it 30 FEDERAL anroizrmn.
the latter and his wife, Nancy, each, one-fourth of the unplatted por-
tion of said donation, and certain of the blocks aforesaid, in number
about one-fourth of the whole number surveyed; that the convey-
(ance to said Nancy included the blocks 5 and 13 aforesaid, and was
`made to her at the request of her husband, and upon the considera-
tion, and for the purposes aforesaid, and not otherwise; and there-
, upon said Welch ceased and withdrew his opposition to the plaintiffs
claim to the premises as a donee under the donation act, and there-
after, on January 24, 1866, a patent was duly issued thereunder, con-
veying the east half of the donation to the plaintiff, and the west half
to his wife, Susan L.; that blocks 111 and 145 are wholly below or-
dinary high tide, and were represented on the map of "Shively’s As-
toria" as being each 300 feet square, bounded on all sides by streets,
and were included in the quitclaim of March 13, 1850, made by Welch
to the plaintiff, and said block 111 is immediately in front and north
-0f the shore block 13, in the west half of said donation, from which it
is separated on said map by Wall street, while block 145 is immedi-
ately in front and north of shore block 5, in the east half of said do-
_ nation, from which it is separated on the map by Hemlock street;
' that both Wall and Hemlock streets are now below 'ordinary high
water mark, and block 13 is more than one-fourth, and block 5 nearly
-one-sixth below said line; but in 1856, at the date of the official sur-
~· vey of the Shively donation, a small portion of the west end of Wall
street was above the meander line, while such line ran diagonally
through the whole length of Hemlock street, in front of block 5, so as
to leave about three-fourths of the same above said line, and about
0ne—1ifth of block 13 was below said line.
On March 7, 1881, the plaintiff and wife conveyed the latter’s half
of the donation, with certain exceptions not material to this case, to
Milton Elliott, and on the day following he conveyed the same to the
plaintiff. On September 3, 1875, Nancy Welch applied to the com-  
missioners of the state for the sale .of school lands to purchase the
tide lands lying in front of blocks 5 and 13, under the state act of
October 28, 1872, "toprovide for the sale of tide and overflowed
lands on the sea and shore coast," (Sess. Laws, 129,) and the act of
October 29, 1874, (Sess. Laws, 76,) amendatory thereof, as the owner
of said blocks, and represented that said tide land was not held by
any person claiming by, through, or under her, or any one through
whom she claimed, which representation the bill alleges to have been
false to the knowledge of the party making it, who then knew, as it
is alleged, that the plaintiff was the "equitable owner" of the prop-
erty, and entitled to purchase the same from the state, and that about
August 28, 1876, she obtained from said commissioners a conveyance
of the tide land in front of block 13 and the west half of block 5,
( including block 111 and the west half of block 145, while the plain-
tiff, at the date of both said application and conveyance was an
applicant, in due form of law, for the purchase of said tide lands,