principal pit, it is not required that they should, like the registered pit, or fixed stake, be opened upon the vein or upon ore; but they may be opened upon dead or barren ground. They should, properly, be sunk straight down upon the workings, to give them air, and to afford the means of prosecuting them with more facility, in such manner, that it shall be practicable to enter by the fixed stake or principal pit and come out by the new or improved pit, or vice versa, as in a house with two or three doors, affording facilities for entrance or other purposes. But should the object or purpose of these new pits be different; should the miner for instance, propose to turn aside and explore the vein in some new direction, or to work towards the adjoining mine, not making these new workings communicate with those driven from the principal pit, his fraudulent and malevolent intentions become apparent; these new pits being permitted to be made, for the purpose of communication only, and for no other. They must therefore, in this case, be stopped up, as works fraudulently and malevolently designed, and opened with an improper view, and not for the purposes sanctioned by law, which are those of improving the means of access, promoting ventilation and facilitating the raising of the ore or water.*

6. The reason of this rule is evidently the same as that of the rule concerning adits, which must have a determinate height and breadth, the miner not being allowed to deviate by working other veins, even though he should meet with any, nor to extend the width of the adit, upon his own authority, beyond the dimensions allowed by the ordinance. Besides which, a limited cause, and a limited permission, can produce only a limited effect, and if works might be followed up from each of the pits in any direction, without communicating with the principal pit, there would be several mines, instead of one mine only. And, to say nothing of the fraud and mischief which might arise from an opportunity being afforded of gaining an entrance into the ground of other mine owners, this inconvenience would follow, that if the works driven from the new pit, should happen to communicate with those of an adjoining mine (in which case it would become necessary to measure out the boundaries, commencing the measurements, not from the new pit, but from the fixed stake), it would be found impossible to ascertain the dimensions of the mine internally; for the two pits not being supposed to communicate, the solid mass intervening between the works of the one pit and those of the other, would render it impracticable to pass from the former works or excavations to the latter.

7. In a suit agitated in the year 1748, between Doña Francisca de Sardeneta, proprietor of the mine of Cabrera, and Don Juan Moreno de Mesa, proprietor of that of San Antonio, in which the rights of the latter party

L. 10. ff. de servit. "Licere fodiendo, substruendo, iter facere." Escalon. in Gazoph, lib. 2, p. 2, cap. 1, tit. 8, n. 2 et 11.

† Chap. 26, ord. 82, infra.

Salgad. de reg. protect, 1, p. cap. 8, num. 10. Tiraquel. in tractatu, Cessante causa, n. 147.

were advocated by the author, it appeared, that an additional pit had been sunk by Moreno, in exploring the vein; by works driven from which, he had accidentally communicated with works driven from Cabrera, which latter had extended within the boundaries of San Antonio. But it being shewn, that the works of the latter mine were connected with the fixed stake, the royal audiency decreed the owner of Cabrera to withdraw within her own limits. And it seems, that after making this second pit, Moreno proposed to make another new pit, which he in fact did, so that he had three pits to his mine, but all communicating internally. We have known the same thing done in other mines, in various places; in which instances, however, the fact of the pits having been connected internally, has afforded evidence that the object of sinking the additional pit was legitimate. Such a work is called a barreno, boca mejora contramina. From the above, we may infer, that although several pits may be sunk, if required for working the vein, yet it is necessary that good reason should be first shewn, and the permission of the judge obtained, and that they should all communicate with the principal pit; which being the fixed stake, is the only pit to be regarded in measuring out the mine, or in altering the situation of the stakes bounding the oblong figure which defines its extent.

8. The second condition under which an alteration in the boundaries is permitted, is, that it be without prejudice to the boundaries already set out between the mine in question, and that of any adjoining proprietor, it not being lawful to advance the boundaries twice on the same side. When therefore an alteration has been once made, the right of advancing the boundaries in that direction, to the prejudice of the adjoining mine owner, who has defined his limits on that side, no longer exists. But if the latter have abandoned or left his mine insufficiently worked, and it have been adjudged to a new owner, or if the ground be not yet adjudged, but remain unoccupied, the mine owner may extend his boundaries a second time upon that side; for a mine abandoned or left insufficiently worked, is no longer a mine, and a mine adjudged for having been left insufficiently worked, or for any other cause, is not the same mine as before, but a distinct and new mine, and held under a different title. And the presumption of injury to a third party no longer exists, for the party newly come into possession has never required to have the boundary stakes set out, nor have they been set out, as to him; nor does he deduce his title, origin or cause, through the former owner, whom we suppose to have forfeited the mine by leaving it insufficiently worked, or upon some other ground, according to the ordiAs to this point, all the arguments we have set forth when treating of priority of registry will apply, in a complete and convincing manner, and to them we refer.*

nance.

* Chap. 11, n. 21 and 22.

9. But if the miner on whose side boundary stakes have been set out, or those who succeed to him in the possession of the mine, whether by universal or particular succession, remain in possession of the ground, the party who has so set out his boundary stakes, cannot alter his limits again, on that side. But as to the other sides, he is at liberty to alter his boundaries, either for his own convenience, or upon being required to do so; as for instance, the number of varas, whatever it be, which he may have taken in an easterly direction from the fixed stake, he may now take in a westerly direction from it; and the space which is, in consequence, left unoccupied on the east side, is called an unappropriated space or excess (demasia,) of which we shall speak presently. He may do the same on the north and south side, or in any other direction in which he is required to set out boundaries; but when the mine is thus defined and staked out on all the four sides, he is no longer at liberty to alter the boundaries, whilst the adjacent mine owners or their lawful successors, retain possession of the property.

10. The third condition which must be observed in making any alteration in the boundaries, that the mine must retain the form of a right-angled oblong, similar to that in which it was first set out, the rules concerning which, laid down in the ordinances that treat of this subject, must always be invaribly observed. The stakes must also be set up in pits, with proper firmness and security. The fourth condition is, that if the miner propose to make the alteration of his own accord, he must first obtain permission of the justice and both in this case, and in that of his being required by a neighbour to set out boundaries, he must define them within ten days, if on the spot, and within fifteen days, if absent; as directed by the ordinance, which we have explained in the proper place.† Fifth, the alteration must be noted in the register, as provided by the 29th ordinance, now under consideration, for perpetual evidence thereof, and to prevent any confusion between the bounds first assigned and subsequent alterations, and to afford the means of clearly distinguishing the pertenencias of the different mines, which is an object of very great importance to the public, and requires that the greatest precision should be observed, both in the original registries, and in the subsequent ones, upon charges occurring in the ownership of the mine, or upon additional pits being opened, or alterations made in the boundaries. ‡

11. From what has been said, we may infer how important it is, that each mine owner should define the boundaries of his mine, at the time of possession being given to him. First, because the fixed stake is thus rendered at once distinct. Second, because the adjoining mine owner is thus kept under proper restraint, by having his boundaries assigned to him. Third, because, if they should be required to be set out on any other side, Chap. 5, ubi latè.

Chap. 12, sup. ord. 26 and 27. † Chap. 10, Ord. 24, ubi plenè.

the miner will then have an opportunity of altering them, or he may do so of his own free will. And fourth, because, if any communication should happen to be made with an adjoining mine, the dispute will be confined to a mere question of internal measurement, and no more.

12. But when the contrary course of omitting to measure out the bounds of the mine, is taken, mischief only can be expected to ensue; for should any communication happen to be made, whilst the position of the terminal stakes remains unascertained, the oldest miner, having the right of setting out his boundaries first, and being now aware of the direction in which the richest part of the vein lies, takes the whole or the greater part of his ground on that side, which he probably would not have done, had he set out the boundaries between himself and his neighbour at first. Hence follow endless litigations and disputes, in the course of which, the silver produced is wasted in the prosecution of law proceedings. It is, therefore, much to be desired that a positive ordinance should be issued, directing that every one should set out his boundaries at the time of possession being given, even though the adjoining mine owner should not require it, under pain of incurring the forfeiture of the mine, and of being, ipso facto, deprived of it, even though not denounced by any other party.

13. It is melancholy to see the neighbouring mine owners summoned, pits registered immediately contiguous to each other; the three estados sunk, and possession given, and all from an anxiety to extend the boundaries in the direction in which the treasure is found to lie. Communications between the different works are the consequence, for whether through the centre of the earth, or through the air, men will make their way in pursuit of riches; and conscience being easily blinded by the lust of gain, questions arise as to the registry, as to the identity of the fixed stake, as to priority of date, as to alleged nullity in the denouncement, or insufficiency in the summons, and the like; the mines are stopped up during the time directed by the ordinance, and a train of mischievous consequences to the public and to private interests ensue, which would be prevented, were each mine measured out at the time of giving possession, upon regular notice to the neighbouring proprietors, and before the discovery of the rich points of the vein should have afforded a stimulus to avarice. For when there is nothing to excite the evil passions, mankind are generally disposed to act with regularity and good faith.

14. We have already noticed, that the unappropriated space between a mine, the boundaries of which have been altered, and that of an adjoining proprietor, on whose side the boundaries had previously been set out, is called a demasia (excess), because such piece of ground is to spare, between the mines thus measured out. The 29th ordinance provides, that these unappropriated spaces shall be assigned to the first who may apply for them; but the miner who has varied his boundaries, being the very party who has

relinquished them, cannot be such first person, for that would be to relinquish and to retain them, at one and the same time, so that the extent of the mine would be greater than is allowed by law. Neither can he denounce or register such unappropriated space as a new mine; for besides that it is a fraud upon the ordinances to aim at having two contiguous mines upon one vein, acquired by denouncement or registry, an opportunity would be afforded for many other abuses, and a wide field laid upon for the exercise of covetousness. A miner, were this permitted, might alter his boundaries, by advancing along the course of the vein, with the certainty, at the very time of making the application to alter his boundaries, of being enabled also to apply for the waste space left. But it is the constant aim of the ordinances to restrain this eager and grasping disposition, with a view to the mines being more thoroughly and better worked, and to their produce being distributed amongst a greater number of persons.

15. These unappropriated spaces, then, are to be assigned to the first person who may apply for them; subject to the condition that he set up a fixed stake, make registry, sink a pit to the proper depth, and observe the other provisions of the ordinance. And if the proprietor of the adjoining mine, on whose side the boundaries had been originally set out, should be the first to apply for such an unappropriated space, it is to be adjudged to him, but subject to three conditions. First, that he do not abandon his fixed stake. Second, that he register the alteration made in his boundaries, before the justice, that it may be entered in the register. Third, that taking into the account, the extension of his boundaries over this unappropriated space, he have no more than the proper number of varas in a regular mine; that is to say, he is not to have two mines, his own original mine and a second, under the title of an unappropriated space, but one single mine only; and consequently, as many varas as he advances upon the unappropriated ground, so many must he relinquish in the direction, from which he is receding.

16. If, notwithstanding that the proprietor of the adjoining mine is desirous of advancing his boundaries, some other person should apply first for the waste space, the latter is to be preferred, as being first in point of time; for the express words of the ordinance are, " to the first person who may apply for them ;" and it is only conditionally, "if the neighbouring mine owner should apply first ;" that the preference is to be given to him. But should be contend that he is entitled, under the ordinance, as being prior in point of registry, to extend his boundaries over that piece of ground, it will be proper to remind him, that that ordinance has reference to other and distinct circumstances; namely, to the case of two contiguous mines, the owners of which propose to alter their ground, no boundaries having as yet been set out between them, in which case the proprietor of longest standing is to be preferred. These waste spaces, however, having their limits already deChap. 11, ord. 25.