The action is tried to the .court without a jury. The contested and controlling questions in the case are questions of law. The plaintiff is seeking *97to acquire title to the land in dispute from the government under the laws and regulations pertaining to the acquisition of title to nonmineral government land. The defendant is claiming the right to acquire a portion of the land claimed by plaintiff by a compliance with the laws and regulations regarding acquisition of title to mineral land. Each party is endeavoring to get title to what each admits to be government land, subject to disposition under its laws.

The plaintiff claims the land to be -nonmineral, and that he has complied with the laws entitling him thereto and to present possession. The defendant claims it to be mineral, and that he' has complied with the laws entitling him thereto and to present possession. The defendant further claims that the question of the mineral or nonmineral character of the land is one solely within the jurisdiction of the Eand Department. While conceding the allegations of the supplemental complaint to be true, the defendant contends that the finding of the Land Office of the nonmineral character of the land is not conclusive, but that the subsequent discovery claimed to have been made by defendant in the same shaft, after such finding in the Land Office and his location upon the new discovery, leaves the question of the character of the land still open, to be determined by the Land Office only.

The evidence showed that the plaintiff made claim to the land in dispute as alleged in the complaint and prior to any claim of the defendant.

The decision of the Land Office, in the absence of fraud, and possibly other grounds not here involved, upon the question of fact, prior to patent, concludes the courts upon such questions. This includes the question of the mineral or non-mineral character of the ground. Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. Ed. 772; James v. Germania Iron Co., 107 Fed. 597, 46 C. C. A. 476; Peyton v. Desmond, 129 Fed. 1, 63 C. C. A. 651; Jeffords v. Hine, 2 Ariz. 162, 11 Pac. 351; Cook v. McCord, 9 Okl. 200, 60 Pac. 497; Bertwell v. Haines, 10 Okl. 469, 63 Pac. 702.

This is undoubtedly the law as to determining equitable title, but it would still seem to be within the province and jurisdic*98tion of courts of general jurisdiction to adjudicate concerning possessory rights, even if the question of the character of the land was involved in determining such rights. Potter v. Randolph, 126 Cal. 458, 58 Pac. 905. Even were this not true, the Rand Office has determined, as pleaded in the supplemental complaint and proven upon the trial, that the land is nonmineral, which finding is now conclusive upon the court. That ruling is in effect res judicata, and the character of the land, as fixed by the Land Office ruling, will be binding on all courts, where rights in this land are involved, and until that ruling is reversed or otherwise modified in the Land Office. The proper proceeding would be to secure a rehearing in that office instead of renewing the controversy in this suit.

Counsel for defendant has produced a number of decisions sustaining his position that section 2326, Rev. St. (U. S. Comp. St. 1901, p. 1430), does not authorize an adverse suit between a mineral and nonmineral claimant to land.

As the Land Office has held this land to be nonmineral, and all of the rights claimed therein by the defendant are based upon his contention that it is mineral, the cases cited would not seem to be applicable, even were the reasoning persuasive, which it is not.

Findings and decree may be prepared awarding the possession of the ground in dispute to the plaintiff, and the court will appoint a referee to mark and establish the boundary between the lands of plaintiff and defendant; cqsís to be allowed plaintiff, but no damages.