Said withdrawal continued in force until August 15, 1887, when it was revoked.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and "no rights, either legal or equitable, as against a railroad grant, are acquired by a settlement upon lands withdrawn by executive order for the benefit of such grant."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.) 1894. (P. J. C.)

The land involved in this appeal is the E. of the NE. † of the NE. of Sec. 33, and the E. of the SE. of the SE. 4 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 Depart ment 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. † 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 tract 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 (206 L. 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.

OKLAHOMA TOWN LOTS-ADVERSE CLAIM.

THE GODDARD PECK GROCER CO. ET AL.

A certificate of right issued by the municipal authorities of a town to a lot claimant entitles him to a deed therefor, where the adverse claims presented do not fall within the jurisdiction of the Department.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.) 2, 1894.

(W. F. M.)

On September 16, September 22, and October 2, 1890, respectively, Lewis J. Best, The Goddard Peck Grocer Company and Theodore A. Pamperin, presented their several applications to the board of townsite trustees, No. 1, assigned to Guthrie, Oklahoma, each asking for the allotment of lot No. 1, in block No. 71, in the town of Guthrie, and a deed therefor.

Pamperin's application is based upon priority of settlement and actual occupancy, that of Best on right of purchase from Pamperin, and that of The Goddard-Peck Grocer Company upon purchase from "original settlers," and continued occupancy since purchase.

A hearing was had on March 16, 1891, after which the board rendered judgment

That lot No. 1 in block No. 71, in Guthrie, Oklahoma, with the improvements thereon, be and the same is hereby awarded and allotted to said Goddard-l'eck Grocer Company, and that a deed be made and delivered accordingly.

The decision of your office, now on appeal here, reversed, or modified this judgment, and awarded the lot in controversy to Pamperin, who was not a party to the proceedings before the board, having failed to make the required deposit to cover the expenses of the hearing, and who has not subsequently appeared except by brief through counsel since the case has been pending in this Department.

The facts developed at the hearing which are necessary to an intelligent comprehension of the attitude of the parties in interest and of their respective rights in so far as they have shown any, may be stated in a few words.

On April 20, 1889, A. J. Witherell and T. A. Pamperin, the latter one of the claimants herein, both being then in Arkansas City, Kansas, entered into an agreement by the terms of which "they joined themselves jointly together for the purpose of doing a grocery business in the town of Guthrie, Indian Territory, and further for taking up lots in said city in which each will have an equal interest." Other and further stipulations of the contract have no bearing upon the contro

versy.

Accordingly, soon after the opening of Oklahoma to settlement they engaged in business at Guthrie, and each of the partners, in his individual name, located, occupied and claimed certain lots within the limits of the townsite, but whether in the interest and for the benefit of

the partnership, pursuant to their agreement, is not conclusively shown, Witherell, as his interest appears, asserting the affirmative of the proposition, while Pamperin, with adverse interests, contends for the negative. For the lot involved in this litigation, however, the mayor and council of Guthrie, on May 20, 1889, issued to Pamperin, in his individual name, an instrument styled by them a "warranty certificate" by which they guarantee to him possession of the lot and a deed in fee simple without further proof of settlement. The certificate also purports to be a receipt in full for all assessments levied upon the lot for the purpose of defraying the expense of survey, platting and any other charges against said lot to date.

It appears from parol testimony admitted into the record that in December, 1889, Pamperin conveyed the lot, by a deed the character of which is not clearly shown, to L. J. Best. This deed had never been recorded, and was not produced, but the evidence discloses that no consideration was ever paid, but only promised upon condition that Pamperin should secure the title from the government. In view of the fact that Pamperin had no title, and of the conditions of the transfer, Best took nothing absolutely by the deed, nor did he engage absolutely to do or pay anything. The transaction, if it had any validity at all, was a mere contract to sell, and imported an equitable title only, to which this Department can not give legal effect.

On September 23, 1889, after the dissolution of the partnership between Witherell and Pamperin, Allen J. Witherell, in behalf of the partnership, treating the lot as partnership property, conveyed it to the Goddard-Peck Grocer Company in satisfaction of a partnership debt, and it is upon this deed of conveyance that this company bases its claim.

Thus, this Department is invited to invade the exclusive domain of the local courts and adjudicate rights of property of the citizens of the Territory of Oklahoma, controlled by local laws and arising out of transactions over which the government of the United States, through its executive branch, has no jurisdiction whatsoever. It is not competent for the Department to construe the partnership agreement between Witherell and Pamperin, and give effect to its terms, during the existence thereof, nor to settle its affairs after its dissolution.

Both the Goddard-Peck Grocer Company and Best claim through Pamperin, and while he was not a party to the hearing before the board, their rights, in any event, depended ultimately upon the estab lishment of Pamperin's original right through occupancy. The logic of their position is the admission of his claim. The warranty certificate presented by him to the board of townsite trustees is indisputably the "paper evidence of claim" contemplated by section 2 of the act of May 14, 1890, 26 Statutes, p. 109, and the prima facie evidence which it imports has not been opposed by any adverse claim within the competence of this Department to take cognizance of

The decision of your office is, therefore, affirmed.