Article
citation information:
Rutkowski, M. Regulations governing the impact of
the aquatic environment on transport in the Kingdom of Poland: removing
obstacles from the rivers, creating riverside public spaces and signs and land
drainage. Scientific Journal of Silesian
University of Technology. Series Transport. 2020, 109, 163-176. ISSN: 0209-3324. DOI: https://doi.org/10.20858/sjsutst.2020.109.15.
Marek
RUTKOWSKI[1]
REGULATIONS GOVERNING
THE IMPACT OF THE AQUATIC ENVIRONMENT ON TRANSPORT IN THE KINGDOM OF POLAND:
REMOVING OBSTACLES FROM THE RIVERS, CREATING RIVERSIDE PUBLIC SPACES AND SIGNS
AND LAND DRAINAGE
Summary. This work focuses on
several aspects of water-related transportation laws as well as drainage law
introduced in the Kingdom of Poland before 1860. Thus, while focusing on a)
laws concerning the removal of diverse type of obstacles from the rivers used
for official navigation; b) establishing of riverside towing routes; c)
construction of rivers verst signs on the river banks, this research also deals
with the introduction of provisions concerning draining and receiving of
waters, which had a huge impact on the road construction and maintenance
process in Poland for the first half of the 19th century.
Keywords: water-related transportation laws, drainage
laws, Kingdom of Poland, 19th century
1. THE
LAWS ON LIQUIDATION OF BUILDINGS, WATER FLOATING MILLS AND WEIRS ON RIVERS
The
program of regulation of rivers of the Kingdom of Poland, initiated at the end
of the second decade of the nineteenth century, forced the state to solve the
problems of terracing rivers’ course by numerous artificial buildings,
especially by floating water mills (ship mills). And because the phenomena of
these floating water mills on rivers became rampant, blocked ship and raft
traffic became so widespread and common, as well as hindering the trade in the
Kingdom of Poland, soon it became necessary that it was relatively dealt with
by various Polish administrative authorities. For instance, on May 13, 1818,
the Administrative Department of the Masovian Voivodship Commission issued a
rescript No. 13,898, in which the officials warned the inhabitants of communes
located on the “navigable banks of rivers” (in particular, on the
Bug River, Narew River, Pilica River and Vistula River) about the need to
remove the floating water mills. This procedure was to be enforced - by
ordering the removal of unwanted structures - by the local district
commissioners, and of course these “unnecessary buildings” referred
mostly to: a) mills with the possibility of being towed from the shore; b) all
the building likely to threaten, by their location on the rivers, the coastal dams;
c) structures being the (main) reason for devastation (undermining or erosion)
of the river banks[2].
Then, on a prior request of the Government Committee of
Interior and Police, the Administrative Council issued on May 30, 1818, a
decision signed by the then Tsar's governor - General Zajączek, which in
practice prevents the placement of such buildings on watercourses without the
administration’s consent. As it occurred, there were two direct reasons
for taking such legal action: a) first: the floating water mills apparently
destroyed the river banks in many cases; b) second, and perhaps more
importantly, they made the process of floating of ships and rafts more
difficult. In addition, there was the observation of the existance of one
specific and clear legal solution, according to which in the area of navigable
watercourses, as a rule, no private investment could be established that could
contribute to the occupation of the area of public property, that such rivers
actually were.
As a
consequence, the article 1 of the act of May 30, 1818, gave interested parties
only three months from the date of its announcement for the liquidation of
their floating water mills placed on the navigable rivers of the Kingdom. An
exception was introduced only for those floating mills that would gain the
appropriate certificate of functionality from the provincial commissions, or
from the President of the Capital City of Warsaw. As it was stated in article
4, along with the expiration of the specified period of an inapplicability of newly introduced law, the legislator envisaged the removal
at the expense of the owner of floating water mills that would not have
obtained permission to conduct their business, and more: the owners of such
mills themselves were subject to police penalties.
Permission
to continue operation for a given water floating mill had to be issued by a
local engineer, however, only if it was recognised that a particular floating
mill was not the cause of any form of the destruction of the river banks, and did
not impede the float traffic. After positive verification of the indicated
mill, the local engineer was also required to accurately mark the location of
this specific floating water mill. As a general rule, the location of the water
mills was anticipated to gather near river clumps. If contrary to the
engineer's findings, the mill owner places it in a different place other than
the river clump, (that is, in a very place specified by the economic permit),
he would be subjected to police penalties. With the repeated confirmation of
the indicated unsuitable procedure, the “consensus” (that is, the
permission of operation) was annulled.
The
engineer prepared a floating water mill’s situational plan in duplicate.
The first of the drawings was kept in the files of the local Voivodship
Commission, the second was added to the tax files as an attachment to the
“consensus” report, containing the business permit. It should be
noted, though, that the mere approval by a voivodship (or sometimes by a district)
engineer of a water mill operation on a navigable river did not whatsoever
guarantee for long its continued legal operation. As it resulted from the
content of article 3 of Act of May 30, 1818, if as time passed, a specific ship
mill become an obstacle to conducting river rafting, then it had to be removed.
The mill owner was obliged to do this, regardless of previously gained rights
to conduct river grinding activities. All costs without exception, including
those related to engineering verification, draft and “consensus”
itself, were borne by those concerned[3].
One
would be surprised by the specific selectivity with which in May
1818, the Kingdom authorities treated floating water mills and their owners. A
certain explanation can probably be given by a significant variety of the
construction and location of these ship mills, which obviously might have given
the verifiers, lots of freedom in their treatment. Implementation of the
requirements of the thus developed law required, of course, “/.../
convincing [by the voivodship engineer] everywhere in situ that floating water mills at stake were harmful or
harmless, and also indicating if there was a need of relocating of such mills
/.../”. Hence, the provincial authorities quickly provided the voivodship
engineers with relevant instructions in this respect (in the case of the
Masovian Voivodship Commission, it was done for instance by the official note
of July 2, 1818), specifying, for example, the need for floating water
mills’ owners to pay the travel and diet reimbursements to
“verifiers”. The mayors in towns and chiefs of villages were
strictly forbidden to allow anyone without formal permission to build floating
mills in the future or to move them elsewhere on navigable rivers[4].
The
owners of floating water mills often caused the transport authorities various
problems, not only related to the location of these mills in the riverbed or on
the river bank. Such an issue was, for example, the arbitrary cutting of
coastal shrubs by the “millers”, which could have influenced the
formation of the watercourse bed, and thus, the conditions of the rafting.
This
practice had to be relatively widespread, since Tadeusz Mostowski, the then
minister presiding in the Government Commission of Internal Affairs and Police,
decided to intervene in such cases. He issued, on May 24, 1826, the rescript
No. 127/678, in which he explicitly forbade the owners of floating water mills
located on the Vistula River to cut down the scrub growing on the bank of the
river. Specifically, the production of ropes twisted from willow or wicker and
used for fixing mills to a certain position was banned, especially as the
material for their production was obtained from the surrounding river banks. As
the ban was addressed to the inhabitants of the Płock and Masovian
Voivodships only, it probably would have suggested that in areas located more
upstream of the river such proceedings did not have to be so distressing or
widespread[5].
Despite the adoption in 1818, the regulations regarding
the arrangement of the state of floating water mills in the mid-1830s, the
situation was still to some extent unregulated. In connection with the
above, on October 19/31, 1835, state counsellor Mateusz Lubowidzki, the then
Director of the Department of Commerce and Trade in the Government Committee of
Internal, Spiritual and Public Enlightenment Affairs, issued regulation No.
9528/30035, where he demanded the immediate removal of the floating water mills
from the whole area of waterways of the Kingdom of Poland. While doing so, he
especially had in mind that these water mills would be considered as
“harmful”. This official note indicated that Government Committee
of Internal Affairs precisely obliged in the form of an open order given to
each provincial communication inspector to eliminate the floating water mills
that would be considered as dangerous for both navigation process and proper
reservation of river banks. After the local voivodship inspectors found
particular mills to be “harmful”, the relevant administrative
authorities were automatically forced to dismantle and remove them immediately. Additionally, state councillor Lubowidzki ordered the
inclusion of clear information in the voivodship official press about the
assigning of any costs resulting from the breakdown of any water transport
vessel or raft by a floating water mill to their owners.
Meanwhile, Lubowidzki’s regulation of October
19/31, 1835, ordered the absolute removal from the stream of navigable
watercourses, all weirs, used for fishing.[6] This rescript, issued once again formally by the
Government Committee of Internal, Spiritual and Public Enlightenment Affairs,
clearly indicated the effective lack in 1835, and thus, already in the era of
Field marshal Paskievich, of a positive solution to the problem of the correct
location and functioning of floating water mills, situated on navigable
waterways of the Kingdom of Poland. Importantly enough, Lubowidzki's official
note, directed as such to individual governorate governments, left this issue
in the hands of the administrative inspectors, not engineers.
The process of clearing rivers of any obstacles became
even more urgent when in 1838 official decisions were made, under which it was
decided to arrange projects aimed at “/.../ improving the flow of
ships” between Warsaw and Modlin (the Russian stronghold of
Neogiergijewsk at that time). The reason was, still frequent in 1838, ships
struggle passing along the local water route with numerous and dangerous
obstacles[7].
The issue of obstructing rafting
through the illegal construction of floating water mills, weirs and even dykes
appeared again in the interest of the Kingdom authorities relatively quickly,
this happened precisely in 1840. At that time, acting on behalf of the Board of
Land and Water Communications, the main director of this institution, Adjutant
general Józef Rautenstrauch, wrote on October 12/24, 1840, his official
order No 299, addressed to the governorate governments of the Kingdom, in which
he reminded them of the need to obtain formal approval of building plans for
the legal construction of mills or weirs, situated on watercourses, as well as
depicting the laying of dykes there[8].
Next, on 5/17 July 1845, the Board of Land and Water
Communications issued command No. 5266, once again directed to the governorate
governments, and concerned with the prohibition of arbitrarily placing of any
buildings on rivers, without the approval of the transport authorities. By
default, of course, it was about buildings that could limit the flow of these
watercourses. Writing the above-mentioned note, the director of the Board of
Communication, Prince Teniszew referred here to legal solutions already
existing in the Kingdom of Poland, according to which, as a rule, rivers of
navigable nature were classified as public property (and this was based on
article 538 applicable in the Kingdom Civil Code). This, in turn, obliged
everyone to comply with the principle that waterworks carried out without
proper supervision, especially those undertaken to protect the river banks, or
make changes in the course of the watercourse itself, would not affect the
overall reduction in the level of floatability, or would not violate the rights
of third parties by changing the river banks: a) located on the other side of
the current; b) neighbouring with the place of the change.
According
to the rescript of July 5/17, 1845, all governorate governments were expected
to include formal warnings in the local governor's press: a) about the
prohibition of building on the rivers of any structures not approved by the
Board of Land and Water Communications; b) about the need to approve a specific
construction project by the government architects. In the event of stating by
the local governorate/district (poviat)/commune authorities that residents were
making illegal attempts to erect unapproved buildings on the rivers, the formal
authorities were required to notify the Board of Land and Water Communications
in Warsaw. The aim was to punish those responsible[9].
Undoubtedly, the reference made in 1845 for the need to notify the
communication authorities of each riverside construction project (which
indication was combined with the administrative reporting rule) was obvious
evidence of the widespread occurrence of this phenomenon even in the mid-1840s.
Major-general Teniszew raised the important issue of
sandbanks treatment in April 1848. Then, the Board of the (renamed) 13th
District of Land and Water Communications recognised some sandbanks along the
navigable rivers as “bars, or sites”. It considered those of the
sandbanks, where it was possible to accommodate or even overwinter river
vessels. In accordance with the content of art. 538 of the Polish Civil Code
once again, they were treated then as an area intended for the
implementation/performance of works “serving the common good”.
Consequently, none of these sandbanks private owners gained the right to
collect money as remuneration for the storage or even wintering of river
vessels in their property. In this way, not only was the right of universal
access to sandbanks suitable for logistical purposes secured but also the
dispute over possible fees for their use was eliminated[10].
Not surprisingly, in the late spring of 1852, the Administrative Council,
acting this time under the leadership of General adjutant, Prince Gorczakow,
prepared a decision on June 6/18 of the same year, describing what land can be
seized by forced expropriation to widen and build canals or regulate river
banks. This decision was made due to excessive outdating of existing regulations
in terms of the occupation of private property in the expropriation procedure,
for the purpose of its use by the state administration, or for the general
public aim. Acting based on the authorisation of Tsar Nicholas I, the
Administrative Council in article 1 of the new act of June 1852 specified that
various types of property (that is, ownership of the commune, property
belonging to institutes or, finally, private property) can be exclusively
legally seized in the procedure of forced expropriation in order to implement
the assumptions of the government or public plans, only under the provisions of
the official orders approved by Tsar.
Nonetheless,
pursuant to article 2 of act of June 6/18, 1852, the Administrative Council
guaranteed itself the right to take a series of immediate actions that would
lead to the seizure of private property through forced expropriation. The above
may have happened if the existing/emerging circumstances were deemed to lead to
the necessity of such seizure. Particularly the immediate expropriation
decision might occur when the necessity of such occupation would arise
“in bringing about of the previously revealed will” of the Tsar
“as to the continuation of works regarding buildings, or other endeavours
requiring it”. One limitation was the requirement to immediately inform
the monarch about such regulations of the Administrative Council.
In regard to rivers or canals, the expropriation
provisions described above were included mainly in article 3 of the act of June
1852, where it was indicated that such forced expropriation could take place so
as to acquire the land (and buildings standing on it) needed to establish
navigable canals, or possibly to make rivers not yet navigable suitable for
usage as transport and commercial waterways. Another goal was to occupy the
land to protect the banks and regulate navigable riverbeds and remove obstacles
from their course. Additional assumption was the forced taking of land to build
the coastal boulevards. Another subsection of article 3 verified in turn the
possibility of forced appropriation of (construction) materials, for their use
to protect the edges of navigable watercourses, regardless of whether these
materials were on the surface or underground[11]. The new expropriation act of June 6/18, 1852, quite precisely (although not covering certain atypical
situations) set out the new conditions for taking over land, buildings and
materials for the purposes of improving the access to the river current, and
the construction of canals as well as making the current perfectly floatable on
their whole length.
Already
at the beginning of the 1850s, the authorities decided to release the new
formal information on the conditions of work of water floating mills. On August
4/16, 1852, still being the chief of the 13th District of Communications,
Prince Teniszew issued decision No. 3,565, in which he categorically prohibited
the engineers, who took official care of the navigable rivers, from writing
down permits/certificates for further maintenance of these floating water
mills. Similarly, Teniszew forbade issuing permits for the building of new
floating mills under any circumstances. So-called “floating
engineers” were also unable (according to Teniszew's instructions) to
rebuild the destroyed water mills, without possessing the appropriate
certificate. By issuing his rescript in August 1852, General major Teniszew
apparently referred back to the decision of the Tsar’s governor
Zajączek of May 30, 1818, ordering the then provincial commissions to exercise
full control and supervision over floating water mills on the navigable rivers
of the Kingdom[12].
Probably due to successively
appearing problems with the negative impact of floating water mills on
communication on navigable watercourses of the Kingdom of Poland, at the turn
of 1852 and 1853, the same Prince Teniszew issued another decision on these
“water hindrances”. This time it concerned "the search for and
control of floating water mills on navigable rivers during the months of May
and August”, and as such was presented to the department chiefs of the
13th District of Communications in the form of an appropriate rescript.
According to the official note of December 31, 1852 / January 12, 1853, as of
May 1 and August 1 each year, the engineering services members were scheduled
to carry out a comprehensive review of these floating mills, limiting the
validity of this obligation only to those buildings that were located on the
main rivers of floatable nature. The results of this research (including any
comments) had to be forwarded to the provincial government offices[13].
With
reference to the above described regulation, which was after all, aimed at
possible correction of irregularities in terms of location, work, and possible
obstacles to general floating activities resulting from the existence of water
mills, in April 1853, it was decided to additionally issue specific provisions,
allowing any extra dislocation of such mills located on the Vistula River (the
main river of the Kingdom). For this purpose, on April 3/15, 1853, Prince
Teniszew issued decision No. 1,798, regarding “changes in the location of
the water floating mill[s] in the Vistula river bed”. Such dislocation
could now only be done as a result of a “justified requirement”,
and only after obtaining appropriate confirmation from the state water
administration services. The exact procedure was that after issuing such a
dislocation permit by the water administration authorities, local district
(poviat) chiefs had to be immediately notified about such a decision, and a new
location of the specific floating water mill, as well as its situational plan,
had to be submitted right away to the local governorate government[14].
From the presented picture of numerous, sometimes
overlapping in terms of meaning and content, laws concerning water floating
mills, weirs or river banks, emerges a picture of a certain legal confusion in
this area, which undoubtedly prevailed in the first half of the 19th century in
the Kingdom of Poland. Furthermore, the numerous attempts undertaken by public
transport and general administration in various years to aid the situation must
have met with considerable social resistance.
2. ESTABLISHMENT OF RIVERSIDE TOWING ROUTES
Another matter regarding the impact
of the water factor on transport in the Vienna Congress Kingdom of Poland was
the provisions regarding the establishment of riverside towing routes for ships
and rafts. In this regard, for example, “the freedom of staying in Warsaw
at the banks of the Vistula River” was considered. Because when towing
ships, barges, etc., it was necessary to provide an adequate strip of land at
the river bank, which could be easily trailed by people pulling ropes.
Consequently, it was only natural that on June 23, 1824, the Government
Committee of Interior and Police issued a “regulation on marking the
width of the Vistula river bank for public use and for towing of
vessels”.
This
decision, signed by the government committee’s President Tadeusz
Mostowski, was initially addressed only to the Municipal Office of the Capital
City of Warsaw, and in a temporary manner, “before [the Warsaw
magistrate] rewrites the permanently marked width of this river bank”.
Basing once again on article 538 of the then Civil Code, Mostowski assumed that
the appropriate Warsaw authorities would finally issue the applicable law over
time. Meanwhile, at the behest of the Government
Committee of Interior and Police’s minister, the Capital of
Warsaw Municipal Office had to ensure in 1824 that all those involved in trade
on the Vistula River (including rafting) had access to free stopping on both
sides of the largest river in the Kingdom. However, the minister allowed
unloading products there, provided that they were transported any further
almost immediately[15].
Clearing
river towing tracks of any obstacles was another problem. However, art. 556 of
the Civil Code of the Kingdom of Poland specifically required that owners of
coastal areas adjoining navigable rivers fulfil the obligation of allowing
“towing paths”[16].
Nonetheless, until April of 1843 only a few individual rivers in the Kingdom of
Poland were issued “/.../ provisions aimed at ensuring cleansing of banks
along these rivers and preparing their waterways to tow”. In connection
with the above, on March 26/April 7, 1843, the Administrative Council accepted
(in addition to the existing fragmentary law and at the request of the Board of
Land and Water Communications) a general provision unifying and extending the
relevant provisions to the entire navigable network of the Kingdom of Poland[17].
Pursuant
to this lawful act, the width of the banks of navigable rivers, which had to be
cleared of bushes, shrubs, trees, larger stones, etc., to enable "towing
routes" was determined for the whole country. Article 1 of the new law
defined such a standard width of obstacle-free bilateral banks of rivers along
their navigable tracks at 7 ½ fathoms, or 45 feet. This rule concerned
in 1843, the following sections of the then Polish rivers: a) in Biebrza River,
starting from the village of Dębowa to the flow of this river to the
Narew’s River current; b) on the Bug River, from the border with the
Austrian Empire to the flow of this river into the Narew’s current; c) on
the Narew River, from its entry into the territory of the Kingdom to the flow
of that river (the so-called Bugo-Narew) to the Vistula’s River current,
d) on the Nida River, from the town of Sobkowo to its flow to the Vistula
River’s current ; e) on the Niemen (Nemunas) River, along the entire
border of the Kingdom of Poland (and therefore only on the “Polish
side” of this river; f) on Pilica River, in the area from Koniecpol to
the flow of Pilica to the Vistula River’s current; g) on San River, along
the border of the Kingdom; h) on Warta River, from Działoszyn to the
border with the Kingdom of Prussia; i) on Wieprz River, starting from locality
of Krasnystaw to its flow to the Vistula River’s current; j) on the
Vistula River, the whole length from the Austrian border to the Prussian border[18].
Article 2 of the lawful act mentioned here, indicated that
it was acceptable or even required to clean the coastal area (from obstructing
the movement or towing large stones, trees, shrubs, etc.) even on a greater
width than the prescribed 45 feet. The above also applied to objects, which in
the event of a possible falling into the riverbed, could threaten to
“collapse” (that is, to stop) the current. Such cleaning of the
coastal strip of land with a width of 7 ½ fathoms or wider was to be
carried out using the forces and means of local owners, that is, landowners.
Simultaneously,
in 1843, the Board of Land and Water Communications was forced to set exact
dates, which were provided for cleaning the banks of all navigable rivers of
the Kingdom of Poland. When designing cleansing works, local owners were to be
reasonably treated by the state administration, which meant that the Board of
Land and Water Communications under the new law had a literal obligation not to
“overload” landlords with such works.
In
addition, there was also the possibility of engaging people living in
neighbouring municipalities in the process of cleaning the river banks. This
solution could, however, only take place in the event of a sudden and
unexpected need to undertake such works as soon as possible. Support from the
population living in the neighbouring communes could also have come to those
who were (with relatively small areas of land possessed) at the same time the
owners of land areas that “/.../ stretch a considerable length on the
banks of a navigable river, and require, due to accumulated stones, or other
obstacles /... /” a significant amount of work needed to properly clean
the coastal towing roads.
Furthermore, in April 1843, the
legislator guaranteed for the state administrative structures, the future right
for the extension of the regulations currently being introduced to specifically
mentioned rivers to some other watercourses that could be considered over time
as navigable, or to new (not already mentioned in the new law) sections of
already navigable watercourses[19].
The Act of March 26/April 7, 1843, introducing compulsory
easements for towing vessels and barges on the banks of rivers with a width of
7½ fathoms, obviously did not cause the general exclusion of coastal
lands from their use by their owners. This, nonetheless, did not entitle local
property owners to demand money from people floating items by watercourses for:
a) temporary reloading some of these goods from ships to shore, exactly on the
towing roads; b) mooring ships/barges at the shore. To curb this illegal practice, on August 10/22,
1844, the Board of Land and Water Communications sent to individual governorate
governments “a regulation demanding from the landowners not to require
float charges for temporary reloading of goods on the shores, or for mooring
ships to the shores”. By issuing this rescript, the Board of
Communications also referred to the need to treat towing roads exactly the same
way as it was done for all other types of tracks, namely, strictly as
“public use” areas. Hence, it was possible to draw a simple
conclusion, and the Warsaw’s Board of Land and Water Communications
obviously did just that, stating that on such and on all other roads, one could
only charge fees that would be established by the state authorities. However,
when those individuals transporting their goods by navigable rivers decided to
store their items on the banks of the rivers for: a) a longer period of time,
or b) for long-term storage of wood in one place; c) or for renting a yard
needed for building rafts, then the ordinance allowed free determination of the
amount due[20].
3. CONSTRUCTION OF VERST SIGNS ON THE BANKS OF THE RIVERS
One also
has to focus on the impact of the aquatic environment on transport in the
Kingdom of Poland in relation to “measuring of distances”, mostly
including placing some road signs in the riverside terrain. Here, essentially,
the matter of the final settlement of the status of verst poles erected along
the riverside was described in an official note, sent by the Board of the 13th
Department of Land and Water Communications of March 11/23, 1859, and addressed
to individual governorate governments. Observed from this official letter, in
order to ensure proper supervision (and protection) over the verst riverside
road signs located near the banks of the largest Polish river, the members of
the Vistula River Service were then instructed to notify their exact location
to local commune chiefs as well as to the mayors in the cities. After
completing the above action, it was necessary to forward protocols of verst
markings to representatives of the local administration of the two types
indicated above, that is, the chiefs of villages of mayors of bigger localities[21].
Subsequently,
the verst posts erected on both banks of the Vistula River were numbered,
anchored “for the sake of their complete preservation”, and handed
over to the local village chiefs or town mayors, along with the preparation of
the special report. According to the management of the Board of Land and Water
Communications of the Kingdom of Poland, dated as of 1866, they proved to be
“of great use”. When using them, the engineering services were
required to check the current state of the river banks, as well as to track any
changes occurring in the riverbed, which, of course, had to result in the
appropriate changes being applied to already existing maps. Another consequence
of these supervisory activities was the ability to monitor the effectiveness of
the overall working undertaken by water transportation services of the Kingdom
on the Vistula River[22]. In the
opinion of the transport authorities, it would be difficult and often
impossible to carry out all these activities “/.../ without these [verst]
signs”. Ultimately, it turned out that the verst posts “dividing
the river into verst parts” were considered the basic means to maintain
technical as well as administrative order in the existence of floating routs on
the main river of the Kingdom of Poland[23].
4. ACT OF
OCTOBER 10, 1818, ON DRAINING AND RECEIVING OF WATERS AND ITS IMPACT ON THE
ROAD NETWORK
The issue
of an extremely important factor for the proper construction and maintenance of
the transport network, that is, drainage of land, was regulated in the Kingdom
of Poland relatively early, specifically in 1818. On October 10, 1818 (at the
request of the Government Commission of Internal Affairs and Police, as well as
having heard the general sentence of the first Council of State), the tsarist
governor in the Kingdom, General Józef Zajączek, signed a law
specifying the provisions: a) according to which local landowners were obliged
“/.../ among themselves to collect and drain waters /.../”; as well
as b) describing the procedures of plausible conduct of any disputes in this
regard. As it was apparent from the preamble to that legal act that its content
was developed and prepared mainly due to the high frequency of the manner that
occurred between individual (and state) properties, when it came to “/.../
to ensure free drainage and reciprocal water intake”, which was combined
with bitter arguments and quarrels, and which, as such, required some quick
settlement.
The issue
of developing new regulations in this field became additionally more urgent
because, until the autumn of 1818, the matter of draining and receiving waters
was not covered by any provision of a police nature (referring directly or
indirectly to the articles 651 and 652 of the Civil Code of the Kingdom of
Poland)[24],
besides, the road-building national plan was about to start at that time.
As
formally stated in the article 1 of the Act of October 10, 1818, the new law
basically guaranteed the administrative authorities of Kingdom of Poland, the
possibility of undertaking all means of services for the free drainage of
water, each time it would require to take the above measures as “higher
necessity” related to: a) draining of the transport network, especially
of (paved) roads; b) improving the conditions of agricultural activity; c)
preventing the occurrence of infectious diseases which would have harmed the
health of both humans and animals. All quarrels related to: a) property rights
of flooded or drained land; b) claiming compensation for causing damage related
to the unlawful raising or lowering of groundwater, the new law apparently
referred to the court procedures. It was clearly expressed, however, that not
all legal investigations of “seeking justice at court” could affect
the freedom of action of the state administration bodies, and this in terms of
any activities undertaken for building or draining of roads, improving
agriculture, or preventing the emergence of health pathogenic areas.
Subsequently,
in a bid to introduce clear rules for the free implementation of the drainage
program, a number of general recommendations were introduced in Article 3 of
the Act of October 10, 1818. The main principle was the maintenance of the
right of each property to drain water from its land and to protect such an area
against falling of “freely drained” water on it, outside the
intended ditches and canals for these purposes.
At the
same time, point b) of Article 3 of the new law openly indicated that in the
event that the owner of the land “located above” would not be able
to ensure of usage of sufficient means of proper drainage of rainwater from it,
etc., then the land of neighbour situated below (for instance, belonging to the
Board of Communications) would be obliged “to accept water” and
allow the sewage right”. An extremely important reservation was
introduced here, as the owner of the land below could not be forced to take
over the sewage from the higher land when such state-owned institution or
private proprietor (due to reasons of an independent nature) would not be able
to drain any further water flowing into it. Similar reservation was valid, of
course, when the owner of the higher located land, which had been drained, was
not able to spontaneously help with assuring the further outflow of water from
the flooded property located below. In the face of such stalemate, the state
authorities guaranteed themselves the right to order neighbours (owners of
lower lands) to agree to continue the private drainage from the higher
territory. This could happen when “/.../ the benefits of the owner of his
own land far outweigh the damage that would be caused to neighbours whose land
is lowly situated /.../”. Such formal maintenance by the government
administration of the already started outflow of water from one (private) land
to another could also take place when the flooders had the means and
willingness to remunerate the “victims”. The
situations described above could have immense impact on possible flooding of
roads by private owners of land situated alongside the transportation routes.
The legislators also clarified the issue of digging
drainage ditches, stating that due to the necessity of digging such ditches,
the Administrative Council considered the costs of implementing a given
investment necessary to allocate appropriately among all those who could gain
economically in this respect. Contrarily, when the owner of the area where the
drainage ditch was planned to be excavated did not obtain any material benefits
in this respect, the Act of October 10, 1818, released such a property owner
from the necessity of participating in the digging of the ditch itself, and
from charging him for the costs of maintaining such a drainage investment. The
principles of social justice required that the material loss incurred due to
digging a new drainage ditch be rewarded. This usually was done by experts
“/.../counting the soil lost by digging the ditch” [25].
The
entire formal procedure of digging of ditches (at the request of one owner) for
the following other premises, was described as follows. When, in accordance
with the principles set out in Article 3 of the Act of 10 October 1818, the
conditions for carrying out such an undertaking were to be formally recognised,
the first step in the whole process for the interested landlord had to be to
travel to the appropriate provincial commission to submit his application
there. In support of the application, an appropriate situational plan had to be
attached to such a request.
Consequently,
the employees of the Voivodship Commission were obliged to analyse the
application submitted for the sake of its assessment, and the voivodship
authorities themselves had to delegate a “road and water transport
engineer” (or his deputy) to overlook the exact location site. This
engineer had to verify on the spot, the reliability of the situational plan
submitted by the applicant, and then he was expected to submit to the local
voivodship authorities a report of his detour.
Additionally,
when the party demanding the outflow of water from its territory did not submit
any situational plan, the duty of the “road and water transport
engineer” was to draw up (on the recommendation of the Voivodship
Commission, and at the expense of the applicant) a local situational plan. It
was only after the engineer found in situ
that there was a real need to ensure water drainage from a given area that the
Voivodship Commission could send the plan of all works to the capital, together
with an estimate of costs, for approval by the Warsaw’s ministry (the
Government Committee of the Interior and Police). The next stage of the entire
procedure was the act of approval of the submitted drainage project by the
ministry, which then, in turn, returned all documentation to the local
provincial commission. Subsequently, having received these files, the latter
agenda had to send the whole documentation to the district commissioner,
exercising jurisdiction in a specific area.
Then the
district commissioner summons all interested parties to appear before him.
Their right and duty were to choose the so-called “amicable
experts” (one for each interested party). Another appraiser was added to
the group of these officials by articles of the law at stake alone, who in turn
was to represent the government administration. The basic duty of the
appraisers at this stage of the procedure was to estimate the percentage share
of the persons concerned in covering the costs of the entire undertaking.
Due to
the common consent for such cost accounting, fieldwork usually commenced
immediately. However, when no agreement was reached on the financial terms,
drainage works were normally postponed. The party to the conflict claiming to
be “injured” had the right to go to the offices of the local
Voivodship Commission to assert the possible complaints there. In view of the
hypothetical disagreement of the participant of the proceedings claiming to be
mistreated with the appeal decision taken by the provincial authorities, he/she
still had the right to refer directly to the Government Committee of Interior
and Police, issuing the final decision in the case.
For the
avoidance of possible significant delay in conducting drainage works due to an
emerging dispute, the Act of October 10, 1818, set a 15-day period (from the
date of official delivery of a letter in a specific case) to appeal to the
provincial Voivodship Commission, and a period of 30 days to appeal to the
ministry. If within the time allowed for lodging appeals, no “complaining
party” submitted applications contrary to expert opinions, the above was
considered an expression of agreement on the distribution of financial burdens
proposed by appraisers, or determined by the first appeal stage by the
provincial commission, which resulted in immediate further execution of the
work plan. As a rule, the cost of issuing opinions by the experts was borne by
the person demanding to allow the outflow of water from his terrain, possibly
together with other properties “who would possibly take any advantage of
these works”.
Finally,
the Administrative Council in article 6 of the new drainage law of October
1818, dealt with the problem of the possible renovation of formerly dug and
then neglected drainage ditches. Particularly, it was envisaged that some local
inhabitants could ask the Voivodship Commission to take legal actions in a case
when there occurred ditches “/.../ destroyed by agriculture or residents
in the area [that] suffered damage /.../”. With the consent of the
Government Committee of Interior and Police, provincial authorities could order
(by way of execution) owners of lands, where the specific destroyed ditch was
located, to renovate or cleanse these drainage canals. Any disputes resulting
from this title were to be heard by the appraisers, and the Voivodship
Commission was forced to issue a decision in this respect. Here, one could also
appeal against such decisions of the provincial authorities to the Government
Committee on Internal Affairs and the Police in Warsaw[26].
All regulations presented therein in this paper regarding
both state authorities and private landowners participation in land drainage,
clearly had a huge impact, though not so much on the very process of
determining the scope of road construction, but on the sheer speed and
regularity of the entire phenomenon of creating and developing the road network
of the Kingdom of Poland. Eventually, the land drainage law offered the
possibility of reporting countless appeals and protests, which as such might
and could in principle, have delayed the road works.
5. CONCLUSIONS
First,
worthy of mention is that between 1818 and 1859, many ordinances were issued
regarding the liquidation of buildings, water floating mills and weirs on the
rivers of the Kingdom of Poland. The above conclusion demonstrates two
simultaneous processes: a) the state's constant interest in the improving of
patency of the country's transport and water network; b) significant
difficulties in achieving this goal. Similarly: a) laws relating to the
possibility of stopping of ships and rafts at river banks (in particular. the
act of 1824 relating to the Vistula River at the height of Warsaw); as well as,
b) relating to ordering the maintenance of general navigability of rivers; and
c) especially touching the phenomenon of riverside towing routes, attest to the
authorities' extended care in relation to the proper functioning of the coastal
communication structure. On the other hand, the elaboration of the dated act of
1818 “on the collection and draining” of water (as it seems) turned
out to be an effective legal tool, extremely useful in solving drainage
problems and difficulties facing the Polish road engineering, among others.
Nonetheless,
considering the variety of the intensity of activities aimed at introducing in
the first half of the 19th century, the provisions regulating the impact of the
aquatic environment on transport in the Kingdom of Poland, one can thus,
present a thesis on their evident various scale of implementation.
References
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Central Archives of
Historical Record in Warsaw. Druga Rada Stanu Królestwa Polskiego [In Polish: The Second State Council of Kingdom of
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[In Polish: Digest of Laws of the
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Received 05.07.2020; accepted in revised form 12.11.2020
Scientific
Journal of Silesian University of Technology. Series Transport is licensed
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