I see nothing in the case at bar to distinguish it from the numerous cases in the books where a vessel insufficiently moored drags her anchors, and collides with another vessel securely anchored and in a proper place. Unless under very exceptional circumstances the colliding vessel is in such cases uniformly held liable. A decree in favor of libellants must be entered. W. T. WYTHE V. JARED HASKELL. CIRCUIT COURT, DISTRICT OF Oregon. 1. TITLE OF SETTLER UNDER DONATION ACT.-A settler under the Donation Act of Oregon acquires title to his donation from the passage of the act or the date of his settlement; and the patent which issues to him upon the performance of the conditions upon which the grant was made, is only record evidence of the existence of such title, or of the facts out of which it arose. 2. PARTITION OF DONATION TO MARRIED SETTLERS.-Under said act the surveyor-general had authority to partition the donation of a married settler, in equal parts as to quantity, between him and his wife, at any point of the compass he might deem expedient; but his action in this particular, under section 1 of the act of July 4, 1836, (5 Stat., 107) was subject to the supervision of the commissioner of the general land office. 3. PATENT TO FOLLOW CERTIFICATE. When the surveyor issued a certificate to a settler under the Donation Act, the commissioner of the general land office was required to issue a patent thereon and in conformity therewith, unless he found some valid objection thereto; and if said objection was found, it could not be disposed of by issuing a patent so far contrary to the certificate, but the certificate should have been returned to the local office for correction, and the patent issued upon such corrected certificate. 4. CERTIFICATE AND PATENT PARTS OF ONE TRANSACTION.-A certifi cate and patent thereon, issued under said act, are parts of the same transaction or procedure, and may be read together for the purpose of correcting or explaining the patent, and where there is an absolute contradiction between them, the certificate must prevail. 5. THE TERMS "SOUTH" AND "NORTH" HALF OF DONATION CONSTRUED. On July 28, 1853, the surveyor-general issued a certificate to William H. Willson and Chloe A., his wife, for donation 44, including the site of the town of Salem, assigning therein "the north half, parallel with 1876.] Opinion of the Court-Deady, J. with the south line of the claim, to Chloe A. Willson, and the south half to William H. Willson," upon which certificate, on February 4, 1862, a patent was issued, giving to said William H., "the south half" of said donation, and to said Chloe A., "the north half" thereof: Held, that the certificate and patent, taken together, showed that the partition line of the donation was a line running south, 70 degrees 21 minutes cast, and parallel with the southern boundary of the tract, and not a due east and west one. Before DEADY, District Judge. The facts appear in the opinion of the Court. Addison C. Gibbs, P. C. Sullivan and Ellis Hughes, for plaintiff. J. Quinn Thornton and Joseph N. Dolph, for the defendants. DEADY, J. These actions are brought by the plaintiff-a citizen of the State of California-to recover possession of lots 8 in block 64, and 6 in block 46, situated in the town of Salem. He alleges that he is the owner in fee simple of said lot 8, and that the defendant Haskell, unlawfully withholds the possession of it; and, also, that he is the like owner of the undivided two-thirds of said lot 6, and that the defendant, Cook, unlawfully withholds the possession of the same. On March 11, it was stipulated by the parties that an agreed state of facts therefore filed should stand as the special verdict of a jury in each case, and that the court should give such judgment thereon as the law of the cases requires. By these special verdicts it is substantially found that on July 28, 1853, there was issued by John B. Preston, the surveyor-general of Oregon, a certificate numbered 20, under the Donation Act of September 27, 1850, from which it appears that William H. Willson claimed a donation under said act, numbered 44, of a tract of public land, containing 615 acres, known and designated on the surveys and plats of the United States and particularly bounded and described as in said certificate specified: "The north half parallel with the south line of the claim, to Chloe A. Willson, wife of said William H. Willson, and the south half Opinion of the Court-Deady, J. [March, to William H. Willson." That said William H. had proved "to the satisfaction of the surveyor-general," that his settlement on such land was commenced in November, 1844, and he had resided upon and cultivated the same as required by section 4 of said act; and that said facts and the evidence thereof were thereby certified to the commissioner of the general land office, "in order that a patent may be issued to said claimant for said tract of land, as required by the seventh section of the act aforesaid; provided, the said commissioner shall find no valid objection thereto." 2 That afterwards, on February 4, 1862, a patent was issued upon said certificate which recites substantially, that said certificate "has been deposited in the general land office," and that it appears therefrom "that the claim of William H. Willson, and his wife, Chloe A. Willson, * * * has been established to a donation of 640 acres of land, and that the same had been surveyed and designated as claim No. 44," being parts of certain sections and bounded and described as stated in said certificate, containing 615 acres; and then declares that the "United States, in consideration of the premises and in conformity with the provisions of the act aforesaid, have given and granted, and by these presents do give and grant unto the said William H. Willson the south half, and to his wife, Chloe A. Willson, the north half of the tract of land above described; to have and to hold the said tract with the appurtenances unto the said William H. Willson, and his wife, Chloe A. Willson, and to their heirs and assigns forever, the respective portions as aforesaid.” That the premises in controversy are within the limits of the town of Salem, and the exterior lines of said donation claim; that said claim is in compact form, as appears from a plat made a part of the verdict, but none of its exterior lines run with the cardinal points of the compass; that the southern boundary runs south 70 degrees 21 minutes east, while none of the other three sides of the claim are bounded by continuous straight lines; that at and before the issuing of said certificate said surveyor-general duly designated the 1876.] Opinion of the Court-Deady, J. portions of said donation accruing to the husband and the wife as therein mentioned; and that thereafter the said Willson and wife, during their lives-the former having died in 1856 and the latter in 1874-treated said designation and partition as the true one. That as to the premises in controversy, the plaintiff is the successor in interest of said Chloe A., and the defendants of said William H., and that the same are situated to the south of the dividing line described in the certificate, but to the north of a line running due east and west, and dividing the donation in two equal parts. Upon these findings the question arises, which is the lawful line between the husband's and wife's share of the donation, a line running due east and west, or one running parrallel with the southern boundary of the claim? If a due east and west line is the correct one, the premises are upon the wife's part, and the plaintiff is entitled to recover the possession; but, in the other case, they are upon the husband's half, and the defendants are rightfully in possession. On behalf of the plaintiff it is argued that the action of the surveyor-general in dividing the donation between the husband and wife was subject to the supervision and control of the commissioner of the general land office; and that the designation in the patent of the husband's and wife's part was an exercise of that supervisory power, and the final action and judgment of the highest authority over the subject, and therefore so far as the patent differs from the certificate in this respect, the latter is superseded and set aside. The defendants maintain that the action of the surveyorgeneral in making the division between the husband and the wife is not subject to review, and, therefore, so far as the patent differs from the certificate in this respect it is void; and also, that the patent and certificate are parts of the same transaction, the former being based upon and referring to the latter, and therefore they must be read together. Section 4 of the donation act, of September 27, 1850, under which this donation was obtained, gave, by words of Opinion of the Court--Deady, J. [March, present grant, to a settler on the public lands in Oregon, before December 1, 1850, who had resided upon and cultivated the same for four successive years, if a married man, six hundred and forty acres thereof, one-half to himself, the other half to his wife, to be held by her in her own right, and provided that the "surveyor-general shall designate the part inuring to the husband and that to the wife, and enter the same upon the records of his office." The act also provided (sections 6 and 7), that the settler should give notice of the precise tract claimed by him, and make proof of compliance with the act before the surveyor-general, who should thereupon issue a certificate, setting forth the facts in the case, and return the proof so taken to the commissioner of the general land office, when, if he "find no valid objection thereto, a patent shall issue for the land according to the certificate." Section 15 declares that "all questions arising under the act shall be adjudged by the surveyor-general, as preliminary to a final decision according to law." The title of a settler under the donation act vested in him upon the passage of the act or the making of his settlement, if the former was prior to the latter, subject to the performance of the conditions upon which the grant was made. (Chapman v. School District, 1 Deady, 113; Fields v. Squires, Id. 378; Lamb v. Starr, Id. 451-3; Lamb v. Davenport, 1 Saw. 638; Mizner v. Vaughn, 2 Saw. 274; Adams v. Burke, ante, 415.) The patent did not pass the title to Willson and wife, but is only record evidence of the existence of their title, and the facts out of which it arose. The words of release and transfer contained in the patent are part of an established formula, and are only intended to operate in cases where the government has some interest in the premises. They could be of no effect in this case, because the instrument shows upon its face that the title of the government was before vested in Willson and wife under the donation act. Therefore the patent is in law only a record of the previously existing rights of their donees. (Langdeau v. Hanes, 21 Wall. 529.) Until the partition was made, the husband and wife were |