JOHN B. WHITCOMB, Surviving Partner of the Firm of Moses P. Whitcomb and John B. Whitcomb, Copartners as Whitcomb Brothers, et al., Plffs. in Err., v. JOHN E. WHITE and Roberta B. White.

The decision of the Land Department was not rested solely upon the fact that White's formal application was filed a few hours before that of the trustee for the occupants of the town site, but rather chiefly upon the priority of the former's equitable rights. So far as such decision involves questions of fact, it is conclusive upon the courts. Johnson v. Towsley, 13 Wall. 72, 86, 20 L. ed. 485, 487; Shepley v. Cowan, 91 U. S. 330, 340, 23 L. ed. 424, 427; Marquez v. Frisbie, 101 U. S. 473, 476, 25 L. ed. 800, 801; Quinby v. Conlan, 104 U. S. 420, 425, 426, 26 L. ed. 800, 802; Burfenning v. Chicago, St. P. M. & O. R. Co. 163 U. S. 321, 323, 41 L. ed. 175, 176, 16 Sup. Ct. Rep. 1018; De Cambra v. Rogers, 186 U. S. 119, 120, 47 L. ed. 734, 23 Sup. Ct. Rep. 519.

And this rule is applied in cases where there is a mixed question of law and fact, unless the court is able to so separate the question as to see clearly what and where the mistake of law is. As said by Mr. Justice Miller in Marquez v. Frisbie, supra, p. 476:

'This means, and it is a sound principle, that where there is a mixed question of law and of fact, and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive.' Quinby v. Conlan, supra, 426.

Further, the 38th and 39th findings of the trial court, which were not disturbed by the supreme court in its opinion, were:

'38. That the officers of the Interior Department did not exclude any testimony, and there was in said Land Office and said Department a full, fair, and complete hearing.

'39. That the officers of said Interior Department, of said Land Office, or any or either of them, were not guilty of any fraud or any unlawful conduct.'

Clearly, the findings of the Land Department cannot be disregarded, especially since they are reinforced by the judgment of the state courts. This court ought not to reverse such judgment except upon the clearest and most convincing evidence of mistake or injustice.

These are among the matters shown by the testimony and upon which the decisions of the Land Department and the state court were based: While the entire quarter section was public land, and before settlement by any individual, the Northern Pacific constructed its road, crossing Clark's fork of the Columbia river near the tract. At that time the public surveys had not been extended over this region; indeed, were not so extended until 1893, and the approved plat of the township was not filed in the local land office until November 27, 1895, the day, the formal applications of these parties were made. Between 1884 and 1890 some four or five persons settled on the tract, who, with others, at the time of the application for the town site entry, in 1895, claimed to be then occupying it for the purposes of trade and business, and to have established a town, which they called Clark's Fork. The right of way of the Northern Pacific was 400 feet in width (13 Stat. at L. 365, chap. 217), and, at first, the houses were upon this right of way, the settlers believing that it was only 200 feet in width. The original occupants were not seeking to establish a town, but to enter the land as a homestead. The first attempt to obtain title to the tract in controversy under the town site laws was made on October 29, 1895, when a petition signed by ten persons was filed with the probate judge of the county, asking him to secure the tract as a town site. Melder v. White, 28 Land Dec. 412, 415. In 1890 the plaintiff White was the station agent of the Northern Pacific at that place, and in 1891 settled upon the land, making his home outside the right of way, and intending to enter it as a homestead. There was talk between him and some of the other occupants in reference to an apportionment of the quarter section between them, but no agreement was reached. In other words, the occupation at first was with no thought of a town, but by parties contemplating securing homes under the homestead law. After it had been ascertained that the railroad right of way was 400 feet in width, and in 1893, the settlers were notified by the railroad company of its title. Thereupon some leased from the company while others moved their houses off the company's ground. Under those circumstances questions of fact arose as to the first occupant, and for what purpose he occupied it. In deciding the contest, the Secretary of the Interior held (28 Land Dec. 412, 421):

'In the case at bar, at the time of the survey in the field, White was the only settler on this subdivision except Whitcomb, the other parties at that time being located on the right of way, and as to them White's right, as a prior settler, attached to the entire tract from such time. Any right Whitcomb may have had as a homestead settler by reason of his settlement before survey in the field is lost by his failure to assert the same under the homestead law.

'The evidence shows that, after the survey in the field, White made claim to the entire tract, and exercised rights of ownership over the same. It was necessary for him to adjust his settlement claim to the lines of the public survey, and, in so doing, to include the legal subdivision on which his improvements were placed.'

Notwithstanding some conflict in the testimony, there was abundant to support the findings of the Secretary of the Interior, and, as heretofore stated, such findings of facts are to be regarded as conclusive in any controversy in the courts.

There was no error in the decisions of the Supreme Court of Idaho, and its judgment is affirmed.