instance, where it has become known that a bonanza has been met with, and the direction taken by the rich vein has been ascertained, in which case, all are anxious to measure out their boundaries upon that ground, immediately, whilst the party who happens to be the longest standing, or whose object is to alter his boundaries, is desirous to keep them all in suspense, contrary to the intention of the ordinances; whence it appears how important it is that the periods fixed by the 24th ordinance should be considered as peremptory. 6. Supposing the mine owner, whether in the vicinity, or at more than ten leagues distance, to be reasonably prevented from coming to the mines, it may be asked, whether the term of fifteen days shall run against him? In favour of the negative, we might refer to all those principles of law which establish that time shall not run against a person disabled by an impediment, which he cannot remove; that the whole time during which the impediment subsists shall be allowed; and that whether the impediment be judicial or extra-judicial, whether it depend on matter of fact or matter of law, the whole time during which it continues shall be left out of the account. Hence a person under impediment is not regarded as contumacious or disobedient; and for the like reason, whilst the question of nullity is under consideration, or whilst an application to the prince is pending, the term allowed for appealing does not run; so whilst the suspension of a bull is under cognizance, the time allowed for proclaiming the resignation of the benefice does not run; and with regard to peremptory edicts, when it appears that there is an impediment to their being carried into execution, the period fixed for that purpose is extended, and is shewn at length by Salgado in several places, upon the authority of a great number of texts, and many doctors." 7. Add to which, that the owner, being the person who is best acquainted with the mines, may be apprehensive that his administrator may perhaps prejudice his interests by taking the boundaries in one direction, rather than in another, which might be more desirable; whilst there cannot be any great inconvenience in a little delay, particularly if no communication have occurred between the works of the different mines; as any person working on a vein, or immediately following up ore, is at liberty to carry on his works into the pertenencia of another miner.† If then, the mines be supposed to have actually communicated, it must be presumed that the course of the vein has been ascertained, and the administrator must consequently know what will be most for his employer's interest; but if the mines have not communicated, the delay can occasion no mischief, and therefore, upon a statement of the impediment being made on the part of the absent person, the term ought to be enlarged. 8. Notwithstanding these arguments, however, the contrary rule is that * Salgad de reg. protect. 1. p. cap. 7. a n. 65, et p. 2, cap. 13, a n. 253; et plenissim de retent. bullar. p. 1, cap. 15,- per tot. and 2 p. cap. 20, a n. 22. + Chap. 14, ord. 30. which ought to be observed, as being expressly decided by the ordinance, and therefore the justices, after the 15 days are expired, must proceed to set out the measurements, whatever pretence may be alleged against it. First, because the ordinance does not require the personal concurrence of the owner, neither his actual presence during the measurement of any import ance, since he may appear by his steward or administrator; and therefore, although the owner be at a very great distance, it is sufficient to summon the steward, "under whose charge the working of the mine is," as the ordinance expresses it, and who will know in what direction it is expedient to measure the boundaries. Second, because it must be considered the owner's own. fault that he did not measure out his own mine at the time of registering it, and taking possession. Third, because knowing that he might at any moment be called upon to set out the boundary stakes, by the neighbour on whose side he had not done so, he ought to have left proper instructions with his steward. And, mainly, because it is not right that the limits of contiguous mines should remain undefined, to the prejudice of the public and of the mine owners, merely on account of the absence of the proprietor of longest standing, whether such absence be voluntary or necessary. And were the judges to depart from the terms of the ordinance, the consequences of adopting such a course would be many and serious; for the uncertainty as to what ground might be left unoccupied, would interfere with the registering of pits upon the vein. The boundaries of the older mines remaining undefined, it would be impossible to ascertain those of the adjacent mines, and the litigation and dissension ensuing from the confusion thus introduced, as to the boundaries, would be highly prejudicial to the mine works and mine propri etors. 9. Nor do the arguments first advanced weaken this conclusion; for the rule that time shall not run against a person under an impediment, cannot apply, when the act to be done does not require personal attendance, and when the administrator, who must be presumed to know the course of the works, and the direction in which it is most expedient that the measurement should be made, may just as well perform it; particularly as the omission would be an infringement on the law, and would be prejudicial to the interests of the public and of the adjoining mine owners. The reason why, pending an application to the prince, or whilst the question of nullity is under consideration, the time allowed for other proceedings does not run, is plain, for the latter are put a stop to by the former; and so, when the act requires personal attendance, or when it is for the benefit of the public that a longer time should be allowed; but the effect in the case proposed is just the reverse, for although every one is at liberty, in following up the vein, to work into the pertenencia of another proprietor, until an intercommunication occurs, yet by having his mine measured out, he will avoid the risk of a heavy lawsuit, and he will, at the same time, afford the opportunity to others of measuring out their boundaries also; by which means the different parcels of ground being ascertained, the mining district will become properly settled, agreeably to the laws and ordinances. And a public object of this kind ought not to be interfered with, by the absence of a single person, when his place may and ought to be supplied by that of the person in whom he reposes so much confidence as to entrust him with the charge of the works: besides which, several opportunities of fraud may be prevented by adhering to this rule; for the object of delaying the measurement of the boundaries, is to be in a condition to keep the adjoining proprietors in suspense, and to gratify the covetous desire of occupying the whole vein, if possible, instead of being confined within certain limits, as required by the ordinances. 10. It is also a question, whether in the third case provided for by the ordinance, that of the owner of the mine being absent at more than ten leagues, distance, supposing the proclamation to have been posted up, and published, and notice to have been given to the steward, or other person in charge of the mine, such person may set out the boundary stakes; or whether the justice must set them out himself, without the intervention of the steward? 11. The answer is, that the steward must advise his employer, that he may furnish him with a proper authority for that purpose, or come and set out the boundary stakes, in person. But should neither of these steps be taken, a distinction must be noticed; for the owner either has omitted to stake out his mine before his departure, and it yet remains to be done, which is the case supposed by the ordinance, "who may have to set out," or he has left the boundary stakes set out. If the latter be the case, the servant cannot alter them, or set out others; it being so provided by the 34th ordinance.* 12. If the former be the case, that is to say, if the employer have not left the boundary stakes set out, he must send an authority for that purpose, within the fifteen days, which is the object of his being summoned; and if, by reason of the distance, or from its not being possible to give him notice during that term, it is not practicable for him to send an authority, or to come himself, we are of opinion that the justice ought to set out the bounda ries, having regard to the ordinances, and to the preference to which the earliest or senior proprietor is entitled; and if the absent person be the senior, his steward or servant ought to set out the boundaries, in the direction most suited to the rights and interests of his employer, in the same manner as he would be authorised to do, in taking a mine for his employer, under the ordinance last cited, to which, and to the illustration of this point, given in the commentary upon it, we refer, that being the place to which it properly belongs. Infra, chap. 15, ordin. 34, "And the steward or servant shall not be at liberty to alter the boundary stakes which his said employer shall have set out, or left fixed, without any authority from his employer." † Infra, chap. 15, n. 16 and 17. CHAPTER XI. THE MINERS OUGHT TO STAKE OUT AND MEASURE THE BOUNDARIES OF THEIR MINES, ACCORDING TO THE ORDER AND STANDING OF THEIR RESPECTIVE ENTRIES IN THE REGISTER.-THE QUESTION CONSIDERED AND SOLVED, WHETHER IF A MINE BE INSUFFICIENTLY WORKED, OR BECOME FORFEITED IN ANY OTHER MANNER, AND BE AFTERWARDS DENOUNCED AND ADJUDGED TO SOME OTHER PERSON, REGARD SHOULD BE HAD, IN MEASURING OUT THE BOUNDARIES, TO THE ORIGINAL REGISTRY, OR TO THAT MADE, SUBSEQUENTLY, UPON THE DENOUNCEMENT. Also, we ordain and command, that if two or more persons simultaneously make application to have the boundary stakes set out by such first discoverer, or any other person whose mine shall yet remain to be staked out, such firstmentioned persons holding mines on any sides of the mine, in respect of which such application to set out boundary stakes shall be made, it shall be ascertained from the registries, which of them is entitled to have the stake set out first, and which second; and thus they shall go on setting out the boundary stakes in successive order, observing, in regard to the dimensions and all other matters, the rules contained in these our ordinances. CONTENTS OF THE COMMENTARY ON THIS ORDINANCE. 1. In measuring out the boundaries, a preference is given, according to priority of regis try. 2 and 3. The mine cannot be measured out whilst any question as to the nullity of the registry, or the forfeiture of the mine under any penalty, is depending. 4. Any such question ought to be decided in a summary way. 5. When the registries are of the same date, the preference is to be decided by lot. 6. When a party who has registered, and another who has denounced. apply at the same time, priority in date gives the preference. 7 and 8. If a mine, after being registered, is adjudged to some other person for being insufficiently worked, regard is to be had to the last entry in the register, and not to the original one, which has become extinct. 9. An ordinance of Peru, confirming this opinion. 10. A party denouncing a mine must make registry anew; it being the only title he has to shew. 11. And so, although the party denouncing the mine be the same that has abandoned it. 12. A party denouncing a mine does not succeed to the rights of him who has abandoned it, but takes it as a new mine. 13. A mine, when abandoned, loses even the name of a mine, in analogy to what takes place when a son comes under his own authority, with regard to the peculium quasi castrense, or property he is allowed to have at his own disposal before that period. 14 to 19. It is established, by analogy to the various cases of legacies, emphyteusis, feuds, immunities, and grants from the crown, that when a grant, after having failed, is made anew, it has all the qualities of a new grant. 20. The point established beyond a doubt, by a determination of the royal audiency of Gaudalaxara. 21. It is inferred from this opinion, that in a question between registry and denouncement, regard is had to priority in point of date only, without reference to the original registry of the mine. 22. When an older mine is abandoned, the proprietor of a more recent mine is at liberty, in altering his boundaries, to carry them forward upon the ground of the former. 23. Even though the abandoned mine be the discoverer's mine. And the party denouncing such a mine cannot claim the larger number of varas which the discoverer had. 24. When a mine is lawfully transferred from one to another, whether by an onerous or lucrative title, regard is always had to the title conferred by the original registry. COMMENTARY. 1. It being settled that one miner may make application to have the boundary stakes set out by another, the question arises who has the first right of measuring out his mine? The 25th ordinance of the new code, following the 24th of the old ordinances,* directs, that it shall be ascertained by reference to the registries, which is entitled to set out his boundaries first, and which second, and so on successively; so that the preference is regulated according to their several priorities in occupying the vein and in making registry; and he who is first in point of time, even if only by an hour, or a moment, gains a preference in ascertaining his boundaries.† And although the ordinance, upon this point, seems plain and clear, some considerable difficulties nevertheless suggest themselves. 2. The first is, whether, supposing a question to arise on the validity or nullity of the registry or denunciation (usually called denouncement, as we have noticed elsewhere); the ascertaining of the boundaries should be deferred whilst the point is in dispute? The answer to which must be in the affirmative, for the question whether the registry be valid, or whether the mine have been registered according to law, must be determined, before measuring it out, or setting out the boundary stakes; the supposition upon which the arrangement proceeds, must be verified, before it can be carried into effect; the mine must exist, before it can be measured out for according to the plainest and simplest principles, that which does not exist, cannot have any qualities attached to it, and these observations will apply to every case in which there is a preliminary question to be decided, which must always be disposed of before the principal question depending upon is entered into.§ Thus an appeal is suspended, by a Law 5, tit. 12, book 6, ord. 24, Collection of Castile. † Chap. 5, n. 12, Cap. qui prior. de r. j. in 6. privil, credit. in præf, ad regul. 3, per tot. Chap. 5, a n. 21. Innumeri textus et AA. apud Acostam, de § L. 7, tit. 10, part. 3, et ibi Greg. L. 1, Cod. si quis alter. test. prohibuerit; §. prejudiciales; Inst. de act. et ibi DD. Salg. de reg. protect. p. 4, cap. 14, et p. 2, cap. 18, n. 4, cum plur. et de retent. bullar. p. 1, cap. 11, a n. 33. |