Section 2319. No requirement that the citizen shall be of any particular age is expressed; and, unless we are prepared to affirm that minors are not citizens, we do not see how we can say that they are not entitled to the benefit of the act This conclusion is strengthened by the circumstance that in some instances the statute expressly requires that the citizen shall be of age. Thus, in reference to coal lands, the provision is that "every person above the age of twenty-one years who is a citizen of the United States," etc. Section 2347. So with reference to homesteads the provision is that "every person * ** over the age of twenty-one years, and a citizen," etc. Section 2259. The expression of a requirement as to age in some instances, and the omission of it in others, is significant. Nor is there any reason in the nature of things why a minor may not make a valid location. After the preliminary steps are taken, all that is required is that a certain amount of work shall be done. If the minor can do it, or can get any one to do it for him, the condition imposed by the statute is fulfilled. If he cannot, his claim lapses, and the mine is open to location by others. It may be added that, so far as we know, it is the practice, in many mining communities, for minors to locate claims. Did the father's want of authority from his children invalidate the notice as to them? He testified as follows: "I had no power of attorney to sign the notice for my children, nor to authorize Mr. Price to sign their names. None of them gave me or him authority to sign their names. * * * I acted for them, but without their knowledge, until after their names were signed, notice recorded and posted." Unless there is an implication from the foregoing that he acted with their knowledge after their names were signed, etc., it does not appear that there was any ratification by all the children, except the bringing of the suit. It cannot be doubted that the location of a mining claim may be. made by agent, (Gore v. McBrayer, 18 Cal. 587); and wherever there is a local custom to that effect, it is not necessary that the person in whose name a location is made should be aware that it has been made, (Morton v. Solambo Co., 26 Cal. 534). In the absence of evidence of such a custom, we think that there must be either authority in the first instance or a ratification. Whether a ratification will be presumed, in accordance with what is said in Gore v. McBrayer, above cited, and whether, if presumed or proven, it will relate back. to the posting, so as to cut off intervening rights (compare Hibberd v. Smith, 67 Cal. 547, 4 Pac. Rep. 473, 8 Pac. Rep. 46), need not be decided; for the bringing of the suit, which must be taken to have been by authority, is a sufficient ratification; and, as far as the record goes, we cannot know that there were any intervening rights,-the assertions in the answer being denied by force of the statute, and the defendant not having introduced any evidence. * * * We therefore advise that the judgment be reversed, and the cause remanded for a new trial. BY THE COURT.-For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded for a new trial. DUNLAP ET AL. v. PATTISON. 1895. SUPREME COURT OF IDAHO. 4 Idaho 473, 42 Pac. 504. Action [in support of an adverse brought] by Rufus E. Dunlap and Archibald Smith against Moses Pattison. Judgment for plaintiffs, and defendant appeals. Reversed. * MORGAN, C. J.-** 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 Pattison, his attorney in fact, and was 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 make the affidavit; that, in the case before the court, John K. Waite was the locator, and the only locator. * * * Section 3104 of the Revised 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: 'I, -, 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, 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 any one for him or with his assent or approval, and assent 8 "Where a minor old enough to prospect and work locates a claim we do not see why his minority should invalidate his title, but the use of the names of minor children to obstruct creditors or for other sinister purpose should certainly be unable to resist attack in proper form." Morrison's Mining Rights, 14 ed., 70. will be presumed." In the above case 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 co-locators 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, Rev. St., 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 better, 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 mountainous 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 that 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. 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 6-MINING LAW 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 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 his knowledge. Of course, the agency must be shown by sufficient evidence. Judgment and decree reversed. Costs awarded to appellant. Section 4.-United States Mineral Surveyors and Other Officers, Clerks and Employees in the General Land Office. WASKEY ET AL. V. HAMMER ET AL. 1912. SUPREME COURT OF THE UNITED STATES. Mr. Justice Van Devanter delivered the opinion of the court: This was an action of ejectment, the subject-matter of which was the overlapping portions of two placer mining claims in Alaska, one known as the Golden Bull and the other as the Bon Voyage. The plaintiffs claimed the area in conflict as part of the Golden Bull, and the defendants claimed it as part of the Bon Voyage. The facts, as they must be accepted for present purposes, are these: In 1902 the Bon Voyage was located by J. Potter Whittren, he having previously made a discovery of placer gold within the ground. which he included in the claim. Although not intended to be excessive, the claim embraced a trifle more than 20 acres, the maximum area permitted in a location by one person. In 1903 Whittren, upon ascertaining that fact, drew in two of the boundary lines sufficiently to exclude the excess, and in doing so left the point or place of his only prior mineral discovery outside the readjusted lines. Later in 1903, he made a discovery of placer gold within the lines as readjusted. At the time of drawing in the lines and making the subsequent discovery he was a United States mineral surveyor, but was not such at the time of the original location. In 1904 the Golden Bull was located by B. Schwartz, and included a part of the ground embraced in the Bon Voyage. Neither claim was carried to patent or entry, and when the action was begun the defendants were in possession. The plaintiffs other than Schwartz claimed under him, and the defendants other than Whittren claimed under conveyances from him, made after 1904. Upon the trial the court, at the instance of the plaintiffs, directed a verdict in their favor, substantially upon the following grounds, taken collectively: 1. A discovery of mineral within the limits of a mining claim is essential to its validity; 2. The original location of the Bon Voyage was invalidated by the readjustment of its lines whereby the point or place of the only prior discovery of mineral was left without those lines; 3. The readjusted location was invalid because, at the time of the discovery of mineral therein, Whittren, being a United States mineral surveyor, was disqualified to make a location under the mining laws. The jury returned a verdict as directed, judgment was entered thereon, the judgment was affirmed by the circuit court of appeals for the ninth circuit (95 C. C. A. 305, 170 Fed. 31), and the case is here upon certiorari (216 U. S. 622, 54 L. ed. 641, 30 Sup. Ct. Rep. 577). Conceding that the unintentional inclusion of a trifle more than 20 acres in the Bon Voyage as originally located was an irregularity which did not vitiate the location, but merely made it necessary that the excess be excluded when it became known (Richmond Min. Co. v. Rose 114 U. S. 576, 580, 29 L. ed. 273, 274, 5 Sup. Ct. Rep. 1055; McIntosh v. Price, 58 C. C. A. 136, 121 Fed. 716; Zimmerman v. Funchion, 89 C. C. A. 53, 161 Fed. 859), we come to consider whether the location was invalidated when, by the readjustment of its lines, it was left without a mineral discovery therein. The mining laws, Rev. Stat. §§ 2320, 2329, U. S. Comp. Stat. 1901, pp. 1424, 1432, make the discovery of mineral "within the limits of the claim" a prerequisite to the location of a claim, whether lode or placer, the purpose being to reward the discoverer and to prevent the location of land not found to be mineral. A discovery without the limits of the claim, no matter what its proximity, does not suffice. In giving effect to this restriction, this court said, in Gwillim v. Donnellan, 115 U. S. 45, 29 L. ed. 348, 5 Sup. Ct. Rep. 1110, 15 Mor. Min. Rep. 482, that the loss of that part of a location which embraces the place of the only discovery therein is "a loss of the location." Possibly what was said went beyond the necessities of that case, critically considered, but it illustrates what naturally would be taken to be the effect of the statute; and as that view of it has been accepted and acted upon for twenty-five years by the Land Department and by the courts in the mining regions, it should not be disturbed now. It follows that when, in 1903, Whittren excluded from the Bon Voyage the only place at which mineral had been discovered therein, he lost the location. That his purpose was not to give up the location, but only to eliminate the excess in area, is immaterial, because, although free to exclude any other part of the claim and to retain that embracing the discovery, he excluded the latter, and thereby caused the location to be without a discovery within its limits. Possibly, as was |