Northern Mining & Trading Co. v. Alaska Gold Recovery Co.

I concur only in the view that the second order is not materially different from the first, and must therefore be reversed. But, adhering to the views expressed in my former dissent, I do not think the cause should be dismissed.

This case was before us on a former appeal and writ of error, where a full statement of the facts will be found. Northern Mining & Trading Co. v. Alaska Gold Recovery Co., 20 F. (2d) 5. On the former review we held that the purpose for which the property was sought to be taken was not authorized by law, saying:

We were further of opinion that the entire purpose of the appropriation was unauthorized, saying:

The judgment was thereupon reversed and the case remanded to the court below for further proceedings, permitting the plaintiffs to claim only such rights as they were entitled to claim under the law as construed by this court, if so advised. After the remand, the court entered a second order authorizing the appropriation of the identical property described in the former order and for practically the same purposes.

The only question with which we are concerned at this time is: Did the court below carry out the mandate of this court? Manifestly, it did not. The property appropriated consisted of approximately an acre, described as follows:

*414 From the foregoing description and from the entire record it becomes at once apparent that the property is not sought or appropriated…