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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.‡

*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. 1, cap. 3, n. 30.

CHAPTER VIII.

OF THE FIRST DISCOVERERS, AND THEIR PRIVILEGE OF HOLDING SEVERAL 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 him, 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 bounda ries 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, ob

shall 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 the 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 discov erers 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 happered to discover the vein at one and the same time. We must therefore 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 discoverer 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,

pag. 106.

space of one league, in which he shall be entitled to enjoy the rights of a discoverer, such mines as he may take there, or may be granted to him in that character, shall not be reckoned in the aforesaid number, either with regard to him, or to any other persons who may discover veins in such new mineral tract; except that they shall be obliged to keep them properly worked, and if they neglect to do so, the ordinances relating to mines left insufficiently worked, shall be applied to them.”*

8. These two ordinances serve to shew, that if there be different veins at less than one league distance from some other mining district, one mine may be taken upon each vein, to the number of six mines; but if two or more persons find ore upon different parts of the same vein, he who first produces the ore before the justice, is the discoverer, and the other may have a mine next to that which the ordinances of Peru direct to be set out for the crown ;† so that they have between them, the two mines which one alone would have been entitled to, had he been the sole discoverer; but he who exhibits the most diligence in producing the ore before the justice, enjoys the discoverer's mine, exceeding the ordinary ones by 20 varas in length and 10 in width, according to the dimensions assigned to the mines in that kingdom.

9. By analogy to which, it may be inferred, that in New Spain, where a single discoverer is at liberty to take as many mines as he pleases, measuring out the boundaries in whatever direction he thinks best, the same right ought to be enjoyed to an equal extent, by each of the two persons who should have discovered ore upon different parts of the vein, at the same time; which may be done, without any necessity for making a common or partnership concern, as equality may be attained by making their choice separately, each taking his principal mine upon that of the vein where he may have found the ore. And although one should use more diligence than the other or others, in producing the ore before the justice, the latter ought not to be prejudiced by his being thus beforehand, provided the application be made within the term of 20 days, allowed by the ordinances of Castile‡ for making the registry, as no delay will be occasioned thereby. And although, under the ordinances of Peru, the party who applies first, is entitled to an additional space of 20 varas, this circumstance is of little moment; for in New Spain, the discoverer, as we shall explain in its proper place in the next chapter, is entitled to an equal extent in all the mines he selects. And in the case of their disagreeing in making the choice, the judge must bring them to an understanding, either by drawing lots, or in some other way.

10. This doctrine harmonises well with the grand object of encouraging the working of the mines, and stimulating the subject to discover them, for

Ord. 14, apud eund. ubi proxime, pag. 107.

† Ord. 18, apud eund. pag. 108.

Chap. 5, ord. 17.

serving, in respect to the same, all that is contained in the ordinances relating to this matter; and that he may also hold and possess all mines and pertenencias, how many soever they be, which he shall purchase or inherit, or which may appertain to him under any title or cause whatsoever.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. Of the regard which ought to be paid to the dicoverers of mines.

2. The discoverer is the person who finds ore in the vein, although he may not open the first pit on the ground.

3. If it be a question who was the first discoverer, it shall be ascertained in a summary way, the right of the losing party being reserved.

4. If two different persons find ore upon the vein at the same time, it might appear that they would reciprocally prevent each other from being discoverers.

5. This perplexity, however, is easily got over, with regard to the mines.

6, 7 and 8. For it is inferred, from two of the ordinances of Peru, that each party acquires to himself the privilege of a discoverer, although some preference is shewn towards him who first applies to the justice.

9 and 10. The same rule prevails in New Spain, except that no preference is given to the party applying first; arguments establishing this doctrine.

11. The discoverer may take as many mines as he pleases, under certain conditions. 12, 13, 14 and 15. The old ordinances are altered by our text, as to the number of mines the discoverer is allowed to take, and the mode of taking them, as he may, by the present law, take as many contiguous mines as he pleases, taking care to keep a proper number of hands at work, and observing the other rules of the ordinances.

16. Other miners, as well as the discoverer, to be entitled to register a mine, must have discovered ore, and must set up a fixed stake within ten days.

17. Of the order to be observed amongst these parties in granting mines; the preference being given to the party who first applies to the justice.

18. What is to be done when several parties apply, at the same time, to have the boundary takes set out.

19. No ordinary miner can take two contiguous mines, but any person may hold two or more, if acquired by purchase.

20, 21 and 22. It is resolved and proved, that any person may also hold several mines, if acquired by inheritance or any other lucrative title.

COMMENTARY.

1. If the inventors of arts tending to the common benefit of society,* are justly entitled to reward, the discoverers of mines, the precious metals produced from which are the main spring of arts, and the animating spirit of commerce, are surely still more proper objects of such encouragement. For rewards so bestowed, besides being a proper return for the labour and anxiety of the discoverers, have the further effect of stimulating others to search for veins and mines, on which the general prosperity of the state mainly depends.†

*Solorz, tom. 1. de jur. Ind. lib. 1, cap. 16, a n. 35. Polydor. Virgilius, de rerum invento

ribus.

† Agricola, de re metall. lib. 3. page 56. "Ut primo venæ inventori meritam referat, et cæteros metallicos excitet ad studium quærendarum venarum."

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