parties to that decision, and were bound by it. The appellants contended that the secretary never found the fact that Hartmann was the first to apply to enter the land after the cancellation of the prior entry on the books and plats; that they were not parties or privies to that decision, but were bona fide purchasers under an independent title without notice of Hartmann's equities, and that the secretary fell into no error in his decision of the question of law. The court below sustained the claims of the appellee, and entered decrees accordingly.

Frank B. Kellogg and James K. Redington, for appellants.
Walter Ayers (P. H. Seymour, on the brief), for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The land department of the United States is a quasi judicial tribunal, invested with authority to hear and determine claims to the public lands subject to its disposition, and its decisions of the issues presented at such hearings are impervious to collateral attack, and presumptively right. A patent to land of the disposition of which the department has jurisdiction is both the judgment of that tribunal and a conveyance of the legal title to the land. 9 Stat. 395, c. 108, § 3; Rev. St. §§ 441, 453; U. S. v. Winona & St. P. R. Co., 67 Fed. 948, 955, 15 C. C. A. 96, 103, 32 U. S. App. 272, 283. But the judgment and conveyance of the department do not conclude the rights of the claimants to the land. They rest on established principles of law and fixed rules of procedure, which condition their initiation and prosecution, the application of which to the facts of each case determines its right decision; and, if the officers of the land department are induced to issue a patent to the wrong party by an erroneous view of the law, or by a gross or fraudulent mistake of the facts, the rightful claimant is not remediless. He may avoid this decision, and charge the legal title derived from the patent which they issue with his equitable right to it on either of two grounds: (1) That upon the facts found, conceded, or established without dispute at the hearing before the department its officers fell into an error in the construction of the law applicable to the case which caused them to refuse to issue the patent to him, and to give it to another (Bogan v. Mortgage Co., 63 Fed. 192, 195, 11 C. C. A. 128, 130, 27 U. S. App. 346, 350; U. S. v. Winona & St. P. R. Co., 67 Fed. 948, 958, 15 C. C. A. 96, 106, 32 U. S. App. 272, 288; U. S. v. Northern Pac. R. Co., 95 Fed. 864, 870, 37 C. C. A. 290, 296; Cunningham v. Ashley, 14 How. 377, 14 L. Ed. 462; Barnard's Heirs v. Ashley's Heirs, 18 How. 43, 15 L. Ed. 285; Garland v. Wynn, 20 How. 6, 15 L. Ed. 801; Lytle v. Arkansas, 22 How. 193, 16 L. Ed. 306; Lindsey v. Hawes, 2 Black, 554, 562, 17 L. Ed. 265; Johnson v. Towsley, 13 Wall. 72, 85, 20 L. Ed. 485; Moore v. Robbins, 96 U. S. 530, 538, 24 L. Ed. 848; Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152); or (2) that through fraud or gross mistake they fell into a misapprehension of the facts proved before them, which had the like effect (Gonzales v. French, 164 U. S. 338, 342, 17 Sup. Ct. 102, 41 L. Ed. 458). If he would attack the patent on the latter ground, and avoid the department's finding of facts, however, he

must allege and prove not only that there was a mistake in the finding, but the evidence before the department from which the mistake resulted, the particular mistake that was made, the way in which it occurred, and the fraud, if any, which induced it, before any court can enter upon the consideration of any issue of fact determined by the officers of the department at the hearing. U. S. v. Northern Pac. R. Co., 95 Fed. 864, 870, 882, 37 C. C. A. 290, 296, 308; U. S. v. Atherton, 102 U. S. 372, 374, 26 L. Ed. 213; U. S. v. Budd, 144 U. S. 154, 167, 168, 12 Sup. Ct. 575, 36 L. Ed. 384; U. S. v. Mackintosh, 85 Fed. 333, 336, 29 C. C. A. 176, 179, 56 U. S. App. 483, 490; U. S. v. Throckmorton, 98 U. S. 61, 66, 68, 25 L. Ed. 93; Marquez v. Frisbie, 101 U. S. 473, 476, 25 L. Ed. 800; Steel v. Refining Co., 106 U. S. 447, 451, 1 Sup. Ct. 389, 27 L. Ed. 226; French v. Fyan, 93 U. S. 169, 172, 23 L. Ed. 812; Ehrhardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. 1157, 29 L. Ed. 346; Heath v. Wallace, 138 U. S. 573, 575, 11 Sup. Ct. 380, 34 L. Ed. 1063; Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030, 38 L. Ed. 992. The bill in the case before us is based on the first ground. The complainant alleged that the facts were, and that the secretary of the interior at the final hearing before him on December 21, 1894, found them to be, that Hartmann was the first qualified applicant for the land after the prior entry of it with Sioux scrip was canceled on the books and plats at the local land office at Duluth on February 23, 1889, and after the local land officers were officially informed of the decision of the secretary of the interior of February 18, 1889, to the effect that the prior entry was void; that James' application to make a homestead entry of the land was made on February 19, 1889, three days before the local officers received official notice of the decision, while the land was still covered by the prior entry, and four days before it was canceled by the local officers; and that upon this state of facts he erroneously held the law to be that James acquired the superior right to the land in violation of an established rule, a settled practice, and a long line of decisions of the land department that no rights to enter or to secure the entry of land covered by a prior entry can be acquired by strangers to the litigation at the local land office before the decision of the invalidity of the prior entry is officially communicated to the local land officers, and the prior entry is canceled on the books and plats in their office. The complainant also alleged that all the parties who have claimed or do claim this land under James or Craig took their interest in it with notice of this decision and of the complainant's equitable title to the land. Upon the demurrer to this bill this court held that its allegations stated a strong and manifest equity in the complainant, which charged the legal title under the patent with a trust in its favor, and entitled it to the relief it sought. Iron Co. v. James, 89 Fed. 811, 817, 818, 32 C. C. A. 348, 354, 355, 61 U. S. App. 1, 10. Answers to the bill have since been interposed, the case has been heard on its merits, and the court below has found that the averments of the bill are sustained by the proof, and has granted decrees accordingly.

The only question, therefore, which is left for consideration is whether or not this finding is sustained by the evidence, and it comes

here with the presumption of soundness and with the burden on the appellants to show its error. Mann v. Bank, 86 Fed. 51, 53, 29 C. C. A. 547, 549, 57 U. S. App. 634, 637; Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894, 31 L. Ed. 664; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Furrer v. Ferris, 145 U. S. 132, 134, 12 Sup. Ct. 821, 36 L. Ed. 649; Warren v. Burt, 58 Fed. 101, 106, 7 C. C. A. 105, 110, 12 U. S. App. 591, 600; Plow Co. v. Carson, 72 Fed. 387, 388, 18 C. C. A. 606, 607, 36 U. S. App. 448, 456; Trust Co. v. McClure, 78 Fed. 209, 210, 24 C. C. A. 64, 65, 49 U. S. App. 43, 46; Exploration Co. v. Adams (C. C. A.) 104 Fed. 404, 408.2 They attack it on three grounds: (1) That there was no rule, practice, or line of decisions in the land department to the effect that strangers to litigation therein could not acquire rights to land at the local land office after the decision of the secretary or land commissioner that a prior entry was void, and before its communication to the local land officers, and their cancellation of the entry on their books and plats; (2) that the secretary did not in his decision of December 21, 1894, find that Hartmann was the first qualified applicant to enter the 40 acres here in controversy after the cancellation of the prior entry; and (3) that, if he did, the appellants are bona fide purchasers of the land under an independent title, and are not bound by the finding. Was there such a rule, practice, or line of decisions on February 23, 1889, when the rights of Hartmann, Wheeler, and James to this land, whatever they were, became fixed and vested? Many questions have been argued and many decisions have been cited in the briefs of counsel which have little, if any, relevancy to this question; and, before discussing it, some of these will be briefly mentioned and their immateriality noticed. The rights of these parties vested on February 23, 1889. They were initiated under and conditioned by the laws of the land and the rules and practice of the department on that day, and no subsequent rules, decisions, or practice could devest them of the property they then secured, or deprive them of their equitable or legal rights to the title to the land which they then acquired. Cornelius v. Kessel, 128 U. S. 456, 461, 9 Sup. Ct. 122, 32 L. Ed. 482; Shreve v. Cheesman, 69 Fed. 785, 792, 16 C. C. A. 413, 419, 32 U. S. App. 676, 689. For this reason the subsequent practice and decisions of the department, which have been carefully considered, will not be reviewed at length in this opinion, but will be here laid aside with the remark that they are without legal effect upon the issues in this case, and their examination has proved futile and profitless. Much has been said and written to prove that the decision of the secretary of February 18, 1889, was a final judgment of the land department, and that it took effect when rendered. The case in which that decision was made was a contest between Orilie Stram and Angus McDonald. Conceding, but not deciding, that the secretary's decision was a final judgment of the invalidity of their claims against the United States and against each other, the crucial question in this case still remains unanswered. That question is whether or not, under that decision, the prior entry of Orilie Stram

46 C.C.A.-31

2 45 C. C. A. 185.

was removed from the land, and it was opened to acquisition by strangers to that contest, under the rules and practice of the department before the local land officers canceled the entry, or were informed of the decision. None of the parties to this litigation were parties to that contest, and the question is not the finality of that judgment, but the time when after that decision, under the rules and practice of the department, the land became open to acquisition by strangers. For this reason the question of the finality of that judg ment is not material to the real issue in this case, and it will be here dismissed with the note that, conceding its finality, it was the judgment of an appellate tribunal; it was in the form of a letter directed to the officer from whose decision the appeal was taken; it closed with words which show beyond doubt that the secretary never intended that the land should be acquired by any one in violation of the rules or practice of the department; and by all analogy such a decision of an appellate court has no effect in the inferior tribunal, where rights and contests are initiated until it is received and acted upon by that tribunal. Iron Co. v. James, 89 Fed. 816, 32 C. C. A. 353, 61 U. S. App. 9. The closing words of the letter to the commissioner which embodied the decision were:

"This disposes of all the claims to the land, so far as disclosed by the record before me, and leaves the land in question open to disposal under the public land laws of the United States applicable thereto, and such is the judgment of this department. The papers in the case are herewith returned."

Turning now to the question at issue, the following propositions will be found to be established beyond controversy: The entry of the land by Stram with his half-breed scrip, whether valid or void, segregated it from the public domain, and appropriated it to private use, so that no legal entry of it could be made by James, or by any other applicant, before the local land officers received notice of the decision of the secretary, and canceled it on their books and plats. Hartman v. Warren, 76 Fed. 157, 160, 22 C. C. A. 30, 33, 40 U. S. App. 245, 250; Wilcox v. Jackson, 13 Pet. 498, 513, 10 L. Ed. 264; Witherspoon v. Duncan, 4 Wall. 210, 218, 18 L. Ed. 839; Carroll v. Safford, 3 How. 441, 11 L. Ed. 671; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363; McIntyre v. Roeschlaub (C. C.) 37 Fed. 556; Railroad Co v. Forseth, 3 Land Dec. Dep. Int. 446, 447; Railroad Co. v. Leech, Id. 506; Hollants v. Sullivan, 5 Land Dec. Dep. Int. 115, 118; In re Milne, 14 Land Dec. Dep. Int. 242. There was a rule, a practice, and a long line of decisions of the department in force in 1889 to the effect that the register and receiver of the local land office could neither allow an entry, receive an application, nor do any other act affecting the disposition of land after an entry of it had been allowed, and while a contest over it was pending and undecided. Smith v. Oakes, 1 Land Dec. Dep. Int. 181; Hawker v. Fowlks, 2 Land Dec. Dep. Int. 53; Hoyt v. Sullivan, Id. 283; In re Fritzsche, 3 Land Dec. Dep. Int. 208; Keith v. Townsite of Grand Junction, Id. 431; Gilbert v. Spearing, 4 Land Dec. Dep. Int. 463; Grove v. Crooks, 7 Land Dec. Dep. Int. 140; In re Peterson, 8 Land Dec. Dep. Int. 121. Counsel for the appellants admit the soundness and force of these po

sitions, and they also concede that after the decision of a pending contest, and before receipt of official notice of it by the local land officers, the latter could not legally allow an entry of the land under the established rules and practice of the department. Their contention is, however, that the rule and practice of the department was that while, during the interim between the decision above and its receipt below, the local officers could not lawfully allow an entry, it was their legal duty to receive and hold all applications to enter tendered to them until they received notice of the decision, and canceled the prior entry, and then to give preference in the entry to the first application presented after the date of the decision, and before notice of it was communicated. In other words, their position is that, while the local officers had no authority to allow an entry, they had the power to allow an acquisition of the land between the date of the decision and their receipt of official information of it. Such a rule and practice, if it existed, was pernicious, and in the teeth of the policy and provisions of the land laws of the United States, for the reasons stated more at length in the opinion upon the demurrer in 32 C. C. A., at pages 350-352, 89 Fed., at pages 814, 815, a perusal of which here is invoked. It was pernicious because it gave the preference over the citizens of the vicinage to a sentinel stationed in the secretary's office at Washington, more than 1,000 miles away, and presented facile opportunities for secret, mischievous, and scandalous machinations. It was inconsistent with the policy and terms of the land laws because it permitted the acquisition of land without record thereof, and made the right to acquire it dependent not upon the state of the records in the local land office, which were open to examination, and easy of access to the citizens of the district in which it was situated, but upon the earliest information of a decision filed more than 1,000 miles away, which few, if any, of the citizens of the neighborhood would have a chance of obtaining, when the theory and provisions of the land laws are that a clear and open record of the acquisition of every right to land through the land department shall be immediately made in the books and plats in the local land office of the district in which the land is situated, that the state of the title and of the claims to the public land shall always be of record and open to the inspection of the people in the local land office, and that every citizen of the vicinage shall thus have equal notice of opportunities to obtain and equal chance to secure any tract of public land in his district. 2 Stat. 73, c. 55, §§ 7, 8; Rev. St. §§ 2223, 2247, 2295. It was the converse of this contention the rule and practice that the land remained withdrawn from acquisition at the local land office until the decision of the secretary that the prior entry was void was officially made known to the local officers and until the notation of its cancellation was made on their plats and records-which the court below found to exist on February 23, 1889. Does the record sustain this finding? Counsel for appellants maintain that this is a question of fact; that the decision of the secretary on December 21, 1894, found that no such rule or practice existed; and that, therefore, this issue is not open for the consideration of the courts. If the premise of this argument were sound, the conclusion would be inevitable. But the record discloses