The judgment is reproduced on appeal.
AND FURTHER BEARING IN MIND:
1%) By final ruling issued on October 28,
two thousand twenty-two, by the titular judge of the second judicial court of Copiapó,
Mrs. María Teresa Marabolí Vergara, regarding the merits, accepted the
claim filed by Minera Salar Blanco S.A. against the Chilean Treasury, and
the constitution of the extension of the requested mining easement was declared
in the lawsuit in favor of the mining properties called “Cocina 19 al
27”, “Despised 6 and 7”, “Salamis 1 to 3” and “San Francisco from 1 to 10”,
on a total of 2,350 hectares, with respect to the lands owned by the
Chilean Treasury, registered on page 527 turn N* 500, of the Property Registry
of the Copiapó Real Estate Registrar, from the year 1964, located
the easements in the areas whose geographic coordinates were
expressed in the expository of said sentence.
It was also ordered that the easement granted must respect the
public roads or roads for public use that are within its extension, and
other rights constituted in favor of third parties.
The amount of compensation to be paid by the plaintiff to the
defendant, the equivalent of 43,028.5 [sic] unidades de fomento at a rate
of 18.31 unidades de fomento for each hectare of the 2,350 that comprises
the area of the easement, amount to which the value must be discounted
consigned as compensation for the provisional easement, amount that
It will be paid in five annual, periodic and successive installments, and must be paid
the first installment prior to the registration of the
easement, and the following during the month of December of each year
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by registered voucher in the name of the General Treasury of the
Republic.
It was established that the constituted easement shall have as its purposes
those provided by article 120 of the Mining Code, and their duration
will be 25 years or the shorter time that the start-up, exploitation and
closure of the mining project on which the claim is based, counted from the
date on which the sentence is executed.
Finally, it was resolved that once the sentence has been executed, it must
proceed to the registrations, sub-registrations and marginal annotations that
are necessary and thus a copy of the plan of the
easement in the competent Real Estate Registrar, each owing
party bear the payment of its costs.
2%) The aforementioned judgment was rectified on the twenty-eighth of
November two thousand and twenty-two, in its resolutions VI.- and VIII.-, in accordance with the
provided for in article 182 of the Code of Civil Procedure, in the following
terms:
In relation to operative VI.-, the sum to which the
pay the plaintiff, noting that it corresponds to 43,028.5 Units of
Promotion; and likewise, the phrase indicating "the amount to which the
deducting the value already consigned as compensation for the
provisional easement", which was replaced by: amount to which no
No discount will be applied for not having consigned in the cause the amount
set by the Court as compensation for the provisional easement”.
On the other hand, in relation to decision VIII.-, after the comma that follows
to the word "sentence" the following phrase was added: "and paid the first
installment into which the compensation ordered in point VI is divided...”.
3%) Against the judgment of first instance, Mr. Adolfo
Rivera Galleguillos, Copiapó tax attorney, from the Council of
Defense of the State, by the defendant, the Chilean Treasury, and requested the
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revocation of the judgment appealed and, consequently, reject the
claim in its entirety, with costs.
The appeal that is heard by this Court corresponds to the one included in
page 150 of the first instance electronic file, as recorded in
resolution of December 29, 2022, incorporated in folio 157, paragraph
second, of the aforementioned electronic file.
4%) As a first basis, whoever appeals claims for the lack of
requirements of origin of the mining easement.
To the effect, it refers that the plaintiff has not demonstrated
irrefutably the need to grant the mining easement
petitioned, nor that it requires taxing the enormous and disproportionate
extension of 2,350 hectares of the fiscal property.
It adds that the court, for its part, in its analysis of the
documentary and testimonial evidence, in the twenty-second reason for the ruling
challenged, ignores what the plaintiff herself stated in her libel
claimant, that is, who needs the constitution of the lien for "the
development of the Blanco Project, consisting of the mining exploitation of
non-metallic substances in a liquid state present in the brine that form
the ore ofSalar de Maricunga, such as Lithium, Potassium, Boron, Magnesium and
others...", however, the belongings that he postulates as dominant tenement do not
enable it to exploit lithium, a substance that is metallic and not, on the other hand, not
metal as he wanted to make the plaintiff see.
He also considers that in the requested area there are a series of
mining concessions of various holders and that the requested sector is not located
none of the belongings that the mining company postulates as property
dominant in this process.
On the other hand, he alleges that the plaintiff has already been granted, by judgment
in case files C-212-2018, of the third judicial court of Copiapó, based on
the same mining claims, a legal mining easement over
2,542.47 hectares of the property of the Chilean Treasury, for which reason the
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need or justification to encumber another amount of land, adding that the
sentencing omitted pronouncement on the allegations that the prosecutor made
on this point.
5%) For the analysis of this first allegation, it must be taken into account
that the magistracy of merit, in the twenty-first reason of its sentence,
considered proven the existence and ownership by the plaintiff of the
mining belongings called “Kitchen 19 to 27”, “Despreciada 6 and 7”,
"Salamina 1 to 3" and "San Francisco de la 1 ala 10", recognizing the quality of
dominant estates.
Then, in the twenty-second reason, the sentencer elaborated
on the need to grant an extension of the mining easement. So,
prior examination of this requirement, in addition to stating the purpose that in the
demand is indicated for such request and indicate the documentary evidence provided,
files in view and testimonials rendered, concludes "that there is a
serious and concrete project of mining exploitation, and that the easement
The purpose of the petition is to ensure the comfortable exploitation of the
mining belongings owned by the plaintiff that make up the
mining project called "Blanco", for whose development it is necessary
the constitution of the easements of transit and occupation requested in the
demand, consequently, with the merit of the evidence rendered, it will be considered
accredited said requirement”.
Said analysis is shared by this Court when estimating, as it does
the judiciary of merit, that the evidence rendered was sufficient to demonstrate the
need to expand the easement requested in order to (1) install
evaporation pools; (ii) salt deposits; (ii) install plants
production; (iv) installation of camps and other facilities
necessary for the proper maintenance and care of the personnel in charge of the
project operations; (v) occupation and transit through the necessary roads
for travel to and from mining camps and other points
of tasks and plants, all of which is necessary for the comfortabl
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exploitation of the Mining Concessions; (vi) carry out engineering studies
necessary for the Project; (vii) perform all other tasks necessary to carry out
carry out the exploitation and benefit of the Project.
Then, as regards the allegation of having been circumvented by the
sentenced certain expressions of the plaintiff on mineral substances
to be exploited in the Blanco Project, including lithium, which the appellant estimates
was relevant because the mining properties that are postulated as properties
dominant companies do not enable the plaintiff to exploit lithium, it happens
that said claim cannot be attended by the arguments that are
will be developed in reason 8%) of this sentence, in relation to the limits that
the discussion between the parties imposes the magistracy.
Regarding the existence of another easement based on the
same belongings, in the case role 212-2018, of the third court of letters of
Copiapó, on an area of 2,547.47 hectares of the property of the Treasury of
Chile, it should be noted that the sentencing judge considered said file to
reach its conclusion, and although there is no specific analysis on the point,
It is enough to point out that in the answer brief, nothing was said about this
claim, but in general terms the number of hectares was reproached
of tax land that the plaintiff requested, for which reason it cannot now,
who appeals, modify or improve his position or defense in the trial, matter that
will be discussed in more detail in the 7% reason for this failure.
For all of the above, the first argument of the appeal under study will be
discarded.
6%) Secondly, the Chilean Treasury claims in its appeal on
a matter that he calls “the non-reportability of lithium”. About
highlights that the mining properties postulated as dominant properties
"Kitchen 19 to 27" and "San Francisco 1 to 10" were built on chloride of
sodium, and the “Despreciada 6 and 7” and “Salamina 1 to 3” concessions are
producers of Rock Salt, as it consists of the domain vigent who accompanied
the very actor of all of them. Which means that the Salar Mining Society
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Blanco S.A., owner of the aforementioned belongings, can only explore and
exploit said chemical compound and not another mining substance that is located in
the area that makes up the indicated mining properties. Explain that the
Mining Code of 1932 allowed several owners in the same place
geographically, according to the substance that they had denounced, unlike what
occurs in the current Code, where the mining owner becomes the owner of all
the concessionable substances that are in the area.
He affirms that the plaintiff will never be able to exploit the lithium that exists in the
four mining properties already mentioned, so it is surprising that
In the lawsuit libel, the plaintiff named lithium as a substance for
exploit, invoking within the documentary, the exempt resolution advice
legal N*039/2018 of the Chilean Nuclear Energy Commission, of March 7
of 2018.
In such a way, she maintains that if the plaintiff will never be able to explore and exploit
the lithium that is located in her mining belongings, she cannot claim the
present mining easement, since the core of article 120 disappears
of the Mining Code, that is, the purpose of the mining easement to facilitate
the convenient and comfortable exploration and exploitation
She continues her arguments explaining the exclusion of lithium as
mineral substance granted since 1979, leaving its domain, exploration and
exploitation in the exclusive and exclusive property of the State of Chile, except
any case of exclusive operational contract on lithium (CEOL) entered into between
the latter and a third. At this point, he makes his legal theory of why the
The plaintiff does not have the right to exploit lithium, based on the various regulations that
have governed the mining property and in light of the date of constitution of the
four properties postulated as dominant properties in these proceedings.
7%) As a third argument —which will be analyzed together with the
previous argument-, the appellant expounds on the constitutional limitation and
Lithium policy and the governance of salt flats. In this section, it becomes
on previous ideas, and points out that the sentencer, by taxing the area
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petitioned in the record, contravened the Political Constitution of the Republic and the
Mining Code, since, on the one hand, it constituted a mining easement
on the fiscal estate to execute a project that has within its purpose
exploit lithium, a substance to which the plaintiff has no right and
which also affects the National Policy for Non-Metallic Mining and the
Governance of the Salares. Remember the content of article 19 N* 24 of the
Fundamental Charter, pointing out that the constituent not only recognizes and
ensures to all persons without distinction the right to property in all
their species and with all the attributes, but also contemplates
limitations, and in the present case, "the general interests of the nation" are
applies to the property with respect to which the plaintiff requests to establish an easement,
that the land requested is also useful and necessary for the execution
of the so-called "National Policy for Non-Metallic Mining and the
Governance of the Salt Flats", also called "Lithium Policy and the
Governance of the Salares", in compliance with which the State of
Chile the extraction and exploitation of lithium, adding arguments later
relating to the social function of property rights.
8%) Regarding these arguments -second and third- formulated by the
Chilean Treasury when appealing, insofar as the mining belongings of the plaintiff
were constituted on sodium chloride under the validity of the Code of
Mining of 1932, and therefore would lack the ownership to explore and
exploit lithium, along with arguments about the social function of the right to
property and the general interests of the nation, it should be noted that said
allegations have no opportunity as they have not been part of the
response to the claim.
In a recent judgment and on the same matter debated, the
excma. Supreme Court held the following:
Fourth: That the imperative that limits the jurisdictional pronouncement cannot
withdraw from the relevant writings of the process, that is, in the case of the plaintiff,
to the libel of his claim and that of the defendant, of his response to it,
according to what is established in numerals 4 of article 254 and 3
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of article 309, both of the Code of Civil Procedure, which constitutes a
postulate to which both the court and the parties in the
various procedural stages, in such a way that it weighs on the latter to limit
their claims submitted to the trial court, as well as the revisions
later that it intends, to the cause of request contained in these writings
essential.
Lor previously noted, is directly related
with what is regulated in articles 160 and 170 N* 6 of the same Code of
Alluded procedure. The first of these legal provisions
-considered as a positive expression of one of the formative principles or of the
process to which allusion has already been made, that of congruence - establishes that the
Judgments must be pronounced according to the merit of the same, and cannot
be extended to points that have not been expressly subjected to judgment by
the parties (except insofar as the laws authorize or allow to proceed ex officio).
The second of the aforementioned precepts, in line with the recently
transcribed, establishes that the operative segment of the sentence must
be limited to the matter in dispute, which encompasses all actions and
exceptions that have been asserted in court (Excma. Corte Suprema, Rol
N* 13.228-202?, judgment of April 5, 2023).
In this case, adhering to the limits of the discussion, the sentencer
accepted the claim in the terms set forth in the ruling, which she did
correctly if it is considered, on the one hand, that the applicant company
straightened its action of mining easement of occupation and transit in lands
fiscal for the exploitation, convenient and comfortable, of the concessions
mining "Kitchen 19 to 27", "Despreciada 6 and 7", "Salamina 1 to 3" and "San
Francisco de la 1 a la 10”, constituted under the validity of the Mining Code
from 1932, in the Salar de Maricunga, located in this Atacama region; in
Therefore, on the other hand, the Chilean Treasury supported the allegations contained in its
response, in the existence of a possible total or partial overlap of the
surface requested to be encumbered with the easement with respect to the area included
in a special contract for the operation of lithium deposits in the Salar de
Maricunga celebrated by the State of Chile with the Salar de
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Maricunga SpA.; on the need for the plaintiff to prove dominance
respective and justification of the lien that tries on fiscal lands
for the convenient and comfortable exploration and exploitation of its concessions
mining; and in the disproportion of hectares requested to be taxed with the properties
dominant. He also mentioned that lithium is a mining substance that since
1979 has been excluded from those granted, leaving its domain, exploration and
exploitation in the exclusive and exclusive property of the State of Chile,
recognizing that non-reportability is inapplicable to concessions
mining companies prior to 1979, without prejudice to the possible overlap indicated.
Then, the claims that by way of appeal are made by the Treasury of
Chile in the matter addressed in this reason, do not integrate the debate that the
parties delimited in this trial, which makes them questions or issues
strangers to the dispute submitted to the knowledge of the court and therefore not
can be dealt with by this Court of Appeal.
9%) As a fourth and last argument, the appellant alleges about the way in which
that the payment of the indemnity is ordered, since he understands that there is no
merit in the process to divide the payment into five installments, in addition to
be arbitrary, the reasoning of the court being incomplete, which affects
tax interests, when a lien is registered without the
has previously paid the amount of damages.
10%) In this regard, it is appropriate to take into account the provisions
in the first paragraph of article 123 of the Mining Code, which establishes
that:
The constitution of easements, their exercise and compensation
corresponding will be determined by agreement of the interested parties
in public deed, or by judicial resolution. May be agreed or resolved
Whether the compensation is paid all at once or on a periodic basis.
Notwithstanding the power granted by the transcribed article to the magistracy
to determine a periodic payment, it is understood by this Court of
Appeal that to make use of said power there must be a request from the
interested in this sense, since it does not follow from said legal text that this
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be an informal faculty, and in this case, once the claim has been reviewed, there is no
any request in its content.
However, it happens that the appeal brief also incurs a
omission, since although it is reproached about the payment in installments ordered by the
base court, as already stated, no application is made to its
regarding this Court, what is visible from the mere reading of the brief of
appeal, specifically in its petitioning part.
As is well known, in civil matters, in accordance with the provisions of Article
article 189 of the Code of Civil Procedure, the appeal as a general rule
must be written, must contain the factual and legal foundations in
which is supported, and must contain specific requests. On matter,
Maturana Miquel argues that:
An appeal brief contains concstraight, precise and clear
when the appellant indicates to the appellate court in which sense he should make the
modification and what is the resolution that is requested to be issued in replacement of the
first instance. Therefore, an appeal brief will not contain
specific requests if the appellant merely says to revoke the
decision appealed in a certain part, without expressing the statement sought
in substitution (Maturana, 2015:180)' .
Then, it happens that because of the shortcoming noted, in this aspect, the
appeal cannot be heard.
11%) On the background accompanied in second instance by the
parties, it should be noted that all those that deal with sentences
illustrative information that could be used to resolve this case, have
have been taken into account by this magistracy in appeal, as requested,
but without losing sight of the relative effect of the sentences; in regards
to the legal reports accompanied by the plaintiff, must
be to what is reasoned in the present sentence, especially in its motive
1 Maturana, C. (2015). The Resources of the Code of Civil Procedure in the Doctrine and the
Jurisprudence, Santiago, Thomson Reuters.
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8”); and with regard to the plan accompanied by the defendant, as well
as the files requested to bring to view, all of them fail to vary the
opinion and reasoning expressed in the preceding grounds.
For these considerations, cited legal norms and seen in addition, what
provided in articles 186 and following, IT IS DECLARED:
That the final judgment handed down dated
October twenty-eighth of two thousand and twenty-two, rectified on the twenty-eighth of
November of the same year, by the titular judge of the second court of letters
from Copiapó, Mrs. María Teresa Marabolí Vergara.
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This ruling was drafted trying to follow the recommendations
prepared by the working group “Justice and Clear Language: For the right
of the citizen to understand Justice”? of the XVII Judicial Summit
Ibero-American, disseminated to the judiciary of our country by the Commission
Clear Language of the Chilean Judiciary (available at
https://vww.pjud.cl/documentacion).
Drafted by Minister Aída Inés Osses Herrera.
Civil role No. 566-2022.
Aida Inés Osses Herrera Rodrigo Miguel Cid Mora
MINISTER MINISTER
Date: 05/10/2023 15:15:03 Date: 05/10/2023 15:10:20
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Pronounced by the First Chamber of the Court of Appeals of Copiapó made up of the Ministers, the Minister
Mrs. Aida Inés Osses Herrera, Minister Mrs. Marcela Araya Novoa and Minister (I) Mr. Rodrigo Cid Mora. No
Mrs. Minister Araya signs, despite having attended her sight and her agreement, for being absent with Permission
347 of the Organic Code of Courts. Copiapó, May 10, two thousand twenty-three
In Copiapo, on May 10, 2023, I notified the Secretariat for the Daily State of the resolution
preceding.
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