ON PETITION FOR REHEARING.
PER CURIAM.The appellants have filed a petition for a rehearing in this case, and urge as a ground therefor that the decision of, the commissioner of the general land office and of the secretary of the interior was based upon an erroneous view of the law applicable to the case, and not upon a finding, drawn from disputed facts. In other words, counsel contend that the undisputed facts in this case were all with the appellants in their several contests before the land office and the department of the interior. An examination of the decisions as found in the record and also reported in land decisions, and cited in the original opinion herein, will disclose that the secretary found that White’s settlement was prior to that of any of the townsite claimants. The decision of the land department seems to have turned upon *514that point, and that finding is binding upon all courts in a controversy like this where it is sought to hold the patentee as a trustee or equitable owner for other claimants. We have given this matter a further consideration and examination since the filing of the petition for rehearing, and are satisfied that the opinion as originally announced disposes of the case, and the petition is therefore denied.
The respondents have also filed a petition for a modification of the judgment as to costs. They contend that the bulk of the record in this case is made up of the evidence produced by appellants, and that since the respondents’ judgment has been affirmed as to the principal and main feature that the costs should at least be divided. As we view the case, the respondents should pay the costs of this appeal. They made it necessary for the appellants to prosecute their appeal in order to obtain the relief they have been granted. In doing so it was necessary for the appellants to bring up the whole record, and while it contains much that is irrelevant and- immaterial, and has been encumbered with a great deal of useless matter,' that is as much chargeable to the respondents as to appellants. We think the costs of this appeal should properly be borne by the respondents. The petition for modification of the judgment for costs' is denied.