Sidebilder
PDF
ePub

with regard to the suit, being the same, according to Hyppolitus, Gutierrez and others, cited in the Curia."

14. Another observation occurs, in reference to the direction of the 38th ordinance, that such trial pit or other pit, as the denouncer shall think fit, shall be sunk three estados, for which purpose it shall be measured in the presence of the justice; and which shall be done and performed under pain of forfeiting the mine, and of its being adjudged to any one who shall denounce it. Whence we may perceive, that no vestige of right remains in the last possessor, no tenth part, as in some places;† and that no regard is had to the depth he may have previously sunk, nor to the boundaries he may have previously set out or fixed; and therefore the new possessor, to whom the mine is adjudged, must sink to the proper depth, and set up his fixed stake upon such trial pit as he shall so sink, which is a direction well worthy of attention, from the great importance of preserving the identity of the mine, and of its fixed stake.

15. These ordinances also direct that the miner shall keep an account, to be rendered, in case he should be worsted upon appeal. But as the question of restoring the ore, and keeping an account, is involved in the 63d and 64th ordinances, where the subject of suits concerning the possession and property of mines is considered, we refer the reader to that place.‡

16. With respect to the course observed in Peru, in obtaining a declaration that a mine has been insufficiently worked, we have already stated, in the last chapter,§ that it must have remained unworked a year and a day, the ordinance which gave twenty days only, having been altered; but the mode of establishing that it has been insufficiently worked for a year and a day, remains unaltered, and is as follows. If the party be upon the spot, he is to be summoned personally; and if absent, he is to be summoned by three proclamations, one to be made upon the day of the denouncement, another on the fifth day after, and a third upon the ninth day after that; and the evidence is to be given in within six days; upon the expiration of which, the cause is to be determined: so that the whole term allowed is twenty days.

*Cur, Phil. 2, p. §, 21. n. 4. Law 2, tit. 21, book 4, Coll. of Castile, where it is held, that not only the plaintiff, but the defendant also, must give security; cap. 2, de mut. pet. + Vide supr. chap. 11. n. 10 11 and 12.

Infr. chap. 23.

* Vide supr. chap. 17, n. 2.

CHAPTER XIX.

OF THE DAMAGES TO BE PAID BY THE PROPRIETORS OF THE MORE ELEVATED MINES, THE WATERS OF WHICH FLOW INTO THE LOWER MINES. OF THE OBLIGATION WHICH ALL MINERS ARE UNDER, TO KEEP THEIR MINES CLEAR AND FREE OF WATER; THE LOWER ONES NOT BEING SUBJECT TO THE SERVICE OF RECEIVING THE WATER FROM THE UPPER ONES.-IT IS THE DUTY OF THE JUSTICES ANXIOUSLY TO PROMOTE THE DRAINING.-A DESCRIPTION OF THE PITS AND ADITS USED FOR THIS PURPOSE; OBSERVATIONS ON THE GREAT NUMBER OF MINES UNDER WATER IN DIFFERENT MINING DISTRICTS.

ORDINANCE XL.

ALSO, forasmuch as it might happen that some mines might be flooded by the water flowing in from the neighbouring and adjoining mines of less depth, by which means the working of such deep mines might be brought to a stand, and the proprietors thereof damaged :-We command our administratorgeneral and district-administrators, and each and any one of them, that they take especial care to visit such mines, and to arrange that they shall all be kept clear and free of water, and be worked and kept up. And if any mine shall be damaged by the water of one or more other mines, our administratorgeneral, or district-administrator aforesaid, shall, upon the request of the party, inspect it, and shall cause two persons, named by the parties, and approved of by him, to be sworn in his presence, and to ascertain the damage and expense which such mine may require (terná) in clearing out and draining; and what shall be so ascertained, the mining justice shall order to be paid, so that the damage may cease, and the working be proceeded in; and so that the person who has sustained wrong may be redressed.

CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.

1. This ordinance, directing that the owner of a more elevated mine shall make amends for any damage caused by the water flowing into a lower mine, is of very difficult construction.

2 and 3. The lower ground being, as it were, naturally liable to the service of receiving the water from the upper ground.

4 and 5. The difficulty in the ordinance is not removed by the suggestion, that it is to be understood to apply to the water thrown out, and which has been submitted to human agency.

6 and 7. The ordinance justified, by the consideration, that the mines are, by law, to be kept drained; and it is explained as applying to damage caused by negligence in regard to draining.

8. The lower ground must, in general, submit to receive the water flowing from the higher ground, unless where there is some law to the contrary.

9. The situation of mines, being generally in hilly ground, renders it necessary to keep up the draining, and imposes a responsibility on. those who neglect it.

10. These damages are to be levied, not upon an ex officio order of the judge, but upon the application of the party; and are to be estimated by surveyors.

11. The lower mines are not liable to the service of receiving the water from the higher

ones.

12. It is the duty of the justices to watch anxiously over the draining. Of the advantages which would attend this practice, if enforced.

COMMENTARY.

1. The rule of this ordinance, and of the 43d of the ordinances, which it follows, directing that the expenses of draining off the water which flows into a deeper mine, from mines of less depth in the vicinity, shall be esti mated and made good, it would seem difficult to comprehend, or even to reconcile with justice. The difficulty consists in this, that the lower ground must always be liable to the service of receiving the water which flows naturally from the higher; in consequence of which, the action for remov. ing or relieving from the effect of water, does not hold when the damage done is produced in the natural course, but only when confined, or let down suddenly, or turned into some new course, by the agency and operation of man. And this is confirmed by the text of the civil law, where it is laid down, that the lower ground must, by law, by its position, and by custom, be subservient to the higher.‡

2. This is also proved by the law of the Partida, which declares,§ “That notwithstanding that water should flow from an inheritance which is situated higher, into one which is situated lower, or stones or earth should be carried down by the action of the water, or otherwise (so that it be not done maliciously by the hand of man), and damage should ensue; yet he to whom the inheritance, which is situated highest, may belong, is not culpable, nor bound to make it good."

3. The authors who have treated of services, in particular, lay it down unanimously, that the lower ground must, as a natural service, receive the water from the higher ground, although it must necessarily receive an injury thereby, unless it be made, by the agency of man, to produce damage which it would not otherwise cause; but that if it flow naturally, and take its course unimpelled by any external agency, nothing wrong attaches to the owner of the higher ground, who, being guilty of no fault, cannot be made

* L. 1, §. 22, ff. de aqua et aqua pluvia arcend. "Semper enim hanc esse servitutem inferiorum, praediorum ut natura profluentum aquam excipiant." Et §. 23. "Agri naturam esse servandam, et semper inferiorem superiori inservire."

† Dict. leg. 1, §. 1. "Hæc actio toties locum habet quoties manu opere facto, agro aqua nocitura est, id est, cum quis manu fecerit, quo aliter flueret, quam natura soleret, si forte immittendo eam, aut majorem fecerit, aut citatiorem aut vehementiorem, aut si comprimendo redundare effecit; quod si natura aqua noceret, ca actione non continetur."

‡ L. 2, ff. eod. "In summa, tria sunt per quæ inferior locus superiori servit. Lex; Natura loci: Vetustas, quæ semper pro lege habetur, minuendarum litium causa.”

L. 14, tit 32, part. 3.

liable to any penalty; as may be seen in Cepola, Pechio, Lagunez, and many others. By the same rule, then, there shall be no injustice in the lower mine receiving the waters of the higher mine; nor shall that circumstance afford any ground for rendering the owner of the latter liable to the expenses of draining the former; the damage arising, not from any fault on his part, but from the natural constitution of the ground.

4. Nor is there any ground for suggesting that the ordinance may refer to such water as may be raised through the pit, by means of machinery, and thrown off into the neghbouring mines, although such a direction would be very proper. For the ordinance does not refer to such water, but to water finding its way from one mine to another, though fissures or veins beneath the surface; whereas the water which is drained by machinery, does not flow from one mine to another, but is raised artificially, and thrown off by the draining apparatus.

5. It is evident, therefore, that the ordinance does not refer to the water thrown off by machinery, but to the subterranean waters: and this is proved by a passage in Agricola, from which the ordinance appears to have been taken. It is there said, "That if from the water not being drawn off from the pit of any mine, situated higher, it found its way through veins or fissures, into the pit of some other mine, the working of which became thereby impeded; then, if the owners made application, complaining of the damage, and two surveyors declared on oath, that this was the case, he who had been the cause of such damage, forfeited his mine in favour of the injured party. In other places, the rule was, that he should contribute a proportion of the expense, to make amends for the damage, if it occurred in no more than two pits; and if he did not do so, he forfeited the mine. But by draining the inundated works, he might recover the right to his mine." Whence it appears, that neither the ordinance nor Agricola refer to water thrown off by machinery, but to such as finds its way through subterraneous veins and channels; and consequently, we are still pressed upon by the difficulty, that as no blame attaches in allowing the water to take its natural course from above downwards, so neither can there be any ground for the penalty of forfeiting the mine, stated by Agricola to be enforced in some places, nor for

Cepola, tract. 2, de servit. cap. 4, n. 71 et 77. Pechio, de servit. tom. 8, cap. 9, n. 118. Lagunez, de fruct. part. 1, cap. 5, n. 30 et 39; et plures apud eos.

† Agricol de re metall. lib. 4, pag. 64, lin. 6. "Præterea, quondam si aqua non exanclata ex altiori alicujus fodinæ puteo. per venan aut fibram fundebatur in alterius fodina pateum, et labori erat impedimento; tunc domini fodina damnum facientia adibant magistrum metallorum, et conquerebantur de damno, qui ad puteos mittebat duumviros juratos: hi si ita rem se habere comperissent, jus fodina damnum dantis, dominis damnum facientibus dabatur. Sed mos iste quibusdam in locis immutatus. Fam magister metallicorum si idipsum de duobus puteis compertum habet, dominos, putei damnum dantis juvet sumptum ex parte suppeditare dominis putei facientis damnum. Quod si non fecerint, tunc eos privat jure fodinæ : contra dominjus fodinæ obtinent, si fossores misserint in opera, et aquam et puteis exanclaverint."

the direction of our ordinance, that the draining shall be paid for, the damage stopped, and amends made to the injured party.

6. Notwithstanding the above remarks, the ordinance may be shewn to be reasonable and just. First, because by the rules of law, all the mines are to be kept clear and free of water; for which purpose the justice is ordered to exert the greatest vigilance in inspecting them: which is one of the burdens the sovereign has thought proper to impose, in giving his subjects an interest in the mines, and to which mining property, and the owners of such property, are therefore necessarily subject by law. And it is to facilitate this object of drawing off the water, that pits, adits, and contraminas, are made. If then, the owner of a mine of less depth allow it to fill with water, omitting to draw it off by the pit, and the water, by its weight and pressure, flow into and inundate the deeper mines, he is doubly culpable: first, in not draining his own mine; and second, in unjustly causing the inundation of an adjoining mine, and thereby preventing its works from being continued; and it is, consequently, just, that he should be made liable to pay the expenses of draining, which is a less punishment than the forfeiture of the mine, stated by Agricola to have been sometimes imposed.

7. Second, because neither Agricola nor the ordinance, blame nature for making the water descend by its gravity from above downwards; neither do they, in fact, refer to water proceeding from snow, springs or rain, indepen dent of human agency, which is an inevitable cvil: what the ordinance says is this; "And if any mine shall be damaged by one or more others;" that is to say, by water allowed to collect together, and which the owner does not drain off, as he is in duty bound to do. And Agricola expresses himself still more plainly, "Si aqua non exanclata ex altiori alicujus fodinæ puteo, &c. ;" that is to say, if water, which has not been drawn off as it ought to have been, shall inundate the adjoining property, the injury to the owner must be redressed, by paying him the expense of the draining, so as to remedy the damage of which the other, by not draining, was the culpable cause.

8. Third, because, although water descending naturally from the higher ground, must necessarily be received by the lower; yet this is to be understood only, when there is no agreement or law to the contrary, as is proved by Cepola, from various texts, one of which sets forth, that property is

*Cepola, de servit. rust. præd. tract. 2, n. 71, ibi: "Quæro nunc de alia quæstione quotidiana. Aqua ex fundo meo superiore descendit ad tuum inferiorem, et inundat totum fundum tuum, ex magna abundantia aquarum. Quæritur de duobus. Primo: numquid ego, qui sum dominus fundi superioris, cogar retinere aquam in fundo meo, puta faciendo fossam et aggeres, et in eo aquam recolligendo, ne discurrat ad fundum tuum? Circa quæ dicas, imprimis, tris esse consideranda: primum legis conventio, ut si aliqua intervenit, illa sit servanda. L. 1, §. denique; L. 2, ff. de aqua pluv. arc. L. 1, §. si convenerit. ff. deposit. et aliis." Et sub eod. n. in fin. ibi: "Quando intervenet de retinenda in superiori, ne descendat ad inferiorem, vel de mittenda in fundum inferiorem, dicas illam conventionem esse servandam, et per eam, servitutem imponi, dict. L. 1 et 2, ff. de aq. pluv. arc. L. semper, ff. de reg. jur.”

« ForrigeFortsett »