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demand shall make the partition of partnership property, and that the other party shall, within six days, make choice of which share he will have : and in such partition no more shares shall be made than there are partners ; and when the choice is made, each shall hold his share, and the partition shall serve him for a title, and there shall be no further suit on the subject, nor shall any such be entertained or admitted ; and if the partnership shall cono sist of more than two, he who demands to have the partition made, shall make it, and the other two shall make their choice; and if such others shall not agree, the mine shall be divided, and these others shall draw lots for the choice; and he who has demanded to have the partition made, shall take the share which remains; and if either of the other two shall prefer it to that which has fallen to him, he may take it the same day, but not afterwards ; and the share which remains shall always be for him who has demanded to have the partition made.”
40. By the next ordinance it is provided, “That when there shall be partners, who shall hold a mine in undivided shares, and one of them being absent, he who is present shall work the mine with the number of Indians prescribed by the ordinance, and shall find no ore, the ordinance shall be observed which provides, that after the expiration of two months he shall have it for his own absolutely. In this case, no one can apply to have the mine adjudged to him for being insufficiently worked. If however he shall work the mine with the number of Indians proportioned to the share he may possess in it, and no more, he will thereby fulfil his obligation, as far as concerns his own share, but the share of his partners may be applied for by any person, as insufficiently worked : and if it shall be adjudged to such person, the partner shall be obliged to make his election whether he will have a partition, within ten days; and if they shall agree to divide it, it shall be divided, and the original partner shall choose which share he pleases, and having once chosen, neither of them shall be at liberty to change, and there shall be no deceit, nor shall any complaint of the party so having made his
choice, be listened to ; and if he shall not make his choice within the term · prefixed, they shall both possess the mine, pro indivisio.”
41. The third of these ordinances directs: “ That when it shall happen that a mine has to be divided amongst many, by reason of descent or purchase, the measurement shall be made upon the surface of the earth, and shall be reduced to a plane, by means of a level. And that as soon as the partition is made, on whatever account it be, the shares shall be marked out with land marks, in the manner directed, &c.”
42. It is evident, from these three ordinances, that a mine may be the subject of partition, and that it may be worked in part, and in part denounced for being insufficiently worked ; and also, that the shares into which it is divided upon a purchase or descent, ought to be defined and marked out with land marks, so that each party may work his own share separately ;
and as the law of the Partida says, * each is better satisfied with his share when he has it to himself, and he arranges it better and makes more advantage of it.
43. The question, moreover, is put beyond a doubt, by two other ordinances of Peru, one of which sanctions the taking a mine of 15 varas in width, if it be a waste space between other mines ;t and the other fixes the number of hands to be kept at work in a mine of 60 varas, at eight Indians or four Negroes; and in a mine of 30 varas or under, at four Indians or four Negroes ;$ whence it is to be inferred beyond question, that the mine may be divided by varas.
44. And the point is still more clearly established by one of the ordinances of Castile, according to which, any person may apply for the waste spaces remaining between two mines, which are often of a smaller number of varas than a regular mine, for these waste spaces may be of 100, 80 or 20 varas, or more or less, according as the number of varas to spare is more or less. And it is well known, that in practice, the waste spaces are taken possession of in this manner, as we have ourselves witnessed in the mining district of Bolaños, where the title of Zapopan mines was given to them; and also in other mining districts.
45. The old ordinances allowed 80 or 100 varas only, for the length of a silver mine.ll The gold mines, also, are mines, and yet, under the ordinances of the new code, those taken by the discoverer can only be 80 varas, and the ordinary ones only 60 varas in length, and one-half, respectively, in width ; and by the old ordinances they were of still smaller dimensions, that is to say, 50 and 40 varas respectively, ** so that a mine may be really such, although it be not 120 varas in length. And if the law itself sometimes assigns a less extent to mines, so may their dimensions be diminished upon the division of a partnership, agreeably to the law. And finally, the length of 120 varas is fixed as a matter of favour, and the object is, that that number should not be exceeded ; but this does not prevent the miner from contenting himself with less, and renouncing the rest.
46. Nor can it be urged, with any effect, that this would occasion confusion, or that as different fixed stakes would be set up in the mines, thus rendered, by division, less than the regular size, it would be easy, by entering these pits, to gain access to the ore belonging to the adjoining mine owner ; for the same thing might be said of the waste spaces which are allowed to be taken
• Law 1, tit. 15, part 6.
Ord. 3, tit. 7, concerning mines insufficiently worked, apud eund.
Chap. 13, ordinance 29. I L. 4, tit, 13, book 6, ord. 22. 1 Chap. 9, ordinance 70, ** Ordinance 75, law 5, tit. 13, book 6.
between the different mines, and yet these inconveniences are not found to occur, for if a party registers a pit upon a vein and upon ore, and follows it up, then, even supposing that he does carry on his works within the limits of some other owner, he becomes entitled, by his diligence, to the ore he may raise.* And there is no fraud in a case of this kind, fraud being imputed only in the case of a party working where there is neither a vein nor ore, nor any appearance of it, and with a view merely to take advantage of the ore of a neighbour, by mining within his boundaries. But if those who make partition of the mine proceed with regularity, and measure out the ground in varas, so as to ascertain what is the share of each, each of them registering a pit upon ore, or leaving the entrance common, it is precisely the same thing whether the mine contain 8 varas or 80, provided the limit of extent fixed by law, be not exceeded.
47. And above all, as it is impossible to lay down rules for all cases and in all matters, the aspect of which, from the various combinations of qualities, persons and incidents which occur, varies with the most trifling variations in the circumstances, the subject must be left, after laying down the above rules, to the sound direction of the judges, in the exercise of which, it must be determined whether, under such or such circumstances, the metalliferou s estate will conveniently admit of division, or not; as is laid down by Felicius, upon the authority of Baldus and Decianus; and if it will not admit of such division, then it should be adjudged to one of the partners, and, in preference, to him who holds the largest share. Or, according to a better opinion, for which he cites Tiraquelo and Capicius, † they should be admitted to bid for it, giving a preference to the partner who holds the largest share ; by which means the inconvenience of obliging the parties to continue the common holding or partnership is avoided, whilst the adjudication, or the better plan of a judicial sale, preserves the interest of the partner who calls for a partition, without rendering it necessary to divide the property. This rule is likewise laid down in the Curia, being founded on the law of the Partida, and the civil law, and it is also illustrated by Ayora. I
* Chap. 14, ordinance 30.
† Felicius, de soc. cap. 39, n. 86. “Secundo consideravit, au res, puta fundus, commodam patiatur divisionem, quod quando sit declarat Baldus, in L. sancimus, Cod. de donat. et in cap. 1, in princ. de duob, fratr. de nov. benef. invest. et Decian. cons. 15, n. 38, lib. 1, et erit ista declaratio judici arbitraria, cum certa regula dari non possit, et si videbit commodam non pati divisionem uni erit adjudicanda, ut per Barth. in L, ad officium, Cod, comm. divid. Contra hanc Barth. opinionem faciunt tradita a Bald. in L. sancimus, Cod. de donat. nam vult, quod si res commode dividi non possit, præferatur ille qui in re habet majorem partem Verum a Barth. opinione non est recedendum, et est intelligendum, Baldum loqui quod in par licitatione solummodo præferatur ille qui in re majorem partem habet, ita tradit Tiraquel. de jure primogen. q. 60, n. 16. Capicius, dec. 36.”
Curia, lib. 1, comm. terrest. . companeros 3. n. 49, L. fin. tit. 15, p. 6. L. ad officium, Cod. comm. divid. Ayora de part, p. I, cap. 3, n. 30.
OF THE FIRST DISCOVERERS, AND THEIR PRIVILEGE OF HOLDING SEVE
RAL MINES, AN ORDINARY MINER BEING CAPABLE OF HOLDING TWO ONLY, UNLESS ACQUIRED BY PURCHASE OR INHERITANCE, UNDER WHICH CIRCUMSTANCES HE MAY HOLD AN UNLIMITED NUMBER.
ORDINANCES XXII. XXXI. XXII. Also, we ordain and command, that the person who shall first find or discover a mine, shall, as the first finder or discoverer, be the first to make registry, and shall enjoy all such mining pertenencias as he shall stake out, or choose to stake out, upon the mines and veins he shall discover, or shall have discovered, provided that he shall, within ten natural days from the time of his making registry of such mine, stake out, declare and distinguish such pertenencias as he may be desirous of having; and that he shall enjoy the extent of space which properly belongs to each portion staked out, throughout all the pertenencias which he shall so stake out and distinguish, as such discoverer; and that he shall be obliged, within the aforesaid term of ten days, to stake out all the pertenencias which he shall so choose, to be performed in such manner as he shall think fit, although he should include and take within his boundaries any trial pit or trial pits which other persons, coming after him, may have made, or may make; provided he first set up a fixed stake in each of the pertenencias he shall so distinguish and take, which he shall not be at liberty to leave, nor shall leave, when he shall stake out or alter his boundaries, however he may stake out or alter the same. And that such persons as shall come after bim, shall proceed in their order, to stake out or alter their boundaries, as they shall from time to time discover ore. And that when they shall have made registry, as they are bound to do, they shall proceed to set up a fixed stake in each of the pertenencias they may choose to take and distinguish, within the term of ten days, as aforesaid, but after the expiration of the first ten days allowed to the first discoverer ; for those who stake out a mine, are always to have ten days to view the ground, and to take all such pertenencias as they shall wish to have, and to set up a fixed stake; but they cannot disturb or enter upon the pertenencias which shall have been already staked out, because all the pertenencias and boundaries which shall have been taken and marked out by those who shall have first set out stakes, are to be preserved. And if two or more persons shall apply to have their boundary stakes set out, it shall be ascertained, in a short and summary manner, which of them applied first; and he who shall be ascertained to have been the first, shall be preferred, saving the right of the other party, if he shall, nevertheless, claim to have first made application to have such stakes set out, as aforesaid.
XXXI. Also, we ordain and command, that the first finder and discoverer of such mines may take as many stakes and pertenencias as he chooses, obshall raise a monument, and several persons raise monuments; and so, if given to the eldest, where there are two persons of the same age ; or to the greatest friend, where there are two persons who have equal claims of friendship: as may be seen by reference to the text of Ulpian, and those who follow him.* It would follow therefore, that, supposing two different persons to make the discovery simultaneously, neither of them would be entitled to the privileges of a discoverer.
5. But the solution is not to be sought amongst these subtilties of the Roman civil law. For the reason which prevents the legacies from taking effect in t'ie above instances, is the testator's not having fully comprehended the effect of the condition, he having had one single person only in contemplation. But the object of our laws is to promote the working of the mines, as of the utmost importance to the public, not regarding whether the discoverers be several, or one only ; and it would be very far from reasonable to determine, that the mines shall remain untouched, and the labour of the discoverers be disappointed of its due reward, merely because they have happer.ed to discover the vein at one and the same time. We must therefoie look for some other principle, more direct in its application, and harmonising better with the intention of the ordinances, upon which to ground the decision of this question.
6. Such a principle may be found in the ordinances of Peru, by which it is provided : “ That if two or more persons shall find ore together upon the same occasion, he who shall first produce the ore before the justice, having previously made an assay, as directed by the ordinances, shall be deemed to be the discoverer; and if the dispute concern a single vein, the other party shall be at liberty to set up his stake next to the mine allotted to the crown; but if it also concern another vein, he may make his choice in the manner to be declared.”+
7. This declaration is made in another of the ordinances, which establishes : “ That whoever shall discover a vein, more than one league from any other mining district, shall enjoy the rights of a discoverer, upon that vein , but if he shall discover another vein on the same ground within that distance, he shall have a mine of 60 varas at any part of it he pleases, and if he shall discover other veins, he shall be entitled to have that space upon all, until he has six mines of sixty varas each ; and every one who shall discover new veins shall have the same privilege, although he be not a discorerer of a new mineral tract, up to the number of five mines; and as to such others as he may acquire by staking out or by purchase, regard shall be had to the subsequent ordinances, which treat of taking more than the allowed number of mines. But if he should discover other mines beyond the said
* L si fuerint, ff. de reb. dub. L. duo sunt Titii, de testam. tutel. + Ordin. 9, tit. 1. concerning first discoverers ; Escalona, Gazoph. lib. 2. part. 2, cap. 1,