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measured before the justice, at the time of the adjudication, under pain of forfeiting the mine, if omitted to be done. The second, to keep an account, to be delivered in, if he should be unsuccessful upon appeal. The third to give security to the amount of one thousand ducats, to the effect that he will render an account in the above event.
5. Fifth, the appeal must be concluded within sixty days from the judgment being given, and what shall be thereupon determined, shall be observed and enforced ; and no appeal, supplication, charge of nullity or injustice, or other remedy shall be allowed.
6. Sixth, supposing the party denounced to have been absent during the proceedings, and that it has not been known where he has been ; if, after the proclamations have been made, and the notices affixed, the insufficient working established, and judgment given, he should appear within the three days allowed for appealing, either by himself, or by some authorised agent, he will be at liberty to do so, within that time; the judgment however, being executed, subject to the aforesaid three duties of sinking, keeping an account and giving security for one thousand ducats. But, as declared in the last paragraph, no remedy is to be allowed against the sentence pronounced thereupon.
7. Several peculiarities, meriting observation and illustrating, are observed upon considering these ordinances. First, that although the term for appealing is generally five days," yet in a cause concerning the insufficient working of a mine, the appeal must be made within three days from the sentence.
8. Second, that although an appeal has generally both effects, yet an appeal from a decree declaring a mine to have been insufficiently worked, and adjudging the same, has only the devolutive effect.
9. Third, that the time for trying the appeal is limited to sixty days, although more is allowed in other suits.
10. Fourth, that no appeal, supplication, charge of nullity or injustice, or other remedy, is allowed against the sentence pronounced on the appeal ; whereas it is usual to present a supplication against the sentences of review of the royal audiencies, even though confirmatory of the judgment of the ordinary judge.
11. All these restrictions are founded on the great importance of expedit. ing the suits in which miners are concerned ; it being an essential object to keep the working of the mines uninterrupted. For if a sentence adjudging a mine for insufficient working, were not carried into effect, it would remain unworked for a still longer time, to the prejudice of the public and of the revenue ; whilst the advantage of the denouncer and the denounced, are alike consulted by executing the decree, and giving possession, under the security of one thousand ducats, and subject to the obligation of rendering an
* Law 1, tit 18, book 4, Collection of Castile. Cur. Philip. 5, p. 9. 1, n. 16.
account. These, then, are the reasonable grounds on which the legislature has deemed it right to abridge the ordinary periods.
12. Notwithstanding this, the observance of this term of sixty days, within which the proceedings upon appeal ought to be terminated, is not strictly at. tended to in practice, either from the nature of the proceedings themselves, or from the parties not having a proper regard to expedition, or from the great pressure of business, which is dispatched according to the order in which it stands. The business relating to mines is, however, generally dispatched in the audiencies with as much expedition as possible, and the reiter. ated injunctions of the laws and ordinances enforcing the speedy dispatch of the causes in which the miners are concerned," as being of great importance to the public, are duly attended to.
13. Another matter demanding consideration is, that the 38th ordinance, in directing, that when a mine is pronounced to have been insufficiently worked, and is adjudged to the party denouncing it, the latter, besides taking possession and sinking three estados, shall give security for one thousand ducats, and keep an account, &c., does not provide for the case of its being declared that the mine has not been left insufficiently worked ; whence arises the question, whether the party against whom denouncement has been made, and who retains possession of the mine, must give the like security, and keep a like account? The reply to which will be in the affirmative, for the rights of the plaintiff and defendant are upon the same footing; and as the ore or produce of the mine is the object in question, if the party denounced is to be secured against the event of the sentence being reversed on appeal, the denouncer is entitled to be furnished with the like security against such an event. The security given, agreeably to the law of Toledo, by the plaintiff at whose suit execution is levied, upon enforcing a decree for a sale, under the executive mode of proceeding, f must in the same manner, be given by the defendant, if demanded, upon executing the decree when in his favour. And as the appeal has not the suspensive effect, against the person at whose suit execution is levied, giving security, the case is the same with regard to the defendant in execution, giving the like security ; the situation of both, with regard to the suit, being the same, according to Hyppolitus, Gutierrez and others, cited in the Curia."
* Infr. cap. 25, ubi ex ipsius litera commendatur celeritas in causis metallicorum. Law 5, tit, 20, book 4, Collection of the Indies. *We charge and command our royal audiencies to digpatch, and cause to be dispatched, with much brevity, the causes,'suits and matters relating to the miners and amalgamators, which shall be pending before them, that they may not have their attention distracted by suits, nor have to make long journeys, to the prejudice of the works of their mines and reduction establishments."
† The executive mode of proceeding is a process by which execution is obtained against the property of a debtor, and the debt lovied by a sale, more expeditiously than in the ordinary course of justice. For the cases in which it may be had recourse to, and the mode of prosecuting it, see Institutes of the Civil Law of Spain, &c. translated by L. F. C. Johnstone, p. 251.Trans.
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 de nounce it. Whence we may perceive, that no vestige of right remains in the last possessor, no tenth part, as in some places ;t 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. 9, 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.
OF THE DAMAGES TO BE PAID BY THE PROPRIETORS OF THE MORE EL
EVATED 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
op 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 advanta
ges 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 estimated 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 remove 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.t 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. I
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, f. 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, ea 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.