and in none of these cases had the right of a bona fide purchaser intervened.

In this case, the rights of bona fide purchasers have intervened. Defendants in error are bona fide purchasers for value and without notice, and their rights will be protected by this court. United States v. Burlington, 98 U. S. 334; Colorado Coal Co. v. United States, 123 U. S. 307; United States v. Cal. & Ore. Land Co., 148 U. S. 31.

There is no disputed question of fact to be considered by the court. All matters involved have been the subject of investigation by the Department. The only claim insisted upon is that there was a mistake of law by the Department. Carter could not, as matter of fact, in any new suit dispute or controvert the facts found in this suit, though as matter of law he might have the right to do so.

In the absence of fraud or mistake, the decisions of the Land Department upon questions of fact in all matters properly before it, must be regarded as conclusive, and where a patent has issued and transfers have been made to others, the rights so acquired can be overturned only upon the clearest evidence, but where the doubt rests upon a mixed question of law and of fact, and when the court cannot so separate them 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. Marquez v. Frisbie, 101 U. S. 800; Shepley v. Cowan, 91 U. S. 331; Lee v. Johnson, 116 U. S. 49.

The prevailing and long continued construction of the act by the Land Department is entitled to great weight in determining the questions raised. Hewitt v. Schultz, 180 U. S. 139; Moore v. Cormove, 180 U. S. 167.

MR. JUSTICE DAY delivered the opinion of the court.

The Great Northern Railway Company filed its amended complaint against James A. Hower, individually and as

Trustee, Anna H. Hower, his wife, Nonpareil Consolidated Copper Company, Nicholas H. Rudebeck, and James McCreery Realty Company, in the Superior Court of the State of Washington, in and for the county of Snohomish, seeking to establish title to the northeast quarter of Section 2, Township 27 north, Range 10 east, Willamette Meridian, in said county and State. Defendants appeared and demurred upon the ground, among others, that the amended complaint did not state facts sufficient to constitute a cause of action. The Superior Court sustained the demurrer, and upon appeal to the Supreme Court of the State of Washington, judgment on the demurrer dismissing the suit was affirmed (69 Washington, 380), and the case was brought here.

Various paragraphs of the bill allege the selection of the lands in controversy by the complainant's grantor, the St. Paul, Minneapolis & Manitoba Railway Company, under the provisions of the act of Congress of August 5, 1892 (c. 382, 27 Stat. 390), which selection was made on March 24, 1894. Other paragraphs of the bill allege the filing of an application by one Melvin J. Carter on April 18, 1899, in the District Land Office to enter the northeast quarter of Section 2, Township 27 north, Range 10 east, under the homestead laws of the United States, Carter claiming that he had settled on the land December 1, 1893. The complaint recites the controversy between the Railway Company and Carter before the district land officers, and the taking of testimony, which, it is alleged, showed that Carter on September 19, 1893, purchased the improvements of a former settler upon a tract of unsurveyed land on the left bank of the north fork of the Skykomish River a short distance below the mouth of a tributary of said river known as Trout Creek; that he thereupon established a residence in the cabin of the former settler, and commenced the construction of a new dwelling house which he finished in the spring of 1894; that he moved his

family into this dwelling house and had continued to reside therein and on said land with his family to the time of said hearing; that his improvements consisted of the dwelling house and a small clearing in which he set out trees and shrubbery and raised vegetables from year to year. It is alleged that the evidence taken at the hearing further showed that Carter's improvements were all situated on the left bank of the north fork of the Skykomish River, about two or three hundred feet from said river and about one-half mile below the mouth of said Trout Creek, and not upon the land applied for by Carter under the homestead law; that on the evidence alleged, the register and receiver, on August 28, 1903, held and decided that Carter had duly settled upon the land claimed by him during the month of September, 1893, and had continued to reside upon, improve and cultivate said land to the time of said hearing on June 1, 1903, and that he should be allowed to enter the land applied for under the homestead law and that the railway company's selection thereof should be cancelled.

It was further charged that upon appeal to the Commissioner of the General Land Office, the Railway Company alleged among other things that the evidence showed that the dwelling house and other improvements of Carter were not on the land selected by said railway company and applied for by Carter, but were and at all times had been situated more than three-eighths of a mile from said land; that the Commissioner of the General Land Office, on March 23, 1904, held and decided that said Carter had settled upon the land upon which his improvements were made in the fall of 1893, and that he had commenced his residence thereon with his family in the spring of 1894 and had continued to reside upon and improve same. The Commissioner further held that the evidence taken tended to show that Carter's improvements were all situated on the Northwest Quarter of VOL. CCXXXVI-45

Section 2, Township 27 north, Range 10 east, and not on the Northeast Quarter of said Section 2, and ordered a further hearing.

It was alleged that on the further hearing before the register and receiver of the Seattle Land Office on December 16, 1904, the evidence conclusively showed that the improvements, including the dwelling house and residence of Carter, were all situated on Lot 2 of said Section 2, Township 27 north, Range 10 east; that said Lot 2 is located in and is a part of the Northwest Quarter of the Northwest Quarter of said section, and that the east line of said lot is located a quarter of a mile west of the west line of the Northeast Quarter of Section 2; that the evidence taken at the hearing further showed that at some time prior to said hearing Carter had constructed or taken part in the construction of a trail up Trout Creek and extending over and across a part of the Northeast Quarter of Section 2; that about the year 1899 there had been constructed on the northwesterly part of the Northeast Quarter of Section 2 a small stable or barn and that Carter had at times used said stable or barn for storage purposes; and that upon the evidence taken at said rehearing the register and receiver of said Seattle Land Office held and decided, on January 21, 1905, that all of said Carter's improvements were located on said Lot 2 of said Section 2.

The complaint further alleged that on the thirtieth day of June, 1905, the Commissioner of the General Land Office, on the evidence taken at the rehearing, held and decided that on September 19, 1893, Melvin J. Carter purchased the claim, cabin and improvements of a former settler; that he built for himself and family a new cabin on the claim purchased; that he lived in the cabin and cultivated a small tract of land on the claim; that about a year after his settlement Carter constructed trails across Section 2 and up Trout Creek for the purpose of getting to dif

236 U. S.

Opinion of the Court.

ferent places on his claim; that he also built a barn or stable and used it for storing supplies; that a part of the trails and the stable or barn were on the Northeast Quarter of Section 2, and that the dwelling house and cultivated land were all on the Northwest Quarter of said Section 2 about one-fourth of a mile west of the west line of the Northeast Quarter of said section; that notwithstanding that the evidence produced at said rehearing failed to show that Carter ever resided upon, improved or cultivated any part of the Northeast Quarter of Section 2, and did conclusively show that Carter's dwelling house and cultivated land and improvements, except only said trails and stable or barn, which were constructed after the railway company's selection of said land, were situated more than one-fourth of a mile from Northeast Quarter and the Commissioner of the General Land Office found such to be the facts, said Commissioner wrongfully and unlawfully, it is alleged, and in fraud of the railway company's rights to the land and to complete its selection thereof and to receive the patent of the United States therefor, held, as a matter of law, that Carter's residence was established and maintained in good faith and in the belief that his dwelling house was upon the land embraced in his homestead application and that such residence, taken in connection with the subsequent construction of trails and the stable or barn on the Northeast Quarter of said Section 2, was a constructive residence on said Northeast Quarter, and that said Carter should be permitted to make homestead entry of said land and that the selection thereof by the St. Paul, Minneapolis & Manitoba Railway Company should be canceled.

The complaint further alleged that the Railway Company appealed to the Secretary of the Interior from the decision of the Commissioner of the General Land Office, alleging that Carter's dwelling house and improvements were situated more than a quarter of a mile from the