odor of petroleum, which when ignited would explode a throw of flame four or five or less feet long. Rainbow colors were noticed in the bubbles and film, indicating the presence of oil. The gas could be ignited at will from off the bailer. In none of these wells was any attempt made to ascertain the volume of gas encountered by shutting off the water, and the drilling was continued without interruption below the Shannon sand, although it appears that the question of testing was raised but not attempted in the first well drilled, and also considered when the gas in the Midwest No. 2 was encountered, but put aside because such a test would involve the loss of a string of casing and imperil the chances of reaching the objective, the First Wall Creek sand, by reason of the inadequacy of the type of drilling rig then available for such drilling. The drillers of the Midwest No. 2 and 11A wells testified that they were instructed to disregard the Shannon sand. A scout for another oil company, who kept track of the drilling through the Shannon sand in the first well, and who detailed what he saw as to disclosures of oil and gas, testified that when the drilling of that sand was completed "our interest was pretty well washed up," as he figured that the Wall Creek sand was too deep to be commercial, and no production had been established; that though he believed the Shannon sand was not then adequately tested, he could not say a commercial body of oil was disclosed. The two drillers who drilled Midwest No. 2 testified also in substance that they paid little attention to the showing of oil and gas in this well at the time and did not think it amounted to much, but that later experience in drilling the Shannon sand in the Salt Creek field, where gas in commercial quantities was shown to have been smothered or killed by similar water pressure, had led them to change their opinion as to this well. Like views were expressed by defendants Wheeler and Parker in their testimony, the latter stating that he considered the well commercial when the gas showing was disclosed. Wheeler gave what he termed a "rough estimate" and Parker what he termed a "dependable guess" that from 1,500,000 to 5,000,000 cubic feet of gas per day would have been shown in any of the three wells, as coming from the Shannon sand, had a proper test thereof been made. Both of these defendants, however, admitted the execution and presentation to the Department of affidavits made by them in the character of oil and gas permittees under permits on the Midway structure in connection with applications for extension thereof, and for permission to drill test wells on the Midway and other structures. These affidavits, after specific reference to the wells which the affiants now assert resulted in adequate discoveries of gas in suffi * cient volume to be commercial, contain statements that "substantial The District Geologist for the Midwest Company, called by defendants, testified to the effect that the various formations between the oil sands on the Midway Dome, so far as known, are impervious and there is no disclosed faults from which migration of oil or gas from one sand to another could be inferred. The Commissioner rejected the contentions of the defendants(1) That the showing in the three wells first mentioned constituted valid discoveries of oil or gas; and (2) That the drilling of well 11A was diligent prosecution of work in behalf of these asserted oil placer claims. In both of these rulings the Commissioner was clearly right. The evidence shows that the actual disclosures of oil or gas in the three first wells were negligible and inconsequential. The conduct of the claimants and their lessee thereafter convinces the Department that they were in no wise induced by what they saw or found in the Shannon sands to rely upon them as a discovery or to expend further time or money in the hope of developing therein oil or gas in commercial quantities. On the contrary, their objective was thereafter the sand that laid below. The so-called estimates of gas volume in these wells is mere surmise, with no demonstration of its proven presence in such quantities, and their assertions now as to their beliefs that there was adequate discovery are not compatible with the statements and position taken in the affidavits mentioned. The reasoning that because a head of water in a well elsewhere, comparable with that disclosed in these wells, smothered and suppressed gas in sufficient quantities to be commercial, therefore it must have done the same in these wells, is plainly a mere supposition. The Commissioner, therefore, correctly applied the rule in Oregon Basin Oil and Gas Company (On Rehearing), 50 L.D. 253, that— To support a mining location, the discovery upon which the validity of the location is based must be of the particular deposit actually discovered within the limits of the claim for the reasonable prospect of the development of which into a valuable mine the evidence warrants further expenditure of time and money. Counsel for the defendants, in their brief, attempt to distinguish the facts in the Oregon Basin case from the one at bar, in that in the former the asserted discovery was found in a small local lens. of sandstone not capable of production anywhere, while exploration in the Shannon sand in the Big Muddy Field, 18 miles distant, and in the Salt Creek field and other fields at greater distances, exhibiting similar conditions of sand porosity and hydrostatic pressure as in the Midway field, disclosed some production of oil and gas in commercial quantities. Geologic inferences, however, cannot be substituted for or be allowed to prevail over the results of the actual tests of this sand within the claims. The Oregon Basin case and the case at bar are alike in this, that the deposits within the claims actually encountered, relied upon as discoveries, were not shown to contain oil and gas in sufficient quantities to render the land valuable on account thereof, and are wholly separate and distinct from oil sands at much lower depth, in which valuable deposits were encountered. Appellants seek support for their contention that a discovery was made in the three wells first mentioned in the unreported case of United States v. Dudley Oil Company, decided October 3, 1918, and the case of Freeman v. Summers (52 L.D. 201). The facts in the Dudley Oil Company case were clearly distinguished from the facts in the Oregon Basin case in the Department's decision on appeal in the latter (50 L.D. 244, 251), and in United States v. Ruddock (52 L.D. 313, 323), and the facts in the Oregon Basin case were clearly distinguished from those in the Freeman Summers case in the decision rendered in the latter. In the Dudley case, oil in commercial quantities was produced from wells on nearby land from the same stratum of sand reached by alleged discovery well in that case, which had an estimated yield in itself of 15 barrels per day. In the Freeman v. Summers case, the finding of discovery was predicated on the evidence that the oil shale there in question "is one massive homogeneous deposit of like material * * * one stratum, one bed, from its base to its topmost reaches; that all sections of the stratigraphic column of this formation contain either shale, sandy shale, or sand that will yield oil upon destructive distillation; that the whole body will be commercially developed and is all valuable." This being so, the Department said that "having made his initial discovery at or near the surface, he (the locator) may with assurance follow the formation through the lean to the richer beds." The Commissioner declined to consider the evidence as to the exploration and discovery in the 11A well, as for the benefit of these claims, first because it did not constitute diligent prosecution of work within the rules stated in McLemore v. Express Oil Company (158 Cal. 559), and second, because the well as shown by records of this Department was drilled as a test well by express authority of the Secretary" at the instance of several prospecting permittees all of whom are not parties to this proceeding." In enumerating certain activities by mineral claimants which would not constitute diligent prosecution of work, the court in the McLemore case said that "it did not mean the pursuit of capital to prosecute the work." This statement has been approved and applied in later cases. Borgwardt v. McKittrick Oil Company (130 Pac. 417), Pacific Midway Oil Company et al. (44 L.D. 420, 426). The evidence shows that all these claimants and others associated with them were doing for over six years after the Midwest No. 2 was abandoned was to induce oil companies to make geophysical examinations of a large area, including these claims, and endeavoring to have them employ their financial resources in drilling further test wells. This was plainly not diligent prosecution of work looking to discovery of oil or gas. In addition to what has heretofore been stated as to the circumstances under which well 11A was by the Department permitted to be drilled, the records in this Department show that defendants Wheeler and Parker joined with Boyer and presented in August, 1930, an assignment of permit 048864, dated February 21, 1929, from Boyer to them jointly, and an assignment dated August 7, 1930, from Parker of his interest to Dawn F. Parker, who he admitted in testifying in the case was his wife. Approval was sought of these assignments. It is further shown that said Wheeler and Dawn F. Parker, as such assignees, on January 26, 1931, applied with Boyer and the Midwest Refining Company, as operator, for an oil and gas lease of the land within such permit, based upon a discovery of oil and gas in the very same well, 11A, which Wheeler and H. Leslie Parker are now attempting to assert was drilled in behalf and for the development of the Middy 16 and 21 claims. These last two named also, in the character of such assignees, joined with the permittee and Midwest Refining Company in an application for the enlargement of the permit. The basic conditions authorizing the grant of a prospecting permit under section 13 of the Leasing Act are that the deposits belong to the United States and the land applied for is not within the geologic structure of an oil and gas field. When Wheeler and Parker and the Midwest Oil Company sought and obtained the permission of the Department to drill this test well and acquired interests under the Boyer permit, they necessarily represented that these basic conditions for authorizing operations under a prospecting permit existed. At no time did they assert that they had a vested right to the oil and gas deposits under the Mining Law by virtue of discovery of valuable deposits of oil thereon, which would have precluded the grant of such a permit to them and the permission to drill a test well. Neither they nor anyone in whose behalf they acted can be heard to say that this well was drilled for the benefit of the asserted mining locations. Having thus attorned to the Government they cannot dispute its title to such deposits. It is a settled principle that where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim, title, or right, he can not afterwards assume a position inconsistent with such act, claim, or conduct to the prejudice of another who has acted in reliance on such conduct and representation. (21 C.J. 1202," Estoppel," sec. 204). The Commissioner rightly disregarded all evidence as to the drilling of the 11A well as prosecution of work in behalf of these mining claims. There is much in the record that suggests that applicants for the mineral patent, other than Wheeler, who admits a present interest in the Boyer permit, have by agreements in connection with the cooperative drilling program become partakers in the benefits from the sale of oil and gas produced in the well drilled under said permit, and therefore asserting contemporaneously rights under the mining laws and the Leasing Act, which can not be permitted. Joseph E. McClory (50 L.D. 623); Departmental letter to C. L. Richards (50 L.D. 650). As to such beneficiaries, they are bound by their election to take an oil and gas permit, and their asserted rights under the mining laws must be deemed abandoned. Honolulu Cons. Oil Co. (48 L.D. 303); Hodgson v. Midwest Oil Co. (297 Fed. 273); Robins v. Elk Basin Cons. Petroleum Co. (285 Fed. 179); Metson v. O'Connell (52 L.D. 622). It is not necessary, however, to make further inquiry as to the extent of such interests, as under the view the Department takes of the evidence the mining claims never had any valid existence. There is no merit in the contention of the appellants that the failure of the permittee to adverse the patent application during the period of publication thereof, forecloses any assertion of right under the permit. The permit was granted before the application for patent was filed. It was the duty of the patent applicants to contest the permit and first show that they had a superior right under the mining locations. Appendix to Oil and Gas Regulations, Circular 672 (47 L.D. 463, 470). Under the long established policy of the Department to treat as excluded from entry or filing lands to which the claims of others have been allowed, these appellants by their application acquired no legal status other than that of a contestant. State of Utah, Pleasant Valley Coal Company Intervener, v. Braffet (49 L.D. 212); Work v. Braffet (276 U.S. 560). The mineral application should, therefore, never have been permitted to proceed to publication, and no adjudication in this proceeding solely between the Government and the mineral claimant that the mineral claims were valid, had the evidence so warranted, would have been binding upon the permittee or his privies in interest, to the extent. they are not actually parties to the proceeding. Furthermore, an |