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and as the law of the Partida says,* each is better satisfied with his share when he has it to himself, and he arranges it better and makes more advantage of it.
43. The question, moreover, is put beyond a doubt, by two other ordinances of Peru, one of which sanctions the taking a mine of 15 varas in width, if it be a waste space between other mines ;f and the other fixes the number of hands to be kept at work in a mine of 60 varas, at eight Indians or four Negroes; and in a mine of 30 varas or under, at four Indians or four Negroes ;J whence it is to be inferred beyond question, that the mine may be divided by varas.
44. And the point is still more clearly established by one of the ordinances of Castile, according to which, any person may apply for the waste spaces remaining between two mines,§ which are often of a smaller number of varas than a regular mine, for these waste spaces may be of 100, 80 or 20 varas, or more or less, according as the number of varas to spare is more or less. • And it is well known, that in practice, the waste spaces are taken possession of in this manner, as we have ourselves witnessed in the mining district of Bolaiios, where the title of Zapopan mines was given to them; and also in other mining districts.
45. The old ordinances allowed 80 or 100 varas only, for the length of a .silver mine.jj The gold mines, also, are mines, and yet, under the ordinances of the new code, those taken by the discoverer can only be 80 varas, and the ordinary ones only 60 varas in length, and one-half, respectively, in width ;*|[ and by the old ordinances they were of still smaller dimensions, that is to say, 50 and 40 varas respectively,** so that a mine may be really such, although it be not 120 varas in length. And if the law itself sometimes assigns a less extent to mines, so may their dimensions be diminished upon the division of a partnership, agreeably to the law. And finally, the length of 120 varas is fixed as a matter of favour, and the object is, that that number should not be exceeded; but this does not prevent the miner from contenting himself with less, and renouncing the rest.
46. Nor can it be urged, with any effect, that this would occasion confusion, or that as different fixed stakes would be set up in the mines, thus rendered, by division, less than the regular size, it would be easy, by entering these pits, to gain access to the ore belonging to the adjoining mine owner; for the same thing might be said of the waste spaces which are allowed to be taken
• Law 1, tit. 15, part 6.
t Ord. 1, tit. 2, concerning the spaces allotted for mines, in Escalon. nbi. mp.
} Ord. 3, tit. 7, concerning mines insnfficiently worked, spud eund.
I Chap. 13, ordinance 29.
0 L. 4, tit . 13, book 6, ord. 22.
T Chap. 9, ordinance 70,
** Ordinance 75, law 5, tit. 13, book 6.
between the different mines, and yet these inconveniences are not found to occur, for if a party registers a pit upon a vein and upon ore, and follows it up, then, even supposing that he does carry on his works within the limits of some other owner, he becomes entitled, by his diligence, to the ore he may raise.* And there is no fraud in a case of this kind, fraud being imputed only in the case of a party working where there is neither a vein nor ore, nor any appearance of it, and with a view merely to take advantage of the ore of a neighbour, by mining within his boundaries. But if those who make partition of the mine proceed with regularity, and measure out the ground in varas, so as to ascertain what is the share of each, each of them registering a pit upon ore, or leaving the entrance common, it is precisely the same thing whether the mine contain 8 varas or 80, provided the limit of extent fixed by law, be not exceeded.
47. And above all, as it is impossible to lay down rules for all cases and in all matters, the aspect of which, from the various combinations of qualities, persons and incidents which occur, varies with the most trifling variations in the circumstances, the subject must be left, after laying down the above rules, to the sound direction of the judges, in the exercise of which, it must be determined whether, under such or such circumstances, the metalliferou s estate will conveniently admit of division, or not; as is laid down by Felicius, upon the authority of Baldus and Decianus; and if it will not admit of such division, then it should be adjudged to one of the partners, and, in preference, to him who holds the largest share. Or, according to a better opinion, for which he cites Tiraquelo and Capicius,f they should be admitted to bid for it, giving a preference to the partner who holds the largest share; by which means the inconvenience of obliging the parties to continue the common holding or partnership is avoided, whilst the adjudication, or the better plan of a judicial sale, preserves the interest of the partner who calls for a partition, without rendering it necessary to divide the property. This rule is likewise laid down in the Curia, being founded on the law of the Partida, and the civil law, and it is also illustrated by Ayora.J
* Chap. 14, ordinance 30.
f Felicius, de soc. cap. 89, n. 86. "Secundo consideravit, an res, puta fundus, commodam patiatur divisionem, quod quando sit declarat Baldus, in L. aancimus, Cod. de donat ct in cap. 1, in princ. de duob. fratr. de nor. benef invest, et Decian. cons. 15, n. 38, lib. 1, et erit ista decluratio judici arbitraria, cum certa regula dari non possit, et si videbit commodam non pati divisionem uni erit adjudicanda, ut perBarth. in L. ad officinat, Cod. comm. divid. Contra banc Barth. opinionem faciunt tradita a Bald, in L. sancimus, Cod. de donat. nam vult, quod si res commode dividi non possit, praferatur ille qui in re babet majorem partem Verum a Barth. opinione non est recedendum, et est intelligendum, Baldum loqui quod in par licitatione solum modo prseferatur ille qui in re majorem partem habet, ita tradit Tiraquel. de jure primogen. q. 60, n. 16. Capicius, dec. 36."
t Curia, lib. 1, comm. terrest. §. companeros 3. n. 49, L. fin. tit. 15, p. 6. L. ad officium, Cod. comm. divid. Ayora da part, p. 1, cap. 3, n. 80.
OF THE FIRST DISCOVERERS. AND THEIR PRIVILEGE OF HOLDING SEVERAL MINES, AN ORDINARY MINER BEING CAPABLE OF HOLDETC TWO ONLY, UNLESS ACQUIRED BY PURCHASE OR INHERITANCE, UNDER WHICH CIRCUMSTANCES HE MAY HOLD AN UNLIMITED NUMBER.
ORDINANCES XXII. XXXI.
XXII. Also, we ordain and command, that the person who shall first find or discover a mine, shall, as the first finder or discoverer, be the first to make registry, and shall enjoy all such mining pertenencias as he shall stake out, or choose to stake out, upon the mines and veins he shall discover, or shall have discovered, provided that he shall, within ten natural days from the time of his making registry of such mine, stake out, declare and distinguish such pertenencias as he may be desirous of having; and that he shall enjoy the extent of space which properly belongs to each portion staked out, throughout all the pertenencias which he shall so stake out and distinguish, as such discoverer; and that he shall be obliged, within the aforesaid term of ten days, to stake out all the pertenencias which ho shall so choose, to be performed in such manner as he shall think fit, although he should include and take within his boundaries any trial pit or trial pits which other persons, coming after him, may have made, or may make; provided he first set up a fixed stake in each of the pertenencias he shall so distinguish and take, which he shall not be at liberty to leave, nor shall leave, when he shall stake out or alter his boundaries, however he may stake out or alter the same. And that such persons as shall come after him, shall proceed in their order, to stake out or alter their boundaries, as they shall from time to time discover ore. And that when they shall have made registry, as they are bound to do, they shall proceed to set up a fixed stake in each of the pertenencias they may choose to take and distinguish, within the term of ten days, as aforesaid, but after the expiration of the first ten days allowed to the first discoverer; for those who stake out a mine, are always to have ten days to view the ground, and to take all such pertenencias as they shall wish to have, and to set up a fixed stake; but they cannot disturb or enter upon the pertenencias which shall have been already staked out, because all the pertenencias and boundaries which shall have been taken and marked out by those who shall have first set out stakes, are to be preserved. And if two or more persons shall apply to have their boundary stakes set out, it shall be ascertained, in a short and summary manner, which of them applied first; and he who shall be ascertained to have been the first, shall be preferred, saving the right of the other party, if he shall, nevertheless, claim to have first made application to have such stakes set out, as aforesaid.
XXXI. Also, we ordain and command, that the first finder and discoverer of such mines may take as many stakes and pertenencias as he chooses, observing, in respect to the same, all that is contained in the ordinances relating to this matter; and that he may also hJd and possess all mines snipertenencias, how many soever they be, which he shall purchase or inherit, or which may appertain to him under any title or cause whatsoever.
CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.
1. Of the regard which ought to be paid to the dicoverers of mires.
2. The discoverer is the person who finds ore in the vein, although he may not open the
first pit on the ground.
3. If it be a question who was the first discoverer, it shall be ascertained in a summary
way, the right of the losing party being reserved.
4. If two different persons find ore upon the vein at the same time, it might appear that
they would reciprocally prevent each other from being discoverers.
5. This perplexity, however, is easily got over, with regard to the mines.
6. 7 and 8. For it is inferred, from two of the ordinances of Peru, that each party acquires
to himself the privilege of a discoverer, although some preference is shewn towards him who first applies to the justice. 9 and 10. The same rule prevails in New Spain, except that no preference is given to the party applying first; arguments establishing this doctrine.
11. The discoveier may take as many mines as he pleases, under certain conditions.
12, 13, 14 and 15. The old ordinances are altered by our text, as to the number of mines the discoverer is allowed to take, and the mode of taking them, as he may, by the present law, take as many contiguous mines as he pleases, taking care to keep a proper number of hands at work, and observing the other rules of the ordinances.
16. Other miners, as well as the discoverer, to be entitled to register a mine, must have discovered ore, and must set up a fixed stake within ten days.
17. Of the order to be observed amongst these parties in granting mines; the preference being given to the party who first applies to the justice.
18. What is to be donewhen several parties apply, at the same time, to have the boundary takes set out.
19. No ordinary miner can take two contiguous mines, but any person may hold two or more, if acquired by purchase.
30, 21 and 22. It is resolved and proved, that any person may also hold several mines, if acquired by inheritance or any other lucrative title.
1. If the inventors of arts tending to the common benefit of society,* are justly entitled to reward, the discoverers of mines, the precious metals produced from which are the main spring of arts, and the animating spirit of commerce, are surely still more proper objects of such encouragement. For rewards so bestowed, besides being a proper return for the labour and anxiety of the discoverers, have the further effect of stimulating others to search for veins and mines, on which the general prosperity of the state mainly depends.f
* Solorz. tom. 1. de jar. Ind. lib. 1, cap. 16, a n. 35. Polydor. Virgilins, de rerum inventeribus.
t Agricola, de re metall. lib. 3. page 56. "Ut primo vonas inventori mcritam referat, et casteros metallicos excitet ad stadium qusrendaram venarnm."
2. The subject to which these ordinances, from the 22d to the 81st inclusive, relate, is that of the privileges of the first discoverers. In which the first thing to be noticed is, that the first discoverer is " he who shall have first found or discovered the mine;" or, as the ordinance of Peru has it,* "he who has first found ore in the vein, notwithstanding that some other person may have been the first to commence making trial pits;" (trial pits made by way of trying the vein.) And our own ordinance contains a like provision, directing that the first discoverer shall take out such pertenencias as he shall choose to have, within the term of ten days, " although he should include and take within his pertenencias any trial pit or trial pits which other persons coming after him may have made:" for the first discoverer is not the person who opens the first pit, but he who first finds ore. He who opens the first pit may not find ore, and even if he should have opened the pit after discovering ore, yet he cannot anticipate the discoverer, or divest his right of making registry previous to any other person, within the 20 days fixed by the ordinance.f
3. Supposing that two or more persons should find ore at different parts of the vein at the same moment, it may be asked, which of them is to be considered the first discoverer? This question is not touched upon in the ordinances of the new code; and all that is contained in the old onesj in reference to it, is a declaration, that if two or more persons should apply at the same time, it shall be ascertained in a short and summary manner, which of them was the first finder or discoverer; and that he who shall be ascertained to have been the first shall be preferred, saving the right of the other, if he shall nevertheless insist that he was the first finder. But this is a distinct case from that which we have supposed; for if it can be ascertained which of them was the first finder or discoverer, the preference must be given to him, whether upon a summary or plenary trial, and even although they should simultaneously make application to have their boundaries marked out. But the case we have suggested, is that of their having both found ore at the same moment, so that it cannot be made out who was the first discoverer, which, although of frequent occurrence, is within possibility.
4. Did we depend on the civil law for a solution, we should adopt the opinion, from analogy to what takes place under similar circumstances, that each would prevent the other from becoming entitled to the privileges of a first discoverer, and that neither of them ought to be so considered. Thus a legacy given him who shall first ascend the Capitol, is prevented from taking effect, it two persons ascend at the same time, so as to make it impossible to ascertain which of them was the first. So if given to him who
* Ord. 9, tit. 1, concerning first discoverers; Escalona, Gazoph. lib. 2, part. 2, cap. 1, page 106.
t Chap. 5, Bnp. ord. 17,
I Ord. 21, law 5, tit. 13, hook 6, Collection of Castile.