agricultural entry a large number of townships, the same commissioner thus expresses his views:

"Experience having shown that this office can not "with any degree of safety judge of the character of "these lands, whether mineral or agricultural, from "the data furnished by such returns, and there being "no authority of law for the employment of a compe"tent geologist to investigate the matter, the head of "the department has, in consideration of the public "interests and to prevent the indiscriminate absorption "of the mineral lands of the public domain through "the instrumentality of insufficient returns, found it imperatively necessary to adopt the course herein announced, both for the protection of those who have "already expended time, capital, and labor in opening "and developing these mines, and those of the citizens "of the United States who may hereafter desire to "exercise their legal right to do so."1

In the light of these conceded facts, it is a marvel that either the land department or the courts ever announced the doctrine that such returns were prima facie evidence of anything save their own inherent weakness and insufficiency for this purpose.

The question as to the effect of these returns was before the supreme court of the United States in a case,2 in which Justice Field, delivering the opinion of the court, said:

"Some weight is sought to be given by counsel of the "plaintiff to the allegation that the lands in controversy

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are included in the section which was surveyed in "1868, and a plat thereof filed by the surveyor in the "local land office in September of that year, from which "it is asserted that the character of the land was ascer"tained and determined, and reported to be agricul"tural, and not mineral. But the conclusive answer to 1 Copp's Min. Dec., p. 302.

Barden v. N. P. R. R. Co., 154 U. S. 288, 14 Sup. Ct. Rep. 1030.

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"such alleged determination and report is that the "matters to which they relate were not left to the surveyor-general. Neither he nor any of his subordi"nates was authorized to determine finally the character "of any lands granted, or make any binding report "thereon.

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"Information of the character of all lands surveyed "is required of surveying officers, so far as knowledge respecting them is obtained in the course of their duties, but they are not clothed with authority to especially examine as to these matters outside of their "other duties, or to determine them, nor does their report have any binding force. It is simply an addi"tion made to the general information obtained from "different sources on the subject."1

107. Character of land, when and how established. -The character of a given tract of land is always a question of fact, to be determined, generally speaking, by the land department, on hearings ordered for that purpose, or at the time patent is applied for, and the decision of the department, culminating in the issuance of a patent, is final.2

The precise point of time when the character of a given tract of land is to be determined will depend some

1 See, also, Winscott v. Northern Pac. R. R. Co., 17 L. D. 274, 276; Aspen Cons. M. Co. v. Williams, 27 L. D. 1, 21.

Pac. M. and M. Co. v. Spargo, 8 Saw. 647, 16 Fed. 348; Cowell v. Lammers, 10 Saw. 255, 21 Fed. 200; Barden v. N. P. R. R. Co., 154 U. S. 288, 14 Sup. Ct. Rep. 1030; Gale v. Best, 78 Cal. 235, 12 Am. St. Rep. 44, 20 Pac. 550; Dahl v. Mont. C. Co., 132 U. S. 264, 10 Sup. Ct. Rep. 97; Dahl v. Raunheim, 132 U. S. 260, 10 Sup. Ct. Rep. 74; Carter v. Thompson, 65 Fed. 329; Klauber v. Higgins, 117 Cal. 541, 49 Pac. 466; United States v. Budd, 144 U. S. 167, 12 Sup. Ct. Rep. 575; United States v. Mackintosh, 85 Fed. 333, 336; Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. Rep. 632; Northern Pac. R. R. Co. v. Soderberg, 86 Fed. 49; Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185; Rood v. Wallace, 109 Iowa 5, 79 N. W. 449; Potter v. Randolph, 126 Cal. 458, 58 Pac. 905; Standard Quicksilver M. Co. v. Habeshaw, 132 Cal. 115, 64 Pac. 113; Dreyfus v. Badger, 108 Cal. 58, 41 Pac. 279.

what upon the nature of the right asserted, and the date to which it is supposed to relate. This subject will be fully discussed under appropriate heads, when considering the various congressional grants out of which mineral lands are reserved, and the various methods of acquiring public lands other than mineral, and in the chapter treating of the land department and its functions.

108. Jurisdiction of courts to determine character of land when the question is pending in land department. It will not be doubted that, while the title to land remains in the United States, and controversies arise between occupants or possessors over the right of possession, neither party having invoked the jurisdiction of the land department for the purpose of acquiring the ultimate title, the courts have power to determine the rights of the respective parties based upon the law of possession, and incidentally to pass upon the question of the character of the land, should such question be necessarily involved.2

But that the courts have no jurisdiction to determine questions of fact with reference to the public lands while the claims of the respective parties are pending before the land department, is axiomatic. With the orderly exercise of the functions of that department in administering the public land laws the courts cannot interfere.* When, therefore, the jurisdiction of the land department is once set in motion, and that tribunal is engaged in the

1 Marquez v. Frisbie, 101 U. S. 473, 475.

'Potter v. Randolph, 126 Cal. 458, 58 Pac. 905.

8

Marquez v. Frisbie, 101 U. S. 473, 475; Astiazaran v. Santa Rita Land and M. Co., 148 U. S. 80, 30 Sup. Ct. Rep. 457; Hays v. Parker, 2 Wash. Ter. 198, 202, 3 Pac. 901; Humbird v. Avery, 110 Fed. 465, 471; Savage v. Worsham, 104 Fed. 18; Herbien v. Warren, 2 Okl. 4, 35 Pac. 575; Allen v. Pedro, 136 Cal. 1, 68 Pac. 99.

investigation which necessarily involves a determination of the character of the land, the courts are precluded from trying or determining this question.

As to whether the pendency of proceedings before the land department deprives the courts of all jurisdiction in cases involving this issue or simply suspends their functions to await the ultimate judgment of the department, does not clearly appear from the adjudicated cases. This suggests a refinement which may be the subject of metaphysical discussion, but is not of large practical importance. The views of the courts may be briefly stated.

Judge Ross said, in Cosmos Exploration Co. v. Gray Eagle Oil Co.:-1

"The demurrers to the present bills raise the ques"tions of jurisdiction and the sufficiency of the bills "themselves. The bills expressly allege that upon the making of the selections under which the complain"ants claim, and the publishing of the notice required "by the local rules and regulations of the land depart"ment, the defendants to the bills initiated in the land "office contests by written protests against such selec"tions, on the ground that the lands selected were "mineral lands, and not therefore subject to selection "under the act of June 4, 1897, and that those contests are still pending in the land department. Those averments in the bills, in my opinion, state the complainants out of court; for no court can lawfully anticipate "what the decision of the land department may be in respect to the contests, nor direct in advance what "its decision should be, even in matters of law, much "less in respect to matters of fact, such as is that relating to the character of any particular piece of land." 2 The circuit court of appeals affirmed the decision of Judge Ross, and said, among other things:

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104 Fed. 20, 40.

8 See, also, Savage v. Worsham, 104 Fed. 18.

"We are of the opinion that the federal courts are "without jurisdiction to entertain a suit to determine "the respective rights of the parties to any land to "which the title remains in the government of the "United States in regard to which, as shown by the "averments in the present bill, a contest between the "parties is pending in the land department of the government."1

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The supreme court of California, while conceding that a court should not attempt to determine questions of fact pending before, and when they are within the exclusive jurisdiction of, the land department, held that a court has jurisdiction of an action which involves such a controversy, but has no power to decide that question, and should suspend proceedings until the land department has determined it. The suit was brought by a homestead claimant to quiet title to lands a portion. of which were claimed by defendant under mining locations. The defendant alleged that a contest was pending in the land department to determine the character of the land. Before the trial took place, the department decided the case in favor of the homestead claimant, and the court proceeded to judgment in his favor. On appeal, defendant contended that the action should have been dismissed because it was commenced at a time when the controversy was pending in the land office. The supreme court said, among other things:

"The court certainly had jurisdiction of the cause. "The real contention was that it could not determine the "issues raised by the pleadings, because they involved a "question which it could not try, and for the determi"nation of which a special tribunal had been created. "If that were so a dismissal would have been the proper course. But was it so? . . . The land department of "the United States is not a special tribunal organized

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1112 Fed. 46.

Potter v. Randolph, 126 Cal. 458, 58 Pac. 905.