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that this government or, in its place, the lawful owner, retains the authority to carry on in the ceded parts works serviceable for the mining of coal or for drainage purposes. Neither under the pretext of instructions issued to its engineers, nor by imposts or other burdens, may the Government of Prussia interfere with or restrict the mining of coal or the bringing of the coal mined to the surface, nor may it place any hindrance in the way of its being marketed.

Nor may the Government of Prussia grant private commissions (this should read private concessions cf., Brassert, Zeitschrift für Bergrecht, Vol. 14, p. 268) in the said ceded parts. Existing private concessions are restricted to the limits assigned to them by the act of session or by the laws under which they were granted.

The opinion of the judge of the lower court, to the effect that the aforesaid authority of the Dutch Government must be regarded as a mining concession, transferred to the defendant, does not meet the present case. The plea entered by the intervener that, in conformity with all the circumstances, the boundary treaty between Prussia and The Netherlands is in the nature of an agreement coming within the sphere of international law, by which the territorial sovereignty of the two neighboring states was mutually defined, must be accepted. Parts of the districts of Kerkrade and Rolduc go to Prussia, but the Dutch Government retains the right to carry on mining in the ceded parts. "This means, as the intervener correctly states, not what might be termed a mining concession of the Dutch Government granted by Prussia according to civil law, but the exclusion of certain sovereign rights in the ceded parts resulting from the territorial sovereignty. In so far as the right to mine coal and other minerals contained in this coal-field comes into question, part of this territorial sovereignty remains with Holland. Because of this fact, a sort of international servitude has arisen by which Holland is as a state, entitled, now as previously, in the matter of this mine, to exercise its own legislative authority and police supervision; that is, it has real sovereign rights with respect to the object situated within the territory of the foreign state (see Ullman, Völkerrecht, pp. 320 ff.).

This fact is established, first of all, by the boundary treaty itself, as well as by the actual administration in the premises. The dominial mine comes under the administration of the Dutch mining authorities. The Prussian chief mining office has never claimed any right of supervision, and precisely in consideration of the aforesaid Art. 19 of the boundary treaty, and under the sanction of the Prussian Minister of Commerce in the latter's decision upon the appeal, and in harmony with the Prussian ministerial decision of March 24, 1875 (see, Brassert, Zeitschrift für Bergrecht, Vol. 14, pp. 267-269), this same office has rejected, as being inadmissible, all requests for concessions by third parties to other minerals within the territory of this coal-field, reserved to the Dutch Government.

Accordingly, the dominial mine is not subject to Prussian legislation, but to the laws of the Netherlands, and it is for these reasons that $ 148 of the General Mining Law is not applicable to this case. That the houses of the plaintiff are situated on Prussian land is immaterial. For, according to the principles of international private law, the responsibility for damage such as is here claimed to have been sustained, is fixed by the law of the locality in which the mining is being carried on, and not by the laws of the locality where the damage arises (see, Brassert, 2. f. B., Vol. 30, p. 371).

In the Netherlands, the French mining law of April 21, 1810, is now in force. According to Art. 15, the mining grantee must there furnish bond for the full compensation of any, even accidental damage. This has led to the principle that the concessionaire is responsible for any, even accidental surface damage. Regarding this point, there is neither in theory nor in practice the slightest doubt as to the applicability of the mining law of April 21, 1810 (see, Brassert, Z. f. B., Vol. 8, p. 521 and Vol. 4 at bottom of page 331).

The question therefore arises: Is the defendant, according to the principles of this French law, responsible in his capacity as a concessionaire?

Our argument must be based on the fact, that the Dutch State is the owner of the dominial mine, not in virtue of a concession granted to it, but in virtue of a public court decision, as pointed out hereinbefore. After the Dutch Government had worked this mine as a fiscal entity for more than thirty years, it conveyed by the law of June 19, 1845 and by the contract of June 4-8, 1846, the administration and usufruct of the aforesaid dominial mine at Kirchrath to the Aix-la-Chapelle-Maastricht Railroad Company, domiciled at Maastricht, for a period of ninetynine years. It is true that this contract was entered into exclusively with the company domiciled in Maastricht. But, taking all the circumstances of the case into consideration, the defendant who has his headquarters now in Aix-la-Chapelle, can adduce nothing in his favor from this fact. From the statutes submitted in the premises, it appears clearly that in 1846, the two named joint stock companies were organized simultaneously, with their headquarters respectively in Aix-la

Chapelle and in Maastricht. The object of the two companies related to a partnership, referred to in detail in one of the statutes, with reference to a railroad, which is likewise specified in detail in the said statute, and for the purpose of constructing and exploiting the same in connection with the coal-mine of the dominial mine at Kirchrath, and furthermore, to take over the administration and exploitation of the coal-mine situated in the Wurm district and belonging to the Royal Dutch Government. According to the statutes, the defendant assigned an interest to the joint stock company domiciled in Maastricht and by mutual agreement the two managed their business in common. It was declared that the defendant joint stock company should dissolve whenever the joint stock company domiciled in Maastricht should have to disorganize. The board of directors of the defendant joint stock company, to whom was committed the management of affairs, consists of one or two persons. This board, according to the statutes, acts for both companies and has its domicile either at the dominial mine at Kirchrath, or in Aix-laChapelle or in Maastricht; at all events, the board must at least have its elected domicile in Holland. The capital of both companies is used jointly for the same purpose, so that each share of both companies has the same value in the common enterprise, and each of the two companies participates in the advantages and in the disadvantages of the other company.

It is possible, as stated by the defendant, that the dominial mine does not belong to the “coal-mine situated in the Wurm district.” But it is a fact, that in accordance with the statutes, the present common board for both joint stock companies is composed of Wilhelm Hussmann, mine director, and Wilhelm Rütgers, mine inspector, and that both are domiciled in Kirchrath. According to matters as they stand, it is however also the main business of this board to direct and carry on the work of the dominial mine at Kirchrath. From all of which the assumption is justified that the dominial mine is being managed in common by the two joint stock companies, and that each of them is also interested in this mine. For any damage occasioned in consequence of the exploitation of this mine, each of the two companies may be proceeded against as a joint debtor ($ 17, Code of Civil Procedure), provided however that the conditions therefor are established.

That the defendant entertained this view formerly, results clearly from the fact that he has at all times promptly made good all damage occasioned, and in the course of the trial in the lower court (1. 0. 360-05) has always claimed that not he, but solely the company domiciled in Maastricht, had managed the mine and was in consequence responsible for these damages.

The opinion of the judge in the first instance that, according to Art. 15 of the law of April 21, 1810, the defendant, although not responsible for the damage caused to the houses of the plaintiff, was yet responsible because the Dutch State had by contract of April 4-8, 1846 made over the mine to the defendant as concessionaire, is not in point. He reaches this conclusion from the meaning and from the text of the contract. But these views cannot be accepted. That the contract of April 4-8, 1846 was preceded by a law and that this contract was subsequently approved by law, is in no way decisive. This was in accord with the financial authority of the king of the time. The expression, that the granting of a “concession” is intended, does indeed occur in the law; but the term "concession” with regard to the dominial mine nowhere occurs, while the future concessionaires of the railroad are repeatedly referred to. But, concession nowhere appears in the contract itself. On the other hand, the text of the provisions of the contract in no way show that the granting of a concession in the mine was intended. Nor does it appear that the provisions of Art. 5 ff. of the mining law of April 21, 1810 with regard to the granting of a concession have been complied with. For a long time, the Dutch State had been the owner of the mine and had exploited the same for many years. There is nothing to prove that the state intended to alienate its ownership in the mine, for ninety-nine years. The period of ninety-nine years clearly indicates that a straight deed of conveyance was intended. The transfer of the ownership in the mine by “concession” could be effected, according to the statutable provision of the law of April 21, 1810, not for a certain period, but only as an irrevocable hereditable property to be freely disposed of as the owner might deem fit (Art. 7). That the matter concemed a straight deed of conveyance is indicated by the remaining provisions of the contract, where it is expressly stated “the administration and exploitation would be transferred” and further, "after ninety-nine years, the state will again take possession of the aforesaid mine." The compensation to be paid in accordance with Art. 12 of the convention is simply the rent. The judge of the first instance is correct in holding that for the cession of the mining property, a compensation given but once should also be paid. He finds that this lump sum amounts to 500,000 guilders, which was to be paid according to Art. 1. This secur

ity has however been given only, as per the statutes, as a guarantee for the construction of the railroad from Aix-la-Chapelle to Maastricht.

In accordance with Art. 7 of the contract this security was long ago, after the completion of the construction of the railroad, returned to the defendant; in place of this security, an equivalent has not been furnished; a consideration payable but once for the alleged infraction of the mining property does not therefore appear in the premises.

Since, under the circumstances, the defendant may not be regarded as a concessionaire, but as a leaseholder pure and simple, he is responsible for the damage caused to the houses of the plaintiff by reason of the exploitation of the dominial mine (though not the immediate damager himself), not on the ground of the mining law of April 21, 1810, but on the ground of the general provisions of Art. 133ff. of the Civil Code for guilty damage to foreign property.





Washington, September 12, 1914.

Before proceeding to a consideration of the subject for decision, to avoid breaking continuity of statement, it is observed that a motion made by one of the parties to strike out certain documents because not filed in duplicate, and a motion by the other party to eliminate certain papers because they are said to be partial and hence unauthorized, have both been considered and found irrelevant to the determination of the case and the motions are therefore overruled without further statement on the subject.

Moreover, at the threshold I say that when the duty of considering this case as provided in the treaty was undertaken, it was understood that all the documents and papers in the Spanish language would be translated by the parties into English, and therefore such documents will be referred to in the translations which the parties have furnished.

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