42 P. 504 | Idaho | 1895
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
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
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.
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.