39 FEDERAL REPORTER. -
the Same, who shall have 60 days after service of such notice to
make application for the purchase of such lands, which application
shall have preference over all others; and all applications to pur-
. chase tide lands shall be accompanied by an affidavit of the applicant
"setting forth the fact that such land is not held by any other per-
zopdunder a deed from said applicant or any person under whom he
o s. "
The land in the territory of Oregon, including the beds and shores
of the navigable waters below ordinary high tide or water, belonged,
r prior to the admission of the state into the Union, to the United
States, as proprietor, and was subject to its jurisdiction as sovereign.
Upon the admission of the state into the Union, such bed and shores,
not otherwise disposed of by the United States, became the property of
the state in its sovereign capacity, and subject to its jurisdiction and
disposal. P0llard’s Lessee v. Hagan, 3 How. 228; Barney v. Keokuk,
94 U. S. 336; Shively v. Parker, 9 Or. 504. The United States, so far
as appears, never undertook to dispose of any of the shore or tide
lands in Oregon during the territorial period, and therefore, upon the
admission of the state into the Union, on February 14, 1859, (11 St.
383,) the same became subject to the control and disposition of the
latter. In pursuance of this power, the state has provided for the
sale and disposition of these lands by the passage of the act of 1872
and the amendment of 1874. Under them, Nancy Welch, as the V
owner of the adjacent highland, became the purchaser of the parcels
of tide land known in this suit as blocks 111 and the west half of
145. But it is alleged that the purchase was fraudulent on her part,
because she falsely represented herself to be entitled to purchase the
same in preference to the plaintiff. It does not appear from the bill
in what this fraud consists or wherein her representation, as to her
qualifications, is false, otherwise than that her conclusion—from the
` admitted facts, as to her right in the premises, may have been erro-
neous. But the question of Nancy Welch’s right as a preferred pur·
_ chaser arose before the commissioners charged with the disposition
of the land upon due notice to the plaintiff, who I suppose had the
right and did contest the matter before them, and their conclusion
or action in the premises cannot be questioned unless for error in
the construction or application of the law, or for some fraud ex-
trinsic and collateral to the contest by which the plaintiff was pre-
vented from having a fair and full hearing before the commissioners.
At least such is the rule laid down by the national courts in regard
to similar proceedings before the oiiicers of the land department.
Aiken v. Ferry, 6 Sawy. 79; Vance v. Burbank, 101 U. S. 519, and
cases there cited.
In the course of the business before the commissioners the ques-
tion -arose, and was contested, as to which of the two applicants was
entitled to purchase from the state the tide land in question. Their
action in determining such a question is in all respects analogous to