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of sixty varas in extent, in the order in which they shall make application. And if the discoverer shall have forgotten any one of them, who shall prove, by two witnesses, that he was making trials at the time, ho shall enjoy the same rights as the others.
18. If two or more persons (proceeds our ordinance), shall apply to have their boundary stakes set out, it shall be ascertained, in a summary way, which of them applied first, and he shall be perlerred; saving the rights of such others as shall nevertheless claim to have made the first application, to be determined upon a plenary trial. This case appears to involve some difficulty, and can only occur when the application to set out boundaries has been made verbally, for the proper way of making it is by petition to the justice in writing; the question, who has made the first application, will therefore be determined by referring to the time of presenting the petition, the day and hour of which should be noted in the register,* as the standard determining the order of priority, in which different parties may measure out their mines, f This case differs from that proposed in the 21st of the old ordinances, which speaks of two persons, both of whom claim to be the first discoverers; in which case it is to be ascertained, in a summary way, which of them was first; saving the right of the other, to be determined upon a plenary trial,% as before observed in n. 3.
19. We have stated above, that the 31st of the old ordinances is repealed in favour of the first discoverer, by the 22nd ordinance of the new code; and we now add, that it is also annulled, as respects him, by the 31st of the new ordinances, which authorises the discoverer to take all such stakes or pertenencias as he pleases, observing the rules of the ordinances. But as to other persons, not being first discoverers, the 31st of the old ordinances still applies; its effect being, that no person shall hold moro than two mines upon the same vein, acquired by registry or denouncement, and that such two mines must have an intermediate space of three mines between them; but not so as to mines purchased, which may be held contiguous, even though several in number. The reason is this, that if the party purchase them, they are, necessarily, regular mines, and sunk to the requisite depth; and it is evident, that his object in taking them is to work them and raise the ore, and that he is not merely instigated by an avaricious desire of occupying a large space, to exclude others altogether from the ground.
20. The first discoverer being capable of holding several mines, either contiguous or apart, when acquired by inheritance, it has been made a question, whether any other miner can hold such mines under the same circumstances. The opinion of Don Joseph Saenz is to the contrary ;§ but we
• Chap. 5, n. 12.
t Chap. 11, ord. 25, infra.
t Law 5, title 13, book 6, Collection of Caitile, ord. 21.
4 D. Joseph Saenz, Tratado de medidai de minat, cap. 2, n. 16.
have not been able to make out the grounds on which this opinion rests, nor can we discover any: for although, in the 31st ordinance we are treating of, the words " shall inherit," apply to the discoverer, to whom alone the ordinacc refers, it does not follow that other miners are incapacitated from hold* ing any mines that may descend to them; for if they can take them by way of purchase or exchange, or other onerous title, why should they be disabled from taking them by way of legacy, donation, inheritance or any other lucrative title 1
21. The 31st of the old ordinances does not contain the words " shall inherit," in reference to the first discoverer, and yet we do not hesitate to say, that even when this ordinance was in force, incapacitating the discoverer from holding more than two mines, and those separately, like any other person, unless acquired by purchase, our opinion would nevertheless have been that he might still have held them, if acquired by inheritance; and so of any other miner. For were it not so, parties would bo deprived of the benefit they might derive from a gift or bequest of the mine, if made to them; descendants would be rendered incapable of taking what they would otherwise inherit from their ancestors, and parents what they would succeed to from their children; and all this without any ordinance expressly ordering it so. The same reasoning then, will apply to this ordinance of the new code, for neither that nor any other ordinance prohibits the holding several mines, if acquired by descent; nor does it intend when laying down rules for a discoverer, to make the permission granted to him operate to exclude all others.
22. This therefore being a casus omissus, the construction most favourable for the miners should be adopted; and if a mine, transferred by a lucrative title, have been sunk to the depth of three estados, as required in a mine when sold, or if the obligation to sink to that depth be a concomitant of the transfer, the object of the ordinances, so far as they seek to promote the exploring and working of the vein, is accomplished; and their other aim, that of restraining covetousness, cannot here come in question: as the transfer, if bygift, is a liberal act; and if by inheritance, either a necessary or a liberal one. And there is, in fact, more covetousness in accumulating a number of mines by purchase, than by inheritance; for in the case of a purchase, the money is laid out in the anxious desire to obtain more, but where property is acquired by a lucrative title, there is no motive but the liberality of the donor or testator, or the necessity of the legitimate heir succeeding, by reason of his consanguinity. We see .that the miners, to avoid encountering unpleasant neighbours, persuade some other person to register the ground adjacent to their mine, which, when sunk to the depth of three estados, they purchase at a small price. This is a very common practice, and there is nothing to prevent it, for the vendor and purchaser respectively, merely avail themselves of the rights they are entitled to under the ordinance, which.permits the selling a mine when duly registered and sunk
to the proper depth. There is no doubt, however, that through this device of making purchases at a small price, an opportunity is afforded for the indulgence of covetousness, which is not the case when the mine is acquired by donation, inheritance or bequest. Besides, there is no prohibition against giving, bequeathing or leaving a mine to descend to the heir; ror are the miners who have more than two mines upon one vein, prohibited, either expressly or by implication, from acquiring others by a lucrative title; particularly as transfers of the latter class generally proceed from the ties of blood, affection or merit.
OF THE LENGTH AND BREADTH OF MINES. AND IN WHAT MANNER THEY MUST BE TAKEN.—OF THE FIXED STAKE, WHICH ALL PERSONS ARE BOUND TO ADHERE TO IN THEIR MINES—OF THE DISCOVERER'S RIGHT TO A LARGER EXTENT OF GROUND IN ALL THE MINES WHICH HE SHALL ORIGINALLY FIX UPON.-1T IS SHEWN THAT THERE MAY BE DIFFERENT FIRST DISCOVERERS IN RESPECT OF DIFFERENT VEINS IN ONE AND THE SAME MINERAL TRACT.
ORDINANCES XXIII. LXX.
XXIII. Also, we ordain and command, that any person who shall have discovered, or shall discover any new mine, and shall have made registry, as directed by the last ordinance, shall enjoy a space of 160 varas in length upon the vein, and 80 in width; and if he shall wish to measure out the said space of 160 varas and 80 varas, crosswise upon the vein, he shall be at liberty to do so, in such manner as he may find most convenient. And it is declared, that after the first discoverer shall have distinguished the pertenencias he chooses to take, within the aforesaid ten days allowed him for that purpose. no other person shall be entitled to have the boundaries set out, nor to set out their boundaries, until after the expiration of a further period of ten days, that he may define the limits of the pertenencias he chooses to take, as -first discoverer; in doing which he must not leave his fixed stake, and must not prejudice any other person or persons, on either side of him, who may occupy mines which they have sunk and registered before him; and those who shall have taken after the first discoverer, or shall thenceforth take mines, may proceed to take and work their mines and pertenencias; and each of the mines taken after those of the said discoverer, shall be 120 varas in length, and 60 in width, which space may be taken crosswise upon the vein, or as it shall seem best, provided they do not leave their fixed stake, and do not prejudice other persons. LXX. Also, we ordain and command, that the first discoverer of such
mines or streamworks of gold, shall take and have a space of 80 vuras in - length, and 40 in width, which they may take as they shall deem best; and those who shall come after them shall take and have a space of 60 varus in length and 30 in width, which they shall also take as they shall deem best; and in every other respect they shall observe all that is contained in the aforesaid ordinances, with regard to silver, under the penalties thereby limited.
CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.
1 and 2. Of the length and breadth of the mines in New Spain and Peru. 3 and 4. The privilege of taking a larger space of ground, allowed to the discoverer, extends to all the mines he may take.
5. The right to this privilege has not been weakened or destroyed by the omission or ne
glect to exercise it.
6, 7, 8 and 9. An instance from the mining district of EI Monte, confirming our opinion;
with a statement, in substance, of the petition presented by the discoverer, and of the superior government of Mexico.
10. This privilege applies to the mines which the discoverer takes as such, and not to those he may acquire by any other title.
11. Privileges of the discoverer in Peru.
12 and 13. The length of the mine may be taken either upon the course of the vein or
14. This doctrine confirmed by the opinion of Saenz.
15. The diversities noticed in the course of different veins, make it necessary that this lib
erty should be allowed. 16 and 17. Of the varieties in the course of different veins, some being deep, some spreading, some curved, &c.
18. In Peru, the length of the mine must be taken along the course of the vein: and why *
19, 20 and 21. A fixed stake defined, and its importance in preserving order amongst the
different mines, shewn.
22. The mode in which land is measured, differs from that pursued in measuring mines.
23. The discoverer, in tracing his boundaries, must not prejudice his neighbours.
24 and 25. There may be several discoverers in the same mineral tract, each upon his own vein.
26. Modification of this doctrine as to Peru.
27, 28 and 29. It is not the practice in New Spain to set out a mine for the crown, nor
does it seem for the interest of the sovereign to do so; he is at liberty howerer, as supreme lord, to take any number he pleases.
1. Having illustrated, under the preceding ordinances, the preference allowed to the first discoverer in registering and measuring out any number of mines he pleases, whether lying contiguous or apart, we next proceed to inquire what number of varus each mining pertenenciu should occupy.
2. Under the old laws and ordinances, the discoverer, or any other person, might take a space of 100 varas in length and 50 in width.* Afterwards, the discoverer was allowed 120 varas in length and 60 in breadth, all other persons remaining entitled, as before, to 100 varas in length and 50 in breadth.f These laws are altered by our 23d ordidance, which assigns to the discoverer a space of 160 varas in length and 80 in breadth, and to all other persons 120 varas in length, and 60 in breadth. In Peru, the discoverer's mine is 80 varas in length, and that of an ordinary miner, 60; each of them being one half, respectively in breadth J The above applies to silver mines, but as to gold, our 70th ordinance allows, for the discoverer's mine, 80 varas in length, and for that of an ordinary miner, 60; and one half, respectively, in breadth, for each of them; our 70th ordinance herein altering the old ordinance, which confined them within more narrow limits.§
3. The first question which suggests itself is, whether each of the mines which the discoverer is empowered, by the 22d and 31st ordinances of the new code, to take, is to be 160 varas in length, and 80 in width, or whether the first mine only, chosen by him, is to be of these dimensions. The answer to which is, that the dimensions of 160 varas in length and 80 in breadth, may be assigned to all the mines which the discoverer may select at the time of registering the vein, or within ten days after, such a privilege being conferred by the express terms of the ordinances. This will appear from the words of the 22d; "Provided that he shall, within ten natural days from 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 also from those of the 31st; "That he 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." Whence it is plain that all the mining pertenencias he takes, are taken in the "character of a discoverer, and that each may be of the dimensions allowed to the discoverer, by the 23d ordinance.'
4. This ordinance, referring to the ordinance preceding, fixes the dimensions at 160 varas in length and 80 in width; making no distinction whether one mine or several be taken. Since then, the matter referred to must be considered as included in that from which reference is made,|| and since also, where the law itself makes no distinction, none such can properly be taken,*fT it clearly follows, that the discoverer is entitled to assign these di
* Law 4, § 4, tit. 13, book 6, Collection of Castile, t Law 5, tit. 13, book 6, ord. 22.
X Vide chap. 8, rap. n. 8 and 9, and Escalona, Gazop. lib. 2, p. S, cap. 1, tit. 1, ord. 9, and ord. 1, tit. 4, concerning the spaces allotted for mines. § Ord. 75, law 5, tit. 13, book 6. II Relatura est in referente.
* "Ubi lex non distingnit, nec nosdistingnere debemus." Gutierrez, lib. 3. Pract. qna»t.