grant, a different condition from the ordinary lapsing of the granted limits of two roads under the same grant was presented; and it was held, under those circumstances, that the Omaha Company was only enti-tled to the one undivided half of the lands within said granted limits, and that the other half belonged to the government. Therefore, it being impossible to issue for the benefit of said company a patent for an undivided moiety of said lands, or patent to the state for the whole for the joint benefit of said company and the United States, it became necessary to reject the former lists, presented by the company, and torequire it to specify particular tracts, which in the aggregate would amount to one half of the lands within its granted limits, so that patents conveying full title to the same might be issued therefor. Chicago, St. Paul, Minneapolis and Omaha Ry. Company, 11 L. D., 607. Thus, this land, though within the grant, was excepted from it, and. therefore comes within the 5th section of the act of March 3, 1887.

Under the construction given by this Department, the last proviso of this section only applies to settlers who have settled after December 1, 1882, and before March 3, 1887, therefore, as the protestants do not show or even allege settlement before March 3, 1887, it can not be seen wherein they have acquired any rights by the provisions of said section.. Chicago, St. Paul, Minneapolis and Omaha Ry. Co. (11 L. D., 607); Union Colony v. Fulmele (16 L. D., 273).

It is not the right to purchase that entitles the purchaser to the remedy of this section, but the fact that he is a purchaser.

As regards the contention that the 5th section of this act was repealed by the act of March 2, 1889 [25 Stat., 854], it need only be said that the repeal of laws by implication is not favored, and, owing to the fact that the 5th section of the act of March 3, 1887, vested a remedy in those who had purchased of the railroad company in good faith, the Congress certainly had no intention of taking that remedy away before the Department could ascertain or pass upon it, as in the case under consideration. Therefore, the point is not well taken.

The record in this case shows that on February 3, 1887, Isaac Burhans purchased for the sum of $1,600 the land in controversy from the railroad company, it having prior to that time been patented to the company by the State. The validity or invalidity of this patent does not affect the rights of the applicant, an assignee of the purchaser, and need not beconsidered; it is sufficient to say that there was reason for Burhans to believe that the company had good title. On making this purchase Burhans paid one half of the purchase money in cash, and the company agreed in writing to convey the land to him on receipt of the remainder of the price, which it did after the passage of the act of 1887.

The payment of Burhans of one half of the purchase price for this land was the purchase, and he secured a title at that time which he could have enforced, admitting the seisin of the company, and the fact that the evidence of his purchase was not delivered to him until after

the passage of the act does not change the date of the sale, nor takethe case without the remedial features of the law. The object of the law was to confer protection upon those who had parted with good consideration under the belief that they were obtaining good title.

From Burhans the land by a series of conveyances came into the hands of Piper for valuable consideration. As the act applies to heirs and assignees, Piper comes within its provisions, if the original grantee did; therefore, in view of the foregoing, Piper is entitled to purchasethe land, and your office decision in so holding is affirmed.

GEORGE A. MORRIS.

Motion for review of departmental decision of November 8, 1893, 17. L. D., 512, denied by Secretary Smith, July 2, 1894.

RAILROAD GRANT-WITHDRAWAL-CONTESTANT.

ATLANTIC, GULF AND WEST INDIA TRANSIT Co. v. LUTZ.

A homestead entry, improperly allowed of lands withdrawn for the benefit of a railroad grant, confers no right as against the grant; nor does the successful con-testant of such entry secure any right against said grant.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) (J. L. McC.)

1894.

The Atlantic, Gulf and West India Transit Company has appealed from the decision of your office, dated June 18, 1883, directing the local officers to allow Jacob C. Lutz to make homestead entry of the NE. of Sec. 19, T. 28 S., R. 19 E., Gainesville land district, Florida. The land lies within the six-miles (granted) limits of said company's railroad; but your office holds that it was excepted from the grant because of having been embraced in the homestead entry of one Thomas. S. Daniels, made March 13, 1877, which was canceled January 13, 1883, upon a contest initiated by said Lutz-said homestead entry having been in existence at the date of the acceptance and approval of themap of definite location of the railroad (January 28, 1881), and of the approval of the map (March 21, 1881).

This Department, in considering lists Nos. 1, 2, and 3 of selections made by the Atlantic, Gulf and West India Transit Company (2 L. D.,. 561), held that Secretary Schurz, by his decision of January 28, 1881, authorizing and directing the withdrawal of March 26, 1881, merely continued in effect the withdrawal made in 1856, and re-affirmed in 1857. This ruling was re-affirmed by Secretary Lamar in his decision of August 30, 1886 (5 L. D., 107), holding that the rights of the road were protected by the original map of definite location (filed in 1860).

Said withdrawal continued in force until August 15, 1887, when it was revoked.

Such being the facts of the case, the homestead entry of Daniels, made March 13, 1877 (supra), was improperly allowed; and "no rights, either legal or equitable, as against a railroad grant, are acquired by a settlement upon lands withdrawn by executive order for the benefit of such grant." (Shire et. al. v. Chicago, St. Paul, Minneapolis and Omaha Railway Company, 10 L. D., 85.)

It requires no argument to show that a person can not acquire any right, as against a railroad company, by contesting the entry of another party who has no right because of the prior grant to the company. If he could do so, the entire grant might be defeated by a series of invalid entries followed by contests of the same.

The application to make homestead entry of the tract in controversy must therefore be denied.

The decision of your office is reversed.

MINERAL LAND-RES JUDICATA.

STINCHFIELD v. PIERCE.

A final decision of the Department holding a tract to be non-mineral in character is conclusive up to the period covered by the hearing; but such decision will not preclude a further consideration as to the character of the land based on subsequent exploration and development.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) 1891. (P. J. C.)

The land involved in this appeal is the E. of the NE. 4 of the NE. of Sec. 33, and the E. of the SE. 4 of the SE. of Sec. 28, T. 2 N., R. 14 E., Stockton, California, land district.

It appears by the record that Llewellyn Pierce made homestead entry of said tract April 3, 1888, alleging settlement April 1, 1856. Pursuant to published notice, he offered final proof at the local office October 13, 1892, when Andrew W. Stinchfield appeared and filed a protest against said proof, alleging that claimant has not lived on the land as required by law; that his residence was on adjoining land; that he has not cultivated the land as required by law, and that the land is more valuable for mining, "and gold in paying quantities has been mined therefrom." The final proof was taken and the witnesses cross-examined. At the close of the cross-examination, claimant objected to any testimony "in regard to the mineral or non-mineral character of this land being entered into, because the question has been decided by the whole Interior Department twice," and he declined to introduce any further testimony as to the mineral character of the land.

The testimony of the protestant and several witnesses was taken, and the local officers decided "that the S. of SE. 4 of NE. 4 of NE. 4 of section 33" is shown as a present fact to contain auriferous gravel, and is therefore subject to entry under section 2329 of the Revised Statutes; that thirty-five acres of the land in contest are shown to be agricultural in character," and recommended that Pierce be permitted to enter the same. Both parties appealed, and your office, by letter of February 10, 1893, reversed that decision as to the mineral character of the five acres described, and sustained the agricultural entry for the entire tract. The case now comes before the Department on Stinchfield's appeal, alleging error both as to the facts and the law.

The character of the land in controversy has been once before decided by the Department in a controversy between the same parties, and it was decided against the mineral claimant. It seems that one Sewall Stinchfield made mineral entry of the ract September, 1881. Pierce filed a protest against the same, alleging residence on and cultivation of the tract, and charging that it was not mineral but agricultural land. A hearing was ordered on these charges, and testimony taken, commencing December 27, 1882, and ending January 25, 1883. As a final result of that hearing, the Department, on March 10, 1888 (148 L. and R., 411), affirmed your office judgment, holding the land to be agricultural in character, and that Pierce might establish his right to it by a full compliance with the law as to residence. It was immediately after this judgment that he made his homestead entry.

By the testimony of Andrew W. Stinchfield in the case at bar, it is shown that he purchased the property from Sewall Stinchfield in September, 1882. Hence he was the party in interest in the former proceeding, as this was prior to the first case, and he must be held to be bound by that judgment. The questions involved at that hearing were elaborately presented and thoroughly considered. It is stated that there were over nine hundred pages of testimony, and it is evident from an examination of the case that it was gone into exhaustively in its every feature.

Andrew W. Stinchfield again, in July, 1888, presented a petition, asking for another hearing of the case as to the mineral character of land, supported by a number of affidavits. This matter was duly considered below and finally reached the Department on appeal, where it was treated as a motion for rehearing, and on September 19, 1890 (206L. and R., 338), was denied, but your office was instructed to have a special agent investigate the matter "and report to your office the result of such investigation, upon receipt of which you will take such action as may seem proper." His report is not before me, but it is stated in said letter of February 10, 1893, that "such investigation was made, resulting in a report by him (the special agent), dated February 8, 1892, in favor of the agricultural character of the land, and the good faith in the homestead claimant."

In the face of all these adverse proceedings, it is idle to talk of considering the question of the character of the land as an original proposition. It would be trifling with the doctrine of res judicata, that wise and beneficent rule of law which makes repose of litigated questions and creates confidence in the integrity of judicial and departmental decisions, upon which great property rights are vested, to permit parties thus to re-open, for re-adjudication, questions that have been settled under all the forms of law. Therefore, the question of the character of the land must be held to have been settled up to and including the former trial, and all testimony as to its mineral value prior to that time will be eliminated from the case at bar.

It is a matter of common knowledge that the value of the ordinary mining claim is established by development and exploitation; that its mineral worth may be, and not infrequently is, as capricious and unstable as the wind. Nature has not, as a rule, provided her treasure in large and unvarying quantities, but has distributed it sparingly, as if to test man's genius and energy in finding it. The exploration may be one day in borrasca and the next in bonanza. Hence, it being the settled policy of the government to encourage the production of the precious metals, I think that if it can be shown that by subsequent development it has been demonstrated that the land is more valuable for its minerals than for agricultural purposes, it may be done. But the testimony in such a case would have to be clear and unmistakable, such as to carry conviction beyond possible doubt.

Applying this test to the case at bar, it must be held that the protestant has signally failed to establish the mineral character of any portion of the land in controversy. In your said office decision the testimony has been fairly and sufficiently stated, and the conclusion is approved. It might be added, in addition, that the testimony shows that no discovery whatever has been made since the former hearing; that there has been no development worthy of the name, and what work has been done was wholly with the view of performing the annual assessment work required by law on tunnel sites; further, the protestant himself testified that his main object in wanting the land was for the purpose of continuing his tunnel through it, with the view of connecting it with the Buckeye tunnel, and thereby draining other ground.

Your said office decision as to the residence of Pierce on the land is also approved.

The judgment of your office is therefore affirmed.