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of the vein itself.* The reason of this rule is, that it is provided by their ordinances, that one or two pits shall be sunk upon the vein to explore and investigate it, and that the discoverer and those who may come after him, shall select their pertenencias.
19. Having ascertained the number of varas which may be taken by the discoverer, or an ordinary miner, the ordinance proceeds to declare, that in so doing, two conditions must be attended to; first, that the parties do not abandon their fixed stake ; and second, that they work no prejudice to third persons. The first condition is thrice repeated by our ordinance. And the old ordinances enforce the same rule, as does the 24th of the new code ; the latter in these words :-" There must always be a fixed stake, which must be adhered to, and must not be abandoned in staking out or altering the boundaries.” So the 26th: “ The fixed stake shall be within the said oblong, and shall not be left outside it, each one taking the number of varas he ought to take, wherever he may think proper, or deem best.” The 27th, treating of alterations in the boundaries, says, “ without prejudice to the boundary stakes, he may have set out, and so that the fixed stake be not left outside.” The 29th says twice, “ keeping his fixed stake within his pertinencia.” And in reference to a party applying for a waste space of ground, “ That he shall not leave his fixed stake outside.” The 22d directs the discoverer, before all things, “ To set up a fixed stake in each of the pertenen. cias he shall distinguish and take ; which he shall not be at liberty to leave, nor shall leave, in staking out or altering his boundaries, however he may stake out or alter the same." And as to other miners, it directs that, “Having made registry, and set up a fixed stake, &c.” So that, as the nail remains within the frame, in the illustration suggested above, the fixed stake must always remain within the limits of the mine, whether in tracing out the boundaries originally, or altering the boundaries, or under any other circumstances whatsoever.
20. It is a sufficient reason for the observance and fulfilment of this role, that it is one repeatedly enforced by the law, and as to which the will of the legislator is repeatedly declared : 1 but besides being a rule of law, there is another reason which renders its observance indispensable ; namely, that were there no such thing as a fixed stake, and were it permitted, from time to time, to take a new centre to measure from, abandoning the pit originally opened at the time of making registry, it would be impossible to place mining property under any tolerable system of regulation ; and that, if so important and essential a rule were liable to be varied at the will or pleasure of the owners, in working, measuring or altering the boundaries of their mines, the whole scheme of the ordinances would be frustrated.
* Escalon. Gazoph. lib. 2, p. 2, cap. 1. p. 111, tit 4, concerning the spaces allotted for mines, ord. 1.
† Apud eund. tit. 1, ord. 11 et 18, p. 109 and 110.
# D. Barb. Axiomat. 105, n. 1, “Geminatio actus, seu verborum, majorem deliberationem, et enixam voluntatem manifeste inducit.” L. Balista, ff. ad Trebellianum, Valenzuela, consil. 102. n. 102. Everardo, in topicis loco, 121, n. 1. “Verborum geminatio, seu actus reiteratio, denotat firmitatem propositi, volantatus, et consensus."
21. That this is so, is evident, for if it were allowable to alter the situatiɔn of the mouth or pit, an opportunity would be afforded of fraudulently obtaining access to another person's ground, for the purpose of getting at the ore, contrary to the ordinance* And an unlimited right would be conferred, of taking fresh points, from which to measure out or originate alterations, in the boundaries, to the destruction of all order, which requires that the limits of each separate estate or pertenencia should be defined, to prevent litigation or dissension.† But the principal point is this, that this class of property be. ing highly valuable, from its rich and profitable nature, has vested in the crown, in order to give an interest in it to all the subjects of the crown generally, $ whence it becomes necessary that the boundaries of the mines should be ascertained agreeably to the practice of all nations who work them, so that each proprietor being confined within his own limits and bounds, all his fellow-subjects may be admitted to their share of the benefit. As then, there must be a fixed centre to measure from, no point can be more appropriate for the purpose, than the principal pit of the mine, where the discovery of the ore is supposed to have been made, and which is taken to have been sunk to the required depth of three estados, and which is also usually made the entrance, by means whereof the vein is worked; for it affords an unchanging and perpetually enduring landmark; and being the foundation or base of the mine, and the way by which the entrance and exit to and from the works are obtained, it possesses many characters which tend to preserve its identity.
22. With regard to grants of land, the marks to which recourse is had to identify the subject of the grant, are different, and all questions as to the boundaries and produce, have relation to the surface only, it is sufficient to ascertain the identity of the boundaries, by marks of the description usually employed. We could wish indeed, that some better rule were devised with regard to the boundaries of these grants, such as the adoption of some kind of landmark, which shculd be invariable, whereby much litigation and expense, in inspections of the ground, which frequently, instead of clearing up matters, throw them into greater confusion, would be avoided. But the produce of a mine is derived from the vein, which is explored by means of the principal pit, the works for that purpose taking their rise from that pit; and
* Chap. 14, ord. 30.
| Agricol, de re metallica, lib. 4, page 60, Area cujusque fodinæ ideo terminis describitur, no lis oriatur inter vicinarum fodinarum dominos." # Vide chap. 2, sup. n. 10, 11 and 12.
Agricol de re metall. lib. 4, per totum ubi dimensiones aræ fodinarum describit : Et in principio inquit page 55. “Hæc autem mensura metallicis usitata ex Græcorum consuetudine videri potest defluxisse ad Germanos. Peru, ordin. 18, tit. 1, concerning discoverers, and tit. 3 and 4, concerning boundaries and the spaces allotted for mines, Escalona, ubi sup.
as an infinity of instances may arise, of communications happening to be made between different mines, in which cases it becomes necessary to survey and measure them internally, in order that each party may retire within his own pertenencias, it seems, that the only point suited for a centre of measurement, is the principal pit, which ought therefore to be fixed and invariable.
23. The second condition, that the boundaries to be set out by the discoverer or other person, “ be,” (as our ordinance expresses it) “ without prejudice to any other person or persons who shall have dug and registered their mines before him on either side,” is consonant to justice : the prior occu pancy of these parties fairly entitling them to a preference. These words however, shew (as observed by Don Joseph Saenz)* that the newly-discovered vein may be so near some other vein, previously discovered, that their mines may interfere ; and hence arises the question whether every person who discovers a new vein, not at the distance of one, two or three leagues from other veins, but in the same mineral tract, shall enjoy the rights of a discover er, or whether, to entitle liim to those rights, the discovery must be made beyond that distance, and in a distinct spot or mineral tract.
24. The ordinance now under consideration, and the old ordinance,f which it follows as to this point; place it beyond a doubt, that a person who discovers a new vein, although in the immediate vicinity of another vein, shall enjoy all the privileges of the ordinances. The latter of these laws certainly still holds, as to this point, unaltered, there never having been, to our knowledge, any determination of the tribunals of New Spain, or any ordinance of any of the viceroys to the contrary ; nor are we aware that the case has happened, of the rights given by this ordinance having been claimed before the justices, and denied, and of the denial being confirmed by the royal audiency sitting in judgment: or in fact, that there has ever been any litigation upon the point. And therefore, however deeply the miners may have been impressed with the erroneous opinion, that two or more persons cannot enjoy the rights of discoverers in respect of veins lying near together ; the adoption of this erroneous opinion can work no prejudice to those who, insisting on their rights, demand to have the more extended space allotted to them, and claim the preference to which discoverers are entitled.
25. And notwithstanding Don Joseph Saenzt considers that the rule should be qualified, in case any especial determination to the contrary should be found to have been made, yet he states, at the same time, that he is not aware of any such, although, with his experience and application, he certainly could not have failed to discover it, had any existed. For ourselves, we have never, during twenty years' experience in the management of very important mining affairs, heard of or seen any law, order, decree or ordi
. Don Joseph Saenz, Trat. de medidas de minas, cap. 8, n. 6. + Law 5, tit. 13, book 6, ord. 22.
Saenz, loc. ubi proxim.
nance in opposition to that to which we allude, nor have we ever been advised of or met with any precedent to the contrary; whence it follows that it must still be in force. And it would certainly be a great incitement to the discovery of new veins, to put this rule in practice, whenever the case might occur, to which there could be no objection, as the giving a greater number of varas is a trifling object, when compared with the benefits resulting from the discovery.
26. We have seen but one of the ordinances of Peru* referring to this point, and that we have set forth when illustrating some of the preceding ordinances. t It provides, “ that whoever shall discover a vein more than one league from any place where there is a mining settlement,” shall, as to such vein, “enjoy the rights of a discoverer ;" whence it would follow, that within a less distance than one league, he shall not enjoy such rights. But as this is a municipal ordinance, framed for Peru alone, it does not affect those of Castile, which are to be observed in New Spain; besides, this ordinance of Peru proceeds to declare, that every person who shall discover new veins, shall have a mine of 60 varas upon each of them, until he has six mines, although not a discoverer of a new mineral tract; which liberty of holding six nines is a privilege, as compared with the rights of an ordinary miner; for by a preceding ordinance no person can hold more than three silver mines, although on different veins, and whether purchased or obtained by registry; and if any person should take a greater number, any other person is at liberty to apply for the excess. I
27. We stated, at the outset, that this ordinance has altered the 22d of the old ordinances, by allowing the miners a greater number of varas ; but it is to be observed, that the latter directs that a mine shall be set out for the crown, next to the discoverer's mine, and of the same dimensions ; § and as our ordinance does not notice this, and ordains nothing to the contrary, it seems that the old ordinance is not altered in this respect. This rule of allotting a mine to the crown, prevails in Peru ;ll and Agricola states, that in Germany, it was the practice to set out six double mines, after the discoverer had taken his ; one for the king or prince, another for the queen, another for the master of the horse, another for the gentleman or cupbearer, another for the chamberlain, and another for the warden of the mines. I
28. Don Joseph Saenz says, that our ordinance has altered the old or. dinance as to this point; and that had it not intended to do so, it would not have passed over a matter of so much importance, and so directly affecting
* Escalona, ubi sup. tit. 1, concerning discoverers; ordin. 14. † Vid. sup. cap. 8, n. 7, in marg. I Ord, 13, loc. ubi sup. apud Escalonam, $ Ord. 22, law 5, tit. 13, book 6, Collection of Castile. 11 Ordin. 18, tit. 1, concerning discoverers ; Escalona, Gazoph. lib. 2, part. 2, cap. 1, pag. 108.
Agricol, de re metall. lib. 4, pag. 57.“ Deinde magister metallicorum debatvenæ inventori demensum. Postea unum demensum regi, vel principi, alterum ejus uxori, tertium magistro quitum, quartum pincernæ, quintum cubiculario, sextum sibi ipsi."
the interests of the crown, as we have noticed in another place.* Without admitting however, that any such alteration is distinctly to be collected, we agree that the custom of New Spain has proceeded upon this hypothesis, for it is not the practice, in that country, to set out a mine for the crown. And such mines, even if set out, could not conveniently be worked on account of the crown, nor could they be leased or sold to advantage: for if the first course were pursued, the revenue would be exposed to risk; and if the second were attempted, it would be in vain, for all the other mines being made common, and liable to be registered at pleasure, no one would be found willing. to purchase or take on lease, this particular mine ; and in the mean time, the space occupied by this mine would remain unproductive, instead of benefiting the revenue by returning the fifths and other duties, as it might, if worked by an individual. Neither is it the practice in Peru, according to Escalona,t who refers to several royal orders, to work these mines on account of the crown; but they are directed to be sold or leased, which it must how. ever be difficult to accomplish ; and consequently, whilst the difficulty of finding a person willing to purchase or take the mine on lease, continues, it must remain unproductive.
29. The orders cited by Escalona, form the basis of a law of the Collection of the Indies, directing the viceroys and presidents to inform themselves of the quality of the mines of gold, silver or quicksilver, belonging to the crown, and to cause them to be worked, leased or sold, which law extends to both the continents of America generally. Agreeably to this law, it cannot be doubted but that the king, as lord of the mines, and in exercise of the high and supreme right he enjoys over them, might take all or any proportion of the mines at pleasure ; for, as we have stated in Chapter II., he has only admitted his subjects to a partial interest in them. But as the fifth, tenth or twentieth part of the produce has been fixed as a satisfaction for his interest in the mines of New Spain, and as it has never been considered expedient to work any of the mines on account of the crown (the only instance we know, being that of the copper mines of Santa Clara, in the jurisdiction of Pascuaro, in Mechoachan, which are leased out),ş it foliows, from the evidence afforded by these customs and practices in New Spain, that the intention of the sovereign is that the mines of gold, silver and other minerals, should be worked by his subjects, and not on account of the revenue, not wishing to expose his finances to the hazards and risks of mining. And no mines of gold or silver have ever been taken in that kingdom, for the purpose of being leased or sold, on account of the crown, not only on account of their great abundance, but also because the viceroys sensible of the nature of
* Vide sup. cap. 2, n. 18.
Law 2, tit. 11, bonk 8, of the Collection of the Indies. Ş Vide sup. chap. 3, n. 39.