Full opinion text
YANKWICH, District Judge. The United States of America, as plaintiff, has instituted this suit in equity seeking to be decreed the absolute owner of certain public lands in the State of California known as section 36, township 30 south, range 23 east, M.D.B. & M. Pending for determination are the motion of some of the defendants to transfer the cause to the law side of the docket and motions of the plaintiff to strike and dismiss certain of the defenses set forth in the answers. I. The Motion to Transfer to the Equity Side. Consideration of this motion calls for a summary of the allegations of the bill of complaint. It asserts ownership of the section in the United States Government upon the following grounds: (1) The land was excepted from the Government grant of school lands to the State of California by the Act of March 3, 1853 (Act March 3, 1853, c. 145, 10 Stat. 244), because it was known to be mineral in character, on January 26, 1903, at the time the official survey of the section was approved. (2) On January 23, 1935, the Secretary of the Interior — acting in a proceeding commenced in the Department of the Interior, General Land Office, on May 8, 1925, in which the United States was plaintiff, and the State of California and Standard Oil Company and other defendants in the present suit were defendants, and in which it was charged that section 36 was mineral in character and known as such at and prior to the date of the approval of the survey by the General Land Office, on January 26, 1903 — - made his decision determining, as a fact, that the whole of section 36 before, on, or after January 26, 1903, was and was known to be mineral in character and that no right, title, interest, or estate in the section ever vested in the State of California or its transferees, but that title remained in the United States. (3) A rehearing of the proceeding was denied by the Secretary on May 20, 1936, and the decision is now final and binding on this court. (4) Each of the defendants, as transferees of the State of California, claims some interest in the property, which claims are, however, without right. (5) The lands are a part of the United States Naval Petroleum Reserve No. 1, set apart by Executive Order of September 2, 1912, with other lands, for the exclusive use of the Navy in case of national emergency. The bill of complaint, which is rather lengthy, after setting forth these facts, and the manner of derivation of the title of the various defendants, alleges that each of them asserts certain rights to, title or interest in, or lien upon, the lands or to the petroleum or mineral oil or gas or gasoline deposited therein or extracted therefrom, but that such claims are without right. The following additional facts are alleged : The defendants entered upon the lands in violation of the lawful orders and proclamations of the President of the United States; they drilled thirty-two wells and caused to be extracted and taken from the premises, oil, gas, and gasoline, appropriating the same for their use and benefit, and wasted the Government’s lands and minerals and destroyed and injured them as a naval petroleum reserve. The plaintiff is unable to state the exact amount of oil, gas, and gasoline so extracted, but alleges, upon information and belief, that it exceeded 4,976,369.16 barrels of oil of a high commercial grade, exceeding in value the sum of $8,318,875.16 and 60,140,814 M.C.F. of gas exceeding in value the sum of $3,052,795.54 and 12,983,649.84 gallons of gasoline of varying values exceeding in value the sum of $1,104,798.10, to the damage of the plaintiff, which damages can only be ascertained by requiring the defendants, Standard Oil Company of California, and Frank J. Carman, and others, to account therefor. The complaint then alleges: “That plaintiff is informed and believes, and upon such information and belief alleges, that said defendants Standard Oil Company of California, Frank J. Carman, and the said trustees intend to continue to trespass upon said lands and to extract and appropriate oil and gas from the wells now existing on said West one-half (W%) and the West one-half of the East one-half (W% of E%), and Lots 5, 6, 7, 8, 11, and 12 of said Section 36, and to sink and drill new wells thereon and to extract oil and gas therefrom, and will continue such drilling and such extraction and appropriation of the supply of gas and oil underlying said lands and lands adjacent thereto' belonging to the United States, and to the entire exhaustion thereof, unless restrained by order of court; and the occupation and operation of' said lands and the extraction of the oil and gas content thereof has been, is, and will continue to be, detrimental to and destructive of said lands and of the purposes and policy of the plaintiff with reference thereto, and an irreparable .injury to said lands and to the plaintiff and the people of the United States, which cannot be compensated in damages.” The present value of the land is alleged to be in excess of $10,000,000. Upon the basis of these and other allegations, which, for the purpose of this opinion, need not be summarized, the complaint prays: (1) That plaintiff be decreed to be the absolute owner of the lands and the products thereof and the proceeds therefrom, and that the defendants be decreed to have no right, title, or interest in or to -the same or any part thereof. (2) That the leases, agreements, deeds, conveyances and transfers, assignments or other instruments and writings under which the defendants or any of them claims any estate, right, title, or interest in the land be declared null and void. (3) That the defendants be required to render a full account of all their operations on the lands, of all the oil, gas, and gasoline extracted therefrom. That the plaintiff recover such amount as may be found due in kind and in money with interest and such damages as it may have sustained. (4) That pending a determination of the suit the defendants and their officers, agents, servants,, and attorneys be enjoined from trespassing on the lands and from drilling any additional wells thereon and from extracting any oil, gas, or gasoline from them, and that, upon final hearing, such injunction be made perpetual. (5) That a receiver be appointed forthwith to take charge of all the lands and the products ■ thereof and proceeds therefrom, with authority to conserve them under the supervision of the court pending the final determination of this suit. (6) That the plaintiff have general relief. Under Equity Rule 22 (28 U.S.C.A. following section 723), the defendants Standard Oil Company, Standard Gasoline Company, and Southern California Gas Company have moved to transfer the cause to the law side of the court, upon the ground that the- complaint does not state facts sufficient to support equity jurisdiction and that plaintiff has an adequate legal remedy. In applying the legislative mandate contained in section 267 of the Judicial Code (28 U.S.C.A. § 384) against entertainirig suits in equity in courts of the United States-in cases where a plain, adequate, and complete remedy may be had at law — which first appeared in section 16 of the Judiciary Act of 1789 (1 Stat. 82)— to suits for title or possession of real property, federal courts have held that a complainant out of possession could not maintain an equitable action in the nature of a bill quia timet to remove a cloud from his title against a defendant in possession. This upon the theory, going back to the common law, that the legal remedy of ejectment is adequate in such cases. A motivating force for the adoption of these common-law principles was the guaranty of jury trial in actions at law by the Seventh Amendment of the Constitution. A defendant would be deprived of .this valuable right if a suit in equity were sustained where the legal remedy suffices. See Scott v. Neely (1891) 140 U.S. 106, 11 S.Ct. 712, 35 L.Ed. 358. And our courts are determined to safeguard that right. These principles have been applied with great consistency. See Hipp v. Babin (1856) 19 How. 271, 277, 15 L.Ed. 633; Killian v. Ebbinghaus (1884) 110 U.S. 568, 573, 4 S.Ct. 232, 28 L.Ed. 246; Whitehead v. Shattuck (1891) 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873; Lacassagne v. Chapuis (1892) 144 U.S. 119, 12 S.Ct. 659, 36 L.Ed. 368; Johnston v. Corson Gold Mining Co. (C.C.A. 9, 1907) 157 F. 145, 146, 15 L.R.A.(N.S.) 1078; People of Porto Rico v. Livingston (C.C.A. 1, 1931) 47 F.(2d) 712, 713; Barnes v. Boyd (C.C.A. 4, 1934) 73 F.(2d) 910. But the rule has its exceptions. They are recognized by the Supreme Court in Twist v. Prairie Oil & Gas Co. (1927) 274 U.S. 684, at page 691, 47 S.Ct. 755, 758, 71 L.Ed, 1297: “It is true that ordinarily one out of possession may not bring in a federal court a bill to quiet title, against one in possession, because there is a full, adequate, and 'complete remedy at law and the defendant is entitled to a jury trial. See Whitehead v. Shattuck 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873; Black v. Jackson, 177 U.S. 349, 363, 364, 20 S.Ct. 648, 44 L.Ed. 801; Lancaster v. Kathleen Oil Co., 241 U.S. 551, 555, 36 S.Ct. 711, 60 L.Ed. 1161. But the suit is of a class within the jurisdiction — that is, the power — of a federal court sitting in equity. There are cases in the federal courts in which suits in equity to quiet title brought by one out of possession against one in possession have been entertained, because of the special facts, or because of the particular relief sought, or because the defendant waived the objection of lack of equity jurisdiction.” The relief which the court, in that case, deemed sufficient to distinguish the suit from "an action at law masquerading as a suit in equity” and to confer equity jurisdiction were: (1) A declaration of the rights of the parties to an oil and gas lease; (2) the cancellation of an agreement; (3) an injunction against the assertion of certain rights; and (4) general relief. These were declared to be “within the recognized, sphere of federal equity jurisdiction.” See Otoe County National Bank v. Delany (C.C.A. 8, 1937) 88 F.(2d) 238, 243, 244. Ordinarily, seeking damages or mesne profits, in addition to possession, does not fulfill the requirements. None the less, the harshness of the rule has been relaxed, and courts, when dealing with timber, mining, or oil lands, have ruled that- — because of the nature of the property, and because of the great and irreparable mischief which might flow from the destruction of the substance of the estate, through continued occupancy — equity will entertain jurisdiction, when waste or continued trespass, resulting from the cutting of timber, the taking of water, the extraction of minerals, threatens to change the entire nature of the property. The principle is stated by Mr. Justice Field in Erhardt v. Boaro (1885) 113 U.S. 537, 538, 5 S.Ct. 565, 28 L.Ed. 1116: “It was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court. In Pillsworth v. Hopton, 6 Ves. 51, which was before Lord Eldon in 1801, he is reported to have said that he remembered being told in early life from the bench ‘that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction.’ This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation.” (Italics added.) It has. been applied where continued waste or trespass related to: Water rights (United States Freehold Land & Emigration Co. v. Gallegos (C.C.A. 8, 1898) 89 F. 769); timber (Peck et al. v. Ayers & Lord Tie Co. (C.C.A. 6, 1902) 116 F. 273; A. G. Wineman & Sons v. Reeves, (C.C.A. 5, 1917) 245 F. 254; F. Burkart Mfg. Co. v. Case (C.C.A. 8, 1930) 39 F.(2d) 5; and mines and mineral lands (Big Six Development Co. v. Mitchell (C.C.A. 8, 1905) 138 F. 279, 282, 283, 1 L.R.A.(N.S.) 332). The case last cited contains a very full statement of the rule, the reason for it, and the circumstances under which it may be applied: “It was insisted by appellant that a court of equity had no jurisdiction, upon the pleadings and evidence, to grant the relief given by the court in this case. And at the argument it was said that this bill should not .be maintained: (1) Because a bill for an injunction can only be maintained, where the title is disputed, after a trial at law, or after an action at law has been commenced; (2) because a cloud upon the title cannot be removed unless the complainant is in possession; and (3) because it seeks to enforce a forfeiture. “The trespass here complained of, as disclosed by the record, is not an ordinary case of trespass upon lands, of temporary duration, but, as we think the evidence shows, was a continuous trespass, which threatened tó destroy the character of the property as a mine, and would render the plaintiff’s interest therein valueless. Threatened and continuous injuries to mines, quarries, timber growing upon lands, buildings located thereon, or other improvements of a permanent character, are enjoined, because, as has been said, such acts ‘alter the character of the property, and also tend to destroy it, and occasion irreparable loss and damage.’ Courthope v. Mapplesden, 10 Ves. 290; Scully v. Rose, 61 Md. 408; Erhardt v. Boaro, 113 U.S. 537, 5 S.Ct. 565, 28 L.Ed. 1116; Jerome v. Ross, 7 Johns, Ch. [N.Y.] 315, 11 Am.Dec. 484; Hammond v. Winchester, 82 Ala. 470, 2 So. 892; Snyder v. Hopkins, 31 Kan. 557, 3 P. 367. In such cases the threatened injuries are to the rds, and diminish the value of the property itself, and an injunction will be granted to prevent the continuing waste or continuing trespass, although the plaintiff is not in possession, and although the legal title has not been settled or questioned by an action at law. Story’s Eq.Jur. § 860; Union Pac. R. Co. v. Kansas City Elevator Co. (C.C.) 17 F. 200; Earl Cupper v. Baker, 17 Ves. 128; West Point Iron Co. v. Reymert, 45 N.Y. 703; Snyder v. Hopkins, 31 Kan. [557] 559, 3 P. 367; Lacustrine Fertilizer Co. v. L. G. & Fer. Co. et al., 82 N.Y. [476], 486; Oolagah Coal Co. v. McCaleb, 68 F. [86], 87, 15 C.C.A. 270; High on Inj. 736; Allegheny Oil Co. v. Snyder, 106 F. 764, 45 C.C.A. 604; Peck v. Ayers & Lord Tie Co., 116 F. 273, 53 C.C.A. 551; Logan Nat’l Gas & Fuel Co. v. Great Southern Gas & Oil Co., 126 F. 623, 61 C.C.A. 359. “If the .only relief sought by the bill in this case was to remove the cloud upon plaintiff’s title, it may well be doubted whether the bill could be sustained. Orton v. Smith, 18 How. 263, 15 L.Ed. 393; Frost v. Spitley, 121 U.S. 552, 7 S.Ct. 1129, 30 L.Ed. 1010. But the bill goes further, and seeks to enjoin the defendant from committing waste and destroying the property as a mining property. In such a case jurisdiction in equity attaches, even where the plaintiff is not in possession. And having obtained jurisdiction for that purpose, the court may, for the purpose of presenting the multiplicity of suits, retain it for further relief, and may remove a cloud upon the title, quiet the title, and determine the right of possession. “In the Elevator Case above cited, Mr. Justice Miller said: ‘When either party, lessor or lessee, claims that acts have been done' which render the continuing of the relation no longer proper, such party can go into a court of equity, on general principles, and ask to have that lease set aside, canceled, and annulled. In that case the court of equity sits, holding the scales of justice evenly between the parties, and may say that it believes that such acts have been done by the lessee, for instance, as. ought to determine the agreement. * * * And the court will declare the agreement at an end, and set aside and annul, and will make such orders as seem proper and right.’ “We think, both upon reason and authority, that in a case such as this, where the injury is to the res (that is to say, where irreparable mischief is being done or threatened, going to the very substance of the estate), a court of equity has jurisdiction, not only for the purpose of restraining waste or threatened trespass, but, having acquired jurisdiction for that purpose; it may also proceed to settle the question of title and to remove the cloud; and this was the view taken by the Circuit Court.” (Italics added.) The principles thus declared apply with great force to oil properties. Oil is mining, both under federal and California decisions. See Burke v. Southern Pacific R. Co. (1913) 234 U.S. 669, 34 S.Ct. 907, 58 L.Ed. 1527; Crain v. Pure Oil Co. (C.C.A. 8, 1928) 25 F.(2d) 824; Shell Petroleum Corp. v. Caudle (C.C.A. 5, 1933) 63 F.(2d) 296; Callahan v. Martin (1935) 3 Cal.(2d) 110, 43 P.(2d) 788, 101 A.L.R. 871. And because of its fugitive nature, the danger of continued waste is greater than in the case of water, timber, or solid minerals. See Mason v. United States (1923) 260 U.S. 545, 43 S.Ct. 200, 67 L.Ed. 396; Jones v. Prairie Oil & Gas Co. (1927) 273 U.S. 195, 47 S.Ct. 338, 71 L.Ed. 602. Involved here is not an individual seeking the restoration of land. The Government itself is seeking to restore to ifs public domain property which it alleges never left it. See Causey v. United States (1916) 240 U.S. 399, 402, 36 S.Ct. 365, 60 L.Ed. 711. Even if we exclude the accounting features of the bill, the allegations of waste and ' continued trespass, coupled with the prayer seeking a decree of -title in the plaintiff, the invalidation of the .leases, agreements, titles, conveyances, and other instruments affecting the title and enjoining their assertion, an injunction against continued trespass and a receiver, are sufficient, under the authorities cited, to give the equity side of this court jurisdiction of the bill. In reaching this conclusion, we have limited our consideration to the case made out by the bill of complaint. See 3 Cyc. of Fed.Procedure, § 955, pp. 847, 848; Dobie on Federal Procedure (1928) pp. 700, 701; W. W. Sly Mfg. Co. v. Central Iron Works (C.C.A. 7, 1912) 201 F. 683; Bank of Palmetto v. Hyman (C.C.A. 5, 1923) 290 F. 353; Pneumatic Scale Corp. v. Mapl-Flake Mills, Inc. (D.C.Del.1928) 24 F.(2d) 602; Wright v. Barnard (D.C. Del, 1915) 233 F. 329; Lathrop v. Rice & Adams Corp. (D.C.N.Y., 1925) 6 F.(2d) 91. This makes it unnecessary to consider how the equitable defenses of the answer affect the character of bill of complaint. The motion to transfer to the law side of the docket is denied. II. The Motion to Dismiss and Strike Certain Defenses. The motions to strike (and to dismiss) [Equity Rule 33, 28 U.S.C.A. following section 723] are directed to the defenses numbered 3, 4, and 6 to 11, inclusive. The latter group relates to the Government’s assertion of title under the decision of the Secretary of Interior. They attack the adjudication and present the most fundamental question involved in the case —the determination of which will affect the entire course of the litigation. For this reason, we shall treat them first. (1) The Attack on the Adjudication of the Secretary of the Interior. (a) The Finality of the Decision. The solution of the problem involved in the attack on the finality of the determination of the Secretary of the Interior, made on January 23, 1935, and which declared that on January 26, 1903, the lands were known to be mineral in character, calls for a discussion of the nature of the grant of the school lands to California under the Act of March 3, 1853, and of the powers of the Secretary of the Interior with relation to such lands. As a part of its policy of aiding education, the United States, from the very beginning of its existence, has made grants-in-aid to states for that purpose. These grants, as many others, were, usually, grants in preesenti. When they contained no mineral or other reservation, an inchoate title passed, on the date of the grant, which became perfect, as of the date of the act, upon the marking out of the land, when the survey of the land was officially accepted by the Secretary of the Interior. When this was done, the title of the state was complete, and no power was left in the courts to read or to allow the Secretary to read into the title of the state any reservations or restrictions. See Cooper v. Roberts (1855) 18 How. 173, 175, 179, 15 L.Ed. 338 (involving the Michigan school lands), United States v. Sweet (1918) 245 U.S. 563, 38 S.Ct. 193, 62 L.Ed. 473 (involving the Utah school lands); United States v. Morrison (1915) 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599 (involving the Oregon school lands); and Rogers Locomotive Machine Works v. Emigrant Co. (1896) 164 U.S. 559, 575, 17 S.Ct. 188, 41 L.Ed. 552; Little v. Williams (1913) 231 U.S. 335, 339, 34 S.Ct. 68, 58 L.Ed. 256, and Work v. State of Louisiana (1925) 269 U.S. 250, 257, 260, 46 S.Ct. 92, 95, 70 L.Ed. 259 (the last three cases arising under the Swamp Land Acts, 43 U.S.C.A. § 982 et seq.). The effect so given to grants of this type, and which applies alike to school land, swamp land, or other grants not containing any exceptions or reservations, is stated in Little v. Williams, supra,. at pages 339-340 of 231 U.S., 34 S.Ct. 68, 70, 58 L.Ed. 256: “Although the terms of the 1st section of the act denote a present. grant to the state of the ‘swamp and overflowed lands, made unfit thereby for cultivation,’ the 2d section lays upon the Secretary of the Interior the duty of identifying and listing the lands coming within the terms of the grant, and of causing patents therefor to be issued to the state ‘at the request of’ its governor, and then declares: ‘And on that patent the fee simple to said lands shall vest in the said state,’ subject to the disposal of its legislature. It became necessary, in Rogers Locomotive Machine Works v. Emigrant Company, 164 U.S. 559, 17 S.Ct. 188, 41 L.Ed. 552, to determine the meaning and effect of the act in the light of these provisions and of prior decisions, and it was there said [164 U.S. 559, at page 570, 17 S.Ct. 188, 41 L.Ed. 552]: ‘While, therefore, as held in many cases, the act of 1850 was in prsesenti, and gave an inchoate title, the lands needed to be identified as lands that passed under the act; which being done, and not before, the title became perfect as of the date of the granting act.’ And again [164 U.S. 559, at page 574, 17 S.Ct. 188, 41 L.Ed. 552] ‘It belonged to him (the Secretary of the Interior), prima'rily, to identify all lands that were to go to the state under the act of 1850. When he made such identification, then, and not before, the state was entitled to a patent, and “on such patent” the fee-simple title vested in the state. The state’s title was at the outset, an inchoate one, and did not become perfect, as of the date of the act,.until a patent was issued.’ What was there said has since been regarded as the settled law .upon the subject. Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 592, 18 S.Ct. 208, 42 L.Ed. 591; Brown v. Hitchcock, 173 U.S. 473, 476, 19 S.Ct. 485, 43 L.Ed. 772, 773; Niles v. Cedar Point Club, 175 U.S. 300, 308, 20 S.Ct. 124, 44 L.Ed. 171, 174; Ogden v. Buckley, 116 Iowa, 352, 89 N.W. 1115; Birch v. Gillis, 67 Mo. 102; Carr v. Moore, 119 Iowa, 152, 159, 93 N.W. 52, 97 Am.St.Rep. 292. “As this land was never so identified, and, so far as appears, its identification was never even requested’by the state, it follows that, even if, at the date of the act, the land was in fact swamp or overflowed, the state never acquired more than an inchoate title to it, — a claim ■ which was imperfect both at> law and in equity.” (Italics added.) And see United States v. Montana Lumber & Mfg. Co. (1905) 196 U.S. 573, 25 S.Ct. 367, 49 L.Ed. 604; United Stated v. Bonners Ferry Lumber Co. (C.C.Idaho, 1910) 184 F. 187. The authority of ■ the , Secretary of the Interior in cases of this character, in which lands pass- without the necessity of a patent, is limited to marking .them out by accepting the official survey. He cannot exceed that . authority and require that, before asserting its title, the state establish other conditions, such as their non-mineral character. Should he attempt to do so, courts will stay his hand. See Work v. State of Louisiana, supra. A different, situation is presented by grants which except mineral and other lands. Through judicial interpretation, the California school lands, granted by the United States, of which the property involved in this litigation is a part, is subject to such an exception. See Ivanhoe Mining Co. v. Keystone Consolidated Mining Co. (1880) 102 U.S. 167, 26 L.Ed. 126; Mullan v. United States (1886) 118 U.S. 271, 6 S.Ct. 1041, 30 L.Ed. 170; Work v. State of Louisiana, supra, 269 U.S. 250, at page 257, 46 S.Ct. 92, 95, 70 L.Ed. 259. The distinction between grants containing exceptions or reservations, and those not containing any, is this: Under the former, the title becomes perfect when the land is marked out; that is, the survey is accepted. See United States v. Morrison (1915) 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599. Under the latter, if the land is, in fact, known to be mineral, at the time of its marking out, the title never vests, no finality attaches to the survey, and the land remains a part of the public domain, subject to entry, and in. the same class with lands upon which no patents have ever been issued. See Ivanhoe Mining Co. v. Keystone Consolidated Mining Co., supra, 102 U.S. 167, at page 175, 26 L.Ed. 126; Mullan v. United States, supra, 118 U.S. 271, at page 278, 6 S.Ct. 1041, 30 L.Ed. 170; Davis’ Administrator v. Weibbold (1891) 139 U.S. 507, at page 529, 11 S.Ct. 628, 35 L.Ed. 238; Johnson v. Drew (1898) 171 U.S. 93, at pages 99, 100, 18 S.Ct. 800, 43 L.Ed. 88. The exception is, in effect, a reservation of title, not affected by the acceptance of the swrvey. The reservation is a condition precedent to the vesting of the title. If,, in fact, the land is known to be mineral, title simply does not vest. As said by our 6wn Circuit Court of Appeals in Johnston v. Morris (C.C.A. 9, 1896) 72 F. 890, 895: “Where such sections are found to be mineral lands;. there is* an absolute loss of such lands to the state, and, to that extent, a clear and unconditional diminution of the?chool land grant.” (Italics added.) And see West v. Standard Oil Company (1929) 278 U.S. 200, at page 208, 49 S.Ct. 138, 139, 73 L.Ed. 265. In Ivanhoe Mining Co. v. Keystone Consolidated Mining Co., supra, Mr. Justice Miller used this language: “It follows from the finding of the court and the undisputed facts of the case, that the land in controversy being mineral land, and well known to be so when the surveys of it were-made, did not pass to the State under the-school-section grant.” (Italics added.) A more elaborate statement of the-principle is that of Mr. Justice Field in. Barden v. Northern Pacific Railroad (1894) 154 U.S. 288, at pages 313-316, 14 S.Ct 1030, 38 L.Ed. 992. It is given in the footnote. Whether the lands were, in fact, mineral is a question of fact, the determination of which rests with the Land Department. That department owes its existence to -the various statutes establishing it, declaring its powers and defining the duties of the Commissioner of the Land Office and of the Secretary as to public lands. 5 U.S.C.A. § 481 et seq.; 43 U.S.C.A. § 1 et seq.; 43 U.S.C.A. § 1201. Their object (and of other statutes) is to carry into effect the constitutional policy of the United States, relating to its control over the public domain (Const, art. 4, § 3, cl. 2). They vest in the £and Department supreme authority over the lands of the United States. An entire administrative scheme is provided, aiming at their administration, control, and supervision, and the determination of adverse claims to them. In the exercise of this authority, the Land Department acts quasi-judicially. See Devil’s Den Consol. Oil Co. v. United States (C.C.A. 9, 1918) 251 F. 548; United States v. Minor (1885) 114 U.S. 233, 243, 5 S.Ct. 836, 29 L.Ed. 110. The extent and the limitations of this power aré stated in United States ex rel. McBride v. Schurz (1880) 102 U.S. 378, at. pages 395, 398, 26 L.Ed. 167: “The Constitution of the United States declares that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States. Under this provision the sale of the public lands was placed by statute under the control of the Secretary of the Interior. To aid him in the performance of this duty, a bureau was created, at the head of which is the Commissioner of the General Land-Office, with many subordinates. To them, as a special tribunal, Congress confided the execution of the laws which regulate the surveying, the selling, and the general care of these lands. “Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has with a strong hand upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere. “But we have also held that when, by the action of these officers and of the President of the United States, in issuing a patent to a citizen, the title to the lands has passed from the government, the question as to the real ownership of them is open in the proper courts to all the considerations appropriate to the case. And this is so, whether the suit is by the United States to set aside the patent and recover back the title so conveyed, as in United States v. Stone (2 Wall. 525 [17 L.Ed. 765]), or by an individual to cause the title conveyed by the patent to be held in trust for him by the patentee on account of equitable circumstances which entitle the complainant to such relief. Johnson v. Towsley, 13 Wall. 72 [20 L.Ed. 485], and' other cases.” (Italics added.) And see Humbird v. Avery (1904) 19S U.S. 480, 503-505, 25 S.Ct. 123, 49 L.Ed. 286; Cameron v. United States (1920) 252 U.S. 450, 459-460, 40 S.Ct. 410, 412, 64 L.Ed. 659; Wilson v. Elk Coal Co. (C.C.A. 9, 1925) 7 F.(2d) 1112; Ickes v. Development Corporation (1935) 295 U.S. 639, 645, 55 S.Ct. 888, 889, 79 L.Ed. 1627; Sullivan v. Mammouth Oil Co. (C.C.A. 8, 1927) 22 F.(2d) 663. Two conditions delimit the exercise of this power: (1) It must occur before title has passed. See Marquez v. Frisbie (1879) 101 U.S. 473, 25 L.Ed. 800; Wilson v. Elk Coal Co., supra; State of Oregon v. Hitchcock (1906) 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935, and cases supra; and (2) Finality attaches only to the determination of questions of fact. See Shepley v. Cowan (1875) 91 U.S. 330, 23 L.Ed. 424; Lee v. Johnson (1885) 116 U.S. 48, 6 S.Ct. 249, 29 L.Ed. 570; Davis’ Administrator v. Weibbold, supra, 139 U.S. 507, at page 529, 11 S.Ct. 628, 35 L.Ed. 238; Corporation of the Catholic Bishop of Nesqually v. Gibbon (1895) 158 U.S. 155, at page 166, 15 S.Ct. 779, 39 L.Ed. 931; Burfenning v. Chicago, St. Paul, etc., R. R. (1896) 163 U.S. 321, 323, 16 S.Ct. 1018, 41 L.Ed. 175; Johnson v. Drew, supra; Whitcomb v. White (1909) 214 U.S. 15, 29 S.Ct. 599, 53 L.Ed. 889. As a corollary from these fundamentals, the decisions already cited, and others to- be adverted to presently, lay down these principles: (1) Errors of the Land Department in applying the law to particular facts are reviewable. (2) If the land has actually passed out of the hands of the United States, or was not subject to disposition, or has been reserved from a grant or sale, the Department has no jurisdiction. Davis’ Administrator v. Weibbold, supra, 139 U.S. 507, at pages 529, 530, 11 S.Ct. 628, 35 L.Ed. 238. (3) The determination of the Department may be impeached for fraud or imposition. These limitations are summed up in Moore v. Robbins (1877) 96 U.S. 530, 535, 24 L.Ed. 848: “The whole question, however, has been since that time very fully reviewed and considered by this court in Johnson v. Towsley, 13 Wall. 72 [20 L.Ed. 485], The doctrine announced in that case, and repeated in several cases since, is this :— “That the decision of the officers of the Land Department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, except when reconsidered by way of appeal within that depo.rtm.ent; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice, when the title afterwards comes in question. But that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and in cases where it is clear that those officers have, by a mistake of the law, given to one man the land which on the undisputed facts belonged to another, to give appropriate relief. “Tn the recent case of Shepley et al. v. Cowan et al. (91 U.S. [330], 340 [23 L.Ed. 424]), the doctrine is thus aptly stated by Mr. Justice Field: ‘The officers of the Land Department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practised upon them, or they themselves are chargeable' with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department.’ ” (Italics added.) The determination of the character of land, as mineral or other, rests with the Land Department. Thus, Burfenning v. Chicago, St. Paul, etc., R. R. (1896) 163 U.S. 321, 323, 16 S.Ct. 1018, 1019, 41 L.Ed. 175: “It has undoubtedly been affirmed, over and over again, that, in the administration of the public-land system of the United States, questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact, not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions, is conclusive, and not open to re-litigation in the courts, except in those cases of fraud, etc., which permit any determination to be re-examined.’’ (Italics added.) And see Burke v. Southern Pacific R. R. Co. (1913) 234 U.S. 669, 710, 34 S.Ct. 907, 58 L.Ed. 1527; Cameron v. United States, supra. It is true lhat these statements occur in a case in which the court was discussing the right of the Land Department to make a determination of the mineral character of land in proceedings, prior to the issuance of a patent. But that fact does not stand in the way of applying the principle' to any other adverse proceeding in which the Land Department is asked to determine the mineral character of lands claimed under a congressional grant. The determination involved in this case was made in an adverse proceeding instituted under the provisions of the law and the rules of the Department, to which the defendants in this case were parties. The jurisdiction of the Land Department to hear the matter was not challenged. In fact, the Standard Oil Company, a party in that case, claimed finality for the order of Secretary Fall, dismissing it. In the synopsis of the argument of the Standard Oil Company, which precedes the opinion, in West v. Standard Oil Co. (1929) 278 U.S. 200, 203, 49 S.Ct. 138, 73 L.Ed. 265, appear the following : “The Interior Department has jurisdiction in the first instance to determine whether or not the land is of such character as to come within the terms of the grant. Burke v. Southern Pacific R. Co., 234 U.S. 669 [34 S.Ct. 907, 58 L.Ed. 1527]. “The contest filed in this case followed the usual procedure and raised the sole issue whether or not the land was known mineral land at the date of approval of the survey, i. e., January 26, 1903, and whether or not the title therefore had passed to the State. “The contest was formally decided by the Secretary. That decision is the letter of June 9, 1921. It is in the ordinary form of judgments rendered by the Department. Ary v. Iddings, 12 L.D. 252; Coder v. Lotridge, 12 L.D. 643; John H. Reed, 6 L.D. 563; Anderson v. Northern Pacific, 7 L.D. 163; Dahlstrom v. St. Paul, 12 L.D. 59; U.S. ex rel. West v. Hitchcock, 205 U.S. 80, 27 S.Ct. 423, 51 L.Ed. 718. “Such decisions are judicial in character, partaking of the nature of judgments. United States ex rel. McBride v. Schurz, 102 U.S. 378, 26 L.Ed. 167; Wisconsin Central R. R. Co. v. Price County, 133 U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687; Wyoming v. United States, 255 U.S. 489, 41 S.Ct. 393, 65 L.Ed. 742; United States v. Winona & St. P. R. Co. (C.C.A.) 67 F. 948; New Dunderberg Mining Co. v. Old (C.C.A.) 79 F. 598; Steel v. Smelting Co., 106 U.S. 447, 1 S.Ct. 389, 27 L.Ed. 226; Ellifson v. Phillips, 18 L.D. 299; Payne v. New Mexico, 255 U.S. 367, 41 S.Ct. 333, 65 L.Ed. 680.” (Italics added.) ' We have no desire to bind the defendants by any arguments which counsel may have made in the other proceeding. The failure to challenge jurisdiction is a fact in that proceeding, not an argument. We advert to it as indicating that the jurisdiction of the Land Department to hear and determine the matter was not disputed. “Jurisdiction” means jus dicere — the power to hear and determine. There is no limitation ithat the determination of a fact be one way only. The cases just cited hold that the determination of the mineral character of land by the Land Department,- in a proper proceeding, is a matter of fact, which is not subject to review. They are referred to in. West v. Standard Oil Co., supra, 278 U.S. 200, at page 211, 49 S.Ct. 138, 141, 73 L.Ed. 265, where the court said: “Ordinarily, where an act granting public lands excludes those known to be mineral, the determination of the fact whether a particular tract is of that character rests with the Secretary of the Interior.” And again on page 220 of 278 U.S., 49 S.Ct. 138, 144, 73 L.Ed. 265: “Authority to determine as a fact the known mineral character of the lands falls naturally to the Secretary as ‘the supervising agent of the government to do justice to all claimants and preserve the rights of the people of the United States’ to public lands. Knight v. U. S. Land Ass’n, 142 U.S. 161, 178, 12 S.Ct. 258, 262 (35 L.Ed. 974). But that authority does not carry the power to relinquish the jurisdiction of the Department over the land without determining, as a fact, that it was nonmineral at the time of the approval of the survey. Compare Work v. Louisiana, 269 U.S. 250, 261, 46 S.Ct. 92 (70 L.Ed. 259). The broad power of control and supervision conferred upon the Secretary ‘does not clothe him with any discretion to enlarge or curtail the rights of the grantee, nor to substitute his judgment for the will of Congress as manifested in the granting act.’ ” In sum, given an adversary proceeding in which the right to inquire into the mineral character of lands is an issue, finality flows from the determination, irrespective of the nature of the proceedings. And see Corporation of the Catholic Bishop of Nesqually v. Gibbon, supra, 158 U.S. 155, at page 166, 15 S.Ct. 779, 39 L.Ed. 931; Van Ness v. Rooney (1911) 160 Cal. 131, 116 P. 392, 395, in which a writ of error was dismissed for want of jurisdiction by the Supreme Court, Roney v. Van Ness, 231 U.S. 737, 34 S.Ct. 316, 58 L.Ed. 460; Cragie v. Roberts (1907) 6 Cal.App. 309, 92 P. 97. Let us test this group of defenses by the principles here declared. In substance, the attack upon the determination of the Secretary of the Interior is: (1) The decision is not binding on the defendants or the court, but each and every matter which the Secretary purportedly decided is a matter as to which the courts alone can make a binding determination. (2) If, in deciding the matter, the Secretary acted as head of a special tribunal having jurisdiction over public lands, the jurisdiction extended only to the public lands to which the United States held legal title. (3) In deciding the question of the mineral character of the land, the Secretary purported to determine the fact upon which his own jurisdiction depended. This determination is not binding upon the defendants or the court, but must be detennined de novo by the court. (4) If section .36 belongs to the United States, it is a part of the Naval Reserve created by executive order dated September 2, 1912, and outside of the jurisdiction of the Secretary of the Interior. (5) The jurisdiction of the Secretary in the matter was derived solely from the Joint Resolution of February 21, 1924 (43 Stats. 15). This did not give him authority to try and determine the title to section 36 or to make a binding determination affecting the title. If it gave him that power, it would be violative of article 3 of the Constitution and the Fifth Amendment. (6) The decision of the Secretary is arbitrary. If given effect, it would deprive the defendants of their property without due process, because, (a) The register found that section 36 was not known to be mineral in character on January 26, 1903, and the Secretary was without aitthority to find to the contrary, but was bound by the register’s findings. (b) The reversal of the findings of the register and the making of contrary findings was arbitrary and contrary to law. (7) The decision of the Secretary is based upon errors of law, as follows: The evidence and findings are insufficient to support the decision in so far as it finds that the land was known to be of mineral character. (This is particularized, as will appear in what follows.) (8) The Secretary had no lawful power to reverse the decision of the register or the concurring decisions of the register and commissioner of the General Land Office, or the findings of the register and Commissioner simply because of a difference of opinion. (9) He applied the wrong legal test in determining whether the land was known mineral land. (10) His decision was based on inadmissible and incompetent evidence. The first three grounds of attack, in effect, deny finality to the decision of the Secretary of the Interior. This upon two grounds: (1) That the determination involves a legal question; and (2) that the Secretary determined the fact upon which his own jurisdiction depended. The theoretical discussion which precedes shows conclusively and authoritatively, we believe, that the Secretary was not called upon to determine a legal question. The court in West v. Standard Oil Co., supra, 278 U.S. 200, at page 208, 49 S.Ct. 138, 139, 73 L.Ed. 265 stated the question before the Secretary to be: “If the land was then known to be mineral, the title confessedly did not pass by the act. For Congress excluded mineral land -from the grant. Ivanhoe Mining Co. v. Keystone Consolidated Mining Co., 102 U.S. 167, 26 L.Ed. 126; Mullan v. United States, 118 U.S. 271, 276, 6 S.Ct. 1041 (30 L.Ed. 170). See, also, Wyoming v. United States, 255 U.S. 489, 500, 41 S.Ct. 393 (65 L.Ed. 742); Work v. Louisiana, 269 U.S. 250, 257, 258, 46 S.Ct. 92 [95] (70 L.Ed. 259). If it was not then known to be mineral, the legal title passed to the state on that date; for the land was within one of the sections in place designated in the granting act. United States v. Morrison, 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599; United States v. Sweet, 245 U.S. 5.63 [573], 38 S.Ct. 193, 62 L.Ed. 473.” (Italics added.) Clearly, this decision, and others to which we have already referred, hold that the .determination of the known mineral character of land involves a question of fact. We are not dealing here with a case in which a patent or title to land has actually passed out of the hands of the United States.. In such cases, the power of the Land Department to inquire is at an end. The character of the grant under which this land was held prevented it from vesting in the state, if it was of known mineral character. In such contingency, the title simply “did not pass to the State under the school-section grant.” Ivanhoe Mining Co. v. Keystone Consolidated Mining Co., supra, 102 U.S. 167, at page 175, 26 L.Ed. 126. The rights of the State, therefore, never attached. The land remained a part of the public domain. The title never left the Government. The state acquired none, and those who took from the state were (as said in Mullan v. United States, supra, 118 U.S. 271, at page 278, 6 S.Ct. 1041, 1045, 30 L.Ed. 170) “purchasers with notice.” Herein lies the chief distinction between these cases and cases arising under other acts or grants from which counsel seek to draw analogies. Thus, the tideland cases cannot serve as a precedent because tidelands are not “public lands.” The decision relied upon [Borax Ltd. v. City of Los Angeles (1935) 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9] is grounded upon the proposition that the jurisdiction of the Land Department does not, because of this, extend to tidelands. (See page 17 of the opinion in 296 U. S., 56 S.Ct. 23, 80 L.Ed. 9). Cases such as Hardin v. Jordan (1891) 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428; Iron Silver Mining Co. v. Campbell (1890) 135 U.S. 286, 10 S.Ct. 765, 34 L.Ed. 155; Wright v. Roseberry (1887) 121 U.S. 488, 7 S.Ct. 985, 30 L.Ed. 1039 (also a tideland identification case) ; — and others from other fields of administrative action, do not help the defendants. They are cases in which, through a patent, an identification of lands, or otherwise, title had passed out of the United States, or the action of the Land Department or other administrative officers was, in effect, an attempt to set aside such conveyances, upon a redetermination of a case which had already been determined prior to the grant either by the act of the Department in issuing a patent or otherwise. Clearly they sought to call into action a power which only a court could exercise,' upon a proper showing. Here, however, when the Secretary of the Interior determined that the lands were known mineral lands as of January 26, 1903, he did not divest the State of California or the defendants of any title. The mineral character of the lands being proved, the consequences which flowed from it were not a redetermination by the Secretary of the Interior of a legal title which had passed out of the public domain. He merely found that, by reason of the known mineral character of the lands, no title to them passed under the grant of January 28, 1853. This finding did not call for the annulment of any muniments of title issued by a department of the United States or by the Government itself, either in the form of a patent or a grant. If, in effect, it meant that no title existed in the defendants claiming under the State of California, it was simply because that consequence flowed necessarily from it. At most, the fact belongs to the class which the Supreme Court has designated as “quasi-jurisdictional.” Of them it has said that they “are necessary to be alleged and proved in order to set the machinery of the law in motion, but which, when properly alleged, and established to the satisfaction of the court, cannot be attacked collater- ally.” Noble v. Union River Logging Railroad Co. (1893) 147 U.S. 165, at page 173, 13 S.Ct. 271, 273, 37 L.Ed. 123. The court there sustained the finality of the determination of the Secretary of the Interior, under a railroad grant, that a designated railroad was entitled to the benefits of the grant. A subsequent Secretary of the Interior revoked the grant, and it was argued there, as it is argued here, that “the existence of a railroad, with the duties and liabilities of a common carrier of freight and passengers, was a jurisdictional fact, without which the secretary had no power to ’act” (Idem, at page 172 of 147 U. S., 13 S.Ct. 271, 273, 37 L.Ed. 123), and that a subsequent officer could set it aside upon proof of fraud. The court held that the act was quasi-jurisdictional and not subject to collateral attack, saying: “The lands over which the right of way was granted were public lands, subject to the operation of the statute; and the question whether the plaintiff was entitled to the benefit of the grant was one which it was competent for the secretary of the interior to decide, and, when decided, and his approval was noted upon the plats, the first section of the act vested the right of way in the railroad company.” (Idem at page 176 of 147 U. S., 13 S.Ct. 271, 274, 37 L.Ed. 123.) And see French v. Fyan (1876) 93 U. S. 169, 23 L.Ed. 812; Vance v. Burbank (1879) 101 U.S. 514, 25 L.Ed. 929; St. Louis Smelting & Ref. Co. v. Kemp (1881) 104 U.S. 636, 26 L.Ed. 875, involving identification of swamp lands; Moore v. Robbins, supra; all of which are cited in the opinion and the doctrine of which is applied to the facts of the particular case. And see Work v. Read (1927) 57 App.D.C. 312, 23 F.(2d) 139; Albertsworth, Judicial Review of Administrative Action (1921), 35 Harvard Law Review, 127, 133, 140-142. The mere fact that title to the lands is asserted by the defendants does not stand in the way of the Secretary’s determination of the quasi-jurisdictional fact of their mineral character. That lack of title in the defendants flows from such a determination does not make the fact jurisdictional. West v. Standard Oil Co., supra, holds distinctly that when an adversary proceeding relating to lands is instituted before him, the Secretary of the Interior must hear and deter-, mine the matter. He cannot shirk the responsibility by dismissing the proceeding. There is, therefore, not only the right to hear and determine, but the duty to do so, as well. The defendants say that the scope of the inquiry is merely to 'guide the Secretary in his future actions. We think that the general scope of the laws relating to the public domain, and the strictness with which courts have guarded the exercise of the quasi-judicial powers of the Department, stand in the way of such an interpretation. Clearly, powers so broad in scope, so widely exercised, and so jealously guarded by the courts are not intended merely for departmental self-instruction. They have that finality which attaches, even in the case of administrative bodies of more recent origin, and of more limited sphere. To give to the Secretary’s decision this effect does not involve an unconstitutional delegation of judicial power. The Land Department is “a special tribunal with judicial functions” within the power of the Congress to ordain and establish. Courts have no supervising powers over it. See Riverside Oil Co. v. Hitchcock (1903) 190 U.S. 316, 325, 23 S.Ct. 698, 47 L.Ed. 1074; Cosmos Exploration Co. v. Gray Eagle Oil Co. (1903) 190 U.S. 301, 315, 23 S.Ct. 692, 24 S.Ct. 860, 47 L.Ed. 1064; West v. Standard Oil Co., supra. The defendants do not charge fraud. At the oral argument, their counsel disclaimed any intention-to charge in the Answers, fraud upon the part of any of the officers of the Government. It follows that the departmental finality must be given its full effect, unless the other grounds are legally . adequate. To these we now direct our attention. (b) The Effect of the Congressional Resolution of February 1,1924. Thp Secretary’s power was not limited by the Joint Resolution of February 21, 1924 (43 Stat. IS), under which he was “directed forthwith to institute proceedings to assert and establish the title of the United States.” Granted that “to institute” means “to start”; there is no limitation, in this resolution, as to the tribunals before which proceedings should be instituted. Their object was to assert and establish the title of ,the United States to sections 16 and 36. Of necessity, therefore, the authority conferred ujjon the Secretary was to take all steps which would lead to that end. If administrative proceedings could achieve it, this resolution does not forbid them. A final determination, through the administrative tribunals of the Land Department, might not succeed in giving to the United States full relief. “Legal proceedings for possession and for damages or an accounting” (West v. Standard Oil Co., supra, 278 U.S. 200, at page 219, 49 S.Ct. 138, 144, 73 L.Ed. 265) might be necessary. But neither the need for them nor the duty to institute them affect the range of the inquiry, through administrative channels. It was determined by the general principles of law, already discussed. The resolution did not restrict it. The Secretary did not need the authority of the resolution to make the inquiry. In truth, we feel that the object of the resolution was merely to bestir action on the part of those whom the Congress may have considered dilatory in protecting, through proper proceedings, both before the department and the courts, the interest of the Government in these lands, the defendants’ claim to which had been questioned as far back as 1908. It did not grant any power which the Secretary did not possess by virtue of his responsibility for the public lands, and his control over them. (c) The Effect of Designation of the; Lands as a Naval Reserve. The fact that section 36 is within Naval Reserve No. 1 created by executive order of September 2, 1912, and subject to the provisions of the Act of June 4, 1920, giving the Secretary of the Navy possession of the properties within the Naval Reserve, with the duty to conserve, develop, use, and operate them (34 U.S.C.A. § 524), does not transfer to the Navy Department the right to try any questions relating to the lands over which the Secretary of the Interior has sole authority.- The powers of the Navy Department; under this enactment, are delimited by the provisions of the statute. It is “to conserve, develop, use, and operate the same * * * directly or by contract, lease, or otherwise, and to use, store, exchange, or sell the oil and gas products thereof.” Courts have shown reluctance to extend them. See Mammoth Oil Co. v. United States (1927) 275 U.S. 13, 48 S.Ct. 1, 72 L.Ed. 137; PanAmerican Petroleum & Transport Co. v. United States (1927) 273 U.S. 456, 47 S.Ct. 416, 71 L.Ed. 734. Naval control does not extend to the trial of questions of fact, through administrative channels, over which the Secretary of the Interior, under his supervision of public lands of the United States, has sole control. See Johanson v. Washington (1903) 190 U.S. 179, 23 S.Ct. 825, 47 L.Ed. 1008; Cosmos Exploration Co. v. Gray Eagle Oil Co. (1903) 190 U.S. 301, 23 S.Ct. 692, 24 S.Ct. 860, 47 L.Ed. 1064; United States v. Hurlburt (C.C.A. 10, 1934) 72 F.(2d) 427. Because, through executive action, the exploitation of certain oil-bearing lands has been turned over, as a naval reserve, to the Navy Department, we are not justified in turning that department into an administrative court, of even quasi-judicial power. The executive order does not command such consequence. (d) Reversal by Secretary of Register’s Findings. A substitute register of the Land Office, on February 24, 1932, rendered a decision dismissing the proceeding. On February 23, 1933, the Commissioner of the General Land Office affirmed it “subject to the right of appeal to the Secretary of the Interior within thirty days from notice.” The United States appealed to the Secretary of the Interior, who, on January 24, 1935, reversed the decision. A motion for a rehearing was denied by the Secretary on May 20, 1936. Ever since the establishment of the Department of the Interior (5 U.S.C.A. § 485), our courts have held that the Secretary’s general supervision over the public lands of the United States gave him the right to revise, change, modify, and reverse the decisions of the register and the Commissioner. See Maguire v. Tyler (1869) 8 Wall. 650, 667, 19 L.Ed. 320; Snyder v. Sickles (1878) 98 U.S. 203, 211, 25 L.Ed. 97; Buena Vista Co. v. Iowa Falls & Sioux City Ry. Co. (1884) 112 U.S. 165, 5 S.Ct. 84, 28 L.Ed. 680; (in which the Secretary reversed the Commissioner’s decision) ; Knight v. United States Land Association (1891) 142 U.S. 161, 179, 183, 12 S.Ct. 258, 35 L.Ed. 974; Orchard v. Alexander (1895) 157 U.S. 372, 378, 379, 15 S.Ct. 635, 39 L.Ed. 737 (involving the right of the Secretary to supervise) ; Parsons v. Venzke (1896) 164 U.S. 89, 17 S.Ct. 27, 41 L.Ed. 360 (where the power of the Commissioner and the Secretary of the Interior to set aside a pre-emption entry approved by a local land office was sustained) ; Hawley v. Diller (1900) 178 U.S. 476, 485, 20 S.Ct. 986, 44 L.Ed. 1157 (where the right of the Secretary of the Interior to reverse a decision of the Commissioner of the General Land Office was sustained); Potter v. Hall (1903) 189 U.S. 292, 301, 23 S.Ct. 545, 47 L.Ed. 817. Finality attaches to the conclusions of the Secretary. Le Marchal v. Tegarden (C.C.A.8, 1909) 175 F. 682; Edwards v. Bodkin (C.C.A.9, 1918) 249 F. 562, 567. In Bowen v. Hickey (1921) 53 Cal.App. 250, 200 P. 46, 47, certiorari denied 257 U.S. 656, 42 S.Ct. 168, 66 L.Ed. 420, the court, in an opinion,written by Judge Wm. P. James, now a member of this court, said: “The finding of the Secretary of the Interior on appeal in any controversy over conflicting claims to the public land is conclusive as to all questions of fact in the absence of fraud or gross mistake, and is otherwise conclusive unless there has been a clear misapplication of the law. In such exceptional cases only may the courts inquire into the matter, and, in equity, where patent has issued, adjudge the title to be in the person having the right thereto.” The right of appeal existing, any rule which would deny to the head of the Department which has the final say the right to review or to reach conclusions different from that of the inferior officers would destroy its. effectiveness. It would, in common parlance, make the appellate court a “yes” court with power to hear an appeal, but without the power to determine it according to its own light. It would thus make the inferior officer or tribunal the final arbiter. He is such, if no appeal is taken. But when an appeal is taken, by the very force of the right to appeal, the right to reverse the inferior officer exists. The register,o the Commissioner and the Secretary constitute a “special tribunal” (United States v. Winona & St. Paul Ry. Co., supra (C.C.A.) 67 F. 948, at page 955), with the third member of the triumvirate, the Secretary, having the final say. In West v. Standard Oil Co., supra, 278 U.S. 200, at page 213, 49 S.Ct. 138, 141, 73 L.Ed. 265, the court said: “For the Secretary is not obliged to employ proceedings in the local land office as the means for making the determination as to the known mineral character. He could himself hear the evidence in the first instance. Nor is he obliged, in so ascertaining the facts, to follow a procedure similar to that prescribed for the local land office. See Knight v. U. S. Land Ass’n, 142 U.