Limitation of an unlimited water rights concession from the 19th century

Facts

In 1866, the appellant [A. AG] received a water rights concession from the Canton of St. Gallen for the B. stream and C. stream, the duration of which was not regulated in the concession document. In 1998, the Department of Construction of the Canton of St. Gallen ordered that the concession be limited in time and irrevocably expire at the end of 2003. [A. AG] appealed against this, as it was of the opinion that the concession was an unlimited old-law concession that granted it an acquired right to use the stream.

Considerations

The Federal Court dismissed the appeal of A. AG. It stated that according to the current legal view, the public authority cannot grant special use rights for an unlimited duration, as this would be contrary to the inalienability of public authority. An unlimited concession would result in the public authority relinquishing its rights and sovereignty over public waters. The Federal Court made it clear that there can be no acquired right to an unlimited special use of a public body of water.

Although the concession of [A. AG] was granted in the 19th century without a time limit, when concessions were still understood as private law and in rem rights. However, it is now recognized that the public authority cannot permanently relinquish its sovereignty…