SHIVELY v. WELCH. 31
and was theonly person entitled to purchase thesame under said
act. On October 19, 1876, the defendants James Welch, Joseph N.
Dolph, and W.   Upton, procured a conveyance from said Nancy
Welch of an undivided one-fourth of said tide lands; and it is alleged
that the "title" of said Nancy is "fraudulent and void," as against
the plaintiff, and that the conveyance to her co-defendants was made
without consideration, and received by them with full knowledge of
the premises. ~ ·
The defendants for cause of demurrer to the amended bill, among
others, allege: (1) That the question of who was entitled to the con-
veyance from the state was determined by the commissioners, and
their decision, in the absence of fraud, cannot be reviewed by the
court; (2) that Nancy took the land and blocks conveyed to her by
the plaintiff "free from any contracts of her husband concerning the
appurtenances or riparian rights belonging to said land;" and (3)
that there is no equity in the bill.
The location of blocks 41 and 46 is not definitely-shown by the bill,
but it may be gathered therefrom that they are in front of block 5 and
beyond block 145, in which case they are in deep water, and below
the line of ordinary low tide, and therefore not tide lands. Besides,
it appears from the bill that block 41 is in the deed of February 16,
1860, executed by the plaintiff and wife to Nancy Welch, with war-
ranty, which estops the plaintiff from now claiming any right or in-
terest therein as against said Nancy. This being so, counsel for the
plaintiff consents that the bill may be considered dismissed as to these
two blocks.
r The act of 1872, under which Nancy Welch purchased the tide
land in question, provides that the owner of any land fronting on or
bounded by the shore of any "bay, harbor, or inlet on the sea·coast"
of Oregon, shall have the right to purchase from the state all the tide
land belonging thereunto in front of such owner. Section 1. The
commissioners for the sale of school lands-the governor, treasurer,
and secretary of state-——are authorized to sell such lands to the owner
of the land that abuts or fronts thereon, on proof of such ownership,
(sections 2, 3;) and if the application to purchase is not made by
the owner within 12 months from the passage of the act, then such _
tide land may be purchased by any citizen or resident of Oregon.
Section 5. By the amendment of 1874, section 1 was extended to
tide lands on rivers and their bays in which the tide ebbs and flows,"
excluding the Wallamet, "the tide and overflowed lands" on which
were thereby directly granted to the owners of the adjacent property;
and section 5 was amended so as to allow the adjacent owner three
years from the passage of the act within which to apply for the pur-
chase of tide lands, and to provide that upon an application to pur-
· chase by any one other than the owner of the adjacent land or his
grantee, notice thereof shall be given to such owner or grantee, and
to any person in the possession of such tide lands or the improver of