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which the measurement of mines and of land, differ; the latter being usually measured upon the four principal points of the compass, whilst mines may be measured upon any of the 32 points, at the pleasure of the miner, who is authorised by the ordinances to measure out the number of varas, allowed to the mining pertenencia, either upon the course of the vein, across the vein, or otherwise, as he shall think best ;" and he adds, that the course. of the vein itself is generally subject to variation. In another placet, he gives a mechanical illustration of the subject, by supposing a tambour frame to be taken, without any cross piece (atravesano), and made in the form of a parallelogram, twice as long as broad; which is the form both of the discoverer's and of an ordinary mine, the length of these being 160 and 120 varas, and the width one half, respectively. He then fixes a nail in a table, to represent the fixed stake, and by changing or varying the position of the frame in every possible way, first to one side and then to the other, first towards one corner and then towards another, and alternately nearer or farther from the nail, but always keeping the nail within the frame, he shews the different ways in which the boundaries of the mine may be measured; which may, in fact, be in any direction whatsoever, always preserving the fixed stake. It cannot therefore be doubted, that the miner may take the 160 or 120 varas, and the 80 or 60 varas, in any direction he pleases, either upon the course of the vein, or across it, as he shall find best.

15. The object of the ordinance in granting this privilege, is to benefit the owner of the mine. For as the treasure lies sometimes along the course of the vein, which will itself vary in direction, and sometimes upon the inclination or underlay of the vein, which is either inferred from various signs known to professors in the art, or ascertained from pits or other works, sunk upon the vein; it has been made a rule, in order to facilitate the acquisition of the ore, which is the only cbject of engaging in such laborious undertakings, that the space may be taken either across or upon the course of the vein, as the miner may judge most expedient.

16. Upon investigating the nature of veins, a great diversity is found in them; so much so, that the position or course of one affords no rule for determining that of others. And although this subject is abstruse and difficult, its secrets being concealed in the bowels of the earth, whence it is more proper for the natural philosophers, who have discussed and explored the mysteries of the subterranean world, yet it is very appropriate to our subject to consider the varieties, the different courses and directions of veins, as ascertained by professors and men experienced in the subject; as this very diversity demonstrates the reasonableness of allowing the measurements of the mines to be taken in whatever direction may be conceived most favourable for the purpose. This subject has been exhausted by Perez de Vargas,

Saenz, Tratado de medidas de minas, cap. 2, n. 22.

† Id. ib. cap. 5, n. 16 to 22.

in his famous and rare treatise, in a passage which we have extracted, where he copies the illustrations which had been given very much at length,

Bernardo Percz de Vargas, de re metall. lib. 5, cap. 5, concerning the differences in metallic veins. 66 Metallic veins generally differ in depth, width or length. Amongst these there is one sort of vein which, commencing at the surface of the earth, descends downwards into the depth, and this is called by the master workmen, a deep vein.

"There is another sort of vein, called a spreading or wide vein, which neither rises from below upwards, nor descends from above downwards; but which spreads sideways, in the depth of the earth, like a long loaf or cake, or like a sole, a sea-fish.

"Another kind of vein is that which is described as an aggregation of several veins, making together one vein; forming above, a hollow, like a dish, and spreading downwards. The space between two veins is called an intervenio. A deep vein widens downwards.

Deep veins differ in themselves, some being a pace, some two cubits, some a cubit, some one foot, and some half a foot, in width,

"Some again, are a palm in width, some three fingers, and some two; these, however, are narrow. In places where the veins are very wide, a cubit is considered narrow; the veins of Oremnicio are said to be, in some parts, twenty paces wide.

"The wide veins vary in height (or thickness), for some are a pace in height, some two or more, some a cubit, some a foot, some half a foot, all which are considered thick veins; others, being a palm, three fingers, or one finger in height, are considered shallow.

"The deep veins also differ in their dip, for some incline from east to west, some from west to east, some from south to north, others from north to south. The question whether the vein inclines from west to east, or from east to west, from south to north, or from north to south, is ascertained by observing the inclination of the rocks, between which the vein lies, noticing towards which part the rock and vein incline, or in what direction they lean,

"The wide veins differ also in respect of their width; the part towards which they spread, is easily ascertained from the position of the rocks including them. There are some deep veins which proceed in an uniform direct line, whilst others are tortuous and curved; some veins descend along the slope of a mountain, without passing out of it: others descend from the summit of a hill or mountain into the valley, and then again ascend up some opposite hill or mountain others descend from the hills into the flats and plains, along which they take their course, others run for a great extent through the plains, mountains or hills: very often the deep veins, running in different directions, intersect and cross each other; at other times they unite like branches or converging roads, forming a trunk, like that of a tree; at other times, after uniting they again separate, in the depth of the earth, the right hand vein going off to the left, and the left hand one to the right. At other times, the vein, meeting with a rock, divides, and forms branches, which either subsequently re-unite, or continue separate like threads. To ascertain to whom these veins belong, when they thus unite and cross each other, the joints of the rock must be noticed, observing in what direction they point, and whether they incline to the east or west, north or south. A deep vein has a beginning and an end, a tail and a head; the beginning is where it commences, the end where it terminates; the head is the part which meets the surface, and the tail is that part in the depth of the earth. A wide vein has a beginning and an end; but instead of the head and a tail, it has sides.

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A deep vein

'An aggregated vein has a beginning, end, head and tail, like a deep vein. will frequently intersect or cross a wide vein, or an aggregated and united vein, "There are other small veins called fibres, which either traverse the principal veins, or accompany them, and add to their width, and these fibres frequently descend from the surface, and guide us to the deep vein. These fibres often disturb the position of the joints of the rocks, within which the vein lies, making them point to the east, instead of, as before, to the west, which ought to be known and borne in mind. These veins and fibres are either compact and solid, or hollow the compact and solid ones do not contain water, but may contain some air; the hollow ones now and then contain water, and frequently air, and water generally flows from them. Of the solid veins and fibres, some are hard, others soft, and others moderately soft."

many years before, by Agricola,* who gives plans of the veins, and of their junctions, by way of explaining their varieties of course.

17. Some are called deep veins, which take an inclined or downward direction; and of those, some proceed in a direct line from above downwards, and others in a convex or curved direction. Deep veins sometimes cross each other, afterwards taking different directions; at others they unite and form a trunk, in the manner of a tree; afterwards separating, the right hand vein going off to the left, and the left hand one to the right; at other times, when the vein comes upon a rock, it divides into branches, which either run on as separate veins, or re-unite. After the deep veins, there are others called wide, spreading or broad veins, which neither ascend nor descend, but spread sideways: in New Spain they are called mantos. Others are called aggregated veins, and consist of many veins united in one: others again are fibres, which sometimes cross the principal veins, and at others accompany them, and add to their width, and thus frequently serve as guides to the deep vein. All the space lying between two veins, whether deep, wide, or aggregated veins, or merely fibres, is called an intervenio. The course of the vein is ascertained by examining the leaning of the rock or barren ground, between which the vein lies, at its commissure or junction with the vein, noticing what direction it takes. And the subject is illustrated in a compendious and plain manner, by father Athanasius Kircher, who when treating of his noble district of the subterranean world, gives a plan or map illustrating the deep, wide, curved, shallow and transverse veins, and their intervenios, or intermediate spaces. From all the above, it is evident, that as the vein is liable to such variations in its course, sometimes descending from the mountains to the plains, and then re-ascending; sometimes taking a direct, at others an oblique, at others a curvilinear, and at others a waving, serpentine, or tortuous course; sometimes inclining or underlying to one side, and sometimes to the other (whence the term underlay or inclination of the vein), it is requisite that the miner should have the opportunity of measuring out the length and breadth of his mining pertenencia, in whatever direction he finds it most expedient to follow, according as the vein extends itself downwards, sideways, or upon the underlay.

18. What we have stated on this subject, is to be taken as the rule for New Spain, being agreeable to the ordinances of Castile. But in Peru, the discoverer must take the 80 varas lengthwise upon the course of the vein, and he must take the 40 in width, 20 on one side of the vein, and 20 on the other; and so the ordinary miner must take 60 varas lengthwise upon the course of the vein, and 15 in breadth on each side, so that the vein shall be in the midst; but not including in this space the width of the body

Agricola, de re metallica, per totum librum secundam, ubi typos, atque figuras fodinarum, cum venis profundis, dilatatis, cumulatis, humilibus, interveniis ponit ob oculis.

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 pertenencias 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 rule, that it is one repeatedly enforced by the law, and as to which the will of the legislator is repeatedly declared : 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

*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, voluntatus, et consensus."

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.

21. That this is so, is evident, for if it were allowable to alter the situation 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 being 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 should 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.

1 Agricol. de re metallica, lib. 4, page 60. Area cujusque fodinæ ideo terminis describitur, ne lis oriatur inter vicinarum fodinarum dominos."

Vide chap. 2, sup. n. 10, 11 and 12.

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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.

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