Acting under this direction, your office, by decision of July 10, 1900, held, in substance: (1) That the land in controversy had been determined to be mineral in character by the departmental decision of October 29, 1896, in the case of Goldstein v. Juneau Townsite, supra, and that such a determination is binding in this proceeding; (2) that a portion of the land applied for was embraced in a government reservation prior to and at the time of the location of the Bonanza claim, and should, for that reason, be excluded from said claim; and (3) that an amended survey should be made, to properly describe such exclusion, and to reform the lines of the claim in other particulars not material to be here mentioned. Subject to these modifications and requirements, the application for mineral patent was sustained and the protests dismissed.

Appeals from said decision have been filed by both the protestants and the mineral applicant.

The protestants attack this decision of your office to the extent that the application for mineral patent is thereby sustained and their protests dismissed. Among other things, they allege that the issues raised by their protests involve the character of the land for which mineral patent is sought; that said land does not contain valuable mineral deposits and is not subject to disposal under the mining laws; that the departmental decision in the case of Goldstein . Juneau Townsite, supra, is not an adjudication, determinate and conclusive against them, upon the question of the character of the land, or upon any other matter presented by their protests; that grave errors were committed in said departmental decision (1) in placing the burden of proof upon the applicant for townsite patent, (2) in holding the land covered by the alleged Bonanza location to be mineral in character, (3) in considering evidence relating to conditions which were not known to exist until after the date of the townsite entry, and (4) in not determining the character of the land upon the conditions as they existed and were known at the date of the entry. They ask that the decision appealed from be reversed; that the departmental decision of October 29, 1896, in the case of Goldstein . Juneau Townsite, be recalled and vacated; that the townsite entry of October 13, 1893, to the extent canceled by said departmental decision, be reinstated; and that supplemental patent be issued to the townsite trustee to embrace the land excluded from the entry by such cancellation.

The errors assigned in the appeal by Goldstein, the mineral applicant, deny the correctness of your office decision with respect to the government reservation thereby held to have excluded from the mineral location a portion of the land included in the Bonanza claim, and also with respect to the amended survey thereby required. It is contended that the land in controversy having been found to be mineral in character by the departmental decision in the case of Goldstein

v. Juneau Townsite, that finding is final and conclusive; that no part of the land included in said claim was ever embraced in any reservation established by the government; that there is no necessity for an amended survey of the claim applied for; and that mineral entry should be allowed and patent issued upon the existing survey and application.

In view of the matters presented by the record, and by the appeals and arguments filed in support thereof, the Department, being convinced that its decision of October 29, 1896, in the case of Goldstein 2. Juneau Townsite, should be reviewed and reconsidered, notice was given to all parties interested that an oral hearing would be had, at which they could present any claim or contention they might desire upon the questions involved in said decision. In response to the notice the parties all appeared by counsel and were heard both in oral argument and upon printed briefs.

That the subject-matter of the departmental decision of October 29, 1896, is still within the jurisdiction and control of the land department, there can be no doubt. The legal title to this land is still in the government.

It was held by the supreme court, in the case of Michigan Land and Lumber Co. v. Rust (168 U. S., 589, 592–3), as follows:

Generally speaking, while the legal title remains in the United States, the grant is in process of administration and the land is subject to the jurisdiction of the land department of the government. It is true a patent is not always necessary for the transfer of the legal title. Sometimes an act of Congress will pass the fee. Strother v. Lucas, 12 Pet., 410, 454; Grignon's Lessee v. Astor, 2 How., 319; Chouteau v. Eckhart, 2 How., 344, 372; Glasgow v. Hortiz, 1 Black, 595; Langdeau v. Hanes, 21 Wall., 521; Ryan . Carter, 93 U. S., 78. Sometimes a certification of a list of lands to the grantee is declared to be operative to transfer such title, Rev. Stat., 2449; Frasher v. O'Connor, 115 U. S., 102; but wherever the granting act specifically provides for the issue of a patent, then the rule is that the legal title remains in the government until the issue of the patent, Bagnell v. Broderick, 13 Pet., 436, 450; and while so remaining the grant is in process of administration, and the jurisdiction of the land department is not lost. . . . In other words, the power of the department to inquire into the extent and validity of the rights claimed against the government does not cease until the legal title has passed.

In Beley. Napthaly (169 U. S., 353, 364) the court said:

The fact that a decision refusing the patent was made by one Secretary of the Interior, and, upon a rehearing, a decision granting the patent was made by another Secretary of the Interior, is not material in a case like this. It is not a personal but an official hearing and decision, and it is made by the Secretary of the Interior as such Secretary, and not by an individual who happens at the time to fill that office, and the application for a rehearing may be made to the successor in office of the person who made the original decision, provided it could have been made to the latter had he remained in office.

See also, on the same subject, Knight . U. S. Land Association (142 U. S., 161, 181); Brown . Hitchcock (173 U. S., 473); Hawley

. Diller (178 U. S., 476); Parcher. Gillen (26 L. D., 34, 39-41); Aspen Consolidated Mining Company . Williams (27 L. D., 1, 5, 11). It appears that after the decision of October 29, 1896, in the case of Goldstein. Juneau Townsite, supra, had been promulgated and notice thereof given to the parties, and before the thirty days allowed for filing a motion for review had elapsed, the attorney for the townsite trustee, apparently for the purpose of expediting the issue of patent for that portion of the land embraced in the townsite entry which was not affected by said decision, filed in your office a written waiver of "all rights of review, rehearing, or reconsideration." It is contended that the effect of this waiver was to preclude the townsite occupants of the land now in question from thereafter questioning said decision. The Department is not favorably impressed with this contention. It is not stated in said waiver, nor can it be reasonably inferred therefrom, that its purpose was to preclude the occupants of this portion of the townsite from thereafter applying to the Secretary of the Interior for the correction of any prejudicial errors or mistakes in said departmental decision. Moreover, it is doubtful whether it was within the authority of the townsite trustee to waive any rights of these occupants, in the absence of some assent by them, and the history of these proceedings shows that such assent was never given or intended. If serious errors were committed in the former departmental decision it is not only within the power of the Secretary of the Interior, but it is his duty, to see that they are corrected before patent is issued for the land. As was said by the supreme court in Knight . U. S. Land Association, supra:

It makes no difference whether the appeal is in regular form according to the established rules of the Department, or whether the Secretary on his own motion, knowing that injustice is about to be done . . . . takes up the case and disposes of it in accordance with law and justice. The Secretary is the guardian of the people of the United States over the public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is wasted or is disposed of to a party not entitled to it. He represents the government which is a party in interest in every case involving the survey and disposal of the public lands.

Believing that the interests of the government and of the contending parties require it, the Department has caused the record upon which its said decision of October 29, 1896, was based to be carefully re-examined. From such re-examination it appears that the townsite entry was made without protest or objection from anyone, upon proofs showing all the land embraced therein to be non-mineral in character, and after notice of the application for townsite patent had been regularly published and posted as required by law and official regulations. Goldstein's protest, wherein the land claimed under the Bonanza location was alleged to be mineral in character, was filed more than seven months after the townsite entry had been made. The principal

issue raised by that protest was the character of the land. The Department, in rendering its decision of October 29, 1896, placed the burden of proof upon the townsite entryman. The reason for so doing was stated as follows:

The townsite application and entry made pending the mineral location, and with a view to obtaining patent to the entire interest in all the land included in said mineral location, puts the townsite in the attitude of asserting the non-mineral character of all of said land, and of assuming the burden of establishing that fact by proof.

The rule thus stated and applied was clearly erroneous. True, the townsite entry was made after the Bonanza claim had been located, but the existence of such location was not in itself evidence of the mineral character of the land. (Magruder . Oregon and California R. R. Co., 28 L. D., 174; Elda Mining and Milling Co., 29 L. D., 279.) The townsite entry was based upon proof showing the land to be non-mineral, against which proof no protest or objection was presented or raised at the time by the mineral claimant, although notice. of the townsite application was regularly given and full opportunity afforded for presenting objections if there were any. After the allowance of the entry the townsite entryman was no longer in the attitude of one asserting the non-mineral character of the land. He had already submitted proof showing the land to be non-mineral. The local land officers had passed upon and approved his proof. They had accepted the money paid for the land and had given a receipt therefor, and upon the proof and payment had issued final certificate of entry. Having complied with all the terms and conditions necessary to obtaining title, and the officers of the government whose duty it was to act in the premises, in the first instance, having accepted his proof and issued final certificate of entry thereon, the townsite entryman, and those for whom he was trustee, had, upon the face of the record, acquired a vested interest in the land, and, under the law, had become prima facie the equitable owners thereof and entitled to a patent, and anyone thereafter attacking the entry thus allowed assumed the burden of establishing such illegality in the procurement or allowance of the entry as would defeat the issuance of patent thereon. (See authorities cited in Aspen Consolidated Mining Co. . Williams, 27 L. D., 1.) Manifestly, therefore, the onus of proving the alleged illegality of the townsite entry upon the protest in the former proceeding was upon Goldstein, the attacking party, and in holding otherwise the Department was clearly in error.

It is found that the Department was also in error upon another point in said decision. The hearing upon Goldstein's protest was had in April and May, 1895. The record shows that the evidence sub mitted at the hearing relates largely to examinations and prospecting of the land, after the date of the townsite entry, and to conditions as they existed immediately prior to the time of the hearing. This

evidence was all considered by the Department, and its said decision was in part based upon it.

It is well settled that the conditions with respect to the character of land, as they exist at the date of entry, or at the time when all the necessary requirements have been complied with by the person seeking title, must determine whether the land is subject to sale or other disposal under the law upon which the application for patent is based; that no change in such conditions, subsequently occurring, can impair or in any manner affect the applicant's right to a patent upon his entry, if in other respects established; that the right to a patent, once vested, is, for most purposes, equivalent to a patent issued, and when in fact issued the patent relates back to the time when the right to it became fixed.

In Deffeback. Hawke (115 U. S., 392, 404) the supreme court, after referring to numerous provisions of the statutes relating to the disposal of lands valuable for minerals, said:

It is plain from this brief statement of the legislation of Congress, that no title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper can be obtained under the preemption or homestead laws or the townsite laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands except in the States of Michigan, Wisconsin, Minnesota, Missouri and Kansas. We say "land known at the time to be valuable for its minerals," as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. It is not to such lands that the term "mineral" in the sense of the statute is applicable. In the first section of the act of 1866 no designation is given of the character of mineral lands which are free and open to exploration. But in the act of 1872, which repealed that section and re-enacted one of broader import, it is "valuable mineral deposits" which are declared to be free and open to exploration and purchase. The same term is carried into the Revised Statutes. It is there enacted that "lands raluable for minerals" shall be reserved from sale, except as otherwise expressly directed, and that "valuable mineral deposits” in lands belonging to the United States shall be free and open to exploration and purchase. We also say lands known at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterwards, rich deposits of mineral may be discovered.

In Colorado Coal and Iron Co. . United States (123 U. S., 307, 328) it was said:

A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may become profitable to work the veins and mines, can not affect the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale.

See, also, Kern Oil Co. et al. . Clarke (30 L. D., 550, 556-60); Kern Oil Co. et al. v. Clotfelter (30 L. D., 583); and authorities on this subjeet cited in those cases.

It is clear, therefore, that in its former decision the Department erred in considering and giving weight to evidence of the result of