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lipble to any penalty; as may be seen in Cepola, Pechio, Lagunez, and many others.* By the same rule, then, there shall be no injustice in the lower mine receiving the waters of the higher mine; nor shall that circumstance afford any ground for rendering the owner of the latter liable to the expenses of draining the former; the damage arising, not from any fault on his part, but from the natural constitution of the ground.
4. Nor is there any ground for suggesting that the ordinance may refer to such water as may be raised through the pit, by means of machinery, and thrown off into the neghbouring mines, although such a direction would be very proper. For the ordinance does not refer to such water, but to water finding its way from one mine to another, though fissures or veins beneath the surface; whereas the water which is drained by machinery, does not flow from one mine to another, but is raised artificially, and thrown off by the draining apparatus.
5. It is evident, therefore, that the ordinance does not refer to the water thsown off by machinery, but to the subterranean waters: and this is proved by a passage in Agricola, from which the ordinance appears to have been taken. It is there said, " That if from the water not being drawn off from the pit of any mine, situated higher, it found its way through veins or fissures, into the pit of some other mine, the working of which became thereby impeded; then, if the owners made application, complaining of the damage, and two surveyors declared on oath, that this was the case, he who had been the cause of such damage, forfeited his mine in favour of the injured party. In other places, the rule was, that he should contribute a proportion of the expense, to make amends for the damage, if it occurred in no more than two pits; and if he did not do so, he forfeited the mine. But by draining the inundated works, he might recover the right to his mine."f Whence it appears, that neither the ordinance nor Agricola refer to water thrown off by machinery, but to such as finds its way through subterraneous veins and channels; and consequently, we are still pressed upon by tho difficulty, that as no blame attaches in allowing the water to take its natural course from above downwards, so neither can there be any ground for the penalty of forfeiting the mine, stated by Agricola to be enforced in some places, nor for
* Cepola, tract. 2, de servit. cap. 4, n. 71 et 77. Pechio, de servit. tom. 3, cap. 9, n. 118. Lagunez, de froct part. 1, cap. 5, n. 80 et 39; et plurea apud eoa.
t Agricol de re metall. lib. 4, pag. 64, lia. 6. "Praterea, quondam si aqua non exanclata ex altiori alicujas fodinas puteo. per venan aut fibram fundebatur in altcrius fodinse pateum, et labori erat impedimer.to ; tunc domini fodina? damnum facientia adibant magistrum metallornm, et conquerebantur de damno, qui ad putcoa mittebat duumviroa juratos : hi ii ita rem so habere comperissent, jus fodinse damnum dantis, dominis damnum facientibua dabatur. Sed moa iste quibusdam in locis immutatus. Fum magister metallicorum si idipsum de duobua puteis compertum habet, dominos, putei damnum dantis juvet sumptum ex parte suppeditare dominis putci facientii damnum. Quod si non fecerint, tunc eos privat jure fodina? : contra domiajua fodinae obtinent, si foaaores misserint in opera, et aquam et puteia exanclaverint."
the direction of our ordinance, that the draining shall be paid for, the damage stopped, and amends made to the injured party.
6. Notwithstanding the above remarks, the ordinance may be shewn to be reasonable and just. First, because by the rules of law, all the mines are to be kept clear and free of water; for which purpose the justice is ordered to exert the greatest vigilance in inspecting them: which is one of the burdens the sovereign has thought proper to impose, in giving his subjects an interest in the mines, and to which mining property, and the owners of such property, are therefore necessarily subject by law. And it is to facilitate this object of drawing off the water, that pits, adits, and contraminas, are made. If then, the owner of a mine of less depth allow it to fill with water, omitting to draw it off by the pit, and the water, by its weight and pressure, flow into and inundate the deeper mines, he is doubly culpable: first, in not draining his own mine; and second, in unjustly causing the inundation of an adjoining mine, and thereby preventing its works from being continued; and it is, consequently, just, that he should bo made liable to pay the expenses of draining, which is a less punishment than the forfeiture of the mine, stated by Agricola to have been sometimes imposed.
7. Second, because neither Agricola nor the ordinance, blame nature for making the water descend by its gravity from above downwards; neither do they, in fact, refer to water proceeding from snow, springs or rain, independent of human agency, which is an inevitable evil: what the ordinance says is this; "And if any mine shall be damaged by one or more others ;" that is to say, by water allowed to collect together, and which the owner does not drain off, as he is in duty bound to do. And Agricola expresses himself still more plainly, " Si aqua non exanclata ex altiori alicujus fodinse puteo, &c.;" that is to say, if water, which has not been drawn off as it ought to have been, shall inundate the adjoining property, the injury to the owner must be redressed, by paying him the expense of the draining, so as to remedy the damage of which the other, by not draining, was the culpable cause.
8. Third, because, although water descending naturally from the higher ground, must necessarily be received by the lower; yet this is to be understood only, when there is no agreement or law to the contrary, as is proved by Cepola, from various texts,* one of which sets forth, that property is
* Cepola, de serrit. rust, prted. tract. 2, n. 71, ibi: "Qusero nunc de alia qusestione quotidiana. Aqua ex fnndo ineo superiore descendit ad tunm inferiorem, et inundat totum fundum tnum, ex magna abnndantia aquarum. Qnasritur de duobus. Primo: nutnquid ego, qui sum dominus fundi superioris, cogar rctinere aquam in (undo mco, puta faciendo fossam et aggercs, et in eo aquam recolligendo, ne disenrrot ad fundum tuum 1 Circa quse dicas, imprimis, tria esse consideiarda : primum legis conicntio, ut si oliqua intervenit, illn sit servanda. L. 1, $. denique; L. 2, ff. de aqua pluv. arc. L. 1, §. si convencrit. ff. deposit, et aliis." Et sub cod. n. in fin. ibi: "ftuando interrenct de rctinenda in superiori, ne descendat ad inferiorem, vel de mitteuda in fundum inferiorem, dicas illam conventionem esse servandam, et per eam, scrvitutem imponi, diet L. 1 et 2, ff. de aq plur. arc. L. semper, ff. de reg. jar."
made subject to different laws and obligations, according to- circumstances, and that when none such are imposed by law, they must operate according to the course of nature ;* but that if there be any express direction or law, the property becomes thereby liable to a service. Whence Cepola infers,f that if, by any law or agreement, the owner of the higher ground has become liable to the service of keeping in the water, or the owner, of the lower ground, to that of receiving it, each of them respectively, is bound to clear off the water, and to secure the dams, agreeably to the common rule, that he who is bound to perform any particular thing, is also bound to go through all the means necessary for accomplishing it; aud that he who wills the consequent, must also will the antecedent. As then it is a provision of the law, that all miners shall keep their mines drained and clear of water, that they may be enabled to proceed with their own works, and may not impede those of their neighbours, they become liable, in complying with this rule, to the obligation or servico of clearing and carrying off the water from their own mines, and they will be guilty, if they allow it to remain, of a great wiong, in allowing their own mines to fill with water, and of a much greater, in causing the inundation of their neighbour's mine.
9. Fourth, because the very situation of the mines calls for some law or regulation with respect to drainage: for they are generally found amongst hills and mountains, some in high ground, others in low, and the water usually takes its course freely, through all the mines upon the same vein. Such then being the state of things, were the owner of the lower mine bound to receive, and to draw off at his own expense, all the water from the higher ones, which would flow to him if not drawn off through their pits, he would be doubly injured; first, in his works being impeded; and second, in being made liable to the expense of draining. The ordinance proceeds with great equity, therefore, in making the owner of the higher mine liable to tho expenses; for after all, no recompence is made for the damage sustained, in consequence of the works being impeded, contrary to the laws, which always urge the keeping up the works in an active train, and which provide (amongst other things,) with a view to this important end, that mines shall be drained by means of pits, adits or contraminas, directing that such works shall be executed wherever circumstances will admit of it; and even permitting adits and contraminas to be driven by individuals, independent of owners of the mines, as will be mentioned in the proper place.J
* L. 1, §. 23, ff. de aq. pluv. arc. "Dcuique ait conditionibus ogrorum quasdam leges ease dictas. Si tamen lex non sit agro dicta, agri naturam esse servandam."
t Id. nbi prox. n. 72. "Sed dubitare potest si simpliciter est imposita servitus.ut superior vicinus teneutur rctincre aquam in fundo suo. vel quod inferior teneatur fossa earn recipcre, nnnquid superior, vel inferior teneatur purgare, vel aggeres facere, aut munirc? Et videtur, quod sic: quia qui tenetur ad unum, tenetur ad omnia per quse pervenitur ad iliud. Qui permittit consequent, videtur permittere necessario antecedens, &c."
t Vide infr. chap. 26, n. 26.
10. Having, by these arguments, overcome the difficulty which at first startled us, it is clearly established, that the damage caused by the overflowing of the water, must be estimated and paid for; but this is not to be done ex officio, but upon the application of the party. For if he remain silent, and make no application, but carry on the draining himself, he must be considered to have waived his right. If, however, he demand to be compensated for the damage, the justice must have an inspection made, and must determine the amount of the damage, upon the estimate of two surveyors upon oath; which damage ho shall command to be promptly paid, agreeably to the spirit in which causes of this kind are conducted,' the injury being Buch as requires an instant remedy. And in determining the amount which will fairly cover it, must be esiimated by experienced surveyors; that is to say, the quantity of water is to be computed, by comparing the state of the mine beforo and after the flowing in of the water, the expense required to draw it off being estimated according to the breadth and depth of the space the water occupies; wherein the practice of the district, as pursued by other miners, in the course of their draining, is the only rule to be observed.
11. From this ordinance, and the rule it enforces, it follows; that the inferior mines are not liable to the service of receiving the water from the higher mines, but that, on the contrary, by allowing the water to flow into the lower mines, an injustice is done to their owners, by impeding the works, and diminishing their profits, for which compensation ought to be made. And that all the mines, whether higher or lower in situation, must bo kept drained by their owners, this service being imposed by the law. But the liability of the miner to allow a passage for the works of drainage, from other mines, is a service of a distinct kind, of which we shall speak when treating of contraminas, and is so far from being injurious to the mines through which a passage is allowed, that it is rather an advantage, in facilitating the draining of the latter, and the freeing them from rubbish.f
12. It follows also, that it is incumbent upon the mining justices to visit the mines in their respective districts, and to make arrangements, so that they shall all be kept free from water, in order that they may be kept regularly at work. Did the chief alcaldes zealously urge this object, and promote regular works of drainage, much injury might almost insensibly be prevented, and we should no longer have to witness tho abandonment of many mining districts, which, although now overwhelmed with water, have, in their time, yielded riches to an incalculable amount. And were the visits they make directed to this important object, they would be attended with much advantage,' instead of serving, as at present, rather as a pretext for extortion, than an incentive to labour.
* Agricola, ubi inp. n. 5.
t Vide chap. 26, throughout
OF THE RUBBISH HEAPS OF MINES, AND OF GIVINGS WAY IN THE WORKS OF MINES.—OF THE PILLARS OF SUPPORT, TIMBER-WORK, PITS AND CISTERNS.—OF THE ACTIVITY WITH WHICH THE JUSTICES SHOULD PROMOTE THE CONSTRUCTION AND PRESERVATION OF THESE WORKS.
ORDINANCES XLI. XLVI. LXXIV. XLI. Also, we ordain and command, that persons who shall hold or work any mine or mines, shall be obliged to keep them clear, and timbered in such manner that they shall not fall in nor become choked; leaving in suoh mines as shall produce ores of the quality of a marc and a half, or under, perquintal of silver-lead, such bridges, strengthenings or supports (tetteroi), as may be proper for their security and permanence; and such mines as shall produce ores of better quality, shall, besides the above, be very thoroughly lined and secured with good timber; and, in case of the contrary, the justice of such mine shall cause the work to be performed at the expense of the mine owners. And in order that this may be done and performed in manner aforesaid, our administrator-general, or district-administrator, is to observe, and shall observe, particular care in visiting and causing such mines to be inspected, taking with him persons who understand the subject, that he may make such provision as may be requisite, as is mentioned, in this and the last ordinance.
XLVI. Also, we ordain and command, that no person, in working or digging his mine, shall be at liberty to throw the earth which he may raise from such mine, upon the mine, or within the pertenencia of another proprietor, under the penalty of ten ducats for every time he shall do so, to be applied as aforesaid. And the mining justice shall, whenever the party may require it of him, cause such earth to be removed and cleared from such pertenencia, at the expense of the party who may have thrown, or directed it to be thrown there, notwithstanding any appeal, or charge of nullity or injustice, that may be interposed; but each person is permitted to carry out the earth from his mine through any pertenencia, provided that such earth be deposited out of the range of such pertenencia.
LXXIV. Also, forasmuch as we are advised, that much inconvenience arises from sinking pits in mines, very near each other at the surface, and likewise from sinking them continuously, without making any landingplaces; not only in regard to their permanence, but also because they cannot be worked or drained conveniently; for a remedy hereof, we ordain and command, that when from henceforth any new mine shall be discovered, the pits continued shall be made ten varas from each other, and each pit shall be fourteen estadot in depth; and if they shall have to be sunk deeper, an excavation or recess (rnineta), shall be made, before sinking any deeper; from which the next pit shall be formed. But forasmuch as in many places,