specifically adopted as form 4-643 in the regulations of May 9, 1899 (28 L. D., 521, 524), and December 18, 1899 (29 L. D., 391, 394), requires the selector to accompany his application with "an affidavit showing the land selected to be non-mineral in character and unoccupied." It is thus clearly made incumbent upon one seeking to take advantage of the offer made by this law to establish the fact that the land he selects is of the character contemplated by the law. Until this fact is established his proffer of exchange is not complete. Until then he has not made out a case which shows upon the face of the papers that he has so far complied with the conditions of the act of 1897 as to convert the offer of exchange contained in said act into a contract fully executed upon his part. To lodge in an applicant for exchange of lands under this law a vested right as against the government or third parties, it must be made to appear that the land sought to be acquired by him is of the character contemplated by that law. This selector recognized this duty on his part and with his selections of December 8, 1899, filed the requisite affidavits as hereinbefore set forth. It is probable that he went upon the theory that new affidavits were not necessary to the second selections. This was a mistake. The first selections were never effective to vest any right in him. While the affidavits filed with them may have properly set forth the condition and character of the land at that time, December 8, 1899, it does not follow that the condition and character of the land were the same on January 13, 1900, the date of the second selections. No new affidavit or paper was filed with the second selections containing any statement as to the condition or character of the land. The necessity for requiring the selector to make proof of the condition and character of the land at the time of selection is forcibly illustrated in this case. Prior to that time mineral oil had been discovered in the near vicinity of this land, and the lands in that neighborhood were being generally prospected and explored in an effort to find mineral oil therein in paying quantity. To that end wells were being drilled or bored hundreds of feet into the earth at great cost, and in this manner the area or extent of the oil deposit was being ascertained and the mineral character of specific tracts made known. The known character of the land in that vicinity was therefore undergoing a change and tracts not known to contain mineral deposits at any given time were liable within thirty days thereafter to become known to be valuable for such deposits. Ordinarily, as between the government and the selector, there would seem to be no good ground for refusing to permit him to submit the necessary proof at a time subsequent to the date of the attempted selection; but since this proof is essential to complete a selection so as to constitute it a contract fully executed on the selector's part, his rights would have to be determined as of the date when the selection is thus completed. No attempt or offer to cure the defect and complete the selections in question has been made, and it is now asserted by the mineral claimant, and fully admitted by the selector, that the land in question has been demonstrated to contain valuable deposits of petroleum. Indeed, in a petition filed in this case January 18, 1901, it is said by the selector and others claiming under him, in speaking of those particular lands and selections: That after said selections were made by Clarke, the Gray Eagle Oil Companythe protestants in the above cases-unlawfully and against the objections of the selector and claimant, Clarke, entered upon such lands and bored wells thereon, and several months thereafter found petroleum oil in large and valuable quantities on parts of said selected lands, and are now, against the objections of these petitioners, engaged in taking away and disposing of such oil product and in appropriating the proceeds of the same to their own use and benefit. It is thus made evident that these lands are not now subject to selection in lieu of lands in a forest reservation, and that further delay in the disposition of these selections to afford an opportunity to file an affidavit showing that they are vacant and open to settlement, would be of no benefit to the selector. Furthermore, the lands are not now and have not been since February 21, 1900, subject to such selection. By telegram of that date, your office directed the local officers at Visalia to "suspend from disposition until further orders" certain townships therein specified, one of them being township 28 south, range 28 east, in which these lands are situated. As said in the instructions of March 6, 1900 (29 L. D., 578, 580): "In every instance the land selected must at the time of selection be of the character subject to selection." This order of suspension would, so long as it remains in force, prevent a selection of these lands. It would be an act of injustice to all parties concerned to order a hearing to determine whether the land in question was, on January 13, 1900, subject to selection under the act of 1897, when, as pointed out herein, the selections of that date were imperfect and can not now, because of the present known and admitted character of the land, be perfected. Your office decision of February 11, 1901, ordering a hearing in those cases is therefore set aside, and for the reason herein given Clarke's selections of December 8, 1899, and January 13, 1900, are rejected. LIEU SELECTIONS UNDER ACT OF JUNE 4, 1897. Under the exchange provisions of the act of June 4, 1897, C., the owner of lands cov ered by a patent from the United States and situate within the limits of a public forest reservation, filed in the Visalia, California, local land office, a relinquishment to the United States of his lands in the forest reservation, accompanied by evidence of his full and unincumbered title thereto, and at the same time made selection, by appropriate application in writing, of a like area of public lands in the Visalia land district desired in exchange for the lands relinquished, accompanying the selection by an affidavit declaring the selected lands to be unoccupied and non-mineral. Shortly thereafter K. Company and others filed sworn and corroborated protests against the selection, alleging that the selected lands, at the time of their selection, were occupied by protestants under the placer mining laws and were then known to be valuable for their deposits of petroleum or mineral oil. The selection has not been carried to patent. Held: 1. The land department has jurisdiction and power, either on its own motion or at the instance of third parties, at any time before a patent is issued upon a selection made under the exchange provisions of said act and after appropriate notice, to institute and carry on such proceedings as may be necessary to enable it to determine whether the selected lands were at the time of their selection in the condition and of the character subject to selection. 2. Lands chiefly valuable on account of the deposits of petroleum or mineral oil found therein are mineral in character and not subject to selection under said act. 3. The protests of K. Company and others require that a hearing be ordered to determine the condition and character of the lands selected. 4. The inquiry will be directed to the conditions existing and known at the time when the selection was made, and no consideration will be given to any change subsequently occurring or to any discovery or development of mineral thereafter made. 5. The evidence bearing upon the character of the selected lands will not be restricted to the discovery or development of mineral therein and to their geological formation but may extend to the discovery and development of mineral in adjacent lands and to their geological formation. The cases of Union Oil Company, 25 L. D., 351; Kern Oil Company et al. v. Clarke, 30 L. D., 550; and Gray Eagle Oil Company v. Clarke, 30 L. D., 570, cited and followed. Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V.D.) May 8, 1901. (A. B. P.) January 5, 1900, Jacob Rene Clotfelter filed in the local office at Visalia, California, two separate selections of lands in lieu of an equal quantity of lands of which he had become the owner, covered by a patent from the United States and situate within the limits of a public forest reservation. These selections were made under the act of June 4, 1897 (30 Stat., 11, 36), which provides as follows: That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: Provided further, That in cases of unperfected claims the requirements of the laws respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims. One of the selections embraces the W. of the NE. of Sec. 32, T. 28 S., R. 28 E., M. D. M., and the other the NE. of the NE. of said section 32, and the SE. of the SE. of Sec. 24, T. 28 S., R. 27 E., M. D. M. The record shows that the lands within the forest reservation, in lieu of which the selections were made, were subject to relinquishment and were regularly relinquished to the United States, and that the relinquishment was accompanied by a properly authenticated showing of full and unincumbered title in the selector to the relinquished lands. There is no suggestion that the lands selected were not subject to selection so far as the then existing conditions appear from the land office records. Each selection was by an application made out upon the printed form specially prepared for making selections of lands in lieu of lands covered by patent in a forest reservation and adopted as form +-643 in the official regulations of May 9, 1899 (28 L. D., 521, 524), and December 18, 1899 (29 L. D., 391, 394), and in which the evidence required to be submitted by the selector is specifically set forth. The selection in each instance was accompanied by an affidavit to the effect that the selected lands were non-mineral in character and unoccupied at the date of selection. The act of June 4, 1897, was amended by an act approved June 6, 1900 (31 Stat., 588, 614), but as the selections here in question are to be governed by the original act, the amendment is not material. February 6, 1900, the Kern Oil Company filed a protest against both selections, in so far as they embrace lands in the NE. of Sec. 32, T. 28 S., R. 28 E. February 23, 1900, W. T. Sesnon filed a protest against the selection which embraces the SE. of the SE. of Sec. 24, T. 28 S., R. 27 E. These protests, which are under oath and accompanied by corroborating affidavits, charge, in substance and effect, that all of the lands so selected were at the time of their selection occupied by the protestants under certain placer mining locations which were at that time being worked and developed by the protestants, and that at that time all of said lands were known to be valuable for their deposits of petroleum or mineral oil. The protests also state that the lands are still occupied by protestants, and that additional discoveries of oil have been made. therein since the date of said selections. By decision of March 10, 1901, your office considered said selections in connection with the protests, and directed that a hearing be had to determine the character of the selected lands. In the course of said decision it was held, in substance, that the character of lands selected under the act of June 4, 1897, is an open question until the selections have been approved by the land department, and that if at any time prior to such approval the selected lands should be found to contain valuable minerals the selections would be thereby defeated. These principles were announced as a guide for the conduct of the hearing. Clotfelter has appealed to the Department. Numerous errors are assigned in the appeal, but it is not necessary that they should be stated in detail. Lands chiefly valuable on account of deposits of petroleum or mineral oil found therein are mineral lands and are subject to disposition under the mining laws (Union Oil Co., 25 L. D., 351). In the recent case of Kern Oil Co. . Clarke (30 L. D., 550), questions similar to those here presented were considered and decided by the Department. It was held in that case: (1) That where a person making selection under the act of June 4, 1897, has complied with all the terms and conditions necessary to entitle him to a patent to the selected land, he acquires a vested interest therein and is to be regarded as the equitable owner thereof; (2) That the right to a patent under the act, once vested, is, for most purposes, the equivalent of a patent issued, and when in fact issued, the patent relates back to the time when the right to it became fixed and takes effect as of that date; (3) That questions respecting the class and character of the selected lands are to be determined by the conditions existing at the time when all requirements necessary to obtaining title have been complied with by the selector, and no change in such conditions, subsequently occurring, can affect his rights. The land department has the jurisdiction and power, at any time before a patent is issued, to institute and carry on, after appropriate notice, such proceedings as may be necessary to enable it to determine whether the selected lands were of the requisite class and character, and whether the selection was in other respects regular and in conformity with the requirements of the act. But the determination, when had, must relate to the time when, if at all, the selector has done all that is required of him in order to perfect his right to a patent. And upon the question as to what is required to be done by a person making selection under said act, the Department stated and held as follows: What are the essential requirements of the statute respecting the selection of the lieu land with which one seeking title thereto must comply? Upon relinquishing to the government the tract in the forest reservation, he must make selection of the tract desired in exchange therefor. The act so expressly declares. But what showing must he make with respect to the selected tract? The statute authorizes selection only of "vacant land open to settlement." To be vacant, the land must not be occupied by others. To be open to settlement, it must not be known to be valuable for minerals, or reserved from settlement for any other reason. In so far as the existing conditions appear from the land office records, that is, whether the selected tract is of lands to which the settlement laws have been extended, and whether the same is free from record appropriation, claim, or reservation, no showing by the selector in respect thereto need be made, for the reason that the officers of the government can and must take notice of the public records. But as to conditions the existence or non-existence of which can not be determined by anything appearing upon the public records and as to which the officers of the government must depend entirely upon outside evidence, that is, whether the selected tract is occupied by |