SALES OF THIS CLASS OF PROPERTY.-OF THE OTHER CONTRACTS WHICH MAY BE MADE CONCERNING MINES, ESPECIALLY THE PRECARIOUS GIFT OR LOAN.* ORDINANCES XXXV. XXXVI. XLII. XXXV. ALSO, we ordain and command, that all persons whatsoever who shall hold, take or acquire mines, whether already discovered or hereafter to be discovered, shall be obliged, within the term of three months, reckoning from the day on which they shall register such mines, to sink in such mines, if they be new, one of the trial pits which they shall have made therein, or if old, then one of the pits therein, which shall contain a vein or ore, to the depth of three estados, each estado being seven thirds of a vara in length; under the penalty, if they shall not sink, or have sunk the aforesaid three estados, at the expiration of such three months, of forfeiting the mines, which shall be for any person who shall denounce them; and our mining justice shall immediately put the party so denouncing, into possession, subject to the same obligation of sinking the aforesaid three estados, within the term aforesaid, notwithstanding any appeal or question of nullity or injustice that may be interposed or raised. XXXVI. Also, forasmuch as it is provided and commanded by the ordinance preceding this, and by some others of these our ordinances, that such persons as shall take or hold mines, or purchase or become possessed of them in any other manner, shall be obliged to deepen such mines according to what is contained in said ordinances; and whereas our intention and will is, to prevent suits and differences, and to obviate fraud:-We declare and command, that it shall be understood that they are obliged, if they can, to deepen the aforesaid trial pits or other pits, or otherwise to incur the penalties of the aforesaid ordinances. But if they should omit to deepen them, not through their own default, but from some accidental circumstance, or from its being more expedient to proceed in pursuit of the ore, which may take its course in some other direction, and should continue to work as may be most expedient and advantageous, they shall not become liable to, nor incur the penalties aforesaid, provided that, when this shall be the case, they shall be obliged to give notice thereof to the district-administrator, within whose district such mine shall be, that an inquiry may be made, whether their hav See Institutes of the civil law of Spain, &c. translated by L. F. C. Johnston, p. 220. Lesion. enormisima is a fraud to the amount of considerably more than one half the just price.-Trans. * A precarious loan is a loan "of things to be used at the will and discretion of the person who lends." Institutes of the civil law of Spain, &c. translated by L. F. C. Johnston, p. 181. The definition of the precarium of the civil law, given in the digest, appears better adapted to the author's meaning, L. 1, ff. de precar. "Precarium est quod precibus pretenti utendum conceditur, tamdiu quamdiu is qui concessit patitur.-§. 2. Et distat a donatione, eo quod qui donat sic dat, ne recipiat, at qui precario concedit, sic dat, quasi tunc recepturus cum sibi libuerit precarium solvere.§. 3. Et est simile commodato, nam et qui commodat rem, sic commodat, ut non faciat rem accipientis, set ut ei uti re commodata permittat."-Trans. ing failed to comply with the aforesaid ordinances, was on account of such circumstance as aforesaid, or of their having proceeded in pursuit of such ore as aforesaid; or through their own default. Whereupon, after making such inquiry, the administrator shall make such declarations and provisions as may be proper, in such manner that when the inconvenience is removed, the mines aforesaid may be deepened according to the provisions of the aforesaid ordinances. XLII. Also, forasmuch as it might happen that persons taking mines might sell or deal with them, without working them, or ascertaining whether they contained ore, and might proceed to take others for the same purpose, whence divers inconveniences might ensue; to avoid the same, we command, ⚫ that no one shall be at liberty to sell, deal with or purchase any mine, unless it have been sunk to the depth of three estados at least, under the penalty of forfeiting what may have been given for the mine, to be applied as is before mentioned, and likewise of forfeiting such mine, which shall be for the party who shall denounce it, subject to the same obligation of sinking to the aforesaid depth of three estados. And if the mine so sold or dealt with, shall have been sunk such three estados, then, in order to authorise such sale or dealing, the purchaser thereof shall be obliged to give notice of the same to the justice aforesaid, that it may be entered in the book of registry, and he shall send an authenticated copy thereof to the aforesaid district-adminis trator, that it may be noted in the book, and that it may be known from whom the duty is to be levied; which shall be done and performed under the penalty aforesaid; and the like, if there be, in any other manner, a change in the ownership of such mine. CONTENTS OF THE COMMENTARY ON THESE ORDINANCES. 1. Of the depth of three estados, required to be sunk in mines; the term within which it is to be sunk, and the penalty for omiting to sink it. 2. Reasons for this provision of the ordinance; the object being, that the mines may be more completely worked. 3. The three months within which it is to be done, are one contiguous period. 4. The quality of the ore is generally ascertained within the depth of three estados. 5 and 6. It is not necessary to sink to this depth, when the vein is tortuous, spreading or inclined. 7. But recourse must be had to the justice, to obtain a declaration, that the obligation may be dispensed with. 8. Accidental and unavoidable circumstances, may also remove the necessity for sinking to this depth. 9. Such as the hardness of the vein, or the rising of spring water. 10. The falling of the pit or other works, famine, pestilence or war. 11. In such cases, possession is to be given by the judge, without this depth being sunk. 12. A mine of less depth than this cannot be sold, under pain of forfeiting the mine and the price. 13. Of the formalities attending the sale of a mine sunk to the proper depth. Whether the purchasers must sink afresh, like a party making denouncement? 14. Reply in the negative. Distinction between a denouncer and a purchaser.. 15. Nor does the 42d ordinance require, that on the purchase of a mine sunk to the proper depth, it should be further deepened. 16. The value of mines is arbitrary, and is matter of opinion. 17. In such sales the remedy for lesion enorme or enormisima, does not apply. An ordi nance of Peru, conclusive on the subject. 18. Because the profit and loss are eventual and contingent. 19. A mine may be given as a marriage portion, may be hypothecated, &c. 20 and 21. Whether a mine can be the subject of a precarious gift or loan? Reflections upon an executory decree of the royal audiency of Mexico, made in a suit instituted by Don Pedro Romero Terreros, against the Marquess de Valle-Ameno, in the mining district of el Monte. 22. A mine may be made the subject of a precarious gift or loan, if there be a special agreement to such effect. 23. An ordinance of Peru, as to sinking mines to a certain depth. COMMENTARY. 1. These ordinances, which follow the 37th, 38th and 45th of the old ordinances respectively, treat of the depth to which mines must be sunk, to prevent their being liable to denouncement or forfeiture. The law directed, originally, that they should be sunk to the depth of three estados, within six months from the time of registry. This rule, however, has since been altered, the time having been reduced, by the 37th of the old ordinances, and the 35th of the new code, to three months. In mines newly registered, this depth is to be sunk in any one of the trial pits, upon which it may be convenient to the miner to set up his fixed stake; and in old mines which have been denounced, in any one of the pits, under the penalty, after the expiration of the term, of forfeiting the mine, which is to be adjudged and given in possession to the party making denouncement, notwithstanding any appeal; but subject, in his hands, to the same obligation of sinking to the depth of three estados, within three months from the adjudication. 2. The object of this most reasonable provision is stated by the law,‡ in these words:"Forasmuch as the discoverers of mines, after they may thus have discovered and registered them, might claim to have acquired, by these means alone, such a right as to prevent any other person from entering within the limits of such mines, or from trying or working the same, and might thus keep them in an unserviceable state; not working them themselves, and not leaving others at liberty to work them, whereby the principal benefits and advantages which are derived, both by ourselves and our subjects generally, would be counteracted, such benefits and advantages depending *Law 5, tit. 13, book 6, Collection of Castile. Law 4, tit. 13, book 6, Collection of Castile. Law 4, tit. 13, book 6, chap. 6. mainly on the mines and ores being kept at work, and not merely on their being discovered; therefore, we declare, &c." 3. Whence it follows, that the object of the law, in limiting the term to three months, is, that the digging and working of the mines shall be more actively carried on. These three months must be reckoned continuously, and moment by moment, from the day of registry, as being a term defined by law, and not properly admitting of being interrupted or varied, as we have observed to be the rule in such cases. Were no precise term fixed, it would follow, that a discoverer or purchaser, might hold many mines without working them; keeping some in reserve, until he had tried his fortune in others, contrary to the intention of the sovereign, who desires that the discovery and working of the ores should be conducted with as much activity as possible; and so much so, that he grants to the miner who works beyond his limits, the ore he may raise from his neighbour's mine, until he communicates with his workings; as we have seen in its place." 4. The reason of directing that three estados at least, each of the length of seven thirds of a vara, making seven Castilian varas, shall be sunk, is, that at this depth the vein usually displays itself, and bears a decided character, the quality of its ore appearing with greater certainty than at first. This is found by experience to be the case, and is also mentioned by Don Luis Berrio de Montalvo, in his report to the Count de Salvatierra, where he observes, that this is the reason of the discoverer of a mine being obliged, by the law of the realm, to sink it to the depth of three estados.† For although the veins exhibit themselves on the surface, sometimes by their crests, sometimes by stripes of red, or of some colour different from that of the ground, sometimes by fumes of iron ochre and sulphur, and sometimes by white spar; yet, in exploring the veins distinguished as deep veins, by means of a pit, the strength or richness of the vein is usually discovered, at the depth of about three estados. 5. This depth of three estados is very proper for deep veins, such as those above referred to in which the works may be carried on perpendicu larly downwards; but as veins of other classes, as tortuous, winding or spreading veins, often occur, the course of which latter is inclined or underlying, as we have elsewhere remarked, whilst some form horizontal and superficial beds, which are, as it were, the overflowings of some principal vein, which has burst out at that part (and which, by tracing up the former, may often be discovered, but as often cannot, from masses of rock intervening,) it is evident that the miner would be spending his money in vain, were he obliged, when the vein is inclined, to sink a pit of seven varas di Chap. 14. n. 29. † D. Luis Berrio de Montalvo, Informe al Conde de Salvatierra sobre el beneficio nuevo de metales, cap. 6, pag. 10, circa fin. Chap. 9, n. 16 and 17. rectly downwards upon it, as, instead of ore, he would be working upon dead ground, contrary to the object of the ordinances. 6. To provide for this case, the 36th ordinance of the new code and the 38th of the old ordinances establish, that if it be expedient to proceed in pursuit of the ore, from its taking its course in some other direction, as is frequently the case, the miner shall not incur the penalties enacted, both be. cause he is in no default in omitting to sink to the required depth, and because the vein, proceeding in an inclined or spreading direction, the law cannot compel him to sink in a manner repugnant to the very nature of the vein, whilst it is convenient and desirable that he should carry on his works in an inclined direction upon the underlay, the object of raising the ore, which is chiefly looked to by the law, being thus attained. 7. But in this case, the miner must have recourse to the justice, that after investigating the correctness of the fact, and ascertaining that the miner is in no default, in not sinking to the full depth, he may make such provision as may be expedient; which means no more than that he may enlarge the term, so far as may be required, for carrying on the workings, in pursuit of the ore so taking its course as aforesaid; until at length, either the obstacle itself cease to exist, or the workings of the mine begin to extend in length and depth at the same time, agreeably to the example we have given in treating of the internal measurements of mines. 8. The 36th ordinance also provides, that the miner shall be exempted from the penalty, if the omission to sink to this depth, arise from any accidental circumstance; but he must give an account to the justice in the same manner, that after examining into the reality of the impediment, he may make such provision as may be proper; and whenever the obstacle is removed, the miner will be obliged to sink to the depth required, according to the usual rule in regard to acts, the performance of which is suspended; for when the impediment ceases to exist, the obligation is revived. The ordinance merely says generally, "From some accidental circumstance, or because it may be more convenient to proceed in pursuit of the ore," without specifying the nature of the accidental circumstances to which it alludes. There are however, several circumstances, which being of occasional, though not frequent occurrence, must be regarded as accidental, and which require some consideration with reference to this question, for the government of the miner, and that he may be enabled to avoid the penalty. 9. The first is, when a vein of rare and extraordinary hardness is met with. Now as the pit is usually narrow, and the ordinance does not require a greater mumber of hands than four persons to be set on, as we shall see in treating of the next ordinance; this must be considered as a reasonable impediment, it being sometimes impossible to overcome such a degree of "Dilatio potest dari post primam, toties quoties opus est, causa cognita." L. oratione ; et ibi Gloss. 2, ff. de feriis. |