When it clearly appears that in a departmental decision material facts have been overlooked or misstated therein, that evidence has been given consideration which on its face it was not entitled to receive, or that other and prejudicial mistakes have been made, it is the duty of the Secretary of the Interior, whether he is the same person who decided the case originally, or his successor in office, to reopen said case and correct such manifest error, if the government still retains the legal title.

The allowance of an entry on final proof, regularly submitted, in which the character of the land is duly shown, determines such matter by a higher quality of evidence than that afforded by a surveyor's return, and thereafter anyone attacking such entry must assume the burden of establishing such illegality or irregularity in the procurement or allowance of the entry as will defeat the issuance of patent thereon.

An agricultural entry of land returned as of the character subject to such entry, and shown to be such by the final proof, is not affected by a subsequent survey in which the land is returned as mineral in character.

Where in granting an application for a hearing the Commissioner of the General

Land Office expressly places the burden of proof upon one of the parties, that direction is binding upon the local office, and they can not depart therefrom in the absence of a modification thereof by the Commissioner.

The right and title of a purchaser under the pre-emption law is not affected by the discovery of mineral subsequent to the date of his entry and final certificate; such right and title must be determined by the known character of the land at the time of the entry, hence, evidence of a discovery subsequent thereto, is not admissible in support of a charge that the land is not subject to agricultural entry.

The return of the surveyor-general as to the character of land constitutes but a small element of consideration when the question as to the true character of the land is at issue.

The former departmental decision herein of July 7, 1896, 23 L. D., 34, withdrawn and vacated.

Secretary Bliss to the Commissioner of the General Land Office, June 3,

December 4, 1882, John R. Williams filed pre-emption declaratory statement for the NE. 4 of the NE. Sec. 12, T. 10 S., R. 85 W., and the 21673-VOL 27- -1

1

W. of the NW. and the NW. of the SW. of Sec. 7, T. 10 S., R. 84 W., 6th p. m., Leadville, Colorado, land district, alleging settlement April 12, 1881, which declaratory statement was amended November 25, 1884, to describe the S. of the NW. 4, the NE. 4 of the SW. and the NW. of the SE. of Sec. 7, T. 10 S., R. 84 W. Williams' original settlement and subsequent occupancy and residence covered the land in the amended description, but by mistake an erroneous description had been given in his declaratory statement and hence the amendment was allowed but, as is usual in such cases, was made subject to any prior valid adverse claim.

February 11, 1885, Williams submitted final proof of his compliance with the pre-emption law showing, among other things, his settlement, improvement, cultivation, and continuous residence upon the land, and also showing its non-mineral character, which proof was found satisfactory by the local officers and was approved by them. He then made payment for the land and the local officers allowed his pre-emption cash entry and issued a final certificate to him. Notice of Williams' intention to make such final proof had been regularly given for a period of thirty days by publication in a newspaper and by posting in the local office, as required by act of March 3, 1879 (20 Stat., 472), the notices stating the description of the land to be entered, the names of the witnesses by whom the necessary facts would be established and the time and place of making the proof. No objection of any character was made to such final proof or cash entry on behalf of the placer claims hereinafter mentioned or otherwise.

March 4, 1891, the Aspen Consolidated Mining Company filed in the local office a written protest, verified by one of its agents, asserting ownership of three placer mining claims, known as the Fowler, the Field, and the Lux, alleged to have been located in May 1883, and to cover portions of the land embraced in Williams' entry. This protest objected to the issuance of patent to Williams for the reasons:

1st. That the aforesaid tract is not agricultural but placer mining ground.

2nd. That the said tract was not taken up (as deponent verily believes) by said John R. Williams in good faith for agricultural purposes but in fraud of the preemption laws of the United States for speculative purposes.

The protest concludes with the following prayer:

Wherefore deponent respectfully prays that a hearing be ordered to allow them to prove the foregoing allegations and protect their legal rights to the aforesaid Lux, Fowler and Field placer mining claims, and also to show cause why the said agri. C. E. No. 21 should be canceled.

January 23, 1892, your office ordered a hearing upon this protest to determine whether the land in conflict was known at or before the date of said cash entry to be valuable for placer mining. This order placed the burden of proof upon the mining company, as will appear from the following extract therefrom:

The land having been returned as agricultural, and the cash entry having been allowed, the burden of proof is upon the attacking party.

A hearing was had, at which a large mass of testimony was submitted, and, August 25, 1893, the local officers rendered a decision adverse to the mining company, holding:

We believe from the evidence that the Fowler, Field and Lux placers have no value whatever for placer mining purposes. We further believe that the land embraced in P. E. cash entry No. 21 of John R. Williams is very valuable for agricul tural purposes, and that he settled thereon in good faith for the purpose of making a home for himself and family under the pre-emption laws.

Then after a review of the history of the case and the testimony submitted relating to the mineral character of the land, they say:

In view of the foregoing, we find that the land in controversy was not on February 11, 1885, or prior thereto, of any value for placer mining purpose; that it has no value present or prospective for such purposes, but that on the contrary it is valuable for agricultural purposes.

Upon appeal to your office, the decision of the local officers was affirmed May 21, 1894.

Upon appeal to this Department it was held by Secretary Smith, July 7, 1896 (23 L. D., 34), that the burden of proof to show the mineral character of the land was erroneously placed upon the mining company; that rightly placed the burden of proof rested upon Williams to show its non-mineral character; and that measuring the evidence with the burden of proof thus readjusted, the land was shown to be of known mineral character at the date of Williams' entry. It was then directed that Williams' entry be canceled to the extent of the land in conflict. Notice of this decision was served July 15, 1896, and a motion for review thereof filed by Williams August 14, 1896, was denied by Secretary Smith, August 28, 1896. Secretary Smith's term of office terminated by resignation September 1, 1896, and notice of the denial of the motion for review was served upon Williams September 4, 1896.

September 9, 1896, the mining company made payment at the local office for the land in conflict, mineral entry thereof was allowed, and final receipt issued.

September 29, 1896, Williams filed in the Department a petition, saying:

The Commissioner directed the local officers that "the land having been returned as agricultural and the cash entry having been allowed, the burden of proof is upon the attacking party." Your petitioner submits that both parties to this cause went to trial under those requirements and that the conduct of the trial and the character of the evidence submitted by your petitioner were in conformity with such requirements.

Your petitioner respectfully submits that his property rights should not be prejudiced on account of his following said instructions, if such instructions were erroneous. Having followed the instructious of the officers of the government your petitioner submits that he should lose nothing unless required by the absolute demands of the law, and your petitioner respectfully submits that there is no such absolute demand present in this case.

After referring to the belief expressed in Secretary Smith's decision,

supra, that when bed rock is reached valuable auriferous deposits will be found, the petition proceeds:

Your petitioner represents that as soon as he became aware of the fact that the burden of proof was upon him to show the non-existence of valuable auriferous deposits at bed rock . . . he caused a careful examination to be made of said land by numerous persons. Your petitioner now submits the following newly discovered evidence showing the absolute non-existence of gold at bed rock.

Accompanying the petition are the affidavits of seven different persons to the effect that an examination made since Secretary Smith's decision, discloses that there is no gold at bed rock.

Williams' petition then urges that if the burden of proof to show the non-mineral character of the land bad been placed upon him in the first instance, his preparation for the trial, the manner of conducting the same, and the proof upon his part would necessarily have been quite different from what they were with the burden of proof placed upon the contesting mineral claimant by the prior explicit direction of the General Land Office. It is also contended therein that inasmuch as the mineral claimant did not attempt, by direct testimony, to show the actual existence of gold at bed-rock, the defendant was not called upon to submit testimony upon that point.

On the presentation of this petition, further proceedings under Secretary Smith's decision were, by direction of Secretary Francis, suspended during the consideration thereof.

January 15, 1897, the mining company filed a petition asking that the mineral entry of the land in conflict, made September 9, 1896, be passed to patent, and that Williams' petition be dismissed: (1) because the evidence proposed to be submitted is not newly discovered inasmuch as it might have been submitted at the former hearing, if due diligence had been exercised; (2) because the departmental decision in question was a final adjudication of the questions in controversy, it being alleged that the decision of one Secretary is binding upon his

successor.

May 6, 1897, the mining company filed four affidavits re-asserting the mineral character of the land, setting forth evidence thereof alleged to be newly discovered, and attacking the credibility of persons whose affidavits were filed with Williams' petition.

After due notice to both parties an extended oral argument was heard, both parties participating, during which not only the points directly involved in each of these petitions, but also the merits of the case were fully discussed, the point most strongly urged by the mining company being that the present Secretary of the Interior is without jurisdiction or authority to take any action in the premises, except to execute the decision heretofore rendered by Secretary Smith.

Thereafter and on September 2, 1897, the mining company while again protesting that the former decision is binding upon the present Secretary, filed a copy of a newspaper purporting to give a report of a recent discovery of gold bearing veins or lodes on Difficult Creek, a