Direito minerário: indenização do proprietário e do posseiro pelo desgaste do solo.

Abstract

This work possesss as central focus the question of the indemnity of the superficiario in face of the Minerario Right. Through the exegetico-legal method, with the use of concernentes codes and doctrines to the right of property of the ground and the subsoil in mining area, one searchs to base and to emphasize the necessity of a urgent solution to the existing impasses between the native legislation and the efetivagao of the joust indemnity for the proprietor and/or one who holds legal title to property whom its wronged property in reason of the ore exploration had in corresponding subsolos its property. Considering the historical evolution of the property and Brazilian the Minerario Right, as well as the current regulation of this subject, it intends through a related study the important doctrinal definitions, as the mineral trustee and the double property, to evidence the legal protection that receives, hodiernamente, the superficiario. With this pretension, they are approached: the mineraria property, as well as its different regimes legal the one that was submitted, in diverse phases of the History of Brazil; the constitutional protection given to this basic right; e the product of cultivates as constitutional guarantee. The value of the indemnity and income to the proprietor of the ground is questioned just, as fact legalized for the Minerario Right, but with little efetivagao in the pragmatic scope, thus causing insatisfagao on the part of the proprietor and/or one who holds legal title to property of the ground in result of the decurrent damages of the mineraria exploration. By means of the analysis of the right to the exploitation of the mineraria property, it will be presented possibility that has the accomplishment of minerarias activities to cause damages and damages to the ground. The criteria for the calculation of the income and the indemnity are always distinguished, sending themselves to the Code of Mining. E finally, emphasizes it instauration and the rite of the legal action of income and indemnity, as well as the legal action to allow cultivates it, under any regimen; e the chance of the payment of the indemnity and income, in cultivates, as instrument to assure the right of compensation to the proprietor and/or one who holds legal title to property of the ground. Of this form, objective to determine the scope of performance of the proprietors and/or one who holds legal titles to property and in priority to detach ahead until where it covers right Reals of indemnities, of the possible disable of the ground.