US SUPREME COURT DECISIONS

Where a decision of the Land Department rests on the priority of equitable rights of a contestant it is conclusive upon the courts so far as it involves questions of fact, and on a mixed question of law and fact it is conclusive unless the court can so separate the question that the mistake of law is clearly apparent.

Where the controversy in the Land Department involves the question of whether the first occupant occupied the land for homestead or townsite entry, and there is evidence to support the Secretary's finding, that finding is conclusive on the courts even though the evidence be conflicting.

13 Idaho 90 affirmed.

This was an action brought by John E. White and Roberta B. White, his wife, in the District Court of the First Judicial District of the State of Idaho, in and for the County of Kootenai, to recover the possession of the

"Northwest Quarter of the Southwest Quarter and Lots five (5), six (6), and seven (7), of Section two (2), Township fifty-five (55) North of Range two (2) East, Boise Meridian."

The defendants' answer was in the nature of a cross-bill in equity, admitting that the legal title to the premises was in the plaintiffs, and seeking to charge them as holders of that title in trust for the use and benefit of the defendants. A trial before the court without a jury resulted in a judgment for the plaintiffs for the recovery of possession and damages chanrobles.com-red

Page 214 U. S. 16

for the detention. On appeal to the supreme court of the state, the award of damages was set aside, but the judgment for the recovery of possession was affirmed. Thereupon the case was brought here on error.

The plaintiffs' title was a patent from the United States to plaintiff John E. White, based upon a homestead entry. The defendants claimed to have been occupants of the premises as a townsite, and that therefore the land was not subject to entry as a homestead. The application for the homestead entry was formally made at the land office a few hours before that of the probate judge of the county, acting under the statutes as trustee for the occupants of the townsite. A contest was had in the local land office, which resulted in a finding in favor of the plaintiff John E. White. This decision was sustained by the Commissioner of the General Land Office and affirmed by the Secretary of the Interior.