Qualification of a spring as a stream spring belonging to the public domain

Facts

This decision concerns a dispute between Mr. Ernst Tscherrig and the municipal commune of Raron regarding the legal qualification of a spring located on Mr. Tscherrig's property. The Cantonal Court of Valais considered that this spring, known as the "stream spring", constituted a stream spring that was part of the watercourse it fed, and therefore a public asset belonging to the commune. Mr. Tscherrig disputes this qualification and argues that it is a private spring belonging to him.

Considerations

The FC recalls that springs are in principle constituent elements of the land on which they emerge, and therefore belong to the owner of the land (Art. 667 para. 2 and 704 para. 1 CC). However, a distinction must be made between private springs and stream springs. The latter, which form a watercourse from their emergence, are not an integral part of the land but constitute an element of the public watercourse they feed.

To determine whether a spring should be qualified as a private spring or a stream spring, the decisive criterion is whether the water it produces forms a stream, i.e. a watercourse with a certain power and permanence, capable of carving out a bed with stable banks, from the outset. If this is the case, the spring is an integral part of this public watercourse.

In the present case, the FC considers that the "stream spring" has sufficient power…