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50. But that, if the principal vein of a mine should take its course within another's limits, it may be followed up without any impediment; and that if the two principal veins should happen to meet, so as to form one body, uniting in a work in active prosecution, the ore shall be divided into five parts, one of which shall be assigned to the owner or owners of the oldest mine, and the rest be divided amongst the owners, in proportion to their respective shares. And that if these two veins should unite with a third, the like course shall be pursued. Veins of this kind, which divide and re-unite, are called sodas.
51. Also, that if the vein divide into branches before taking its course within the boundaries of the neighbouring mine, the owner shall select one of them, which he shall take as the principal vein, and in working upon which, he shall be at liberty to enter his neighbour's ground; but that until such selection be made, he shall not enter it in the pursuit of any of the branches.
52. And finally, that if the party so working into his neighbour's ground, shall discover any vein which the other proprietor has not previously discovered, the latter shall have one fifth part of the produce, and the former the remainder, until the vein unites with the principal one; but that if such vein shall have been previously discovered, and shall unite with the vein of the party so working into the other's ground, one fifth part of the produce shall be appropriated to the older proprietor, and the remainder be divided amongst all the proprietors, in proportion to their shares; and that if such vein be merely a branch running in a cross direction, the proprietor of the pertenencia shall be entitled to take the produce of it.
53. These regulations are agreeable to the civil law, and to the practice in the mines of Germany, as stated by Agricola, in the passages cited by Escalona ;* but as they rather interfere, under some circumstances, with the active prosecution of the works, by directing that they shall not be carried on into a neighbour's ground; and, under other circumstances, have the effect of constituting a partnership amongst the proprietors of different veina, which would generally be a source of discord, we feel justified in saying, that our 30th ordinance provides better in the two cases suggested by it, for the prosecution of the works, and for the interests of the owners.
TO AUTHORISE THE REGISTERING A MINE IN THE NAME OF ANOTHER PERSON, IT IS NECESSARY THAT THE PERSON MAKING THE ENTRY, SHOULD EITHER BE THE HIRED SERVANT OF THE OTHER, OR HAVE A SPECIAL AUTHORITY FOR THE PURPOSE.-OF THE POWERS OF SERVANTS REGISTERING MINES FOR THEIR MAS I'ERS.
ORDINANCES XXXII. XXXIII. XXXIV. LXVI1I.
XXXII. Also, we ordain and command, that no person, be he of what • Escalona, nbi supra.
condition he may, shall be at liberty to take a mine for another person, unless he have an authority, or be a servant receiving wages of the person for whom he shall take such mine; and in default of any of these requisites, the mine shall be forfeited, and shall belong to any person who shall denounce it, and the judge shall immediately give possession thereof to the party making such denouncement; without allowing any appeal on the part of the person in whose name such mine shall have been taken, or of him who shall have taken it.
XXXIII. Also, we ordain and command, that no steward who shall be employed in working or carrying on such mines, nor any other person who shall live with the owner of the mines, even though he may have charge of the mines and hands, shall be at liberty to alter the stakes which his employer may have set up, without his permission and authority, even although he should be called upon to set out such stakes; and that if he shall alter them, or shall set them out anew, it shall avail nothing, and shall work no prejudice to the proprietor of such mine.
XXXIV. Also, we ordain and command, that where any such steward who shall have charge of any mines or of any reduction establishment, shall take or discover a mine, such steward shall be at liberty to stake out the mine or mines he may so take, and to set out the boundary stakes on the side of any party who may apply for that purpose, until such time as his employer shall visit such mines. But that after his employer, the owner of such mine or mines as aforesaid, shall have arrived, he shall not be at liberty to apply for, nor to set out boundary stakes any further; and the steward or servant aforesaid shall not be at liberty to alter the boundary stakes which his said employer shall have set out or left fixed, without an authority from him.
LXVIII. Also, we ordain and command, that all persons who shall be appointed to attend to the working and carrying on of tho aforesaid mines, either by our appointment or that of our district-administrator or administrators, or who shall in any manner receive a salary or pay from us for that purpose, shall be disabled from holding mines, or any share in them, either by themselves or through any other person acting for them, directly or indirectly, in the districts where they shall be employed in or work mines, or within two leagues around the same; and if they shall take or have any mine or mines as aforesaid, or any share in them, whilst they shall receive our salary or pay as aforesaid, they shall forfeit such mine or mines, or share of mines, which shall go to.any person who shall denounce the same; and shall, moreover, be banished from the aforesaid mines and the space of six leagues around, for the term of three full years; and they shall not break in upon that term, under the penalty, if of noble rank, of the said term of banishment being doubled; and if of lower condition, of serving such three years in the galleys.
CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.
1. A hired servant may register mines for his master.
2. He is disabled from holding a mine on his own account; and why.
3. But he may hold them, if he be in partnership with his master, or have his permission.
4. The privilege so allowed to servants, is given by the law for the benefit of their masters. 5 to 10. The authority to register a mine in the name of another, must be a special one,
11 and 12. A mine registered for another, by one who is not a hired servant, and has no special authority, may be denounced. An explanation given of an obscure expression in the ordinance.
13. To authorise registering a mine in the name of another, it is not sufficient to give se
curity that the transaction shall be tatified.
14. If, however, the registry be actually made, and be afterwards ratified, whilst the trans
action is yet unimpeached, the registry is good.
15. A general authority, with a clause of free administration, is not sufficient.
16 and 17. A steward taking a mine for his employer, may stake it out, and set out boundary stakes; but not when his employer is on the spot.
18. A steward cannot alter the boundary stakes which his employer has left set out.
19. Neither can he enlarge the boundaries, where they are required to be set out on any other side.
20 and 21. Refutation of an objection founded on the 24th ordinance, from the difference between the case to which that applies, and the present.
1. We may register mines not only by ourselves, but also through other persons, for, under the 32d ordinance, which follows the old ordinance, this is an act not requiring personal attendance. There seems a difficulty, however, in comprehending these ordinances; for if, to authorise registering for another, an authority be required; and if the receiving wages does not operate as an authority from the master, it must follow, either that a servant ought not, merely as receiving wages, to be permitted to make registry for his master, or that any person whatever ought to be permitted to register mines for another, even without an authority. In support of the latter alternative, in particular, it may be argued, that the acquisition of such an inteterest cannot be prejudical, even supposing the mine should afterwards be abandoned, and may prove an advantage should it turn out to be rich; and it may be alleged, as a case in point, that it is permitted, as we have observed elsewhere, to make registry upon the authority of a letter,* should the discoverer be unable to proceed to the spot.
2. Notwithstanding which, it is necessary, to authorise registering for another, cither to be his hired servant, or his agent, lawfully empowered ; for although service and wages do not necessarily confer an authority, yet they give occasion to presume that the transaction is under the master's orders, it being notorious that a stewerd or servant employed in the mines, cannot
• Vide chap. 5, n. 18 and 19.
take a mine for himself, within two leagues around, under pain of forfeiting the mine and of being banished, according to our 68th ordinance, now under consideration, which however, it is to be observed, applies to mines belonging the crown. But neither can a servant employed in the mines of an individual, register mines for himself, within the space of one league around, until the expiration of two years from the time of his quitting service; and this under the old ordinance, which is still in force,* and which is doubtless intended to prevent servants setting up in opposition to their masters, and to prevent other frauds and irregularities on their part.f
3. A servant can only register for his master, unless he be in partnership with him or have his licence and permission, in which cases he may register for himself. And if he act otherwise, he is liable, besides the penalty of banishment, to forfeit the mine in favour of his master, if capable of holding it, or otherwise, of the exchequer; so that the mines taken by slaves or servants, belong to their masters, and the former cannot authorise other persons to occupy them. Tiiis is the rule of the old ordinance, which is still in furce, nothing being ordered to the contrary by those of the new code. And the audiency of Guadalaxara has, in two instances, declared, that Don Juan Alonso Diaz de la Campa and the Count de San Matheo were respectively entitled to two mines, which their servants had registered at Zacatecas, on the ground of the ordinance being s;ill in forced and of its being ordered by the law of the Indies to be observed.§
4. Whence it is evident, that a hired servant is authorised by the law and the ordinances, to register a mine for his master. And, in fact, as any mines which he registers for himself, fall to his master, and become his property, without any other person being at liberty to occupy them, much more may he register them expressly in the nama of his master; as there can be no fraud in registering for the benefit of the person to whom the law itself would transfer the mine, were it registered in the name of the servant. It is, consequently, matter of demonstration, that the character of a hired servant carries with it an authority to register mines in the name of the master; which is one of the excepted cases in our 32d ordinance.
5. The other exception is that of an agent lawfully authorised, who is permitted to register a mine for another; but a general power is not sufficient, it must be a special one, as under the ordinances of Peru; for although in case of necessity, or any other impediment, affording a reasonable excuse,
* Ordinance 34, law 5, tit. 13, book 6. Collection of Castile.
t Ad tradita per Antunez, de donat, p. 3, cap. 4, n. 17. Zaulis, observ. ad rub. 12, lib. 2, torn. 1,n. 14.
t Ord. 34, law 5, tit. 13, book 6, Collection of Castile.
tj Law 5, tit. 19, book 4, Collection of the Indies. "We ordain and command, that the particular laws and ordinances concerning mines shall be observed, fulfilled and enforced ; and that in fulfilling the same, that law shall be enforced which ordains, that servants shall register the mines they may discover, for their masters, and not in their own name."
the registry may be made upon the authority of a letter, yet it must be ratified within forty days.* Don Joseph Saenz observes, that according to the ordinances of Castile, the authority must be special, for many legal reasons, which he passes over, but which is evident enough.f
6. The first of the reasons is, that the act of registry not only gives a property in the mine, but renders the owner liable to the penalties of the law, which he may incur in various ways, as may be seen by referring to the penal ordinances. J And there can be no doubt, that to charge a person with obligations, and to make him liable to penalties, a special authority is required, as is shewn by Pareja and Cyriac, upon the authority of several texts, and of Bartolus, Suarez de Paz, Rebuffo, Faiinacius, Menochius and Gratianus.§
7. The second reason is, that besides being the rule in Peru, that the discoverer shall declare upon oath, what persons were engaged in the search with him, and that the ore he produces is the very same that he has raised from the mine he is desirous of registering ;|| it is required also, in New Spain, that the ore shall be produced in the same manner, and that, at any rate, an oath shall be taken, that no wrongful design is entertained; for each of which purpose, it is necessary, according to Pareja, in the place above-cited, and to Covarrubias,* Solorzano and Rosenthal,*^ to have a special authority."
8. Third, the miner takes upon himself the expense of registry, of sinking the mine to the proper depth, and of keeping it at work; but his funds cannot be engaged, nor ho himself be rendered liable to pay, without a special authority.**
9. Fourth, an authority of this kind is required for the purpose of receiving possession, according to the doctrine of Solorzano, in reference to grants of land from the crown; where he says that a general authority, with the
* Ord. 5. tit. 1, concerning discoverers; Escalona, Gazoph. lib. 2, part. 2, cap. 1, pag. 105. "The discoverer may make registry by means of a special authority, empowering the doing all. that is contained in the ordinance."
t Saenz, Trat. de medidas de minas, cap. 2, n, 20.
t See chap. 5, n. 21, and in the margin.
§ Pareja, de instr. edit. tit. 6, resol. 3,n. 51. "Sed sic est quod procurator nil potest facere absquo spcciali mandato, per quod dominus incidat in pcenam, nt tradit. Barth. communiter reeeptns in L. si procurator, n. 6 et 7, ff. de condict. indebit. Suarez de Paz, in Trax. 6, part tom. 1 cap. unic. n. 1. Rebuff, in Tract, de accusat. art. 1, gl. 1, n. 2, and 8. Farinac. part. 2. Fragment, ciiminal. litt. J. n. 704. Jacob. Menoch. cons. 127, n.8, etcons. 718, n. 2. Steph. GratianDisccpt. for. cap. 105, n. 21." Cyriac. Controv. 239 et 327, n. 11.
II Escalona, Gazoph. lib. 2, part. 2, cap. 1, pag. 106.
*J Pareja, ubi sup. n. 51 et 52. Corarrnb. in C. quamvis pactnm, de pact in 6. 1, part f. 5. a n. 19 ; et 1, var. cap. 6, n. 2, post med. Solorzan. in Polit.lib. 3, cap. 14, n. 19, in fin. Rosenthal, de feud. cap. 3. cone. 9.
** Cap. qui ad agendum, de proc. in 6, ubi Gloss, verbo Pacuci: et inibi enumerantur casus in quibos speciale exigitur mandatum.