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made subject to different laws and obligations, according to circumstances, and that when none such are imposed by law, they must operate according to the course of nature; but that if there be any express direction or law, the property becomes thereby liable to a service. Whence Cepola infers,† that if, by any law or agreement, the owner of the higher ground has become liable to the service of keeping in the water, or the owner, of the lower ground, to that of receiving it, each of them respectively, is bound to clear off the water, and to secure the dams, agreeably to the common rule, that he who is bound to perform any particular thing, is also bound to go through all the means necessary for accomplishing it; and that he who wills the consequent, must also will the antecedent. As then it is a provision of the law, that all miners shall keep their mines drained and clear of water, that they may be enabled to proceed with their own works, and may not impede those of their neighbours, they become liable, in complying with this rule, to the obligation or service of clearing and carrying off the water from their own mines, and they will be guilty, if they allow it to remain, of a great wrong, in allowing their own mines to fill with water, and of a much greater, in causing the inundation of their neighbour's mine.

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9. Fourth, because the very situation of the mines calls for some law or regulation with respect to drainage for they are generally found amongst hills and mountains, some in high ground, others in low, and the water usually takes its course freely, through all the mines upon the same vein. Such then being the state of things, were the owner of the lower mine bound to receive, and to draw off at his own expense, all the water from the higher ones, which would flow to him if not drawn off through their pits, he would be doubly injured; first, in his works being impeded; and second, in being made liable to the expense of draining. The ordinance proceeds with great equity, therefore, in making the owner of the higher mine liable to the expenses; for after all, no recompence is made for the damage sustained, in consequence of the works being impeded, contrary to the laws, which always urge the keeping up the works in an active train, and which provide (amongst other things,) with a view to this important end, that mines shall be drained by means of pits, adits or contraminas, directing that such works shall be executed wherever circumstances will admit of it; and even permitting adits and contraminas to be driven by individuals, independent of owners of the mines, as will be mentioned in the proper place.

* L. 1, §. 23, ff. de aq. pluv. arc. "Denique ait conditionibus agrorum quasdam leges esse dictas. Si tamen lex non sit agro dicta, agri naturam esse servandam.”

† Id. ubi prox. n. 72. "Sed dubitare potest si simpliciter est imposita servitus, ut superior vicinus teneatur retinere aquam in fundo suo. vel quod inferior teneatur fossa eam recipere, nunquid superior, vel inferior teneatur purgare, vel aggeres facere, aut munire? Et videtur, quod sic: quia qui tenetur ad unum, tenetur ad omnia per quæ pervenitur ad illud. Qui permittit consequens, videtur permittere necessario antecedens, &c."

+ Vide infr. chap. 26, n. 26.

10. Having, by these arguments, overcome the difficulty which at first startled us, it is clearly established, that the damage caused by the overflowing of the water, must be estimated and paid for; but this is not to be done ex officio, but upon the application of the party. For if he remain silent, and make no application, but carry on the draining himself, he must be considered to have waived his right. If, however, he demand to be compensated for the damage, the justice must have an inspection made, and must determine the amount of the damage, upon the estimate of two surveyors upon oath; which damage he shall command to be promptly paid, agreeably to the spirit in which causes of this kind are conducted," the injury being such as requires an instant remedy. And in determining the amount which will fairly cover it, must be estimated by experienced surveyors; that is to say, the quantity of water is to be computed, by comparing the state of the mine before and after the flowing in of the water, the expense required to draw it off being estimated according to the breadth and depth of the space the water occupies; wherein the practice of the district, as pursued by other miners, in the course of their draining, is the only rule to be observed.

11. From this ordinance, and the rule it enforces, it follows; that the inferior mines are not liable to the service of receiving the water from the higher mines, but that, on the contrary, by allowing the water to flow into the lower mines, an injustice is done to their owners, by impeding the works, and diminishing their profits, for which compensation ought to be made. And that all the mines, whether higher or lower in situation, must be kept drained by their owners, this service being imposed by the law. But the liability of the miner to allow a passage for the works of drainage, from other mines, is a service of a distinct kind, of which we shall speak when treating of contraminas, and is so far from being injurious to the mines through which a passage is allowed, that it is rather an advantage, in facilitating the draining of the latter, and the freeing them from rubbish.†

12. It follows also, that it is incumbent upon the mining justices to visit the mines in their respective districts, and to make arrangements, so that they shall all be kept free from water, in order that they may be kept regularly at work. Did the chief alcaldes zealously urge this object, and promote regular works of drainage, much injury might almost insensibly be prevented, and we should no longer have to witness the abandonment of many mining districts, which, although now overwhelmed with water, have, in their time, yielded riches to an incalculable amount. And were the visits they make directed to this important object, they would be attended with much advantage, instead of serving, as at present, rather as a pretext for extortion, than an incentive to labour.

* Agricola, ubi sup. n. 5.

+ Vide chap. 26, throughout.

CHAPTER XX.

OF THE RUBBISH HEAPS OF MINES, AND OF GIVINGS WAY IN THE WORKS OF MINES.-OF THE PILLARS OF SUPPORT, TIMBER-WORK, PITS AND CISTERNS. OF THE ACTIVITY WITH WHICH THE JUSTICES SHOULD PROMOTE THE CONSTRUCTION AND PRESERVATION OF THESE WORKS.

ORDINANCES XLI. XLVI. LXXIV.

XLI. ALSO, we ordain and command, that persons who shall hold or work any mine or mines, shall be obliged to keep them clear, and timbered in such manner that they shall not fall in nor become choked; leaving in such mines as shall produce ores of the quality of a marc and a half, or under, perquintal of silver-lead, such bridges, strengthenings or supports (testeros), as may be proper for their security and permanence; and such mines as shall produce ores of better quality, shall, besides the above, be very thoroughly lined and secured with good timber; and, in case of the contrary, the justice of such mine shall cause the work to be performed at the expense of the mine owners. And in order that this may be done and performed in manner aforesaid, our administrator-general, or district-administrator, is to observe, and shall observe, particular care in visiting and causing such mines to be inspected, taking with him persons who understand the subject, that he may make such provision as may be requisite, as is mentioned in this and the last ordinance.

XLVI. Also, we ordain and command, that no person, in working or digging his mine, shall be at liberty to throw the earth which he may raise from such mine, upon the mine, or within the pertenencia of another proprietor, under the penalty of ten ducats for every time he shall do so, to be applied as aforesaid. And the mining justice shall, whenever the party may require it of him, cause such earth to be removed and cleared from such pertenencia, at the expense of the party who may have thrown, or directed it to be thrown. there, notwithstanding any appeal, or charge of nullity or injustice, that may be interposed; but each person is permitted to carry out the earth from his mine through any pertenencia, provided that such earth be deposited out of the range of such pertenencia.

LXXIV. Also, forasmuch as we are advised, that much inconvenience arises from sinking pits in mines, very near each other at the surface, and likewise from sinking them continuously, without making any landingplaces; not only in regard to their permanence, but also because they cannot be worked or drained conveniently; for a remedy hereof, we ordain and command, that when from henceforth any new mine shall be discovered, the pits continued shall be made ten varas from each other, and each pit shall be fourteen estados in depth; and if they shall have to be sunk deeper, an excavation or recess (mineta), shall be made, before sinking any deeper; from which the next pit shall be formed. But forasmuch as in many places,

circumstances will not admit of this arrangement being adopted; in such cases, what shall appear in the opinion of the administrator of the district, and of other miners who shall understand this matter, to be most convenient, shall be done.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. Subject of these ordinances.

2. The rubbish heap of one must not incommode another.

3. It should be on the surface of the mine; but is sometimes permitted to be made within. 4. The justice ought to inspect the timber-work and supports of the mines; but they neglect to do so in consequence of which, the lives of the workmen are endangered, and the interests of the public, and of the revenue, prejudiced; they, therefore, become responsible for these evils.

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5 and 6. Of the form of the pillars of support, and their use.

7. Of the distance and thickness of the pillars.

8. The object of lining the pillars with timber, is to prevent their being destroyed by the ore being stolen. They should be covered with the rubbish, or guards should be placed there to watch them.

9 and 10. It is a great outrage to cut away the pillars, and the justice cannot give permission to do it; but should anxiously watch over the subject.

11. A licence cannot be given to remove the pillars, even upon condition of substituting timber or stone in their place.

12, 13 and 14. What ought to be done if they be, in fact, removed.

15. It is within the ordinary jurisdiction of the courts, to punish for the removal of the pillars. A royal order in support of this opinion.

16. Some mines, forming natural vaults, do not require pillars.

17. The depth of the pits, and their distance from each other, are left to the judgment of the surveyors.

18. It is important that cisterns should be made to receive the water, and conduct it to the pit.

19. They ought not to be cut away, even though the mine become barren; nor should the judges omit to punish such an act.

20. Commendations bestowed upon those judges who exert particular activity in this respect, and likewise in punishing the fault of cutting away the pillars of the mine, or allowing it to fill with water.

COMMENTARY.

1. Of these three ordinances, the 41st agrees with the 44th, and the 46th with the 50th, of the old ordinances, but the 74th does not follow any other ordinance. They all look to the permanence and security of the mines. The object of the 46th, is to prevent rubbish from being thrown out upon the mine of another; of the 41st, to ensure the strengthening of the mines internally; and of the 74th, to regulate the arrangement of the pits and landing-places in the best possible manner, according to the judgment of the justice, and of experienced persons.

2. As to the first point, it must be remarked, that although the ordinances

have made the mines liable to various services, yet they do not intend that they should be burthened with the rubbish from other mines, lest they should fall in and be destroyed; their intention being, that each miner should make his rubbish heap in some convenient place, not upon the vein, nor upon the weak parts of the ground. But no question ever arises upon this point in New Spain, because, in that country, each person piles up his rubbish and builds his offices, upon his own ground, without inconvenience to others; and such rubbish is in fact useful, as it may be employed in erecting sheds and buildings to cover the pit, in furnishing earth for mortar, and in other ways.

3. As the mines are required to be kept free from rubbish, and their passages to be left clear, so that the works shall not be impeded, it follows necessarily, that it is incumbent on the miners to clear out and remove the rubbish and refuse. It may, however, be thrown aside within the mine, if there be any useless cavity in it; that is to say, the inutility of the cavity being first ascertained by the justices and surveyors, and it being shewn that the course of working will not be thereby interfered with, such cavity is allowed to be used as a depository for the rubbish; by which means the expense of raising it to the surface is spared, whilst, at the same time, the giving way, or falling in of the mine, may be repaired or prevented.

4. As to the second point, of the strengthenings, bridges and supports (testeros), it will be recollected, that the ordinance enforces particular anxiety on the part of the justice, in visiting the mines, and causing inspection to be made by experienced persons, to ascertain whether they are well secured, timbered and strengthened with pillars of support. Nothing however, is more neglected than the observance of this precept, although it is, above all others, that which it most behoves the district judge to enforce, on account of the great loss in which the falling in of the mine involves both the revenue and the public; and still more, from the melancholy effects of such a catastrophe, in overwhelming and burying the miserable workmen in its ruins, which are consequences of the very greatest moment. And as the cutting away of the pillars (as the miners express it), is a step generally prompted by the lust of gain, the owners should be fined, or subjected to some more severe mark of displeasure, as being the cause of these misfortunes, and of their attendant evils."

5. Under the name of pillars, is included every thing which prevents the roof of the work, or the wall of the vein, from giving away. If the course

* L. 21, tit. 32, partida 3; "They should faithfully and with great earnestness command those who are placed over the works, to execute them, so that nothing wrong ensue through their fault or neglect; and if they shall not enforce the same upon their bodies, and all that they may possess, recourse must be had to the king thereupon." Concordat L. 25, eod. tit. et partit. ibi: "He must keep it up and work it, in such manner that it shall not fall in through his default or neglect." Qui causam damni dat, damnum dedisse videtur." L. 21, tit. 24, part. 7. Krebs, de ligno et lapide, sect. 9. ubi domini tenentur quando damnum funium ac perticarum vetustate contingit. Et carpentarii tenentur de damno at ruina per negligentiam.

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