— I concur in the result reached in this case, but desire briefly to state my view of the question of law involved.
Whether or not the judgment of the land department as evidenced by its patent to a given tract of public land is conclusive and not open to collateral attack depends upon whether it had jurisdiction of the proceedings leading up to the patent. If the question to be determined by it is one of law, its patent is not conclusive; if one of fact, it is conclusive and is not open to collateral attack. The difficulty is to determine from the opinions of the supreme court of the United States what is a question of fact in such eases.
I have reached the conclusion from careful consideration of the two leading cases in which the land department was held to be without jurisdiction (Morgan v. Nebraska, and Burfenning v. Chicago etc. Ry. Co.) that where the records of the land department show, and they are not disputed, or are indisputable, that land is of a certain character, the power to convey by patent is a question of law, and if the land department grants such land in defiance of law it is without jurisdiction; but where the question to be determined by the land department is whether certain facts exist — for instance whether there was at the time of application for patent a known “mine,” or the ground was in fact known to be mineral or swamp land — and these facts must be established by parol testimony, outside of the record, the determination of these facts, as evidenced by the patent, is conclusive.
*256I am therefore unable to concur in the view that this ease may be reversed without overruling the holding of the Clay case.
KENT, C. J.— I am not entirely in accord with my associates in their views as to the Clay case, nor in the reasoning by which they distinguish that case from the one before us. Under the authority of the Burfenning case it would seem as though the Clay case must be upheld, unless the decision in the Burfenning case was based upon the ground that there the facts appeared of record to the land department, and were therefore not to be established by parol testimony. Certain expressions in that ease seem to afford ground for believing that the decision was so based. If so, it would not be authority for the Clay case. The various decisions of the supreme court of the United States are difficult of reconciliation, and give us no clear and authoritative expression upon which we may rely, as determinative of the question whether, under such a state of facts as existed in the Clay case, the land department had, or had not, jurisdiction to determine the questions involved.
In the case before us, however, there can be no question that the land department had jurisdiction to enter upon and determine the question of fact in issue, and that such determination is conclusive. I therefore concur with Mr. Justice Doan in the views expressed by him as to the case before us, and the result reached.