Sutherland

The questions presented by the writ of error on which this case comes here are whether under the act of Congress of August 1, 1912, a power of attorney, authorizing the location in Alaska of placer mining claims by one for another, is required to be recorded before any step in the matter of such location can be taken, and as to whether the court below erred in allowing parol proof of the contents of the power of attorney under which the placer mining claim in controversy was located for the defendant in error, Purdy, by one G. L. Gates. Subsequent to that location a part of the same ground was included in a location made by the plaintiff in error, Sutherland, who, as *414 plaintiff in the court below, brought the present action against Purdy to dispossess him.

Prior to August 1, 1912, any citizen of the United States and any one who had declared his intention to become such could locate lode or placer claims in Alaska, as elsewhere in the United States, without limit as to number, and could make such locations as agent for another without having any power of attorney authorizing him to do so. And Congress never at any time required the location of such claims to be recorded, but…

(dissenting).

The substance of the act of Congress of August 1, 1912, is that no one shall locate a placer mining claim in Alaska as attorney for another “unless he is duly authorized thereto by a power of attorney in writing, duly acknowledged and recorded.” The question here is whether that statute was complied with. I contend that it was. The opinion of the majority of the court contains the erroneous statement that the fact is conceded that the location made by Gates as attorney in fact for the defendant in error “was made prior to the recordation of the power of attorney.” *417 I find no such concession in the record. On the contrary, the court below held, and the defendant in error contends, that the power of attorney was recorded before the location was made. It is true that the discovery was made, and the boundaries were marked before the power of attorney was filed for record, but those acts are but two of the acts requisite to make a location. To locate a placer claim in Alaska, three acts are necessary: Discovery, marking the claim, and recording the location certificate. The courts have uniformly held that the order in which these acts are done is unimportant,…