CONFLICT BETWEEN OWNER AND CONCESSIONAIRES DUE TO PRAEDIAL OCCUPATION UNDER THE CHILEAN LEGAL SYSTEM (ENGLISH VERSION)

• Jurisdiction: United States

MINING LAW & INVESTMENT IN LATIN AMERICA
(April 2003)
CHAPTER 12A
CONFLICT BETWEEN OWNER AND CONCESSIONAIRES DUE TO PRAEDIAL OCCUPATION UNDER THE CHILEAN LEGAL SYSTEM (ENGLISH VERSION)
Juan Paulo Bambach
Philippi, Yrarrázaval, Pulido & Brunner
Santiago, Chile

I. INTRODUCTION

The subject to which I will refer will sound to you as known and lengthily discussed in previous meetings of this same foundation. On this occasion the Chilean case will be dealt with specifically, under the assumption that the comments that follow, in general, are applicable to the rest of the South American countries that share the juridical tradition of Chile, that, as far as mining is concerned, has its origin in Spanish legislation and in civil law of continental Europe as regards the right to property.

The sole re-edition of the discussion on the praedial occupation and the solution of the controversies that arise therefrom are proof that far from having surmounted the discussion, the problem increasingly becomes current and acquires greater relevance. Thus, it is frequent to find that a same estate can be subject to the encumbrance of being occupied for the development of several activities such as mining exploration and exploitation, the laying of systems for the transportation of gas, the installation of aqueducts, electric post lines, telecommunication facilities, use of geothermic energy, etc.

This coexistence between owner of the soil and concessionaires or titleholders of rights of different kinds in the same spatial environment, gives rise to disputes especially when the activities do not correspond to the destination of the estate or when the acts of the concessionaires are incompatible with each other. The first land dispute will always arise between the owner of the real estate and the concessionaire that intends to limit the praedial dominion in favor of its own activity. When the concessionaires are different and of a different nature we shall see that the discussion will add the allegations of preferences and invocations of best right to attain the occupation with pre-eminence and exclusiveness.

We must not forget, however, that the central subject in all this discussion is the owner of the estate, and that all the aspirations of third parties always fall on an estate of a third party that belongs to the former in dominion plenum superior in category and content to any other right as regards occupation.

The idea of this brief exposition is to endeavor to illustrate this prior claim that the owner of the estate has, review the rights of the different concessionaires with respect to the use of the soil, the juridical way in which such occupation must be materialized and several possible criteria to solve the conflicts that could arise as a result of such occupation.

II. PRAEDIAL DOMAIN

The basic premise to go deeper into the analysis of this problem and to give possible solutions is as follows:

" The praedial domain is superior as regards the occupation of the estate".

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Such superiority comes from the following attributes that correspond to the praedial domain. .

1. Its Originality: Juridically the first occupation of the soil is that which is made by the owner of the real estate, and therefore, unless there is a lien over it, it is the only one that can define the economic destination of the soil according to the limitations imposed by law. This is nothing but the immediate consequence of the exercise of the faculties that are inherent and proper of the dominion, which is the use and enjoyment and disposal with respect to a certain property, that is to say, the soil or superficial property. ¹

2. Its Plenitude: Our Civil Code distinguishes between those corporeal and incorporeal things. The former have a physical entity while the latter are merely rights. Thus as the corporeal things can be real or personal property in accordance with their mobility, the incorporeal things are reputed movable or immovable, according to the thing on which they are exercised. ² In the subject in which we are interested, the rights can be real or personal, depending on whether they are exercised on things with respect to certain persons, or if they are only enforceable with respect to certain persons. ³ The dominion is precisely one of these real rights, that according to the law is exercised on a corporeal thing, to enjoy and dispose of it arbitrarily, so long as it is not against the law or against the rights of others.

With regard to the rights, says the legislator, there is a kind of property or dominion, kind of property that is not identical to the dominion that is exercised on a corporeal thing. ⁴ The dominion of the owner of the soil is a real right that is exercised on a corporeal thing, the real estate, mingling its dominion with the property itself. Object and Right are mingled. In such sense the dominion of the owner of the estate is independent since it exists pro se and does not require any other right to permit its exercise, unlike the other real rights, which with respect to the estate are rights in a thing belonging to another.

The dominion on corporeal things is the real right by excellence and it has been denominated in doctrine as the real "property". With regard to the rest of the rights the law states that there exists, and there is, a kind of property or dominion. The property is "the broad right of seigniory that can be had on a thing, unitary and virtually universal on a corporeal thing. Even though there coexist real rights on the same thing, these do not imply participation in the property but burdens that restrain it". ⁵

Unlike what occurs with the owner of the estate, the dominion of the concessionaire is exercised over its concession, that is to say, over an incorporeal thing, right that in some cases will be real as happens with the mining concession and the right to use water and in others, it will not be more than mere personal rights, in both cases rights arising from acts of the administration or of the courts of justice. The direct connection with the land is consubstantial to the dominion of the estate. Such connection does not concur in the case of the dominion of the mining concessionaire, where the object is its concession that in turn is a real right whose object is the use of the minerals found within the limits of its concession. The same occurs with the dominion of the owner of the right for the use of waters, real right that is exercised on the

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waters conceded according to the law. ^{6 6 6 6 6} In the case of the other concessionaires such as transportation of gas, electrical, sanitary infrastructure, telecommunications, etc., the dominion falls simply on its respective concession, a personal right arising from the administrative act consisting in the granting of a "concession". However, none of these dominions is sufficient to occupy the land of another person and will require for this the constitution of a real right, that is to say, the real right of easement, right that will be complementary or additional to the real right of the right of the mining concessionaire and of the right for the use of waters (right over right). ⁷

In simple terms, the concessionaire shall never be able to assert that it is the owner of the land, but in the best of cases it may assert that it has a right over the estate of another person and by virtue of such right may occupy it for a specific use as may be pertinent.

3. Its territoriality. The praedial dominion has a complete physical or territorial dimension, which derives from its direct exercise on the thing. We must not forget that the incorporeal things are definitively moral entities, without physical entity, ⁸ from which it follows that they are not really movable or immovable ⁹ in the corporeal sense and that therefore they do not create a direct relation on the thing.

This territoriality that characterizes the praedial dominion is absolute, and comprises both the soil and the subsoil. Expressions used by the law such as "superficial owner", "subsoil", "land in whose entrails", induce to error since they would seem to restrict the dominion of the owner of a real estate to what is strictly superficial, wrenching away from it anything that is under the surface. The Roman maxim that the one who is the owner of the soil is also the owner of the sky and of the subsoil, recognizes the ownership of the soil, the ownership of what is over and under it. The restrictive theory opposes this amplitude, which limits the property only to the horizontal plane, restricting it to the layers that are most proximate to the subsoil, conception that denaturalizes and definitively makes impossible the right of property of the real estate. The doctrine that has been most accepted has become that which is called eclectic doctrine that establishes the scope of territoriality of the dominion of the land in function of that which requires the use of the subsoil and the aerial space for the development of its economic activity. ¹⁰

The territoriality of the concessionaire is, on the other hand, a theoretical conception. In the case of the mining concessionaire the only object of the norms on shape and dimensions of the upper face is to delimit the spatial scope where it can explore and exploit and become owner of the minerals that are extracted, with exclusivity and preference with respect to another mining

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concessionaire. ¹¹ The history of article 26 of the Mining Code confirms what has been stated, when the modification of the text that included the expression "limits of its territorial extension" was rejected, with the grounds that the rejection that it was equivocal to use own terms of measurement of the surface of the land. . The purpose of the territoriality of the real right to use waters in turn is to indicate the physical point where the water will be extracted and its restitution (in the case of...