ment and select a tract of public land of like quantity in lieu of the tract relinquished. He is to make the selection, and in doing so he is confined to lands which are both vacant and open to settlement. They must not be occupied by others, nor reserved from settlement on account of their known mineral character or otherwise. With these exceptions the field for selection, except when otherwise specially provided, is co-extensive with the limits of the public domain. Further restrictions are imposed by the amendment of June 6, 1900, but they are not applicable to this case.

When do rights under the selection become vested? In the disposition of the public lands of the United States, under the laws relating thereto, it is settled law: (1) That when a party has complied with all the terms and conditions necessary to the securing of title to a particular tract of land, he acquires a vested interest therein, is regarded as the equitable owner thereof, and thereafter the government holds the legal title in trust for him; (2) that the right to a patent once vested, is, for most purposes, equivalent to a patent issued, and when in fact issued, the patent relates back to the time when the right to it became fixed; and (3) that the conditions with respect to the state or character of the land, as they exist at the time when all the necessary requirements have been complied with by a person seeking title, determine the question whether the land is subject to sale or other disposal, and no change in such conditions, subsequently occurring, can impair or in any manner affect his rights.

The authorities in support of these propositions are numerous. It will be sufficient to refer to a few of them.

In Carroll v. Safford (3 How., 441, 461) it was said:

Now, lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of the purchaser are considered, they are protected under the patent certificate as fully as under the patent. . . . . When sold, the government, until the patent shall issue, holds the mere legal title for the land in trust for the purchaser; and a second purchaser would take the land charged with the trust.

In French v. Spencer (21 How., 228) it appeared that a military land warrant had been located on a tract of land, which thereafter, but before the issue of the patent, had been sold by the locator. The act under which the land warrant was issued provided that no claim for military bounty should be assignable or transferable until after the patent had been issued, and that all sales, mortgages, or contracts made prior thereto should be void. It was held that rights under the land warrant vested upon location, that the patent when issued related back to the time of the location, and that the conveyance intermediate the location and patent was valid and carried the title.

In Witherspoon v. Duncan (4 Wall., 210, 218) the court held as follows:

In no just sense can lands be said to be public lands after they have been entered at the land office and a certificate of entry obtained. If public lands before entry, after it they are private property. If subject to sale, the government has no power to revoke the entry and withhold the patent. A second sale, if the first was authorized by law, confers no right on the buyer and is a void act. . . . The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the lands cease to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal fee in trust for the purchaser who has the equitable title.

.

In Stark. Starrs et al. (6 Wall., 402) the plaintiff's below, Starrs et al., claimed title under a patent based upon an act of Congress of May 23, 1844 (5 Stat., 657), known as the town site act, and Stark, the defendant below, claimed under a patent based upon the act of September 27, 1850 (9 Stat., 496), known as the Oregon donation act. The town site patent was issued December 7, 1860, and the patent under the donation act was issued December 8, 1860. The court, in determining the controversy thus presented, said:

We are clear that the town site act of 1844 was not extended to Oregon until the 17th of July, 1854; and even then that it only operated to exclude lands occupied as town sites, or settled upon for purposes of business or trade, from a donation claim, which had not been previously surveyed. Before the passage of this act the claim of the defendant, Stark, had been surveyed, and the required proof of his settlement and continued occupation and residence made, and such steps had been taken as to perfect his right to a patent. The lands embraced by his claim had then ceased to be the subject of purchase from the United States by any person, natural or artificial. The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When, in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary, to cut off intervening claimants.

In Barney v. Dolph (97 U. S., 652, 656) it was said:

When the right to a patent once became vested in a settler under the law, it was equivalent, so far as the government was concerned, to a patent actually issued. We so decided in Stark v. Starrs, 6 Wall., 402. The execution and delivery of the patent after the right to it is complete are the mere ministerial acts of the officer charged with that duty. An authorized sale by a settler, therefore, after his right to a patent had been fully secured, was, as to the government, a transfer of the ownership of the land. In Wirth v. Branson (98 U. S., 118, 121) it was held:

The rule is well settled, by a long course of decisions, that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside.

This was laid down as a principle in the case of Lytle et al. v. The State of Arkansas et al. (9 How. 314), and has ever since been adhered to.

In Simmons. Wagner (101 U. S., 260, 261) the court said:

It is well settled that when lands have once been sold by the United States and the purchase-money paid, the lands sold are segregated from the public domain, and are no longer subject to entry. A subsequent sale and grant of the same lands to another person would be absolutely null and void so long as the first sale continued in force. Wirth e. Branson, 98 id., 118; Frisbie . Whitney, 9 Wall., 187; Lytle r. The State of Arkansas, 9 How., 314. Where the right to a patent has once become vested in a purchaser of public lands, it is equivalent, so far as the government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it has become complete are the mere ministerial acts of the officers charged with that duty.

The case of Benson Mining and Smelting Company . Alta Mining and Smelting Company (145 U. S., 428) involved a controversy which arose under the provisions of the mining laws. An application for patent was filed under section 2325 of the Revised Statutes, notice of the application was duly posted and published, and in the absence of any adverse claim filed prior to the expiration of the period of publication, the applicant paid the purchase price for the land and did all which the law required him to do in order to secure a patent for his claim. It was sought to defeat his right to a patent on the ground that he had failed to continue the expenditure of $100 in labor and improvements upon his claim each year after the completion of hist patent proceedings, in accordance with the requirement of section 2324 of the Revised Statutes, that

On each claim located after the tenth day of May, eighteen hundred and seventytwo, and until patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year.

In denying this contention, the court said:

It is a general rule, in respect to the sales of real estate, that when the purchaser has paid the full purchase price his equitable rights are complete, and there is nothing left in the vendor but the naked legal title, which he holds in trust for the purchaser. And this general rule of real estate law has been repeatedly applied by this court to the administration of the affairs of the Land Department of the government; and the rule has been uniform, that whenever, in cash sales, the price has been paid, or, in other cases, all the conditions of entry performed, the full equitable title has passed and only the naked legal title remains in the government in trust for the other party, in whom are vested all the rights and obligations of ownership. Then, after considering a number of authorities on the subject, most of which have been herein referred to, it was further said:

There is no conflict in the rulings of this court upon the question. With one voice they affirm that when the right to a patent exists, the full equitable title has passed to the purchaser with all the benefits, immunities and burdens of ownership, and that no third party can acquire from the government an interest as against him.

In Deffeback . Hawke (115 U. S., 392, 404), after referring to and discussing certain provisions of the statutes relating to the disposal of lands valuable for minerals, the court said:

It is plain, from this brief statement of the legislation of Congress, that no title from the United States to land known at the time of sale to be valuable for its minerals of

gold, silver, cinnabar, or copper can be obtained under the pre-emption or homestead laws or the town site laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands, except in the States of Michigan, Wisconsin, Minnesota, Missouri and Kansas. We say "land known at the time to be valuable for its minerals," as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. It is not to such lands that the term "mineral" in the sense of the statute is applicable. In the first section of the act of 1866 no designation is given of the character of mineral lands which are free and open to exploration. But in the act of 1872, which repealed that section and re-enacted one of broader import, it is “valuable mineral deposits" which are declared to be free and open to exploration and purchase. The same term is carried into the Revised Statutes. It is there enacted that "lands valuable for minerals" shall be reserved from sale, except as otherwise expressly directed, and that “raluable mineral deposits" in lands belonging to the United States shall be free and open to exploration and purchase. We also say lands known at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterwards, rich deposits of mineral may be discovered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler and patented by the government under the pre-emption laws, may be found, years after the patent has been issued, to contain valuable minerals. Indeed, this has often happened. We, therefore, use the term known to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued.

In Colorado Coal and Iron Company v. United States (123 U. S., 307, 328) it was said:

A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may become profitable to work the veins and mines, can not affect the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale.

See also Hedrick v. Atchinson, etc., R. R. Co. (167 U. S., 673, 679); Widdicombe v. Childers (124 U. S., 400).

To the same general effect have been the decisions of the Land Department. In Harnish . Wallace (13 L. D., 108-9) it was held, with respect to an entry made under the pre-emption law, that-

In order to defeat the entry, on the ground of mineral character of the land, it must be shown that mineral was known to exist at the time of the entry, and a discovery of mineral made, as in this case, more than four years after the allowance of the entry, will not warrant its cancellation.

In Rea et al. v. Stephenson (15 L. D., 37) it appeared that a claimant under the homestead law had submitted his final proofs, showing compliance with all legal requirements, and had made final entry. It was sought to defeat his entry by showing subsequent discoveries of valuable minerals in the land. In passing upon the case, the Department, after referring to a number of authorities on the subject, held:

From these authorities it is evident that the question of the character of the land must be determined, in the case of a homestead entry, as of the date when the final entry is made, and under the conditions then existing.

In the case of Arthur . Earle (21 L. D., 92-3) the Department said:

It is found by the evidence, so far as the allegation that the tracts in question are more valuable for deposits of coal than for agricultural purposes are concerned, that some deposits of coal of no commercial value were discovered on the land by the protestant in August, 1892, after the date of Earle's final entry and the issuance of final certificate to him; that two or three shafts were sunk on said tract, and that small veins of coal were found, which are not shown to have been of any commercial value.

At any rate, the discovery, having been made after the purchase of said land and the issuance of final certificate to Earle, would not defeat the issuance of patent, even though said land should have been shown to be more valuable for coal than for agricultural purposes, as the conditions existing at the date of final entry determine whether the land should be excluded from homestead entry on account of its alleged mineral character.

In Chormicle v. Hiller et al. (26 L. D., 9, 14) it was held, with respect. to an entry made by the defendant, Hiller, under the timber and stone act of June 3, 1878 (20 Stat., 89), that

Discoveries made subsequent to Hilfer's purchase can not be used to defeat his right to the land. The conditions that pertained at the date of entry control, and not what may have been developed since.

In Reid et al. v. Lavallee et al. (26 L. D., 100, 102) it was said:

The only questions, however, properly before the land department in this proceeding are those which relate to the actual known character of the land in controversy at the date of the cash entry No. 269. If the land was then known to be valuable chiefly for its mineral contents it was not subject to such entry. . . . . If the land was agricultural in character when Lavallee made his cash entry therefor, and if he is shown to have possessed the necessary qualifications, and to have fully complied with the homestead law up to that time, his entry must stand.

See also the cases of Aspen Consolidated Mining Co. v. Williams (27 L. D., 1, 14-18), and authorities therein cited, and McCormack e. Night Hawk and Nightingale Gold Mining Co. (29 L. D., 373).

These established principles, in the opinion of the Department, are applicable to selections under the act of June 4, 1897. The act clearly contemplates an exchange of equivalents. Such is the unmistakable. import of its terms. In the case of the relinquishment of patented lands title is to be given by the government for title received. When an unperfected bona fide claim is relinquished, the claimant is to be placed in the same situation with respect to the selected tract that he occupied with respect to the tract relinquished. If a complete title is surrendered, the right to a complete title in return is secured. If only an unperfected claim is surrendered, the same rights are secured with respect to the new claim that were possessed with respect to the claim surrendered.

That the administration of the act in question falls within the jurisdiction of the land department there can be no doubt (Bishop of Nesqually . Gibbon, 158 U. S., 155, 167). Selections under the act are therefore subject to examination by the officers of the land depart