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which we have laid down in the proper place, in treating of partnership mines.*

21. It is to be observed, that although it be agreed that any party failing to contribute within such a time, shall forfeit his right, as was agreed by the partners in the above-mentioned undertaking of the adit of the Vizcayna vein, yet we should consider, supposing that the ore would cover the expenses, or that no means had been taken to compel payment, by summoning the party and proceeding judicially against him (which is the lawful remedy), that the right would not be actually lost by the time expiring; unless, indeed, the party upon being summoned, should renounce his claim: for it would be contrary to equity, to the rules of the ordinances, and to the public interest, to deprive him of his right under any other circumstances.

22. In the seventh place, a devision must be made, of the proceeds of the ore found, and of the produce of the new veins, discovered in prosecuting the adit, in proportion to the share of the expenses contributed by cach party which is agreeable to reason and to the rules by which every partnership must be governed, and is likewise consistent with the directions of the 79th and 80th ordinances. The tenor of the latter of these is worthy of notice, for although no mine can be registered, or be acquired in property, except upon exhibiting the ore to the justice, and pointing out the site of the mine upon the surface, and no pit or fixed stake can be opened except upon ore (which is to prevent fraudulent practices in gaining access to, or work ing other persons' ore, as has been shewn under the proper ordinances);‡ yet it is provided by this 80th ordinance, that if in driving the adit, any new mines, not previously known, shall be discovered, they shall belong to the parties who may have contributed to the adit, in proportion to their respective contriputions. The reason is simply this, that there is, in this case, no room for the presumption of fraud or evil intent; the adit not being opened with the sole view,§ of getting access to the ore of another proprietor, but having for its principal object the draining of other mines already dis covered, and rendering them fit for working: and the veins discovered being new ones, it would be unreasonable, and injurious both to the public and the private interest of the partners concerned in driving the adit, to make it a rule that they should remain unworked and unproductive of benefit.

23. The point which presents most difficulty in the construction of the 80th ordinance, is its giving the partners a right of property in the new mines or veins discovered, even though they should take their course within the limits of other mines previously discovered from the surface. For this shews that these veins may be followed up and worked within the limits

*Sup. chap. 7, n. 10, et seq.

† Arg. L. 6, Cod. si contr. jus, vel utilit. public.
Vide supr. chap. 13, n. 4, and chap. 14, n. 36.
Vide supr. chap. 14, n. 36, et seq.

of another proprietor's ground; although according to the 82d ordinance, the parties concerned in driving the adit, can acquire no right to the ore of another person's mine, except so far as it falls within the space assigned for the width and height of the adit, that is to say, of eight quarters (of a vara) for the latter, and five for the former; as we have already seen. But this difficulty vanishes when it is observed, that the 82d ordinance has ref erence to ore found in another person's mine, such mine being merely liable to the service of admitting a passage, but without any deviation either upwards, downwards or sideways; lest any injury should be done to the owner, or to his property in the vein: whilst the 80th ordinance relates to new veins or mines, not previously discovered from the surface. As, however, the law, with a view to the general benefit, permits the driving of adits, their entrance being opened either in public ground, or in ground belonging to the party or to any other proprietor, and also permits the new veins met with, to be worked by the discoverers, it follows, that such veins may be worked, even though they should take their course within the limits of other mines. For if the law be, as we have already seen, that a miner in the immediate pursuit of a vein, may make his way within the limits of another proprietor's ground, until the two mines communicate together, after which the owners are to measure out their boundaries, and fall back within their respective limits, it follows, with still more reason, that where the vein pursued is a new one, and distinct from that which is worked in the other party's mine, the person in pursuit of the new vein may make his way into the ground of the latter. But if they should happen to communicate together in the course of their works, it would be reasonable, upon the grounds explained under ordinance 30, in chapter 14, that each should measure out his boundaries, according to his just right, and fall back within his own lim

its.

24. We must here call to mind what we have discussed more at length, whilst on the subject of first discoverers; namely, that every person finding a new vein, is entitled to the rights of a discoverer, and that consequently, the parties concerned in driving the adit will be entitled, as first discoverers, to assign to every one of the mines upon the new vein, the dimensions of 160 varas in length, and 80 in width, measured parallel to the adit; which were the terms of the grant made to Don Joseph Alexandro de Bustamante, by the superior government of Mexico, in the above-mentioned order of the 1st June, 1739.

25. In the eighth place, it must be ascertained what contribution is to bo made to the proprietors of the adit, by parties whose mines may be drained or afforded access by it. The 81st ordinance leaves it to be estimated by the justice, who is to be governed by the amount of benefit derived from the draining, and the expense which the owner would be put to on that ac* Vide cap. 8. à n. 1. et seq. et cap. 9. à n. 3 et seq.

count, were it not saved to him by the adit. In Peru the ordinances direct that if the adit has merely the effect of draining the mines of other proprietors, they shall contribute a tenth of the produce, but that if they also use it as a thoroughfare, in working their mines, they shall contribute a fifth.* In New Spain, any agreement which the parties may have entered into, is to be observed, and in default of any such, a fair adjustment is to be made, as directed by the ordinance. The usual rule is to contribute a fourth part of the produce, which was the proportion stipulated for by Bustamante and his partners, in the adit of the Vizcayna vein, to be paid by those who did not join in contributing to the expences of the work. But considering the difference. in the degree of benefit derived, and the amount of expense saved, under different circumstances, it would be most proper to follow the practice pursued in the mining districts, in other cases of a similar nature; for the saving afforded, the advantages derived and the expenses laid out upon the work not being always the same, the partido (such is the name given to the share of ore contributed), should be regulated according to the circumstances of the case, and the practice followed in other similar cases, whether it be a third, a fourth or a sixth part of the produce.

26. A similar contribution must be made to a party who, not being a proprietor of mines, yet undertakes to drive an adit, or make a general work of drainage for the benefit of those who are proprietors of mines in work. A person undertaking the adit under such circumstances, must have the approval of the justice, and must make a formal registry of the work, and have it duly defined throughout the whole line of ground he may select. And the share to be contributed by the parties must be estimated according to the benefit they may derive, the expense they may be saved, and the amount they would have to expend in pits and independent works of drainage, were not a general outlet provided by the proprietor of the adit; in favour of whom, regard must be had to the rules of these four ordinances, in respect to his being entitled both to the ore found in the course of the adit, and to the new veins he may discover.

27. The contribution will continue to be made, so long only as the mines shall be drained or worked through the medium of this adit; but if another adit should be driven by different proprietors, at a greater depth, from which the mines derive more benefit, the contribution must be made to the latter, and not to the former. And if the depth of both should be the same, or nearly so, the share to be contributed, in respect of each mine, must be accounted for to the proprietor of the adit by means of which the mine in

* Ord, 10, tit. 8, concerning adits; Escalona, Gazoph. lib. 2, part. 2. Antea solvebatur 5 pars Laet, America descriptio, lib, 11. cap. 9, "Domini cuniculorum accipiunt quintam partem metalli quod educitur." Apud Germanos, pars nona solvebatur. Agricol. de re metall. lib. 4, p.

61.

question is drained or worked ;* for this is a right which belongs to the adit of greatest depth; and if the second adit be the deeper, it is sufficient to entitle it to the preference, provided the mines derive more benefit from it, which is also the rule under the ordinances of Peru.† The same rules will apply to pits by which the draining of adjoining mines is facilitated.

ORDINANCE LXXXIV.

It is also our will and pleasure, and we command that the incorporation in our royal patrimony of the mines of gold, silver and quicksilver which we ordered to be made by said royal edict of the year '59 be construed without prejudice to the contract and agreement which we order to be made with Don Diego de Cordoba our Master of Horse, in relation to the mines which he has purchased, subscribed on the 15th day of the month of August in the year 1568.

By which said laws and ordinances, and by each one of them, we command that the said mines and all matters touching the same, and annexed to and concerning them shall be directed and governed; and that all judges, justices and audiences in their several districts and jurisdiction, shall observe them and cause them to be observed, wholly and absolutely as to the provisions of all and each of them, that they shall be guilty of no act or omission, nor consent to any act or omission in violation of the tenor and form of the same, under the penalties contained in our said laws and ordinances, and under pain of our displeasure, and of a fine of ten thousand maravedis for each violation of the same; and we command our principal auditors of accounts, that they record a copy of them in the books of our principal office of accounts, and cause them to be printed for the information of all.

And moreover, we command our said principal auditors of accounts, that the said books shall contain a statement and account of all proceedings by ourselves in relations to said mines, and of the reports and transcripts which the said administrators may have rendered of the condition of said mines, and of the cost and expense attending them.-(Law 9, title 13, book 6, R.) (3).

Agricol. de re metall. lib. 4, pag. 61. "Quod si plures cuniculi in unam aream metallis fœcundam aguntar; de metallo, quod quidem supra solum cujusque cuniculi effoditur, ejus domino datur nona."

+ Ord. 11, apud Escalon. ubi proxime.

(3) (Note to the original text.)-By the resolutions of the General Council of Commerce, Money and Mines, of the 25th October, 1783, and 5th May, 1787, a citizen of Valencia having twice solicited a licence for the discovery of mines, it was denied him, and in view of it, it was ordered that in similar instances it should be borne in mind, that it is not expedient to grant individual permits for the discovery of mines, on account of the abuses which had attended the experiment, and because the power which they had under regulations and ordinances, of denounc

LAW V.

Don Ferdinand VI. at Buen Retiro on the 19th of December, 1754.

Private jurisdiction of the Superintendent of the Mines of Almaden with in the circuit of ten leagues.

It being of so great importance to preserve the mines of Almaden, and desiring that the arrangements which have been made to render them more productive might have due effect without those embarrassments occasioned by continued controversies, which have occurred on different occasions, between the Superintendent General of the Mines, the persons having charge of the royal herds, the waggoners, the justices of the villages included in the pasture grounds appropriated to the use of the towns and the "Comendadores" and owners of them, I have resolved on the subject and as a general rule, that within his circuit of ten leagues, computed from the four which are regarded as the mouth of the mine-enclosures and heaps of earth, the superintendent shall have private jurisdiction with regard to the pastures for cattle employed in their works, also for the cutting of timber and wood necessary for working the mines; and that in regard to the jurisdiction above referred to it, shall not be competent for the sub-delegates aforesaid or the other subjects above mentioned to claim authority.

LAW VI.

Don Carlos IV. by resolution of October 19th, 1790.

Jurisdiction of the Superintendent of the Quicksilver Mine of Collado de la Plata.

The Commissioner or the deputy Commissioner of the quicksilver mine of Collado de la Plata in his stead-and the Superintendent of the mine according to the various articles of the royal ordinances concerning quicksilver mines, respectively have civil and criminal jurisdiction in the cognizance of causes and matters as well civil as criminal concerning the persons employed and the operations attached to the mine with appropriate judicial authority concerning them to the exclusion of other tribunals, except that of the gen

ing the mines before the Judge in the several territories, and rendering an account of their admission, with proof to the council and with specimens of the minerals, was sufficient for all who were sincere in their intentions. And by another resolution of full council, of the 18th of August 1796, under the advice and approbation of his Majesty, another similar application from various citizens of Mexico, on account of the inconveniences experienced by the grant of a similar license, was denied.

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