corporated town, to construct wharves in front of their land. It does not vest any right until exercised. It is a license, revocable at the pleasure of the legislature, until acted upon or availed of. Eisenbach v. Hatfield, 2 Wash. St. 250, 26 Pac. Rep. 539. Shively did not avail himself of the license, nor is there any pretense to that effect. The plaintiffs have built a wharf upon and in front of their tide land. If the act is as applicable to tide lands as upland on navigable waters, they have exercised the right. The language of the act is, "the owner of any land lying upon any navigable stream or other like water," which would seem to apply to the owner of tide land. But, however this may be, the act has already received a construction from this court. In Parker v. Rodgers, supra, after quoting this language of the act, BOISE, J., said, in speaking for the court: "We are aware that it is a general rule that what is appurtenant to land passes with it, being an incorporeal hereditament; but the right to build a wharf in the land of the state below high water is a franchise which attaches to the tide land, and is appurtenant to it, rather than to the adjacent land, for it can be severed from the adjacent land, and enjoyed without it." This is predicated upon the idea that without the act an upland owner would have no right to build a wharf over the land of the state or tide lands, because the right or franchise attaches to the tide land, and is appurtenant to it, and not to the adjacent land. The grantor of the defendants did not avail himself of the license under the act, but the plaintifs, as owners of the tide lands, have built a wharf, and, in view of our adjudications, it is difficult to understand from what other source the right claimed by the defendants is to be derived. In the cases decided by this court, which have succeeded those mentioned, no other or different opinion in respect to the ownership of the tide land has been expressed by the court, or by any judge authorized to speak for it. In Wilson v. Welch, 12 Or. 353, 7 Pac. Rep. 341, THAYER, J., undertook to express his own and a different view, not necessary to the decision of the case, and the other members of the court expressly refused to concur, except in the result. In McCann v. Railroad Co., 13 Or. 462, 11 Pac. Rep. 236, the same judge, recognizing that his opinions upon that subject would not meet with the concurrence of his associates, especially in consideration of the fact that his particular view was not necessary to the decision of the case, said: "I have for some time maintained a different view from that of my associates upon the bench, and also from that expressed in the opinion of some of our predecessors in adjudged cases regarding the nature of the state's title to lands between high and low water mark. My opinion upon the subject was expressed in Wilson v. Welch, 12 Or. 353, 7 Pac. Rep. 341. I still adhere to that opinion. * * But waiving that view of the question, and conceding that the state is, as some of the authorities have said, the owner in fee of the lands referred to, and can grant them with the

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incidental rights of the shore or bank owner to any private person the state government may please to favor, and still I do not see how the appellant can be entitled to the relief claimed under the provisions of said chapter 63 of the Laws of the state." As this quotation explains the situation, it is hardly necessary to make any comment other than to say that the "different view" his associates maintained, so far as I was concerned, was that "the opinion of our predecessors in the adjudged cases" should be regarded as settled law, which could not be disregarded without disturbing titles, and bringing disaster, perhaps, upon those who had accepted and acted upon those decisions as the law of the state.

In Parker v. Packing Co., 17 Or. 510, 21 Pac. Rep. 822, the only question in the case was whether ejectment would lie to recover a wharfage right, and the court was agreed that it would not. In the preparation of his opinion, however, THAYER, J expressed, as usual, his "different view, but without the concurrence of his associates, which, by some oversight, is not noted in the case. As these expressions of his personal views are so purely obiter, especially in view of the preceding cases, the nonconcurrence of his associates in them was hardly necessary to avoid misapprehension. It has been deemed necessary to review "the opinions of some of our predecessors in adjudged cases regarding the nature of the state's title to lands between high and low water mark," for the purpose of showing that these deci sions are the foundation of the doctrine in this state that the state may sell and convey its tide lands, and that its grantees take them free from any right therein by the upland owner, and subject only to the paramount right of navigation inberent in the public; that this doctrine of the nature of the state's title to tide lands was so understood to have been adjudged in those cases by THAYER, J., and his associates, and was the producing cause of his "different view;" that Judge THAYER himself never understood or claimed that he was speaking for the court in the expression of such views, and that the nonconcurrence of his associates in them, in the first instance, was noted to avoid misapprehension, and for the reason that "the adjudged cases" had become the foundation of many titles and the law of the state, and ought not to be disturbed,

considerations which my present associates think ought still to govern us, and to be adhered to, leaving out of view the stronger reason that "the opinions of our predecessors in the adjudged cases" are the better and more correct exposition of the law of the nature of the state's title to the tide lands. Nor is this doctrine peculiar to this state. In our neighbor state of Washington, the right of the state to dispose of its tide land free from any easement of the upland owner is maintained in a well-considered opinion in Eisenbach v. Hatfield, 2 Wash. St. 353, 26 Pac. Rep. 539. That state, like our own, is largely affected by this question, and it is desirable that the rule of decision in the two states should be uniform. It certain

ly would be unfortunate if different rules should be established for either side of the Columbia river. The cases usually regarded as leading in support of this doctrine are Stevens v. Railroad Co., 34 N. J. Law, 533, and Gould v. Railroad Co., 6 N. Y. 522. In the former of these, BEASLEY, C. J., said that "lands under water including the shore of tide water in New Jersey, belong absolutely to the state, which has the power to grant them to any one free from any right of the riparian owner in them." This language, and the uses to which the tide land was put, not being in aid of navigation, flouts the idea that the right of disposal, as against the upland owner, was intended to be limited in its application to public uses. In the latter of these cases, (Gould v. Railroad Co., supra,) it was held by the court of appeals that an owner of upland along high-water line on the Hudson river has no exclusive riparian rights below that line, and hence sustained no legal damage from a railroad embankment built under a grant from the state which cut off his access to the river. This decision is a rule of property in that state, and has never been questioned. Other cases in which the same doctrine has been held are Pennsylvania R. Co. v. New York R. Co., 23 N. J. Eq. 157; Sugar Refinery, etc., Co. v. Jersey City, 26 N. J. Eq. 275; In re Water Commissioners, 3 Edw. Ch. 290; Getty v. Railroad Co., 21 Barb. 617; Tomlin v. Railroad Co., 32 Iowa, 106; Canal Com'rs v. People, 5 Wend. 423; People v. Canal Appraisers, 33 N. Y. 461; Navigation Co. v. Coons, 6 Watts & S. 101; McKean v. Canal Co., 49 Pa. St. 424. Nor does the supreme court of the United States assert any doctrine to the contrary. It recognizes the fact that the rights of the upland owner are matters of legislation and usage in the several states, and applies the law of the state according ly. This is illustrated in the case of Hoboken v. Railroad Co., 124 U. S. 656, 8 Sup. Ct. Rep. 643, in which Mr. Justice MATTHEWS states and applies the law of New Jersey as adjudged in Stevens v. Railroad Co., supra. In the absence of legislation or usage in the several states, they declare that the common-law rule would govern the rights of the riparian proprietor, and that by that law the title to the tide lands is in the state. In Weber v. Commissioners, 18 Wall. 65, Mr. Justice FIELD, after stating that it was not necessary to controvert the doctrine of Yates v. Milwaukee, 10 Wall. 497, for reasons quite apparent, proceeds to say: "Nor is it necessary to controvert the proposition that in several of the states, by general legislation and immemorial usage, the proprietor whose land is bounded by the shore of the sea, or of an arm of the sea, possesses a similar right to erect a wharf or pier in front of his land, extending into the water to the point where they are navigable. In the absence of such legislation or usage, however, the common law would govern the rights of the proprietor, at least in those states where the common law obtains. By that law the title to the shore of the sea, and of the arms of the sea, and in the soils under tide water, is in England in the king, and in this country

in the state. * * Upon the admission of California into the Union upon equal footing with the original states, absolute property in, and dominion and sovereignty over, all soils under the tide waters within her limits passed to the state, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations, or among the several states, the regulation of which was vested in the general government.

In Harden v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838, Mr. Justice BRADLEY said: "With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so granted inures to the state within which they are situated, if a state has been organized and established there. Such title to shores and land under water is regarded as incidental to the sovereignty of the state,-a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery,-and cannot be retained or granted out to individuals by the United States. Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Weber v. Commissioners, 18 Wall. 57. Such title being in the state, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by congress with regard to public navigation and commerce. The state may even dispose of the usufruct of such lands, as is frequently done, by leasing oyster beds in them, and granting fisheries in particular localities; also by reclamation of submerged flats, and the erection of wharves and piers, and other adventitious aids of commerce. Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being su preme, subject only to the paramount authority of congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce. See Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. Rep. 559; Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 Ú. S. 391; Martin v. Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426. This right of the states to regulate and control the shores of tide waters, and the land under them, is the same as that which is exercised by the crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas; and also, in some of the states, to navigable rivers, as the Mississippi, the Missouri, the Ohio; and in Pennsylvania to all permanent rivers in the state; but it depends on the law of each state to what waters and to what extent this prerogative of the state over the lands under water shall be exercised. In the case of Barney v. Keokuk, 94 U. S. 324, we held that it is for the several states themselves to determine

this question, and, if they choose to resign to the riparian proprietors rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.

From all this it appears that, when the state of Oregon was admitted into the Union, the tide lands became its property, and subject to its jurisdiction and disposal; that, in the absence of legislation or usage, the common-law rule would govern the rights of the upland proprietor, and by that law the title to them is in the state; that the state has the right to dispose of them in such manner as she might deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the state to determine for itself; it can say to what extent it will preserve its rights of ownership in them, or confer them on others. Our state has done that by the legislation already referred to, and our courts have declared its absolute property in and dominion over the tide lands, and its right to dispose of its title in such manner as it might deem best, unaffected by any "legal obligation to recognize the right of either the riparian owners, or those who had occupied such tide lands," other than it chose to resign to them, subject only to the paramount right of navigation and the uses of commerce. From these considerations it results, if we are to be bound by the previous adjudications of this court which have become a rule of property, and upon the faith of which important rights and titles have become vested, and large expenditures have been made and incurred, that the defendants have no rights or interests in the land in question. Upon this point there is no diversity of judgment among us. We all think that the law as adjudicated ought not to be disturbed, independent of other reasons and authorities suggested in its support. Speaking only for myself, I own that, if the question in respect to riparian ownership was res integra, I am inclined to the opinion that the owner of the upland or tide water has certain rights, arising from his adjacency to such waters, subordinate, however, to their use by the public for navigation and fishing, which are not enjoyed in common with the public. But, for the reasons suggested, I have felt bound to adhere to the law as adjudged by our predecessors. It is therefore the unanimous opinion of this court that there was no error, and that the judgment must be affirmed.

(22 Or. 428)

HOGG V. DAVIS.

(Supreme Court of Oregon. June 18, 1892.) Appeal from circuit court, Benton county; M. L. PIPES, Judge.

Action by T. Egenton Hogg against M. M. Davis. Judgment for plaintiff, and defendant appeals. Affirmed.

J. K. Weatherford, for appellant. J. R. Bryson, Dolph Bellinger, and Mallory & Simon, for respondent.

LORD, J. This is a suit to restrain the defendant, Davis, from erecting a building on certain tide lands belonging to the plaintiff, in Benton county. The complaint alleges that the legislature of Oregon, by an act approved October 24, 1875, granted to the Willamette Valley & Coast Railroad Company and its assigns all the tide and marsh lands in Benton county, upon the filing of its acceptance of said grant within 30 days, which acceptance was duly filed; that the land in question consists of all that parcel of land situate in front of lots 1 and 2, in section 23, and lot 8, in section 27, township 11 S., range 11 W. of Willamette meridian, said land being between the line of ordinary high and ordinary low water on Yaquina bay, and being a part of the tide and marsh lands selected in said county, and is a tide flat about 140 feet in width. The com

plaint alleges various amendments of the act referred to, not material to be considered on this argument. It shows title in plaintiff by mesne conveyances from the state's grantee of all the rights and title which the state could grant. It is alleged that said lots 1, 2, and 8 were filed upon the 16th day. of June, 1869, by one Daniel Brown, under the homestead laws of the United States; that a final homestead certificate was issued to Brown on April 1, 1875, and that a patent was issued on such certificate to Brown on the 1st day of the following June; that whatever right Brown acquired under these proceedings and patents passed by mesne conveyances to the defendant; that the defendant, claiming to have some easement therein by virtue of the said homestead title to said lots, has gone upon said tide lands, and driven piles, and has begun the erection of a large and permanent structure therein, and threatens to complete the same, and will do so, unless restrained by the court; that such structure will be a permanent obstruction to the use of plaintiff's premises, and will greatly depreciate their value; that such structure is not in aid of commerce, or designed or intended therefor, but is for his own individual use and benefit, and is an irreparable injury to the plaintiff. The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of suit. The demurrer was overruled, and a decree entered accordingly, whereupon the defendant brought this appeal. The contention in the case arises over the conflicting claims of the defendant as adjacent owner to an easement in such tide lands in question, and of the plaintiff as owner of the tide lands through title derived from the state. The defendant claims that the state had no title in the tide lands in question, or that whatever rights it had were and are subject to an easement therein by the upland owner. There is no other question presented in this case, and our opinion in Bowlby v. Shively, 30 Pac. Rep. 154, (at this term,) is decisive of the question involved. It results that the judgment must be affirmed.

(22 Or. 456)

DICE V. MCCAULEY et al. (Supreme Court of Oregon. June 18, 1892.) EQUITY-JURISDICTION-BOUNDARIES.

Equity has no jurisdiction to determine a disputed boundary where the only question involved is whether a conventional boundary line was established, which, if acted upon a sufficient length of time, would bar an entry. Love v. Morrill, 24 Pac. Rep. 916, 19 Or. 545, followed.

Appeal from circuit court, Polk county; R. P. BOISE, Judge.

Action in equity to settle a disputed boundary by Minerva Ann Dice against Mary E. McCauley and another. Plaintiff had decree, and defendants appeal. Reversed.

The other facts fully appear in the following statement by STRAHAN, C. J.: This suit is brought by the plaintiff

the principle applied by this court in Lore v. Morrill, 19 Or. 545, 24 Pac. Rep. 916, which is decisive of this case. Let the decree appealed from be reversed, and the suit be dismissed.

(49 Kan. 100)

SWIGART V. WALKER. (Supreme Court of Kansas. June 11, 1892.) PUBLIC LANDS-CANCELLATION OF HOMESTEAD RECEIPT-POWERS OF COMMISSIONER.

The commissioner of the general land office of the United States has authority to cancel a final homestead receipt, and set aside the entry, at any time before the patent issues; and a pur chaser from the entry man after a final receipt is given, and before the issuance of the patent, takes the land subject to this supervisory power of the commissioner and of the secretary of the interior.

(Syllabus by the Court.)

Error from district court, Sherman County; CHARLES W. SMITH, Judge.

Action by William B. Swigart against William Walker to quiet title. On a judgment dismissing the action, plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by JOHNSTON, J.:

Action brought by William B. Swigart to quiet the title to real estate in Sherman county against William Walker, who claimed an adverse interest in the same. The case was tried at the July term, 1889, before the court, when the following findings of fact and law were made: "(1) That prior to May 14, 1886, the land in dispute was public land of the United States. (2) That on May 14, 1886, the land in question, being a part of the east half of the southwest quarter, and the southwest quarter of the southwest quar. ter, of section 18, twp. 8 S., of range 39 W., in Sherman county, Kan., and entered as an additional soldier's homestead entry, under the homestead laws of the United States, by one Abderson A. Cummings, as guardian for the heirs of Joseph Volgymore, deceased; said entry being made at the Oberlin, Kan., land office. (3) That the said land office at that time issued Cummings a final receipt showing the entry of said land. (4) That afterwards, and on the day of · --, said Cummings executed and delivered to the Sherman Center Town Site Company, of Sherman county, Kan., his guardian's deed, conveying to it the interest of said Volgymore's heirs in said land. (5) That afterwards, and on the --- day of -——, said Sherman Center Town Site Company executed and delivered to the plaintiff in this case its deed, conveying to him its interest in the property in dispute in this action; it being a part of the land described in said deed of Cummings to the Sherman Town Site Company, (6) That afterwards, and on August 22, 1887, the said entry of said Cummings was by letter C of that date duly canceled by the commissioner of the general United States land office, and the same held for naught; said cancellation being made for the reason that said Joseph Volgymore, deceased, had made a similar entry at San Francisco, Cal., on December 31, 1887. (7) That, at the time of beginning this action, no

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patent had issued to the heirs of said Volgymore, conveying to them said land, and never has issued, and that the order of cancellation above referred to had never been appealed from, but now remains in full force and effect. (8) That the cancellation of said entry was made in the local land office at Oberlin, Kan., on October 4, 1887. (9) That afterwards, and on October 5, 1887, William Walker, the defendant in this case, was a qualified entry man, in all respects, and on that day entered said land conveyed by the entry of said Cummings as a timber claim, un. der the timber culture laws of the United States, by and with the consent of the United States, and that said defendant was in good faith holding said land, and had complied with the laws in all spects, up to and at the time of the beginning of this suit. I therefore find, as conclusions of law, that this court had no jurisdiction to inquire into the rights of the parties in and to the title to said land in this action, and that judgment should be rendered for the defendant herein for the recovery of his costs. Wherefore it is hereby ordered and adjudged that this cause be, and the same is hereby, dismissed, and that the defendant have and recover of and against plaintiff the costs of this suit, taxed at $In accordance with this conclusion the court entered judgment dimissing the action, and awarding costs to the defendant. The plaintiff moved to set aside the findings, and for a new trial, which motion was overruled, and an exception duly taken. S. D. Decker, for plaintiff in error. C. W. Whitmore and May & McElroy, for defendant in error.

JOHNSTON, J., (after stating the facts.) It is contended that the findings require the entry of judgment in favor of Swigart, who holds under the unwarranted entry of Cummings, the guardian of the Volgymore heirs. As stated in the findings, the guardian entered a tract of public land in Sherman county as an additional soldier's homestead entry, and a final receipt showing the entry was issued by the reg ister and receiver of the local land office. Soon afterwards the land was conveyed to a town company, and a few months later the company conveyed the portion in dispute to the plaintiff in error. Before the patent issued, or the legal title had passed from the United States, it was discovered that Joseph Volgymore, then deceased, had previously used the right, and had made a similar entry about 10 years before in California. Thereupon the final entry made by the guardian of the heirs of Volgymore was canceled, and subsequently the land was entered by Walker, whose qualifications are unquestioned, and the regularity of the steps taken by him to acquire the land is not challenged. The only question presented is as to the power of the United States land commissioner to set aside the entry, and to cancel the final receipt which had been issued. We have no doubt of the power of the commissioner. It is not claimed to have been exercised erroneously or fraudulently, and, if he is warranted in taking such ac