« ForrigeFortsett »
this kind of property, which will sometimes rapidly advance to a state of prosperity, and at others as rapidly fall off and become barren (all which renders it difficult to sell or lease it), have not thought proper to do so.
OF THE NECESSITY OF SETTING OUT BOUNDARY STAKES, AND OF THE
TERM ALLOWED BY LAW FOR THAT PURPOSE, AS WELL WHEN THE OWNER OF THE MINE, WHO IS REQUIRED TO SET THEM OUT, IS ABSENT, AS WHEN HE IS PRESENT.
ORDINANCE XXIV. Also, we ordain and command, whether with regard to mines heretofore discovered, or to such as may hereafter be discovered, that if any person shall require to have boundary stakes set out by the first discoverer or by any other persons who may have set out boundary stakes, after having registered their mines; such first discoverer, or such other persons as aforesaid, shall be obliged to set out such boundary stakes, within ten days from the day when they shall be required to do so, if they be at the mines. And if they shall not set them out, then, after the time aforesaid, the mining justice, who shall, under these our ordinances, have cognizance of such matters, shall set out such boundary stakes, taking with him persons who understand staking out mines, and who shall be sworn ; and if the person of whom the request is made, be not at the mines, but be in the vicinity, within ten leagues of such mines, he shall be obliged to set out the boundary stakes within fifteen days; and if he do not set them out by the expiration of such fifteen days, the said justice shall set them out as aforesaid. And if the party be not in the vicinity of the said mines, nor within ten leagues thereof, notice shall be given to his steward, or to the person who shall have charge of the working of the mine, or be left at his house, if he have any, and public proclamation shall be made upon the first holiday which shall occur. And the term of fifteen days shall commence to run from the day of the notice being given to such steward or other person, or being left at his house ; and such proclamation shall be posted upon the door of the church of the said mines ; and if there be no church at the mines, then upon that of the nearest town. And when the said term of fifteen days is expired, the said justice shall set out such boundary stakes as aforesaid, observing in setting out the same, that there must always be a fixed stake, which must be adhered to, and must not be abandoned in staking out or altering the boundCONTENTS OF THE COMMENTARY ON THIS ORDINANCE. 1. What is meant by setting out boundary stakes, and applying to have them set out. 2. Of the term fixed by law for setting them out. 3. The time is peremptory, and the judge has no discretion. 4. A provision of the ordinance, in case of the owner being absent. 5. The propriety of allowing the steward, in such case, to set them out, is shewn. 6 and 7. Whether the term shall run against the proprietor when he is unavoidably de
layed. Grounds for replying in the negative. 8. The contrary opinion proposed and established. 9. Refutation of the arguments on the other side. 10, 11 and 12. What is to be done, in case the owner of the mine shonld be absent at
more than ten leagues distance.
1. Having ascertained the number of varas the discoverer is allowed in his mines, and the common or ordinary miners in theirs, this ordinance which follows, proceeds to state the term within which boundary stakes must be set out, if required by a neighbour. It must be observed, in the first place, that an application to set out boundary stakes is said to be made, when a miner of longer standing is required to mark out the number of varas he chooses to extend his mine, in this or that direction, on the side on which the mine of the person who makes the requisition is situate ; and when his mine is so measured out, the rest remains for those who have not yet measured out their boundaries. The reason why it is necessary to apply to have the boundary stakes set out, is, that the miner of longest standing has a right to measure out his boundaries first; and that after measuring them out, he is at liberty to alter them on that side on which he has not set out boundary stakes, as will be seen by subsequent ordinances.* The party who sets out boundary stakes, is he who first makes measurement; and the party who applies to have them set out, is he who demands to have the boundaries of the oldest mine measured, that he may afterwards measure out those of his own.
2. This being the case, if the person or persons who are required to set out boundary stakes, are present at the mines, they must, according to the 24th ordinance, and the 22d, of which we have already treated,t set them out “ within ten days ;” if they be absent from the place, but be in the vicinity, and within ten leagues, then within fifteen days ; and if they be not in the vicinity, nor within the distance of ten leagues, but at a greater distance, a proclamation is to be made on the first holiday, and is to be posted up at the church of the place, and if there be none, then at the nearest church ; notice is to be given to the steward, or person who may have charge of the mine, or a summons or notice is to be posted up at his house, from which
* Chaps. 11, 12, 13.
† Chap. 8, ordinance 22.
time fifteen days more are reckoned, within which he must set out the boundary stakes. And if it be not done by the expiration of that period, in each case respectively, the justice must do it, with the assistance of surveyors, who shall make the measurement upon oath. And the 23d of the old ordinances, granting a shorter time, is so far repealed.
3. These periods, being definitively fixed by law, cannot be enlarged, and are not subject to the discretion of the judge; just as the term of four months, after which the ordinance makes a mine liable to be denounced when insufficiently worked, cannot, according to the laws of the Indies, be enlarged by the viceroys or other judges ;* in analogy to the well-established rule applied in regard to appeals, and other judicial proceedings, which cannot be resorted to after the lapse of the period allowed for the purpose. † Besides, it is reasonable, that if the neighbouring mine owners wish to have the boundaries of their mines measured out and ascertained, some fixed time should be assigned for measuring out or altering the boundaries of the older mine, and that the owners of the more recent mines should not be liable to be kept in suspense, and uncertain in what direction to measure their boundaries, until their neighbour should think proper to measure out or alter his limits, by deciding to take this or that particular direction.
4. And since it ought not to be in the power of one proprietor to prevent the owners of other mines adjoining, from ascertaining and measuring out their boundaries, or to frustrate and delay them in that object, the ordinance has made abundant provision, that in case of his absence, whether it be voluntary or of necessity, and whether upon just cause or otherwise, he shall, if within ten leagues, be summoned ; and if he be at a greater distance, that the business shall be transacted with the steward or person in charge of the mine, or that a paper shall be left at the house of the owner, if he have one, a proclamation being made, which is equivalent to a public citation or summons.I
5. The ordinances permit the steward to discover mines for his employer, and to set out boundary stakes, or apply to have boundary stakes set out in the mines he may discover during his absence :$ but it is still more reasonable that a person in this station, who is supposed to be skilful and experienced in these matters, and appointed to his office for this amongst other purposes, should, in obedience to the directions of the judge, which he is bound to obey, set out such boundary stakes, in such directions, and to such extent, as he may deem most expedient. The practical importance of this ordinance has been very evident in various cases which we have witnessed; as for
* Law 6, tit. 19, book 4, Collection of the Indies.
Law 10, tit. 7, book 3, Law 3, tit. 10, book 4, Collection of Castile, 39, “ It shall be good, and shall be deemed a sufficient citation."
4 Vidé ordin. 34, infra, chap. 15.
Infr. chap. 13, ord. 8. Notwithstanding these arguments, however, the contrary rule is that * Salgad de reg. protect. 1. p. cap. 7. a n. 65, et p. 2, cap. 13, a n. 253 ; et plenissim de retent. bullar. p. 1, cap. 15, per tot. and 2 p. cap. 20, a n. 22.
instance, where it has become known that a bonanza has been met with, and the direction taken by the rich vein has been ascertained, in which case, all are anxious to measure out their boundaries upon that ground, immediately, whilst the party who happens to be the longest standing, or whose object is to alter his boundaries, is desirous to keep them all in suspense, contrary to the intention of the ordinances; whence it appears how important it is that the periods fixed by the 24th ordinance should be considered as peremptory.
6. Supposing the mine owner, whether in the vicinity, or at more than ten leagues distance, to be reasonably prevented from coming to the mines, it may be asked, whether the term of fifteen days shall run against him ? In favour of the negative, we might refer to all those principles of law which establish that time shall not run against a person disabled by an impediment, which he cannot remove ; that the whole time during which the impediment subsists shall be allowed; and that whether the impediment be judicial or extra-judicial, whether it depend on matter of fact or matter of law, the whole time during which it continues shall be left out of the account. Hence a person under impediment is not regarded as contumacious or disobedient; and for the like reason, whilst the question of nullity is under consideration, or whilst an application to the prince is pending, the term allowed for appealing does not run; so whilst the suspension of a bull is under cognizance, the time allowed for proclaiming the resignation of the benefice does not run ; and with regard to peremptory edicts, when it appears that there is an impediment to their being carried into execution, the period fixed for that purpose is extended, and is shewn at length by Salgado in several places, upon the authority of a great number of texts, and many doctors.*
7. Add to which, that the owner, being the person who is best acquainted with the mines, may be apprehensive that his administrator may perhaps prejudice his interests by taking the boundaries in one direction, rather than in another, which might be more desirable ; whilst there cannot be any great inconvenience in a little delay, particularly if no communication have occurred between the works of the different mines; as any person working on a vein, or immediately following up ore, is at liberty to carry on his works into the pertenencia of another miner.† If then, the mines be supposed to have actually communicated, it must be presumed that the course of the vein has been ascertained, and the administrator must consequently know what will be most for his employer's interest; but if the mines have not communicated, the delay can occasion no mischief, and therefore, upon a statement of the impediment being made on the part of the absent person, the term ought to be enlarged.
+ Chap. 14, ord. 30.
which ought to be observed, as being expressly decided by the ordinance, and therefore the justices, after the 15 days are expired, must proceed to set out the measurements, whatever pretence may be alleged against it. First, because the ordinance does not require the personal concurrence of the owner, neither his actual presence during the measurement of any importance, since he may appear by his steward or administrator ; and therefore, although the owner be at a very great distance, it is sufficient to summon the steward, “under whose charge the working of the mine is," as the ordinance expresses it, and who will know in what direction it is expedient to measure the boundaries. Second, because it must be considered the owner's own fault that he did not measure out his own mine at the time of registering it, and taking possession. Third, because knowing that he might at any moment be called upon to set out the boundary stakes, by the neighbour on whose side he had not done so, he ought to have left proper instructions with his steward. And, mainly, because it is not right that the limits of contiguous mines should remain undefined, to the prejudice of the public and of the mine owners, merely on account of the absence of the proprietor of longest standing, whether such absence be voluntary or necessary. And were the judges to depart from the terms of the ordinance, the consequences of adopting such a course would be many and serious ; for the uncertainty as to what ground might be left unoccupied, would interfere with the registering of pits upon the vein. The boundaries of the older mines remaining undefined, it would be impossible to ascertain those of the adjacent mines, and the litigation and dissension ensuing from the confusion thus introduced, as to the boundaries, would be highly prejudicial to the mine works and mine proprietors.
9. Nor do the arguments first advanced weaken this conclusion ; for the rule that time shall not run against a person under an impediment, cannot apply, when the act to be done does not require personal attendance, and when the administrator, who must be presumed to know the course of the works, and the direction in which it is most expedient that the measurement sbould be made, may just as well perform it; particularly as the omission would be an infringement on the law, and would be prejudicial to the interests of the public and of the adjoining mine owners. The reason why, pending an application to the prince, or whilst the question of nullity is under consideration, the time allowed for other proceedings does not run, is plain, for the latter are put a stop to by the former; and so, when the act requires personal attendance, or when it is for the benefit of the public that a longer time should be allowed; but the effect in the case proposed is just the reverse, for although every one is at liberty, in following up the vein, to work into the pertenencia of another proprietor, until an intercommunication occurs, yet by having his mine measured out, he will avoid the risk of a heavy lawsuit, and he will, at the same time, afford the opportunity to others of measuring out