Dunlap v. Pattison

MORGAN, C. J. Appellant claimed to own a consolidated placer mining claim in Eagle mining district, Shoshone county, Idaho, called the Noonday, Midnight, No. 9, and No. 10 placers, -and made application for patent; and thereupon the respondents, claiming to own the Roanoke and Break of Day placers, •conflicting almost entirely with No. 9 and No. 10 placers, filed iheir protest and adverse claim in the land office in Coeur •d’Alene City, Idaho, and within the statutory time brought this action, which is an adverse suit. The appellant answered the complaint, and denied the validity of the location of the Roanoke placer claim and the Break of Day, and alleged the location and ownership of placer claims Nos.- 9 and 10, and title in himself. To prove title in the appellant, he introduced a power of attorney from John R. Waite, making and constituting the said defendant, Moses Pattison, his true and lawful •attorney for himself (Waite), and in his name, place, and •stead, to and for the purpose of locating in his name certain ground on Eagle creek, Shoshone county, Idaho, for placer mining purposes, giving and granting unto him (the said attorney) power and authority to do and perform all and every •act and thing whatsoever required and necessary to be done in and about the premises,- as fully to all intents and purposes as the said Waite might or could do if personally present. Thereupon the appellant offered in evidence a location notice, which was identified as the location notice of claim No. 9, which said notice was excluded by the court, for the reason that the claim was located in the name of John K. Waite by Moses [475] Pattison, his attorney in fact, and ivas sworn to by Moses Pattison, instead of John K. Waite, the locator named in the notice; the court holding that nobody but one of the locators ■could made the affidavit; that, in the case before the court, John K. Waite, was the locator, and the only locator. The location notice of placer mining claim No. 10 was then offered in ■evidence, and v/as the same in all respects as that of No. 9, except that the location was made in the name of Alexander Pearson, by Moses Pattison,. as attorney in fact, the name of Pearson only appearing in the notice as the locator, and wa« sworn to, as No. 9, by Moses Pattison. This location notice was excluded also, for the same reason as that given for the exclusion of No. 9. Both these rulings were excepted to by the defendant, and the case is brought to this court on appeal; the only error contended for being the ruling of the court, as •above stated, in excluding this notice. Section 3104 of the Bevised Statutes of Idaho provides that ■“at the time of presenting a notice of location for record, or within five days thereafter, one of the locators named in the ■same must make and subscribe an affidavit in writing on or attached to the notice, in the following form, to wit: %-, do solemnly swear that I am acquainted with the mining ground described in the notice of location herewith, called the-ledge; that the same has not to the best of my knowledge and belief been before located according to the laws of the United States and this territory, or, if so located, that the same has ■been abandoned or forfeited/ ” etc. It is contended on the part of appellant that the construction by the court of the literal language of the statute, requiring one of the locators named in the notice to make the .foregoing affidavit, is too narrow. In the case of Schultz v. Keeler, 2 Idaho, 333, 13 Pac. 481, this court held that a valid •location of a mining claim could be made through an agent; and in Gore v. McBrayer, 18 Cal. 587, the court holds that “it is not necessary that a party should act personally in taking up •a claim, or in doing the acts required to give evidence of the -appropriation, or to perfect appropriation; and that such acts -are valid if done by anyone for him or with his assent or ap [476] proval, and assent will be presumed.” In the above ease the notice contained the name of the locator, as well as those for whom location was made. In Morton v. Mining Co., 26 Cal. 530, the court holds that a person may locate a mining claim in. the name of himself and others named in the notice of location, and, when so located, title will be good in the others not present and having no notice of the location. One of several colocators of a mining claim may cause a notice of a mining-claim to be recorded in the name of himself and others not present, and the location will be good. (Kramer v. Settle, 1 Idaho, 485.) It will also be seen that section 3101 of the Revised Statutes provides that the locator of any lode mining-claim must, at the time of making the location, place a substantial stake or post, not less than four inches square, etc.; and yet this and every other act necessary to be done by the-locator to make a valid location may be done by an agent, although the statute distinctly states that the locator must do-these things. Further, the statute provides that the recorder must record the claims, and yet the recorder may do this by his deputy or agent, or by a mere clerk in the office, although the clerk may have neither power of attorney to act, nor even written authority of any kind, nor is it necessary that he be a sworn officer, and his acts are as valid as if performed by the-recorder himself. The courts have repeatedly held that claims may be located by an agent, as well as by the principal. There would seem to be no reason why this affidavit might not be as-well made by the agent as by the principal; in fact Letter, as, in case the claim was located by an agent, he would be the person acquainted with the facts necessary to be stated in the affidavit —as “that he was acquainted with the mining ground described,, that it had not been theretofore located, or that it had been abandoned.” If the person named in the notice must, of necessity, make the affidavit, then such person must, before completing the location, go upon the ground in person to acquaint himself with the facts necessary to be stated in the affidavit. It is, and was when this law was passed, a well-known custom of the country to employ prospectors to go into the mountainous477 country and search for mines. These men ordinarily had no money, and money, provisions, horses, tools, and supplies of ■every kind were furnished by men who had the means to do so, but could not themselves go; but, if they must go to make this affidavit, then they might as well do the work. It will be seen fhat the narrow construction of this statute contended for would at once destroy the whole business of outfitting men to prospect for mines, by which means probably three-fourths of all the mines in the country were discovered. It cannot be that the legislature intended this. If the prospector inserts his own name in the notice of location as one of the locators, wherein does that change his relation to the others named in the notice ? He must make the affidavit for them, as well as himself. If he can do this, why can he not make it wholly for them ? The main thing required by the legislature (section 3104) is an affidavit that the party making it is acquainted with the mining ground, that it has not been located, or, if located, has been abandoned. These are the important facts. Who makes the affidavit is not important, so he is acquainted with the facts. We must be careful that we do not overlook the spirit — the reason — of the law in a mentally blind effort to follow the words. Such statutes, being directory only, in unimportant particulars should be liberally construed. Such construction is not without authority in similar cases. A statute which requires something to be done by a person would be complied with, in general, if done by another for him, for it is a general principle of law that “qui facit per alium facit per se.” (Endlich on Interpretation of Statutes, sec. 105.) On this ground it is held that, where the statute required an oath to be administered by the court or judge, it was complied with if the -oath was administered by the clerk of the court. (Oaks v. Rodgers, 48 Cal. 197.) So an Irish statute which gave a tenant for life or for more than fourteen years the right to fell ■trees planted by him, and required the tenant so planting to hie an affidavit that they were planted by him, the form of which, in the act, purported to be made by the tenant personally, was held to be satisfied by the affidavit of the tenant’s agent. [478] A different construction, it was said, would have rendered tbe act inapplicable to most of the cases which it had in view.. (Earl of Mountcashell v. O’Neill, L. R. 5 H. L. 937.) We think the construction given to the statute by the court below was never intended by the legislature, and that, as the location may be made as well by the agent or attorney in fact of the locator, so every act necessary thereto may also be performed by such agent or attorney, if the facts required are within Ms knowledge. Of course, the agency must be shown by-sufficient evidence. Judgment and decree reversed. Costa awarded to appellant. Huston and Sullivan, JJ., concur.