He should, in any event, have communicated to the appellant the fact of Durbin's offer, though made after he transmitted his proposition to purchase. He acquired the knowledge of the fact from his connection with her affairs, and honesty and fair dealing, under the circumstances of the case, required him to give the information. The parties were not dealing "at arms-length," nor upon an equality of footing. The respondent was upon the ground, and had the management and control of the premises; and the appellant, as between her and the respondent, was entitled to receive therefor all that any person would pay, and no doubt believed, when she accepted the offer and executed the deed, that she was obtaining as high a price for her lands as any one else would be willing to give. I think the said deed should be canceled upon the appellant's doing equity. She must, of course, first restore to the respondent what he has paid her, -the $6,000. Her attorney made some kind of written offer before the suit was commenced, to pay him back the money, less $1,200,— the rental value of the premises, but I do not think the offer was sufficient. She had had the use of the money, and that, in my opinion, was worth as much or more than the use of the lands; consequently, she should not be allowed costs. The respondent claims to have paid taxes upon the property, but the taxes upon the money which she was liable to pay, and probably did pay, is a fair standoff. The respondent should have interest upon the $6,000, at the rate of 8 per cent. per annum, and be charged with the rents and profits amounting to $. The decree should be that $upon the appellant's paying to the respondent the sum of $6,000, and interest at the rate aforesaid, less rents and profits, within 90 days from the date of the entry of the decree in this court, with interest thereon at the rate of 8 per cent. per annum from the date of such entry, the respondent reconvey to her the entire lands conveyed to him by the said deed; that the deed of reconveyance contain a covenant against any acts of the respondent done or suffered, except the non-payment of taxes levied during the year 1885; and that the original deed from the appellant to the respondent be thereupon set aside and canceled. The respondent could, after the suit was begun, have made an offer, under section 511 of the Civil Code, to allow a decree to be given against him for the relief granted herein, and have recovered costs from the time of the service of the offer; but not having availed himself of the benefit of that provision, he should not be entitled to recover costs. Neither party, therefore will be allowed costs or disbursements in either court, but each one shall pay one-half of the disbursements incurred therein.

NOTE.

Principal and Agent-Purchase by Agent.

It was held by the supreme court of Idaho in Synnott v. Shaughnessy, 7 Pac. Rep. 82, that if A. and B. own a mine and authorize C. to sell it for them, or bring them a purchaser at a fixed price with the undertanding that C. is to have all he gets over and above that price, C. may make the best bargain he can with any one; he may purchase

it himself, and is under no obligation to disclose to A. and B. anything that he may have discovered concerning the mine after such arrangements have been made. But the undoubted weight of authority is to the effect that an agent cannot take advantage of his position to make a profit out of his confidential relation. And where an agent employed to sell land disposes of it at one price and represents to his principal that he received another and a less price, and accounts to him for such less price, he will be held to account for the full price received by him for the land. Schoellkopf v Leonard, (Colo.) 6 Pac. Rep. 209. And when the relation of principal and agent existed between the parties to a contract for the sale of land, and it appeared that the price paid was grossly inadequate, it was held by Justice MATTHEWS that a court of equity will conclusively presume undue influence and imposition, and will set aside a sale by the principal to the agent. Ferguson v. Dent, 24 Fed Rep. 412. And it has been held that when the owner of real estate gave authority to an agent to sell the same, and such agent, without the knowledge or consent of his principal, enters into a contract with a person who is a partner of such agent in the purchase and sale of such property, such contract of purchase and sale will not be specifically enforced as against the owner of the land. Fry v. Platt, (Kan.) 3 Pac. Rep. 781.

(12 Or. 501)

ANDRUS 2. KNOT and another.'

TIDE-LANDS-WHAT ARE.

Filed November 17, 1885.

Tide-lands are such lands as lie between ordinary high-water mark and lowwater mark, and which are ordinarily covered and left dry by the ordinary flux and reflux of the tides.

E. B. Watson and S. W. Condon, for appellant, W. H. Andrus. H. F. Bingham and Benton Killin, for respondents, Levi Knot and another.

LORD, J. The action was in ejectment. It was brought to recover certain lands claimed to be tide-lands. The court below held that the land in controversy was not such land. It is clear unless the land in dispute is tide-land, or comes within the description of such lands, it is necessary to consider the other legal propositions which counsel have discussed as applied to such lands. What is meant by the phrase "tide-lands?" In Rondell v. Fay, 32 Cal. 354, it was held that the descriptive phrase "tide-lands," in the legislation of that state, applies to land covered and uncovered by the ordinary tides, which the state owns by virtue of its sovereignty. People v. Davidson, 30 Cal. 380; Walker v. Marks, 2 Sawy. 152. It would seem to correspond to or be synonymous with "shore" or "tract," and this, at common law, is that land which lies between ordinary high-water mark and low-water mark. Hale, De Jur. 12; Hall, Sea; Blundell v. Catterall, 5 Barn. & Ald. 292. It must, then, be such land as is affected by the tide, that lies between ordinary high-water mark and low-water mark, and which is alternately covered and left dry by the ordinary flux and reflux of the tides. Lands adjacent to navigable waters, where the tide flows and reflows, which at high tides are submerged and at low tides are bare, come within such description. Bell v. Gough, 23 N. J. Law, 683. It can hardly be considered as including any ground that does not come within the provision of this description.

1 See le at end of case.

It is needless to say that lands covered with water three-fourths of the year cannot be considered as such.

The judgment must be affirmed.

NOTE.

Title to "Tide- Water Land."

Proprietors bordering on navigable streams, under title from the United States, hold only to the stream. Railroad Co. v. Schurmeir, 7 Wall. 272. In all cases the proprietors of land bounded on a navigable river own the soil to high-water mark, and no further. Ex parte Jennings, 6 Cow. 518; Chapman v. Kimball, 9 Conn. 38; Sir Henry Constable's Case, 5 Rep. 107, Ball v. Ierbert, 3 Term R. 253; King v. Smith, 2 Doug. 441; Harg. Law Tracts, 12, 13, 17, 2; Com. Dig. tit. "Navigation," A, B. It is said by some of the cases that the land lying between high and low water on public navigable rivers belongs to the state, City of Hoboken v. Pennsylvania R. Co., 16 Fed. Rep. 816, McManus v. Carmichael, 3 Iowa, 1; Haight v. City of Keokuk, 4 Iowa, 199; Barney v. Keokuk, 94 U. S. 324; Mayor of Mobile v. Eslava, 9 Port. (Ala.) 578; S. C. 16 Pet. 234; Pollard v. Hagan, 3 How. 212; while in others it is held that the riparian owner also owns the flats to low-water mark, if not more than 100 rods from high-water mark. Storer v. Freeman, 6 Mass. 435. The prevailing doctrine seems to be that a riparian owner on a navigable stream takes absolutely to high-water mark, with a qualified interest to low-water mark; that is, a right which is limited only by the public right of navigation over it, and of improving the stream as a highway. Ball v. Slack, 2 Whart. 508; Wainwright v. McCullough, 63 Pa. St. 74; Wood v. Appal, Id. 221; Tinicum F. Co. v. Carter, 61 Pa. St. 30; Stover v. Jack, 60 Pa. St. 343. And, as between the owner of adjacent fast land and an intruder, the right to land between high and low water mark is in the former. See Ball v. Slack, 2 Whart. 508, following Blundell v. Catterall, 5 Barn. & Ald. 268. Possession of the fast land is presumptive possession of the flats. Ball v. Slack, 2 Whart. 508. But special usage may alter the common presun.ption; for one man may have the river, and another the soil adjacent; or one man may have the river and the soil thereof, and another the free or several fishing in that river. Hale, De Jur. Mar. pt. 1, c. 1.

(12 Or. 507)

GILL and another v. FRANK, Defendant, and KOSHLAND, Garnishee.

Filed November 28, 1885. BAILMENT-WAREHOUSE RECEIPTS - TRANSFER PASSES RIGHT OF PROPERTY,

WHEN.

When the terms of a warehouse receipt are such that the warehouseman offers or undertakes to deliver the property to whomsoever the receipt may be indorsed, a symbolical delivery may be effected by its assignment or delivery, and he becomes bailee to such assignee in accordance with the terms of his contract; but when the warehouseman accepts the custody of property, and by his receipt as bailee restricts his promise or undertaking to deliver the property to his bailor personally and upon the condition of payment of charges, etc., a change in the possession of such property cannot be effected so that his custody will become the possession of a stranger, without his consent or the violation of his agreement.

Alfred F. Sears and Raleigh Stott, for appellant, M. Koshland. M. G. Manly and E. B. Watson, for respondents, J. K. Gill and another.

LORD, J. This is an appeal from a judgment in favor of the plaintiffs by M. Koshland, the garnishee. The bill of exceptions shows that at the trial the plaintiffs introduced testimony tending to prove that the garnishee had property in his possession, belonging to the judgment debtor, at the time of the garnishment, of the value of $1,400, and rested. The garnishee then introduced A. Burnheim as a witness in his behalf, who testified that he was the garnishee's agent and manager at his warehouse when the garnishment was made;

that he received the property in litigation from the judgment debtor, and gave a warehouse receipt therefor, which was afterwards returned to him, but that it was not returned to him by Frank, to whom it was issued, or by Gross, to whom, by an indorsement on the back, it purported to be assigned. The garnishee offered the warehouse receipt, with the assignment indorsed thereon, in evidence. The plaintiffs objected on the ground and to the effect that the receipt, and the indorsement purporting to be an assignment thereof, showed no delivery to Gross, which the court sustained. The correctness of this ruling is the only ground of alleged error it is necessary for us to consider. The contention of the appellant is that a transfer of a warehouse receipt operates as a transfer of the property in the hands of a warehouseman, and the delivery of the receipt is the delivery of the goods, and consequently that the receipt and indorsement was evidence of the fact that Frank was not the owner of the goods.

Before applying the principles of law which we conceive are applicable to the case, it is well to note the facts to which they are to be applied. The warehouse receipt given by the garnishee and bailee to Frank, and purporting by its indorsement thereon to have been assigned by Frank to Gross, was a plain undertaking to deliver to Frank, his bailor, personally, the parcels of goods therein enumerated, upon the payment of certain charges, etc. It is without the words "or order," or any other form of words which may be construed into an agreement or offer of the garnishee to hold the goods intrusted to his care for any one else. The evidence of the managing agent of the garnishee further shows that the receipt, with its indorsement, somehow came back into his possession; but how and in what way he does not know, except that he is certain it was not returned to him either by Frank or Gross, to whom it purported to be assigned. In the light of all the facts, the inference is very strong, there never was any delivery of the assignment to Gross. Howsoever the return of the receipt may have been effected, the probabilities are it was for the purpose of having the transfer of the property accomplished through a new warehouse receipt. If this be true, it shows that the parties did not expect or understand any change in the possession of the property would take place by force of the assignment without the consent of the bailee. Nor is there any other construction which can be given to the facts as disclosed that would be consistent with the contract of bailment, without subjecting the appellant to unfavorable criticism. It must be noted, as against third persons, an attaching creditor is to be regarded as a purchaser in good faith and for a valuable consideration, and in order to defeat his right in the premises there must be such a change of possession or delivery of the goods as passes the property. When the terms of the receipt are such that the warehouseman offers or undertakes to deliver the property to whomsoever that receipt may be indorsed, a symbolical delivery may be effected by its assignment or delivery, and he becomes bailee to such assignee in

accordance with the terms of his contract. In such a case, a delivery of the receipt is a symbolical delivery of the property itself. But when a warehouseman accepts the custody of property, and by his receipt as bailee restricts his promise or undertaking to deliver the property to his bailor personally, and upon the condition of the pay ment of charges, etc., a change in the possession of such property cannot be effected, so that his custody should become the possession of a stranger, without his consent or the violation of his agreement. He has got the possession of the goods and his assent is necessary to effectuate a change in such possession, whether the receipt is assigned or not. When it is proposed, therefore, to give an assignment the effect of a delivery of the goods as against an attaching creditor, the receipt and its assignment, taken together, ought to be broad enough, at least, to authorize such a construction.

It may not be amiss to observe that there is an important distinction between this case and Solomon v. Bushnell, 11 Or. 277; S. C. 3 Pac. Rep. 677. There the wheat receipt was in a form to authorize the construction given to it, upon well-settled principles of law. It contained an express promise or undertaking of the warehouseman to his bailor "to deliver to his order," with usual conditions as to damages by fire and charges for storage. There was therefore no difficulty in construing its terms, when indorsed and delivered, as a symbolical delivery of the property itself, and, consistently with commercial usage as applied to other documents, not negotiable in the technical sense. In Hallgarten v. Oldham, 135 Mass. 1, Holmes, J., ably examines this subject, and, although the rule adopted in that state as to delivery, where applied to an attaching creditor, is probably more strict than here, the principles of law which he applies to receipts of the character under consideration is peculiarly in point. He said:

"The question is, then, how the transfer of any document can have that effect. The goods are in the hands of a middle-man, and they remain there. A true change of possession could only be brought to pass by his becoming the servant of the purchaser for the purpose of holding the goods, so that his custody should become the possession of the master. But this is not what happens, and it has been held that less would satisfy the law. A carrier or warehouseman in this case is not the servant of either party quoad the possession, but a bailee holding in his own name, and asserting a lien for his charges against all parties. He has possession of the goods, whether the document is transferred or not. But it has been held that the principle of the rule requiring a delivery is satisfied although the letter of it is not, if the possessor of the goods becomes the purchaser's bailor. Tuxworth v. Moore, 9 Pick. 347; Russell v. O'Brien, 127 Mass. 349-354; Dempsey v. Gardner, 127 Mass. 381. Now, it is obvious that a custodian cannot become the servant of another in respect of his custody except by his own agreement. And, a fortiori, when that custodian does not yield but maintains his own possession, it is clear that his custody cannot inure to the benefit of another, as if it were the possession of that other, unless the bailee consents to hold for him subject to his own rights. The only way, therefore, in which a document can be a symbol of goods in a bailee's hands, for the purpose of delivery to