land in any way."
In its new wording this institute is contained in article 1974: "The owner of a property adjoining any of the banks of the channels or its banks, suitable for water transport, must
leave free a strip of land fifteen meters wide throughout the course, in which he cannot do any act that impairs that activity."
The origin dates back to the early days of navigation, and was used to pull from the shore to the boats, by means of a rope called a tow, in such a way that they could climb the current, even without wind in their favor.
This allowed for some security in the transport of people and cargo, and in this way the path of to the way of a guery helped to consolidate the development of the peoples.
Without prejudice to this, we must limit, that, while this institute had as its central purpose safety in navigation and services to it, it also pursued other purposes, such as watering livestock, bathing people, fishing, etc. We reiterate what Law 6 of the seven headings stated, which says: "... and however the banks of the rivers are, as for the lordship, of those whose inheritances are fasted, with all that all man can use them by binding to the trees that there are their ships and marinating their sails on them and putting there their goods, and they can put their fish there and sell them, and rinse their nets there, and use on the banks of all the other similar things of these that belong to art or the need for those who live."
As we have already seen, this institute has its origins in Roman law (like most of our civil institutions) which was repred in all legal orders that were built in its shadow. Thus, it is brought by the old French law, the seven headings and was also immediately regulated in our patrio law, as early as 1823, decrees regulating the use of coastal stripes were issued. Until, at last with the sanction of the Civil Code, it is regulated in art. Cited. It should be noted that the measure determined by Vélez, is not the product of mere chance or decision, but responds to the continuity of the criterion established by the old Spanish right, which determined the path of tow in 40 rods. And indeed 40 rods are equivalent (1 rod x 0.8359 m; then 40 rods x 33,426 m). That is, Vélez continued to use the measure of restriction or limit to the domain that provided the Spanish right, simply transformed that value from rods to meters and led it to a round number.
This question should enable us to establish another first principle: there is no title of domain, on properties situated in the territory of the Republic which may claim to be exempt from, or not affected by, the restriction of the tow, under the principle that states: "Nemo plus iuris ad alium tranferre potest, quam ipse haberet". Our current CCC includes this principle in Article 399, which says: "No one can pass on to another a better or more extensive right than the one who has..." Consequently, any title that is dened on properties adjoining surface water is affected by the towpath.
Then, with the advent of motor navigation, it gradually lost importance, being reduced to an archaism within the code, lacking any usefulness.
Later on the second half of the twentieth century, the tow road, or rather the restriction on dominance over a strip of land along canals and rivers, to be included, in the extent of the perimeter of the lakes, begins to have other perspectives oriented no longer, to sailing, but to the care of the waters biodiversity, sport fishing and tourism, among others.
Our code. Civil, in Article 2. It sets out the criteria by which the standard should be interpreted, and says: "Interpretation. The law must be interpreted taking into account its words, its purposes, similar laws, the provisions arising from human rights treaties, principles and legal values, in a manner consistent with the whole order." Thus, any rule must be interpreted in accordance with:
1. The words of the law.
2. Its purpose.
3. The principles of similar laws.
4. The provisions arising from human rights.
5. Legal principles and values.
6. All this in a manner consistent with the legal order.
In this sense, it is obvious that any legal institute is not crystallized at the time of its positive recognition, on the contrary, it is adapting to new convictions and social needs. Thus, the rule created remains within the legal structure that contains it, but adapts to the new social, economic and political realities of the society concerned. It makes no sense, and contradicts Article 2 cited, to maintain the original interpretation of the rule, since this implies an absurd and contradictory crystallization of the legal order. This is because the legal order is adapting to the new living convictions within the social. In this way, the old norm is interpreted under the gaze of new opinions, of new ideas. As a result of this interpretative task, the old norm is adapted to the new evolutionary stage reached by society.
On the contrary, that is, to pretend that every change, every new opinion, every different conviction produces a profound change of the law, is absurd, because the very nature of the legal order, allows the current rule, to adapt effortlessly, to new convictions.
This, in the daily life of individual and social life, works like this: it is not the right that generates reality. Reality is caused by the permanent intersubjective interference between people. What the law is intended is that the result of such interference is as fair as possible.
And justice must be interpreted according to the values living and present in the Society. In this way, the old norm is reinterpreted according to the new values discovered or revealed by the undividous, deeply imbricated in its reality.
Thus, the content that in our time has, for example, the parental authority is greatly de far from the content that this institute had in ancient Rome. Where it was established that the children are under the power of the parents "in potestate nostra sunt liberi nostri quos ex justis nuptvimus," Thus, the pater families were the owner of the children, and had over them the right of life and death according to the law of the XII Tables (Table IV).
The same can be said of marriage, employment contract, regular exercise of a right, in short, of the legal institute that we can think of. With any of them, we can observe without more difficulty than its first formulation, it was adapting to the new needs and living opinions in society.
For these reasons, we consider that in front of the institute of the towpath one of these two paths must be taken: O, the rule is repealed, and we stop arguing about it, or on the contrary, it is completed with a new content appropriate to the times we live.
That is, maintaining this restriction only for the benefit of navigation to the tow, results, in our day, an archaism without sustenment.
Borda, referring to the towpath, said: "Steam and modern fuels have eliminated this outdated method of navigation, in such a way that arts today. 2639 and 2640 have no
justification... Some authors argue that it is appropriate to maintain the towpath no longer to use it as such, but considering that the use of river banks may be necessary for other
purposes of social interest... The State has the right to regulate the use of that strip with the only law-marking destination, i.e. street or public road.
For our part we understand that the path of to venture still has many benefits to provide to society, so that the effort must be aimed at delineating its new content.
Our right discusses whether the path of the tow is a bondage or a restriction to dominance, with the consequences that one or the other alternative have of themselves.
Without prejudice to what we have already said, by calling the domain perpetual and exclusive, with a new look, from what we have already discussed, we can say that in strict terms, the right of ownership in our legal order, is neither absolute, nor perpetual, nor exclusive, since the absolutety, perpetuity and exclusivity of this right are conditioned by other values of superior interest.
It is not absolute, because, moreover, that there are no absolute rights, because the
existence of such rights, contradicts the essence and nature of the legal order, its exercise is limited by reasons of public interest or general well-being of the community, this refers to what we have raised as restrictions or limits to the domain.
It is not perpetual, as it can be lost by abandonment. Article 1907 of the CC provides:
"Without prejudice to the means of extinguishing all economic rights and special rights of real rights, they are extinguished, for the total destruction of the thing if the law does not authorize its reconstruction, for its abandonment and for the consolidation in the real rights over something outside."
Nor is it exclusive, since it may be affected by forced servitude, in this sense, Article 2166 states: "No one can impose the constitution of a bondage, unless the law expressly provides for the legal need to do so, in which case it is called forced..."
We have previously stopped conceptualizing the constraints on dominance and easements.
As we have defined each of them, it can be concluded, together with the majority doctrine and jurisprudence, that the path of to the way of a tow is a restriction on dominance and not a bondage, since:
1. Restrictions are manifested to us as an impact on the domain, inherent in its own exercise. That is, they are normal limitations of the right of ownership, which affect all the
goods that are in that situation (in our case be bordered by navigable, floatable or suitable waterways or mirrors for transport)
2. They are established so that the property is suitable for public interests. We can say that at the heart of the right of ownership is the representation of the restriction, since it aims to achieve an adequate coexistence of the interests of individuals, with the superior idea of the promotion of the common good.
3. It does not give rise to compensation, since they do not result in a decrease or
dismemberment of the property, but manifest a way of exercising the property appropriate to the common good and the social purpose that has the property, which comes from its own nature and from its very positive recognition.
4. The constraint applies to all properties found in the same situations.
5. It is based on collective needs arising from safety, health, development, culture and are based on the reasonableness of limitation, appropriate to the purpose pursued.
6. They constitute normal limits for the exercise of the property, without any dismemberment or affectation being inferred from its application.
In her work: "Historical and current applications of article 2369cciv on the path of the tow"
by Lydia E. Calegari de Grosso, cites the following jurisprudence:
" C. Nac. Civ., room F 31/5/1990, "Moxey Savon Argentina S.A. v. Municipality of Buenos Aires"
"The judgment resolves that, with respect to the nature of this institute, it imports a restriction and limits the domain, on the basis of the following grounds:
-The path of becoming astray and limits to the private domain that is based on the legislation in force and the fact that it is regulated within the restrictions and limits to the domain, and that these are characterized by the absence of compensation.
-The only restriction that the owner must bear without the right to compensation is that which arises from the legal rules. Any other form of domain restriction that is intended to be imposed must be subject to expropriation by law and its owner receive fair
compensation."
In this sense, a border owner of a river or canal (and the lakes must be incorporated) cannot argue that the authorization of the entry of a fisherman transiting the towpath, for the purposes of fishing, affects his property, since the right to exclusivity of fishing on that shore was never incorporated into his domain, which is why he cannot argue , validly any damage.
At this point, one might wonder why Vélez arranged that the owners: "they are obliged to leave a street or public road of thirty-five meters to the river bank, or of the canal, without any compensation". Perhaps we find the answer in the fact that since time immemorial the margins of watercourses and other mirrors, because of the demands of wind-powered navigation, which required the help of the tow; neighbors' transit; fishing; and for the
animals to be abbreviated – among other activities – they were engaged for public use, so the coder did not provide compensation some for the coastal owners, since the existence of this restriction does not affect in any way the recognized right; on the contrary, it only expresses the regular exercise of the right of ownership, even in the origins of liberalism, where property was conceived as absolute.
Marienhoff states: "... when I took care of the legal historical origin of the provision of art. 2639 of the CC, I said that the seven headings of King Alfonso the Wise, following the Roman texts (Instituta and Digesto), although they enshrined the private domain of the riverbank on the margins of the navigable rivers, they had the public use of them for the purposes expressed therein , linked directly or indirectly to the navigation service. Without prejudice to this law of Partida, which from the beginning, already in colonial times, regulated and decorated as appropriate the content of the right of dominion in what is now our country, subsequently, before the sanction of the CC, during the period of emancipation and political organization, several provisions were issued – provincial or national – that not only imported a ratification of the principle contained by the Partidas , but specified it as to the extent that it should be left free by the rivers, which was fixed on forty rods. ... the Argentine coder did not innovate in this matter, since the principle of Article 2639 of the Code had very old roots in our legal history. On its merit, and as in our country the property was constituted by alienation made by the Spanish crown, subject to the legislation of Partidas, it is his means that Article 2639 of the CC did not create or impose a new levy, since no coastal owner was able to acquire his property without that legal burden, which enters the ordinary and normal regime of the property bordering waterways. Being so clear that the code, in establishing the bondage that I deal with, did not have to award any compensation to the riverbank, since there was such servitude from the very origins of the property, its incorporation into the CC could not cause any capital relief to the coastal owner; there is no financial grievance, the unfairness of any compensation ... nor can we speak of article 2639 contracribing to the constitutional guarantee of the inviolability of property, since the property that the Constitution guarantees is that which existed at the time of its sanction, with all its attributes and levies"
So the exercise of the right of ownership, on properties adjoining water courses and mirrors, from before the origin of our homeland law, recognized this restriction, both as an
immemorial custom, and of the law applicable to the matter; and that it was part of the very nature of the domain over this type of goods.
That is to say, in order to have no doubt on this issue, Master Marienhoff's analysis is blunt when it expresses that the properties bordering a water course or mirror, consolidated during the term of colonial law, already had this limitation on the course margin (For Marienhoff, servitude, for us restriction); and for those subsequently consolidated, i.e.
during the term of the patrio law, the rule provided for in Article 2639 of the CC applies.
It necessarily follows that the limitation established by the path of tow or riverbank does not constitute any damage to the coastal owner, since its existence simply expresses the normal status of exercise of the right of dominance, on this particular type of property.
THE PROPERTIES ADJACENT TO THE LAKES ARE AFFECTED BY THE RESTRICTION OF THE TOWPATH
Of the legal texts, both of the original Art. 2639 of the Code. Of Velez, as of the new 1974, seem to leave out this restriction to mirrors or bodies of water such as lakes and lagoons.
It should be noted that the original text of Velez stated in Article 2340 inc. 5, with regard to goods in the public domain of the State: "Navigable lakes by vessels of more than one
hundred tonnes, and also their margins". Which implies that, while he did not consider the lakes to establish the towpath, he had the margins of the lakes, they were the public domain of the state. Then the 17711, changed the wording with the dispossessing in the inc. 5 of Article 2340: "Navigable Lakes and Their Beds"
Indeed, 2639 speaks expressly of the owners bordering the rivers and canals that serve as water communication; Nor is this situation clarified by the wording of the old article 2340, let alone with the reform of the 17711 which removed as the public domain of the State the margins of the lakes. Until finally, the sanction of the new art. 1974, brought a better wording, which allows us to conclude that on the margins of the lakes also corresponds the application of the institute of the towpath, since it speaks of the owners adjoining any of the banks of the channels or their banks.
From another point of view, the impossibility of navigating to the tow, pulling the boat from a single shore, arises, since the result of the operation would result in jammed the ship on the coast. This argument is not valid. Firstly, because it avoids impacting the coast by using the rudder; also if you have to take care of both banks, in the Río de la Plata, this operation is materially impossible, the same happens in rivers of the magnitude of the Paraná, for example. So it does not impede the extent of the lakes so that it can be sailed to the tow, as in any other river, regardless of its width.
It must also be understood that the tow restriction, as recognised in the old civil code, not only refers to the possibility of serving from the coast, but also that the limitation concerns everything related to navigation services: rescue, anchoring, docking, mooring, etc.
In such a way that the exclusion of the riverside properties of lakes, lagoons and other water mirrors from this restriction is not reasonably understood.
As we said, Article 2340 of the original Code stated, in the inc. 5, as a public domain: "The navigable lakes by vessels of more than one hundred tons and also their margins." It should be remembered that the margins are the surfaces adjoining the riverbank.
The reform of 17711, removed this obscure wording and simply incorporated into the public domain of the state in the inc. 5 renovated: "The navigable lakes and their beds"
On this confusing situation Marienhoff says: "The Civil Code in article 2340, paragraph 5, includes in the "public" domain the navigable lakes by vessels of more than one hundred tonnes and also their margins. What is the scope of this legal provision? Does the margins of navigable lakes actually belong to the public domain, or is there only a similar bondage to that laid down in Article 2639 with respect to rivers?... As I said, paragraph 5... it was taken from Article 328(5) of the Freitas Project, which included in the public domain the navigable lakes "and also their margins, for the same public bondage on the margins of navigable rivers". This allows me to state that in our right the margins of the lakes do
not belong to the public domain, but to the private domain, and that the reference to them in Article 2340(5) of the Code must be understood as Expressing Freitas in its Project, that is, those margins are taxed only by public servitude for the navigation service , in the same way as rivers. Such a criterion is strengthened by the fact that if the Code had included in the public domain the margins of navigable lakes, this would result in an attack on private property, which would be unconstitutional and therefore null; on the other hand, an old rule of law advises interpreting the laws in a way that will result in their effectiveness and validity... So the margins of navigable lakes belong to private domain, but they are taxed with the same public servitude as the Code established on the margins of navigable rivers.
What is the surface extent of this lake bondage? The law is silent, but it is clear that Article 2639 of the Civil Code should be applied by analogy; for the same reason, everything I said about that servitude when I took care of the waterways is applicable in terms of lakes."
For its part, Article 2639, referring to the towpath, was maintained throughout the term of the Code and concerns the owners bordering rivers or canals that serve water
communication. I mean, it doesn't incorporate the lakes.
Despite the above-provided article, Marienhoff's remarkable explanation allows us to conclude that the tow restriction should be applied on lakes and lagoons and other water mirrors.
Then, the last reform is covered in art. 1974, and refers to the properties "adjoining any of the banks of the channels or their banks" What should we understand by the banks of the channels or their banks?
Marienhoff says: "The bed of a watercourse is the surface of the land that the waters usually occupy"
The same can be said with regard to the bed of lakes, lagoons and other water mirrors. The same author says: "The concept of lake is the idea of a permanent set of waters contained in a bed or allveo. It is not conceivable a lake with water and without bed, nor with bed and without water... A lake is not a property occupied by water; it's a lake and nothing else... When you talk about lakes... mention is made of its essential constituent elements: bed and water." It then discusses the meaning that the law gives to the term bed and expresses: "The "bed" is also called "cauce" or "allveo" or "mother". The terms
"channel" and "bed" are used in preference in the Civil Code. The water law of Spain speaks of "alveo"
or "cauce". The Bolivian Civil Code uses the term "mother" as synonymous with bed or channel."
Guillermo Cano, produced a study required by the Federal Investment Council (IFC) referring to the riverside line. From this work can be extracted: "The constituent elements of every watercourse, water bodies and inland seas are water, bed and riverside line, which are the common denominators of any surface water manifestation. There is no such thing as the right access of one with respect to the other... The surface water runoff, in courses, bodies of water or seas, therefore includes the idea of an indivisible and inseparable set, formed by water, land, and a boundary (ribera)... The doctrine seems to have assumed that both the water and the bed are equally main and dependent on each other, since without their coexistence and conjunction the course or body of water is not conceived... The bedbed is the surface of land that the waters usually occupy. This is where the importance of considering the bedbed as an unscindable element of water comes from. It should also be
remembered that channel, bed, allveo, background, or mother have the same conceptual content."
That is, both the courses, as well as any other mirror or body of water, have a channel, therefore, the rule of Art. 1974 includes lakes and lagoons. Clearer still: Rivers, torrents, streams, lakes, lagoons, glaciers, etc., all of them have a channel. In such a way, there is no longer any discussion. According to the latest reform, all properties adjacent to any of these manifestations of water on the land surface, are subject to the tow restriction. With the only requirement, it is suitable for water transport.
