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4. Why they are here called fixed stakes.

5. An ordinance of Peru, concerning the setting out of landmarks, enacting a capital punishment against any one who contumaciously infringes it.

6. Reason for this severe provision.

7. Old method of making the boundaries of mines, and penalties enforced against those who disturbed them.

8. Of the negligence of the miners, in regard to measuring out their mines, and its prejudicial effects.

COMMENTARY.

1. These ordinances, which follow the 25th and 26th of the old ordinances, direct, first, that the boundaries of a mine shall form an oblong, with angles; and as the breadth of a mine is half its length,† it follows, that the boundaries must form an oblong four-sided figure, or parallelogram; the opposite sides of which are parallel and equidistant.

2. Second, they repeat the precept, that in whatever direction the miner may choose to take the length and breadth of his mine, the fixed stake is always to remain within it; as, when the oblong tambour frame, in the illustration above suggested,§ is placed around the nail, the nail always remains within it, however the position of the tambour frame may be changed.

3. Third, in order that no person may alter the stakes which he may have set out between his own mine and those of his neighbours, they ordain that the stakes shall be placed in pits of two varas in depth, and one in width; and that it shall not be lawful to remove them, except in the cases in which the ordinances permit alterations in the boundaries to be made, under pain of forfeiting the mine, so that any other person may register it as his own (which is a just and merited penalty), besides the penalties incurred under the royal and civil law, by those who change or confound boundaries, and under which the parties are to be punished according to their rank. T

4. These ordinances twice apply the term, fixed stakes, to the stakes which are set out and assigned between the proprietor and a neighbour; but they are fixed stakes in this respect only, that they cannot be moved forward to to the prejudice of such neighbour, although the position may be changed with regard to other parties, between whom and the mine owner of longest standing, the boundary stakes have not been set out; and he is at liberty, on the side of such latter parties, to remove his boundary stakes to any other

* Law 5, tit. 13, book 6, Collection of Castile, chap. 25 and 26.

† In New Spain, the length is, for a discoverer's mine 160, for an ordinary mine, 120; for a discoverer's of gold, 80 varas; for an ordinary mine, 60. In Peru, the discoverer's mine, 80; an ordinary mine, 60. And the width of each is one half the above length respectively. See cap. 9, n. 2.

Nolet, Lecons de physique experimentale, tom. 1. Explications de termes de geometrie, pag. 54. P. Zaragoza, Geometria practica, proemial 14.

§ See chap. 9, n. 14.

Infr. chap. 13, ord. 28 and 29.

L. 30, tit. 14, part. 7. L. fin. tit. 15, part. 6, tot. tit. ff. de term. mot.

position, as we shall explain by and bye. The fixed stake, properly so called, is only so applied to the pit which has served as a basis for the registry of the vein.

5. In Peru, the boundaries of the mines must be defined by landmarks, under the penalty of 100 dollars; and by removing the landmarks clandes tinely, the forfeiture of the mine is incurred. For the second offence, the punishment is capital. An inspection is to be made at the beginning of each year, to ascertain whether the mines are secured by proper supports, with a penalty of three marcs, if not found to be so.†

6. The anxious care evinced in these regulations, is no more than is due, where so important a subject as the precious mineral deposits of gold and silver is concerned, and is necessary, to restrain covetousness and prevent litigation, and also to avoid the injury which may be done, by one proprietor gaining access to the ground of another; not superficially, where no fruits are produced, but internally, where one or two varas or even half a vara, wrongfully taken, will often, from the extraordinary richness of some veins, give an enormous profit.

7. To define the limits of mines, and to prevent suits amongst the owners, it was formerly the practice to set up stones at their confines; subsequently to which, trunks or timbers of oak or pine, bound with hoops of iron, to prevent their being cut down, were employed, as more conspicuously marking the boundaries; and these were not allowed to be removed, as appears from Agricola. The laws enacted by the Romans against transgressors of boun. daries were various. Numa Pompilius dedicated these boundary stones or landmarks to Jupiter Terminalis, and made a law that any person violating them might be put to death with impunity. In Holy Writ, a curse is pronounced against such offenders. By the canon law, the punishment of greater excommunication is inflicted; and by the civil law, besides its being open to bring an action for the damage, and for a restitution of the bounda ries, a penalty is inflicted according to the rank of the party and the circumstances of the case. All which is stated at length by Don Domingo de Zaulis, archbishop of Theodosia, in his learned and erudite observations,§ where he refers to various authorities.

Chap. 13, ord. 28 and 29, infra.

† Ord. 1 and 3, concerning boundaries; Escalona, Gazophil. lib. 2, part. 2, cap. 1, pag. 111. Agricola, de re metall. lib. 4, p. 60. "Area cujusque fodinæ ideo terminis describitur, ne lis oriatur inter vicinarum fodinarum dominos: termini autem quondam metallicis fuerunt solum saxa, atque ex eo nomen invenerunt, nam saxum terminale, nunc etiam terminus appellatur : hodie vero stipites acervi, vel quernei, vel picei, annulis ferreis superne muniti, ne mutilentur, ad saxa terminalia affiguntur, ut sint magis insignes."

Dominicus de Zaulis, Observat, tom. 2, rubric. 10, lib. 5, n. 11. "Variæ leges a Romanis editæ fuerunt contra violatares et amoventes terminos, seu limites, ut ii sint pacis præsides, et amicitiæ custodes: nempe Mamilia, Roscia, Peducea, Allinea, Fabia, Sempronia, Julia, quarum dispositionem late refert Gibalin. de univers. rer. human. negotiat. lib. 4, cap. 4, artic. 4, consec

8. The boundaries of land then, merely as such, being made the subject of so much anxiety, in regard to the benefits derived by the proprietors and the public, by the exchange of its produce for money; those of the mines, whence are derived the precious metals, of which that very money is composed, ought surely to be deemed worthy of as much or still greater attention, and the keeping them duly ascertained and defined, should be made the object of the greatest vigilance. The practice, however, in the mining districts, will be found to be very much the reverse of this; for, either from sloth and idleness, or from covetous and improper motives, the measuring out the boundaries of the mines is neglected, with the connivance of those whose duty it is to scrutinize into and punish the omission, until the discoverer of some great bonanza, or the occurrence of a communication between different mines, arouses the feelings of interest; and litigation and contention, as to the boundaries, are the consequences, which would have been prevented, had the alternative, so properly directed by the ordinance, of measuring out the mines, and setting up regular landmarks at once, been adopted, as we shall hereafter explain more fully in its proper place, when treating of communications occurring between different mines."

CHAPTER XIII.

OF ALTERING THE BOUNDARIES AND MAKING ADDITIONAL PITS, AND THE CIRCUMSTANCES UNDER WHICH EITHER OF THESE MAY BE DONE; AND OF THE UNAPPROPRIATED SPACES REMAINING AFTER THE BOUNDARIES OF THE MINES HAVE BEEN DETERMINED.

ORDINANCES XXVIII. XXIX.

XXVIII. Also, we declare and command, that when any person shall have been required to set out his boundary stakes, and shall have done so, and some other person shall again require him to set out boundary stakes on

tar. 5, n. 8, et Numa Pompilius Romanorum rex II. de lapidibus terminalibus legem sanxit, ut unusquisque sua sorte contentus esset, nec res alienas appeteret, cavit, lege determinandis præsidiis lata hosque lapides Jovi Terminali sacros esse voluit, adjecta contra terminorum motores gravi pœna, si quis vero sustulisset, aut suo loco movisset terminos, eum qui tale quid patrare ausus fuerit, huic Deo Terminali sacrum esse sanxit, ut cuilibet impune eum interficere tanquam sacrilegum liceret, et purus ab eo piaculo esset: ut tradit Dionys. Halicarnass. Roman. Antiquit. lib. 2, in fine, quem refert Mylerius, in ejas Metrologia, cap. 15, §. 1, n. 1, in fine, cum seq. In Sacris Literis etiam horrenda maledictionis pœna imposita fuit, ut in Deuteron. cap. 19. n. 14, juncto cap. 27, n. 17, et Proverb. cap. 2, n. 28. De jure canonico, clericus finales terminos movens, majori excommunicatione punitur. Cap. tanta, 14, distinct. 86; et cap. tanta, 11, caus, 1, quæst. 7. De jure vero civili, variæ pœnæ, secundum varietatem imperantium, et diversitatem temporum imposita, ut advertit Myler. in dicto tit. de pœna termini motoris. §. 4 et 5, utrobique, n. 1."

• Chap. 14, ordinance 30, infra.

some other side of his mine, he shall be at liberty to alter his boundaries, as between himself and the party so newly requiring him to set out boundary stakes, but without prejudice to the boundary stakes already fixed, and so that he do not abandon his fixed stake.

XXIX. Also, we ordain and command, that when any person shall have set out boundary stakes, as between himself and another, on any side of his mine, and shall wish to alter the boundaries, before any other person shall have required him to set out boundary stakes on some other side of his mine, where he has not yet set them out, he shall be at liberty to do so, provided he go before the justice having cognizance of such matters, to define such boundaries, and show what alteration he proposes to make in the then boundaries of his said mine; and such justice shall allow such alteration of boundaries to be made, and shall note the same, in the margin of the entry which shall have been made in the register concerning such mine. Provided that it be done without prejudice to third parties, as is aforesaid, and so that he keep his fixed stake within his pertenencia. And the unappropriated spaces which he shall leave between his mine and that of his neighbour, shall be adjudged to the first person who may apply for them; and if such neighbour should apply first, he shall be at liberty to take them, provided that, including the space he thus take in, he have no more than the proper extent of a mine, and that he do not leave his fixed stake outside; and also that he give an account of such alteration to the justice aforesaid, that it may be noted in the register.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. What is meant by altering the boundary stakes.

2. The liberty of altering the boundary stakes is granted, subject to certain regulations, the principal of which is, that the fixed stake must be adhered to.

3. Pits opened for the purpose of working the mine, are not fixed stakes.

4. Nevertheless, such additional pits are not to be opened but upon good cause, and with the permission of the judge.

5 and 6. They may be opened on dead ground, and why? But they must always communicate internally with the principal pit. A reason given for this.

7. Executory decree of the royal audiency of Mexico upon this point.

8 and 9. A second condition to be observed in altering the boundary stakes is, that the boundaries already set out between the party and a neighbour whose mine is kept at work, are not to be prejudiced.

10. Three other conditions, which are indispensable in altering the boundary stakes, are, that the legal dimensions of the mine be preserved, the licence of the judge obtained, and the alterations registered.

11, 12 and 13. Advantages of having the boundaries of the mine measured out, and evils which ensue from neglecting to do so.

14. Unappropriated spaces: what they are. They are adjudged to the first person who applies for them, with the exception of the party who has left them unappropriated in altering his boundaries.

15. They will be granted to the owner of the adjoining mine, provided he do not abandon his fixed stake, that he register the alteration thus made, and that, including these waste spaces, his mine do not exceed the proper extent.

16. The owner of the adjoining mine is not preferred, in regard to these waste spaces, if he be not the first who applies for them.

17. A peculiar ordinance of Peru on the subject of altering the boundaries.

COMMENTARY.

1. The mine being defined and measured out, the owner is at liberty to alter the terminal boundary stakes, on any side of his mine. This is called mejora de estacas (a bettering of the boundary stakes), because he removes them to some place which he thinks more eligible, for the purpose of working the vein, either along its course, or upon the underlay. Alterations of this nature are mentioned in two of the old ordinances, the 27th and 28th,* which agree with those we have set forth, and according to which the miner may alter his boundary stakes, either when applied to by some other person, who requires to have the boundary stakes set out, or of his own free will and inclination, conceiving it to be advantageous to do so. Veins are subject to much variation in their course and direction ;† in one place they will yield treasure in abundance, whilst in others, the poverty of the ores will perhaps be such as to baffle the miner and supplier alike. It has therefore been found expedient, that permission should be given, to remove the boundary stakes to some part of the vein which may yield more produce; and, likewise, that those who have been prior in point of occupancy, should also have a prior right of making alterations, according to the date of their registry, as we have explained in the proper place.‡

2. This right of altering the boundaries is not absolute, nor perpetual in duration, but is subject to the following rules. First, the fixed stake, or principal pit of the mine, must always be adhered to, in altering the position of the other stakes, in whatever direction they may be removed; so that whether the number of varas be diminished in one direction, and increased in the other, or vice versa, the fixed stake must always remain within the boundaries. We have already shown,§ how all the ordinances relating to boundaries, enforce the adhering, invariably, to this fixed stake, as a centre from which the measurements must always commence and the ordinances now under consideration enforce the same rule three times. And in fact, the engrossing disposition of some miners is such, that if it were allowable to remove the fixed stake, in measuring out the boundaries, they would never be kept within moderation, nor would the just and proper limits of the mines

Law 5, tit. 13. book 6, Collection of Castile, ord, 27 and 28.

† Vide chap. 9, n. 16 and 17.

+ Supra, chap. 11, n. 22.

§ Supra, chap. 9, n. 19.

The 28th, "So that he do not abandon his fixed stake." The 29th, "And so that he keep his fixed stake within his pertenencia. And so that he do not leave his fixed stake outside."

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