ever be assigned; as it would be possible, proceeding insensibly, to occupy the whole mineral tract. 3. The practice of the miners, in opening several additional pits within the limits of a mine, does not clash with this rule, for such pits are not at all regarded in measuring out the boundaries of the mine; the original registered pit or fixed stake being alone to be observed and adhered to, whether in measuring out the limits of the mine, in altering the boundaries, or in any other proceeding. These other pits are intended for giving ventilation to the works, for raising the ores with more facility, or for some other purpose, having reference to the working of the mine; but not for termini a quo, or points from which the miner is to originate his measurements at pleasure. For although the fixed stake should become choked, fall in, or be out of shape, the measurements must be governed by the position of that alone, and not by that of any of the other pits, which are called bocas mejoras. 4. We are now arrived at that part of our subject, in which it becomes proper to speak of these bocas mejoras, and to shew in what manner and under what conditions they may be opened. The term boca mejora is applied in the same manner as the term mejora de estacas; that is to say, it signifies a pit opened for the better prosecution of the works of the mine. For instance, such an improved or additional pit may be sunk for the purpose of cutting the vein, and so communicating with the works driven from the principal pit, or fixed stake. The owner of the mine cannot open any number of pits at pleasure; this would lead to intolerable abuses, and would give an opportunity for proceeding fraudulently: as for instance, a pit might be opened in the vicinity of a mine belonging to another party, with a view to get access to ore properly belonging to him, contrary to the ordinances, which prohibit such proceedings. The judge must therefore be applied to for his permission, as in the case of making an alteration in the boundaries; the necessity and advantage of opening such a pit, and the object for which it is intended, with regard to facilitating the works, being stated. An inspection is first to be had, and the opinion of two mining deputies, and of surveyors, being takand the contiguous mine owners being summoned to attend, the permission will be granted or refused, according to the merits appearing on the issue of the proceedings. If granted, an entry of the pit should be made in the registry of the mine, shewing the spot where it is opened, and its distance from the fixed stake, in order that no dispute may thereafter arise, instances of which we have known to occur, from a doubt as to which of the pits might be the principal one. en, 5. The necessity for these additional or improved pits, depends on the very constitution of the veins themselves; and as the only object for which they are sunk, is to facilitate the interior workings, driven from the * Chap. 14, ord. 80, infra. principal pit, it is not required that they should, like the registered pit, or fixed stake, be opened upon the vein or upon ore; but they may be opened upon dead or barren ground. They should, properly, be sunk straight down upon the workings, to give them air, and to afford the means of prosecuting them with more facility, in such manner, that it shall be practicable to enter by the fixed stake or principal pit and come out by the new or improved pit, or vice versa, as in a house with two or three doors, affording facilities for entrance or other purposes. But should the object or purpose of these new pits be different; should the miner for instance, propose to turn aside and explore the vein in some new direction, or to work towards the adjoining mine, not making these new workings communicate with those driven from the principal pit, his fraudulent and malevolent intentions become apparent; these new pits being permitted to be made, for the purpose of communica tion only, and for no other. They must therefore, in this case, be stopped up, as works fraudulently and malevolently designed, and opened with an improper view, and not for the purposes sanctioned by law, which are those of improving the means of access, promoting ventilation and facilitating the raising of the ore or water." 6. The reason of this rule is evidently the same as that of the rule concerning adits, which must have a determinate height and breadth, the miner not being allowed to deviate by working other veins, even though he should meet with any, nor to extend the width of the adit, upon his own authority, beyond the dimensions allowed by the ordinance.† Besides which, a limited cause, and a limited permission, can produce only a limited effect, and if works might be followed up from each of the pits in any direction, without communicating with the principal pit, there would be several mines, instead of one mine only. And, to say nothing of the fraud and mischief which might arise from an opportunity being afforded of gaining an entrance into the ground of other mine owners, this inconvenience would follow, that if the works driven from the new pit, should happen to communicate with those of an adjoining mine (in which case it would become necessary to measure out the boundaries, commencing the measurements, not from the new pit, but from the fixed stake), it would be found impossible to ascertain the dimensions of the mine internally; for the two pits not being supposed to communicate, the solid mass intervening between the works of the one pit and those of the other, would render it impracticable to pass from the former works or excavations to the latter. 7. In a suit agitated in the year 1748, between Doña Francisca de Sardeneta, proprietor of the mine of Cabrera, and Don Juan Moreno de Mesa, proprietor of that of San Antonio, in which the rights of the latter party * L. 10. ff. de servit. "Licere fodiendo, substruendo, iter facere." Escalon. in Gazoph, lib. 2, p. 2, cap. 1, tit. 8, n. 2 et 11. + Chap. 26, ord. 82, infra. Salgad. de reg. protect, 1, p. cap. 8, num. 10. Tiraquel. in tractatu, Cessante causa, n. 147. were advocated by the author, it appeared, that an additional pit had been sunk by Moreno, in exploring the vein; by works driven from which, he had accidentally communicated with works driven from Cabrera, which latter had extended within the boundaries of San Antonio. But it being shewn, that the works of the latter mine were connected with the fixed stake, the royal audiency decreed the owner of Cabrera to withdraw within her own limits. And it seems, that after making this second pit, Moreno proposed to make another new pit, which he in fact did, so that he had three pits to his mine, but all communicating internally. We have known the same thing done in other mines, in various places; in which instances, however, the fact of the pits having been connected internally, has afforded evidence that the object of sinking the additional pit was legitimate. Such a work is called a barreno, boca mejora contramina. From the above, we may infer, that although several pits may be sunk, if required for working the vein, yet it is necessary that good reason should be first shewn, and the permission of the judge obtained, and that they should all communicate with the principal pit; which being the fixed stake, is the only pit to be regarded in measuring out the mine, or in altering the situation of the stakes bounding the oblong figure which defines its extent. 8. The second condition under which an alteration in the boundaries is permitted, is, that it be without prejudice to the boundaries already set out between the mine in question, and that of any adjoining proprietor, it not being lawful to advance the boundaries twice on the same side. When therefore an alteration has been once made, the right of advancing the boundaries in that direction, to the prejudice of the adjoining mine owner, who has defined his limits on that side, no longer exists. But if the latter have abandoned or left his mine insufficiently worked, and it have been adjudged to a new owner, or if the ground be not yet adjudged, but remain unoccupied, the mine owner may extend his boundaries a second time upon that side; for a mine abandoned or left insufficiently worked, is no longer a mine, and a mine adjudged for having been left insufficiently worked, or for any other cause, is not the same mine as before, but a distinct and new mine, and held under a different title. And the presumption of injury to a third party no longer exists, for the party newly come into possession has never required to have the boundary stakes set out, nor have they been set out, as to him; nor does he deduce his title, origin or cause, through the former owner, whom we suppose to have forfeited the mine by leaving it insufficiently worked, or upon some other ground, according to the ordiAs to this point, all the arguments we have set forth when treating of priority of registry will apply, in a complete and convincing manner, and to them we refer." nance. * Chap. 11, n. 21 and 22. 9. But if the miner on whose side boundary stakes have been set out, or those who succeed to him in the possession of the mine, whether by universal or particular succession, remain in possession of the ground, the party who has so set out his boundary stakes, cannot alter his limits again, on that side. But as to the other sides, he is at liberty to alter his boundaries, either for his own convenience, or upon being required to do so; as for instance, the number of varas, whatever it be, which he may have taken in an easterly direction from the fixed stake, he may now take in a westerly direction from it; and the space which is, in consequence, left unoccupied on the east side, is called an unappropriated space or excess (demasia,) of which we shall speak presently. He may do the same on the north and south side, or in any other direction in which he is required to set out boundaries; but when the mine is thus defined and staked out on all the four sides, he is no longer at liberty to alter the boundaries, whilst the adjacent mine owners or their lawful successors, retain possession of the property. 10. The third condition which must be observed in making any alteration in the boundaries, that the mine must retain the form of a right-angled oblong, similar to that in which it was first set out, the rules concerning which, laid down in the ordinances that treat of this subject, must always be invaribly observed. The stakes must also be set up in pits, with proper firmness and security. The fourth condition is, that if the miner propose to make the alteration of his own accord, he must first obtain permission of the justice and both in this case, and in that of his being required by a neighbour to set out boundaries, he must define them within ten days, if on the spot, and within fifteen days, if absent; as directed by the ordinance, which we have explained in the proper place.† Fifth, the alteration must be noted. in the register, as provided by the 29th ordinance, now under consideration, for perpetual evidence thereof, and to prevent any confusion between the bounds first assigned and subsequent alterations, and to afford the means of clearly distinguishing the pertenencias of the different mines, which is an object of very great importance to the public, and requires that the greatest precision should be observed, both in the original registries, and in the subsequent ones, upon charges occurring in the ownership of the mine, or upon additional pits being opened, or alterations made in the boundaries. 11. From what has been said, we may infer how important it is, that each mine owner should define the boundaries of his mine, at the time of possession being given to him. First, because the fixed stake is thus rendered at once distinct. Second, because the adjoining mine owner is thus kept under proper restraint, by having his boundaries assigned to him. Third, because, if they should be required to be set out on any other side, Chap. 5, ubi latè. Chap. 12, sup. ord. 26 and 27. + Chap. 10, Ord. 24, ubi plenè. the miner will then have an opportunity of altering them, or he may do so of his own free will. And fourth, because, if any communication should happen to be made with an adjoining mine, the dispute will be confined to a mere question of internal measurement, and no more. 12. But when the contrary course of omitting to measure out the bounds of the mine, is taken, mischief only can be expected to ensue; for should any communication happen to be made, whilst the position of the terminal stakes remains unascertained, the oldest miner, having the right of setting out his boundaries first, and being now aware of the direction in which the richest part of the vein lies, takes the whole or the greater part of his ground on that side, which he probably would not have done, had he set out the boundaries between himself and his neighbour at first. Hence follow endless litigations and disputes, in the course of which, the silver produced is wasted in the prosecution of law proceedings. It is, therefore, much to be desired that a positive ordinance should be issued, directing that every one should set out his boundaries at the time of possession being given, even though the adjoining mine owner should not require it, under pain of incurring the forfeiture of the mine, and of being, ipso facto, deprived of it, even though not denounced by any other party. 13. It is melancholy to see the neighbouring mine owners summoned, pits registered immediately contiguous to each other; the three estados sunk, and possession given, and all from an anxiety to extend the boundaries in the direction in which the treasure is found to lie. Communications between the different works are the consequence, for whether through the centre of the earth, or through the air, men will make their way in pursuit of riches; and conscience being easily blinded by the lust of gain, questions arise as to the registry, as to the identity of the fixed stake, as to priority of date, as to alleged nullity in the denouncement, or insufficiency in the summons, and the like; the mines are stopped up during the time directed by the ordinance, and a train of mischievous consequences to the public and to private interests ensue, which would be prevented, were each mine measured out at the time of giving possession, upon regular notice to the neighbouring proprietors, and before the discovery of the rich points of the vein should have afforded a stimulus to avarice. For when there is nothing to excite the evil passions, mankind are generally disposed to act with regularity and good faith. 14. We have already noticed, that the unappropriated space between a mine, the boundaries of which have been altered, and that of an adjoining proprietor, on whose side the boundaries had previously been set out, is called a demasia (excess), because such piece of ground is to spare, between the mines thus measured out. The 29th ordinance provides, that these unappropriated spaces shall be assigned to the first who may apply for them; but the miner who has varied his boundaries, being the very party who has |