Sutherland v. Purdy

ROSS, Circuit Judge. 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 has left that matter to legislation by the states or to regulation by the miners. Sturtevant v. Vogel, 167 F. 448, 458, 93 C.C.A. 84, and references there made. But on August 1, 1912, Congress enacted this statute in respect to placer mining claims in that territory: “Sec. 129b. That no person shall hereafter locate any 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 in any recorder’s office in the judicial division where the location is made. Any person so authorized may locate placer mining claims for not more than two individuals or one association under such power of attorney, but no such agent or attorney shall be authorized or permitted to locate more than two placer mining claims for any one principal or association during any calendar month, and no placer mining claim shall hereafter be located in Alaska except under the limitations of this act. “Sec. 129c. That no person shall hereafter locate, cause or procure to be located, for himself more than two placer mining claims in any calendar month: Provided, That one or both of such locations may be included in an association claim. “Sec. 129d. That no placer mining claim hereafter located in Alaska shall be patented which shall contain a greater area than is fixed by law, nor which is longer than three times its greatest width. “Sec. 129e. That any placer mining claim attempted to be located in violation of this act shall be null and void, and the whole area thereof may be located by any qualified locator as if no such prior attempt had been made.” [415] Compiled Statutes of Alaska. The contention of the plaintiff in error is that the location made by Gates as attorney in fact for Purdy was made prior to the recordation of the power of attorney and for that reason was void. The fact is conceded, and the question of law for decision is whether such attempted location is of any validity. The general statute of the United States regarding the location of mining claims is found in Revised Statutes, § 2324, as amended January 22, 1880 (30 U.S. C.A. § 28 and note), and reads in part as follows: “The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the * * * names of the locators, the date of location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year.” It is undoubtedly well settled that the order in which the several acts so required by this general law of Congress are to be performed is nonessential in the absence of intervening rights. Creede & C. C. M. & M. Co. v. Uinta T. M. & T. Co., 196 U.S. 337, 25 S.Ct. 266, 49 L.Ed. 501; Lindley on Mines (3d Ed.) § 333; Brewster v. Shoemaker, 28 Colo. 176, 63 P. 309, 53 L.R.A. 793, 89 Am.St.Rep. 188. But in the present case we have a special statute of Congress in regard to placer mining claims situate in the territory of Alaska, in terms declaring that no person shall hereafter locate any such claim as attorney for another unless he is duly authorized thereto by a power of attorney in writing, duly acknowledged and recorded in a prescribed office, and expressly declaring that no placer mining claim [416] shall hereafter be located in Alaska “except under the limitations” of said act, and that any such claim located in violation of the “act shall be null and void.” Whatever the reasons that caused Congress to prescribe conditions in regard to the location of such claims in Alaska essentially different from those applicable to other portions of the country, its language is, we think, perfectly clear and unmistakable and of course must be taken to mean what it says. This view renders it unnecessary to consider the ruling of the trial court admitting parol evidence of the contents of the power of attorney in question. In the recent case of Cloninger v. Finlaison, 230 F. 98, 144 C.C.A. 396, decided by this court February 7, 1916, after holding that the notice of location of the mining claim there in controversy was fatally defective, it was in the opinion said: “We think, also, that the judgment of nonsuit is sustainable on the ground that the plaintiff failed' to show that the power of attorney fro,m the defendant to Taylor was not recorded. We are of the opinion that the location of a mining claim in Alaska under a power of attorney is valid, if the power of attorney is duly recorded at any time before adverse rights accrue, or location is attempted to be made of the same ground by another.” No mention of the act of August 1, 1912, was there made, and it is manifest that that clause of the opinion was unnecessary to the decision of' the case. For the reasons above given, we think that what was thus unnecessarily said upon the subject was erroneous. The judgment is reversed, and the cause remanded to the court below for a new trial.