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fined, namely, by the boundary stakes set out by the two adjoining mine owners, the party denouncing the waste space has no occasion to apply to have the boundaries set out at all. Besides, there is nothing to authorise a party, under the pretence of altering his boundaries, to occupy a pertenencia which is adjudged by the law to the first who may apply for it.* And the adjoining miner has nothing but his own neglect to complain of, as he might have applied for the unappropriated space, when summoned; add to which, that the law, under these circumstances, leaving the adjoining mine owner in the some situation as before, does him no injustice, whilst it is important to the public, that the greatest possible number of mines should be worked by different persons.
17. The alterations of the boundaries in Peru, are subject to the rules of their own peculiar ordinances, f Upon a vein being discovered, the first comers, after staking out their mines, are allowed a year for altering their boundaries; after the expiration of which, any persons making trial pits without the limits of the pertenencias staked out, and meeting with the same vein, may proceed to work it; and none of the former persons will be allowed to alter their boundaries, except the discoverer, whose two mines, together with that set out for the crown, contiguous to the first of them, may be taken upon any part of the vein at pleasure.
OF INTERNAL COMMUNICATIONS OCCURRING BETWEEN THE WORKS OF DIFFERENT MINES.—A PARTY WHO, BEING IN THE IMMEDIATE PURSUIT OF ORE, MAKES HIS WAY INTO THE PERTENENCIA OF ANOTHER PROPRIETOK, GAINS A PROPERTY IN THE ORE HE RAISES, UP TO THE TIME OF THE WORKS COMMUNICATING AND THE DIMENSIONS BEING ASCERTAINED.—IT IS SHEWN, THAT THE PROPERTY OF THE VEIN IS NOT GRANTED TO AN INDEFINITE EXTENT UPON THE UNDERLAY ; AND THAT D? TWO MINERS HAPPEN TO COMMUNICATE ATA POINT WITHOUT THE LIMITS OF EITHER PERTENENCIA, THEY ARE ENTITLED TO MAINTAIN THEIR GROUND, UP TO THE POINT WHERE THEY MEET—OF THE IMPROPRIETY OF OPENING A PIT, MERELY FOR THE PURPOSE OF GAINING ACCESS TO THE ORE OF ANOTHER PROPRIETOR.—OF THE CASES WHERE NO FRAUDULENT OR WRONGFUL INTENTIONS ARE IMPUTED, THE GROUND OF SUSPICION BEING REMOVED BY THE GREAT DEVIATIONS FROM REGULARITY EXHIBITED IN SOME VEINS, AS WELL AS IN THE INTERMEDIATE SPACES BETWEEN THEM.
ORDINANCE XXX. Also, we ordain and command, that if any mine shall be extended beyond
* From the terms of ord, 29, and from the ordinances of Peru, 1, tit. 2, concerning unappropriated spaces, in Escalona, Guzoph. lib. 2, p. 2, cap. I, pag. 109. "For him who may have applied for such unappropriated spaces, for from the moment of hia applying for them, he haa acquired a right to them,"
t Ord. 8, tit. I. concerning discoverers, in Escalona, Gazophil. lib. 2, p. 2, cap. 1, pag. 106.
the boundary or limit, properly assigned to it under these ordinances, either in respect of the length or of the breadth, and the ore therein contained shall be continuous with the ore in the mine of some other party, and the two mines shall become .one, in the depth; the miner who shall have first sunk, and made his way into the other mine, shall and may enjoy the ere he shall raise therefrom, until the owner of the other mine shall carry on his works to meet him in which case the latter may require the party who has anticipated him, to set out his boundaries; and if it should bo found that he is within the limits of the other's pertenencia, he shall withdraw, and relinquish the vein to the miner within whose pertenencia he may have entered; and all the ore which he may have raised from the other's pertenencia, up to that time, shall belong to him who has raised it; and he shall not be obliged to give it to the other, inasmuch as he had acquired a right to it by the care and diligence used in working with more activity than his neighbour. But if any party shall take a pertenencia contiguous to the mine of another, either on the side of its length or of its breadth, where there is no vein, or, there being a vein, yet such vein shall not contain ore, nor exhibit any appearance of it, but he shall work the same merely with the intention of profiting by the ore of his neighbour, when he shall get within his boundaries: We command, that such person shall not have the power to acquire, and shall not acquire any right, even though his neighbour's ore should take its course within his pertenencia; and our mining judges and justices shall determine it so, and shall not allow or permit such mines, not being upon a vein or ore, to be worked.
CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.
1. Of the difficulty and importance which the subject of this ordinance involves.
2. Whether a miner working beyond his boundaries, in the immediate pursuit of ore, shall
make the ore his own.
3 to 7. The question is to be determined differently, according to circumstances, as appears from the ordinances of the old code, which are not repealed.
8. Several questions arising from the 30th ordinance of the old, and the 30th of the now
9. If two mines communicate internally, neither of them being measured out, which
ought to be measured first? Reply, that the mine of the longer standing has the preference.
10. II and 12. Whether in such case, the miner of I wiper standing can extend his boundaries beyond the fixed stake of his neighbour? Reply, that he cannot, which is demonstrated.
13 to 17. Whether, if the miner of longer standing have measured out his boundaries, he can so extend them as against a more recent miner, who has not so measured them out? Reply, in the affirmative, the reasons for which are shewn.
18. When two or more mines communicate beyond the pertenencias of both, the proprietors are entitled to maintain their ground, up to the point to which they have worked.
19. An executory decree of the royal audiency of Mexico on this point, made in a suit between Don Juan Antonio Carriedo, and Don Manuel de Aranda, two mmers of Guanaxuato.
20 to 23. Another such decree, made in a suit between the Count de San Pedro, and Don Antonio Jacinto Die* Madionedo, and his partners, in the same mining district.
24. Another suit between the Count and the heirs of Don Joseph de Sardeneta, which was attended with a similar result.
25. A very well-considered order of Don Juan Antonio Vizarron, viceroy of Mexico, referred to, determining, that the property of the vein is not acquired to an indefinite extent on the underlay, but that the internal limits must correspond with the superficial boundaries.
26. Several arguments in support of this determination.
27 and 28. The subject concluded, and the doctrine supported, by a decision in point, reported by Larrea.
29. A party making his way within another's boundaries, in the immediate pursuit of ore, gains a property in the ore he raises, until he communicates with his neighbour's works; and why 1
30. When the workings communicate, the mines must be measured out, a boundary wall must be set up, and each party must withdraw within his own pertenencia.
31. A party who makes his way into the pertenencia of a neighbour, when not in the immediate pursuit of ore, does not become entitled to the ore he may find, and the justices are to prohibit works so carried on.
32. Parties so acting are deceitful and wicked.
33. And they must restore all the ore they may have raised.
34. It is difficult to enforce this rule, without great zeal on the part of the judges.
35. Such parties do not gain a property, even in the ore raised from within their own pertenencias, and the pits opened with these improper views should be stopped up, and the parties be punished.
36 and 37. The improper views entertained in opening the pit should be established. How they may be proved.
38. The penalty is imposed upon the party opening a pit tolely for the purpose of stealing the ore of another.
39. A level which deviates from the course of the vein, previously followed, being driven solely with the wrongful object of communicating with the works of a neighbour, should also be stopped up, as driven wjth improper views, although the whole mine is not to be stopped up.
40 and 41. The ioyal audiencies decide whether levels have been driven with correct or fraudulent views, according to circumstances.
42. The barrenness of the vein or the hardness of the ground, may render it necessary to alter the direction of the works; in which case the presumption of fraud does not arise.
43. The veins are frequently subject to become barren ; or to deviate in the ircourse.
44. A new vein, or a branch of a vein, discovered in the course of prosecuting the old vein, may lawfully be followed up.
45. And the consequenees, in case of a communication being made with another mine, are the same as if the original vein were in question.
46. The qualification implied in the word solely, in the text, is to be taken strictly.
47. To justify working into a neighbour's pertenencia, it is necessary to be in the immediate pursuit of ore; but not so, to authorise making investigations in our own ground.
48. Of a particular case, in which the miner making such a communication with another mine, is cleared from any suspicion of entertaining a wrongful purpose, although not in the immediate pursuit of ore The discretion of the judges should be exercised in this case, according to circumstances. 49 to 53. Of the peculiar ordinances of Peru, concerning communications between different mines.
1. Of all the ordinances contained in the new code, and in the old law, there are none more difficult, or which have been more frequently the subject of litigation in the courts, than this. Scarcely any important suit occurs, which does not turn upon a communication between mines, and a demand to have the ore accounted for; nor are any proceedings more anxious than those which are, in consequence, gone through upon the ground. It therefore becomes necessary, in illustrating the provisions of the 29th and 30th of the old ordinances upon the subject, and ascertaining how far they are still subsisting, and how far repealed by the 80th ordinance of the new code, to consider the subject at some length, pointing out, from time to time, the several distinctions which occur.
2. The question is, whether the proprietor of an older mine, who works beyond his boundaries, and makes his way into another mine, in the immediate pursuit of ore, gains a property in the ore raised, or is bound to restore it?
3. The 29th of the old ordinances distinguished the question into two cases. First, when the proprietor of the older mine had not set out the boundaries between his mine and that of the other proprietor, and the latter demanded to be protected in the possession of his mine. In which case, the justice was to afford him protection, and not to allow the other to proceed to raise any more ore; but all that the older proprietor had raised up to that time, belonged to him, and he might likewise alter his boundaries on that side, although not required to do so by the other.
4. The second case was, when the proprietor of the older mine had set out boundaries between his own mine and the more recent one. In which case he was to restore to the proprietor of the latter, all the ore he might have raised, deducting expenses.
5. These two cases are both provided for in the first case put by our 30th ordinance of the new code; under which however, the older miner, not having set out his boundaries, still retains the right to advance them. It is there determined, that even if both the mines should have been staked out, he who works with most activity, being in tho immediate pursuit of ore, shall enjoy all that he may raise from the other's pertenencia (having acquired a right to it by the diligence he has exerted), until a communication be made internally between the two workings, when each shall withdraw within his own limits, to be ascertained by measurement.
6. The 30th of the old ordinances declares, in the case above supposed, that when the ore takes its course into a mine, the proprietor of which has not applied to have the boundaries set out, the miner may follow it up, and avail himself of it, although he should work out of his own pertenencias. And should the later proprietor apply to have the boundaries set out, the older one, whether his mine be a discoverer's or an ordinary mine, may advance his limits in any direction in which the ore takes its course, taking either the length or breadth of his mine on that side; provided he do not abandon his stake, and that his mine form a four-sided oblong with right angles. And the unappropriated spaces which he leaves on the side from which he withdraws himself, are to be assigned to any person who may apply for them.
7. This ordinance is not affected by the 30th of the new code, winch speaks, in the first instance, of a communication occurring between two mines, both of which have been measured; and in the second place, of a party opening a mine in ground where there is neither a vein nor ore nor any appearance of ore. The SOth of the old ordinances is therefore still in force, nothing opposed to it being contained in those of the new code.
8. Assuming then, that the 30th ordinance of the old, and the 30th of the new code, are both wholly in force, we shall consider, in order to come to a more complete understanding of these ordinances several questions which arise upon the manner of construing them.
9. First, if the workings of tvro mines, neither of which have been measured out, should communicate internally, which of them shall be measured first? We reply, that which is prior in the date of its registry; in the same manner as when an application is first made to set out boundaries; for the party who has first registered or made denouncement is always preferred.* This is the practice of the courts of New Spain, and we recollect an instance of it in a case in which a communication had occurred between the mine of San Antonio, and that of Cabrera, in the mining district of Guanaxuato, the former belonging to Don Juan Moreno, and the latter to Doi\a Francisca Sardeneta, and of which we have spoken elsewhere: and likewise in another case, in which the mines of Don Antonio Davila, and Don Joseph Puebla, in the mining district of Sultepec, were concerned, in the year 1746; and another, where a communication had occurred between the mines Catafortuna and San Estanislao, belonging to Don Francisco de la Mora, and that of la Cruz, the property of Don Baltasar Delgado, and his partners, in the mining district of Gaudalcazar, in the Jurisdiction of San Luis, in the years 1753 and 1754. All these suits were carried up to the royal audiency of Mexico, which confirmed the proceedings: thereby establishing, that the older mine should always be measured first, upon the communication occurring, the ores raised up to that time being left to the party who had worked with most activity; and that after the measurement is made, a division called a quarda raya should be put up in the interior. The same rule was observed in a case where a communication had occurred between the two mines, Roldanera and
• Chap. 11, ord. 25.