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sible, or must be avoided by altering the course of the works; and consequently, if such works, being driven with a view to explore the vein in the regular way, should communicate with those of a neighbouring miner, who has worked beyond his limits, he must withdraw, and leave the first miner to enjoy the produce of his own proper pertenencia : for the works, in this case, being planned by the miner with the legitimate object of realising his own property, and the usual mode of working having been pursued by him, there is no room for the inference, that the works have been driven with any fraudulent view, or solely with that of getting access to the property of a neighbour.
43. Veins are liable to become barren, not only from solid masses, or banks of ground being interposed ; but also because the ore collects together in particular places, leaving the others destitute, according to the nature of the matrix and the quality of the ground. We have heard from some practical and very experienced miners of the district of San Phelipe, called Chiguagua, in the kingdom of New Biscay, and of the mining district of Zimapan, in the archbishopric of Mexico, that there are instances in those districts, of a very remarkable description of matrix, in which cavities, or vaults, called bobedales, of large extent, are found at intervals; and that they are guided to these cavities by the colour of the ground. Thus it is in the subterranean world ; veins are found to have more variations, turnings and returnings, than could possibly be conceived, were not the windings of their course developed in the progress of the works, and made evident by the tortuous direction they are found to have taken. And hence it is that the under ground surveys are so troublesome, it being generally necessary, in order to make out the direction required, to wind through a series of turns, and to make frequent angles in the survey. Whether the vein then conceal itself, become barren, divide, lose itself, or be cut off or intercepted by barren ground, the miner may follow in pursuit of it, regulating his works conformably to the ordinances; and so long as he works upon his own ground, and in search of his own vein, it shall never be said that, in what he has done, it has been bis sole view to get access to the vein of another, even though he should, in the course of his works, fall in with such a vein.
44. It is no less certain, as experience demonstrates, that in driving a cross-cut, or working in pursuit of the lost vein, it is very possible to fall in with another vein, which may either be a principal vein, or a branch of the former; and if the miner, in pursuing this new vein, should encounter the works of a neighbouring miner, his conduct cannot be impeached. For there are, between one mineral vein and another, intermediate spaces, as in the human body, or in a tree, which are the types of a mine ; and as in crossing from one vein to another, or from one branch to another, though not following the course of a vein or branch, the intermediate space crossed is considered part of the same body or the same tree, so it is with regard to mineral veins : for although in passing from one to another, an intervening space of ground be crossed, yet the whole is regarded as one mine, just as the hand is one hand, although it have five distinct and separate fingers. We have already observed elsewhere, upon the authority of Agricola, Perez de Vargas and Kircher, to which we refer,* that veins may be deep, wide, curved or transverse, and that there are, between them, intervals or spaces of dead ground, not containing ore. Were it otherwise, were the whole mine one contiguous vein, or mass of ore, there would be no occasion for dead works ; but this is not the nature of mineral veins, which are divided and dispersed like the veins of the body, or the branches of a tree.
45. From the above it may be inferred, that if a miner, in the immediate pursuit of a vein, happen to communicate with the works of another miner, it cannot be argued that his views were fraudulent, or that his object was solely to occupy a neighbour's ground, and to benefit by his ore, even although the vein should be a different one from that which he had at first pursued, the latter having become barren. For there may be a great variety of dif. ferent veins contained in the same mine, some being principal veins, some branches, some cross veins, or what not; and as the miner registers, not only the principal pit, but all the trial pits, both great and small, veins, and everything else contained within his pertenencia, he may take the produce of one or more veins, at pleasure, provided he conduct his works according to the ordinance.
46. The word soie or solely, is a qualifying, restraining and limiting word; it confines the rule to the particular case of which it speaks, and implies, that the rule for all other cases will be the reverse.† So that if the intention of the miner be not solely to profit by the ore his neighbour is pursuing-if that be not his object, or if, being his object, it be not his sole object; if, in registering his vein, his intention has been to explore it in a fair and honourable manner, sinking his pits, -and driving his cross-cuts and other works according to the rules of the ordinance ;-then, should he happen to meet with another vein, and whilst working upon that, or upon his own vein, to communicate with the works of a neighbour, he is exempted from the penalty, as being a legitimate miner, working with fair and honourable views, and not with the sole object of getting access to his neighbour's ore.
47. Don Joseph Saenz, in discussing the second case to which this ordinancet applies, says, that to justify entering a neighbour's pertenencia, you must be in the immediate pursuit of ore. That if a pretended miner fraudulently intercept a neighbour, even in his own ground, the latter shall not be obliged to withdraw; but that if a party, working with fair and honourable views, abandon a vein which has become barren, and find another, and afterwards happen to make a communication with a neighbour in his own pertenencia, each shall retire within his own boundaries, there being no fraud on either side. And he explains, according to this doctrine, a passage in a letter of the first of April, 1635, cited by Escalona.* The letter ordered, that the workings should be prosecuted immediately upon the vein, and that no intercommunications should be made. As however, it may be necessary, from the nature of the different veins, to drive works in search of them, to drive across from one to another, and to make various other works, Saenz considers that the necessity of being in immediate pursuit of ore, must be understood to apply to the case of a miner working into the pertenencia of his neighbour ; but that to be entitled to stop the works of a neighbour, who makes his way into the ground of another miner, the latter not being a pretended miner merely, it is sufficient to effect a communication, whether by working upon some new vein, which has been met with, or upon the original vein when re-discovered, after being lost.
* Chap. 9, n. 16 and 17. † Salgado, de retent. p. 2, cap. 17, n. 13, et seq. et apud eum innumeri. Barbosa, dict. 97,
Sanna, Tra, de medidas de minas, cap. 7, n. 22, et seq.
48. In addition to the above cases, we will suggest another, which is very likely to occur. It is that of a legitimate and not a pretended miner, (the vein originally prosecuted by whom has fallen into borrasca), who happens, whilst driving dead works within his own ground, in search of thu vein, to effect a communication with a work which his neighbour is prosecuting upon ore. Here it is to be considered, that the miner is working conformably to the ordinances, that he is in his own ground and within his own boundaries, and that the dead works he is carrying on are within those boundaries, and are driven in search of the vein, which is the object he actually has in view, so that it cannot be said that his sole object is to avail himself of his neighbour's ore ; and therefore, the communication having happened when both miners were working in the regular way, without any fraudulent views, it would seem that each of them must withdraw within his own limits. As, however, it is impossible to be prepared for every case which may occur, the judges must, in their best discretion, decide upon the fairness and unfairness of the miner's object, according to the particular facts of each case, having regard to the character of the parties, the distance of the mines from each other, the greater or less activity with which the works have been carried on, and all the other attendant circumstances.
49. In Peru, it is the rule, under their peculiar ordinances, set forth by Don Gaspar de Escalona,† that no one shall make a trial pit within another miner's boundaries, and that no one shall enter his neighbor's ground, under the pretence that he is pursuing a branch which takes off from his own mine; but that he shall stop his works as soon as he reaches his neighbour's boundaries; and so likewise, if he is in pursuit of a vein, which, although distinct from his own neighbour's vein and beyond the boundaries, yet evidently takes such a course as to pass within them ; it being his duty to stop as soon as he arrives at those boundaries.
* Escalona, Gazopbil. part 2, lib. 2, c. 1, ord. 6, tit. 4, concerning the spaces allotted for mines, in marg.
+ Escalona , loc. ubi proxime. ord. 2, 3, 4 and 5, tit, concerning the spaces allotted for mines.
50. But that, if the principal vein of a mine should take its course within another's limits, it may be followed up without any impediment; and that if. the two principal veins should happen to meet, so as to form one body, uniting in a work in active prosecution, the ore shall be divided into five parts, one of which shall be assigned to the owner or owners of the oldest mine, and the rest be divided amongst the owners, in proportion to their respective shares. And that if these two veins should unite with a third, the like course shall be pursued. Veins of this kind, which divide and re-unite, are called socias.
51. Also, that if the vein divide into branches before taking its course within the boundaries of the neighbouring mine, the owner shall select one of them, which he shall take as the principal vein, and in working upon which, he shall be at liberty to enter his neighbour's ground; but that until such selection be made, he shall not enter it in the pursuit of any of the branches.
52. And finally, that if the party so working into his neighbour's ground, shall discover any vein which the other proprietor has not previously discovered, the latter shall have one fifth part of the produce, and the former the remainder, until the vein unites with the principal one ; but that if such vein shall have been previously discovered, and shall unite with the vein of the party so working into the other's ground, one fifth part of the produce shall be appropriated to the older proprietor, and the remainder be divided amongst all the proprietors, in proportion to their shares; and that if such vein be merely a branch running in a cross direction, the proprietor of the pertenencia shall be entitled to take the produce of it.
53. These regulations are agreeable to the civil law, and to the practice in the mines of Germany, as stated by Agricola, in the passages cited by Escalona ;* but as they rather interfere, under some circunstances, with the active prosecution of the works, by directing that they shall not be carried on into a neighbour's ground; and, under other circumstances, have the effect of constituting a partnership amongst the proprietors of different veids, which would generally be a source of discord, we feel justified in saying, that our 30th ordinance provides better in the two cases suggested by it, for the prosecution of the works, and for the interests of the owners.
ORDINANCES XXXII. XXXIII. XXXIV. LXVIII. .
• Escalona, ubi supra.
condition he may, shall be at liberty to take a mine for another person, unless he have an authority, or be a servant receiving wages of the person for whom he shall take such mine ; and in default of any of these requisites, the mine shall be forfeited, and shall belong to any person who shall denounce it, and the judge shall immediately give possession thereof to the party making such denouncement; without allowing any appeal on the part of the person in whose name such mine shall have been taken, or of him who shall have taken it.
XXXIII. Also, we ordain and command, that no steward who shall be employed in working or carrying on such mines, nor any other person who shall live with the owner of the mines, even though he may have charge of the mines and bands, shall be at liberty to alter the stakes which his employer may have set up, without his permission and authority, even although he should be called upon to set out such stakes ; and that if he shall alter them, or shall set them out anew, it shall avail nothing, and shall work no prejudice to the proprietor of such mine.
XXXIV. Also, we ordain and command, that where any such steward who shall have charge of any mines or of any reduction establishment, shall take or discover a mine, such steward shall be at liberty to stake out the mine or mines he may so take, and to set out the boundary stakes on the side of any party who may apply for that purpose, until such time as his employer shall visit such mines. But that after his employer, the owner of such mine or mines as aforesaid, shall have arrived, he shall not be at liberty to apply for, nor to set out boundary stakes any further ; and the steward or servant aforesaid shall not be at liberty to alter the boundary stakes which his said employer shall have set out or left fixed, without an authority from him.
LXVIII. Also, we ordain and command, that all persons who shall be appointed to attend to the working and carrying on of the aforesaid mines, either by our appointment or that of our district-administrator or administrators, or who shall in any manner receive a salary or pay from us for that purpose, shall be disabled from holding mines, or any share in them, either by themselves or through any other person acting for them, directly or indirectly, in the districts where they shall be employed in or work mines, or within two leagues around the same ; and if they shall take or have any mine or mines as aforesaid, or any share in them, whilst they shall receive our salary or pay as aforesaid, they shall forfeit such mine or mines, or share of mines, which shall go to any person who shall denounce the same ; and shall, moreover, be banished from the aforesaid mines and the space of six leagues around, for the term of three full years; and they shall not break in upon that term, under the penalty, if of noble rank, of the said term of banishment being doubled ; and if of lower condition, of serving such three years in the galleys.