(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.” *417I 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, provided that they are all done before intervening rights of third persons attach. In Mining Co. v. Tunnel Co., 196 U.S. 337, 25 S.Ct. 266, 49 L.Ed. 501, the court affirmed that doctrine, and held, in construing the words of section 2320, R.S. (30 U.S.C.A. § 23), “no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located,” that it is not required that discovery must be made before marking the boundaries, or that no location shall be considered complete until discovery, but that the statute means nothing more than that the fact of discovery shall exist before the vesting of the right of exclusive possession which attends a valid location. In 1 Lindley on Mines (2d Ed.) § 330, it is said: “The order in which the several acts required by law are to be performed is nonessential, in the absence of intervening rights.”
In Redden v. Harlan, 2 Alaska, 402, the court said: “The marking of the boundaries may precede the discovery and recording, or the recording may be first, and if all three are performed, though not within the time fixed by law or the rules and regulations, before other rights intervene or attach to the land, it is sufficient and the claim will be valid.”
The location of the claim in the present case was not complete until the last step was taken, the filing of the location certificate. At the time when that certificate was filed the power of attorney, duly executed and acknowledged, was also filed for record. It is well settled that to file an instrument for record is to record it under statutes requiring recordation of instruments. Farabee v. McKerrihan, 172 Pa. 234, 33 A. 583, 51 Am.St.Rep. 734; Shebel v. Bryden, 114 Pa. 147, 6 A. 905; Wagon Co. v. Hutton, *41853 W.Va. 154, 44 S.E. 135; Eufaula Nat. Bank v. Pruett, 128 Ala. 470, 30 So. 731; Fairbanks v. Davis, 50 Vt. 251. In 34 Cyc. 588, it is said: “An instrument is ordinarily deemed to be recorded when its holder leaves it with the proper officer for the purpose of being recorded, even though it is not then actually recorded.”
The power of attorney and the certificate of location were therefore recorded on the same date. There are two reasons why we may assume that the former was filed and recorded before the latter. One is that the law will presume that, of the two instruments filed at the same time, that was first recorded which the statute required first to be recorded. Another is that there is no evidence that the power of attorney was not recorded first. “Every reasonable doubt will be resolved in favor of the validity of the mining claim as against the assertion of a forfeiture.” 27 Cyc. 600. In a case similar to this Judge Hawley for this court said: “The word 'forfeiture’ 'is not used in the statute, although it is a comprehensive word to express results which flow from a failure to comply with the law.” McCulloch v. Murphy (C.C.) 125 F. 147.
In that case this court held that the burden of proof to establish forfeiture rests upon him who asserts. it. And so in the present case, the burden of proof rests upon the plaintiff in error to show that the power of attorney was not recorded before the certificate of location.
The agent of the defendant in error started out to prospect for a placer claim, having in his possession a power of attorney duly executed and acknowledged, intending, no doubt, to record the power of attorney in case he made a discovery which justified a location for his principal. When he had made that discovery and marked the claim, he placed the power of attorney and the location certificate in the hands of the recorder for record. No rights of others intervened until some weeks thereafter, when the plaintiff in error attempted to locate the same land. An earlier record of the power of attorney would have been an idle act. It could have served no useful purpose. The act of Congress does not say that the power of attorney must be recorded before the initiation of any of the acts of location. It is a harsh and narrow construction that gives *419to the act that meaning, and it is a construction which is contrary to the liberal teaching of Mining Co. v. Tunnel Co., supra, and numerous other decisions.