(after stating the facts as above). The appellants contend that the decision of the Land Department, rejecting the claim of the appellee McPhee as a homestead settler, was based upon a disputed question of fact, and was therefore not subject to review and reversal by the court below. They point to the language of the ruling of the Land Department, in which it was said, “From the above facts it is apparent that McPhee’s claim is based upon the proposition that the land applied for by him was excepted from the railway’s selection by virtue of O’Donnell’s settlement,” and the conclusion which followed, that “McPhee failed to show any privity with O’Donnell, or exactly what land O’Donnell claimed under his settlement,” and they contend the court below recognized that the rejection of McPhee’s claim was based upon a finding of fact, in that the court used the following language:

“The legal conclusion of the Commissioner as to the fact of residence and the boundaries of the O’Donnell claim, so far as settlement and residence is concerned, is erroneous.”

It is true that courts have no power to review findings of fact by the Land Department which were within its province and duty to make. Daniels v. Wagner, 237 U. S. 547, 35 Sup. Ct. 740, 59 L. Ed. 1102, L. R. A. 1916A, 1116, Ann. Cas. 1917A, 40. And a decision of the Land Department that one of two contesting claimants is the owner of the improvements on the land is conclusive, unless made without evidence to support it, or is otherwise the result of an error of law. Harnage v. Martin, 242 U. S. 386, 37 Sup. Ct. 148, 61 L. Ed. 382. We do not, however, regard the ruling of the court below as disturbing any finding of fact made on the contest in the land office between the appellants and appellees. McPhee’s application was rejected, on the theory that he was bound by the testimony adduced on Thurston’s application for the allowance of his homestead claim and upon the fact that McPhee “did not protest Thurston’s claim for allowance.”

The decision of the Land Department in ruling against the appellees resulted from the attitude of the department toward the Thurston homestead claim, Thurston having obtained a patent to 120 acres east of and contiguous to the claim of the appellees. Cole, the first settler, transferred his claim to O’Donnell, who transferred to Thurston, and Thurston transferred to Beebe, and Beebe was the predecessor in interest of the appellees. Both Thurston and McPhee claimed through O’Donnell. Thurston’s application to enter his land was filed February 6, 1906; the appellees’ claim was filed September 27, 1909. In the meantime Beebe had filed and relinquished a claim as homestead settler, but Beebe failed to show his right as coming from Thurston, and Thurston failed to inform the Depart*7ment that he had transferred to Beebe. For several years prior to September 28, 1912, the Land Department had the Thurston and McPhee claims pending before it. The claim of McPhee of priority over Thurston was not disputed, but the Land Office ruled against McPhee on the ground that he did not protest Thurston’s claim. There was no dispute that the land claimed by McPhee was the land entered by O’Donnell, and that the land occupied by the latter was the identical land which Thurston transferred'to Beebe, and the latter to McPhee.

The legal question arises whether the McPhee claim should be defeated for the reason that Thurston asserted rights to which he had no real claim at the time when he submitted his proof. It seems clear as a matter of law that the evidence given by Thurston is not conclusive against the rights of the appellee. Thurston’s claim was not in fact in conflict with the claim of McPhee, and the decision of the Land Department was not decisive of the rights of the latter. Uinta Tunnel Co. v. Creede, etc., Co., 119 Fed. 164, 57 C. C. A. 200; Mining Co. v. Tunnel Co., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501. The appellees could have been bound by the testimony on the Thurston application only upon the assumption that the notice by Thurston of his intention to make final proof was in the nature of a proceeding in rem, which bound all parties. There was nothing in Thurston’s notice to convey information to McPhee that he sought to appropriate to himself the property which McPhee was claiming and upon which he was residing® his place of residence being the house which had been occupied by O’Donnell, his predecessor in interest.

Appropriate» investigation by the Land Department would have shown such residence and occupation, and the location of the O’Donnell improvements on land other than that which was included in the Thurston claim. We need not pause to inquire whether the appel-, lants here may have a remedy in equity to recover the land which was patented to Thurston. It is sufficient for the disposition of this case that O’Donnell initiated a homestead right which existed at the time when the lieu land selection was made by the railway company, and that the appellees succeeded to O’Donnell’s rights. Thurs-ton was not seeking to acquire the land upon which O’Donnell’s improvements were made. Referring to those improvements, he testified that he dropped that 40 acres and 'took up another 40 acres “where my house stands.”

Residence on one tract will not support a homestead claim to another and distinct tract. Great Northern Railway Co. v. Hower, 236 U. S. 702, 35 Sup. Ct. 465, 59 L. Ed. 798. We think there can be no doubt that the court below properly ruled that by O’Donnell’s settlement in 1902 the land which he claimed as his homestead was reserved from selection as lieu land by the railway company. Kansas Pac. Ry. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Hastings, etc., R. R. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363. And that the continuity of interest m the improvements and settlement evidenced by transfers from *8O’Donnell through mesne conveyances to McPhee, the appellees have established a right to the land, and that the rejection of Beebe’s application was not res adjudicata as to the United States, and hence not conclusive of the appellees’ rights.

The decree is affirmed.