Opinion of the Court-Hoffman, J.
1860, the duties of this court are limited to an inquiry whether the survey conforms to the decree previously entered in the cause, yet that the location of the dividing line is discussed on its merits, and the location adopted by this court adjudged to be erroneous. That at least a majority of the court assented to its judgment is certain. But it may very possibly be that the assent was given by some of its members on the ground that they agreed on the question raised as to the true location of the eastern line, without concurring in the general principle announced, viz., that colindantes and other intervenors in a proceeding under the act of 1860, who then for the first time are heard in it, are bound by the terms of a decree entered when the only parties to the suit were the United States and the claimant. The volume containing the last decisions of the supreme court has not been received in this state. Whether or not a majority of the court adopted all the views expressed in the published opinion, I am uninformed. I only know that they assented to the judgment.
But on the hypothesis that they did, the case at bar is distinguishable from that of Fossat. Here the claimant has intervened, and become a party to a proceeding which necessarily involved the determination of the common boundary line between the ranchos. From the decision in that proceeding he might have appealed, and in case the location of the Mesa rancho as established by this court had been altered, there would still have been assigned to the claimant of that rancho the full quantity of land to which he was entitled. As the case now stands, the owners of the Mesa rancho can only obtain the land as surveyed and located under the decision of this court; and if the claim of the owners of the Rodriguez rancho be allowed, their land will in part be located on the tract surveyed to Mesa, and overlapping patents must be issued creating certain litigation, and a possible loss by Mesa of a part of his land. The position of Rodriguez is thus closely analogous to what would be the position of Berreyesa if he should seek to have the line between him and Fossat adjudicated anew, according to the calls of his own decree.
It may well be doubted whether the supreme court would
Opinion of the Court-Hoffman, J.
re-open the whole controversy, and on finding that the Berreyesa decree called for a line different from that called for in the Fossat decree, would make a new location of it, and direct overlapping patents to issue.
In the case at bar, the injustice of now depriving Mesa of a considerable portion of the land which, contrary to his own wishes, has been surveyed to him, is so manifest that I do not feel called upon, on the authority of a single case, where the effect and practical operation of the doctrines announced may not have been fully presented to the supreme court, to take from Mesa land surveyed, and perhaps patented, and for which there are now no means of giving him an equivalent by extending his lines in other directions.
I think, therefore, that the survey of the land confirmed to Rodriguez should be corrected by conforming the lines strictly to those called for in the decree, except that on the east it must follow the lines established by the final survey of the Mesa rancho, as the lines of division between the ranchos.
1. INEVITABLE ACCIDENT. Stewart v. Ship Austria, 434.
1. THE COUNTY COURTS OF OREGON are, under the constitution and laws of
Oregon, courts of record; their records are entitled to the same faith
and credit as is attributed to the records of other superior courts.
Holmes v. O. & C. R. R. Co., 380.
2. THE COUNTY COURTS, under the constitution of Oregon, have general
jurisdiction of probate matters, to be limited and regulated by statute,
in accordance with the constitution. Id.
3. SAME.-Under the statutes of Oregon, letters of administration upon the
estates of persons dying without a will are to be granted by the county
court of the county of which the intestate was an inhabitant at or im-
mediately before his death upon the presentation of a petition to the
court alleging the necessary facts, including the fact of such inhabitancy.
Id.
4. JURISDICTION, WHAT IS.-Where the petition for letters of administration
alleges all the facts necessary to give the court jurisdiction, the court is
required to inquire into the truth of the facts so alleged, and is author-
ized to determine and adjudicate thereon; and such authority to inquire
and adjudge is jurisdiction. Id.
5. JURISDICTION-CONCLUSIVE ADJUDICATION.—Where the petition properly
alleges that the intestate was an inhabitant of the county in which the
petition is filed at or immediately before his death, together with all
other necessary facts, and the court, upon such proper allegations and
satisfactory proofs, adjudges the facts so alleged to be true, and issues
letters of administration thereon, the adjudication of the fact of inhabit-
ancy so made is conclusive, and the truth thereof cannot be controverted
collaterally in any other proceeding. The judgment concludes further
inquiry as to the jurisdictional fact by deciding it. Id.
6. SAME. The judgment in such case has the same conclusive effect as the
judgment of a court of record of the United States upon the allegation
in a complaint or bill in chancery of the jurisdictional fact of citizenship,
or the judgment of a state court of record upon the jurisdictional fact of
the place where the crime was committed alleged in the indictment. Id.
7. PROCEEDING IN REM.-The proceeding for the appointment of an ad-
ministrator is in the nature of a proceeding in rem, to which all the world
is a party, and all the world is estopped by the adjudication thereon. Id.
8. THE CASE OF THOMPSON v. WHITMAN, 18 Wall. 457, and the cases therein
cited, commented on and distinguished. Id.
9. JURISDICTIONAL FACTS NOT CONCLUSIVELY DETERMINED.-Where the court
is required to do some act through its ministerial officers or other law.
fully appointed agencies, in order to acquire jurisdiction of the person or
of the thing in a matter constituting a complete pre-existing cause of
action such as serving a summons on a party within the state, or seizing
the thing within its territorial jurisdiction-the acts so to be performed
by or on behalf of the court to give it jurisdiction are jurisdictional facts;
and the determination of that class of jurisdictional facts by the court
assuming jurisdiction is not conclusive, but the truth of such jurisdic-
tional facts may be controverted in a collateral proceeding. Id.
10. APPEAL AMOUNT IN CONTROVERSY.-Where the statute in express terms
limits a recovery to five thousand dollars, that sum is the highest amount
in controversy, and there is no appeal. Id.
11. SECOND ADMINISTRATOR.—The appointment of an administrator while
there exists a legal administrator is void. Id.
1. SEAMAN'S WAGES.-Where wages are admitted to have been earned, but
deductions are claimed for payments on account and other offsets, the
burden of proof is on the master to show the payments, etc., by a pre-
ponderance of proof. Schooner Fritheoff, 58.
2. LIEN FOR SUPPLIES.-Where a steamboat was chartered under an agree-
ment that the hirers should pay all expenses for supplies, etc., and
redeliver her at the expiration of the charter, free of all liens, and
supplies were furnished, for which, by the laws of this state, a lien upon
her was created: Held, that the vessel was liable unless her owner could
show by a clear preponderance of proof that notice of the terms of the
charter was given to the supply-men. Steamboat Whipple, 69.
3. SALVAGE-DERELICT COMPENSATION.-If a vessel, though with no one on
board, under such circumstances that the persons assuming to be salvors
knew or ought to have known that their services were not desired, and
they take possession with intent to supplant the master and owners in
giving her relief, they have no claim for compensation. Bark Cleone, 77.
4. SAME POSSESSION.-A stranded vessel, laden with a valuable cargo, was
left, but not abandoned, by the master, having been placed in charge
of an agent until he could return to recover his property: Held, that the
wrecked vessel and her cargo could not be taken possession of by a
stranger who was fully advised of these facts; and that the master was
then on his way in another vessel to effect the salvage. Id.
5. SAME-COMPENSATION.-Held further, that the mere fact of placing a man
on board, with the object of anticipating and supplanting the master,
would not entitle such stranger to a share of the property which was sub-
sequently saved by the unaided efforts of the master. Id.
6. STEVEDORES' SERVICES.-Upon general principles, the services of a steve-
dore are maritime in their character, and when performed for a foreign
ship, he has a lien thereon for the value thereof. The Canada, 173.
7. FOREIGN PORT.-A vessel is in a foreign port, in the sense of the maritime
law, when she is in a port without the state where she belongs and her
owner resides. Id.
8. SHIP MORTGAGE OF.-A mortgagor of a ship in possession with the con-
sent of the mortgagee, is thereby authorized to make any change, addi-
tion, or repair thereon necessary and convenient for her preservation and
use as a ship, so that he does not wilfully depreciate her value as a
security to the mortgagee; and in such case, the old material displaced
by the new may be disposed of by the mortgagor as his property, unaf-
fected by the mortgage. Id.
9. IDEM.—But in case said material is not thus disposed of, and is left on
board, and passes into the possession of the mortgagee with the vessel,
and is capable of being used in some form in its ordinary navigation, it
would still be within the operation of the mortgage, and belong to the
mortgagee. Id.
10. IDEM.-But if the old material, as such, is not suited for use in the navi-
gation of the vessel, the fact that the mortgagor allows it to remain on
board does not show that he did not intend to withdraw it from the
operation of the mortgage and appropriate it, in exchange for the new
material put in its place. Id.
11. OLD COPPER.-While the Canada was in possession of George and Jabez
Howes, as mortgagors, and making the voyage from New York to Port-
land, Oregon, she was recoppered at Rio de Janeiro, and a portion of
the old copper stowed in her hold and brought to Portland, where she
was taken possession of by Sutton & Co., as mortgagees: Held, that the
old copper was separated from the ship and withdrawn from the opera-
tion of the mortgage, and was the property of the mortgagors. Id.
12. CONSTRUCTION OF STATE STATUTE.-It does not appear that the New York
court of appeals decided in 39 N. Y. 19; 43 Id. 554; 59 Id. 554; or 71 Id.
413, that so much of the act of April 24, 1862, as gives a material-man a lien
upon a vessel for supplies furnished in her home port is void, because in
conflict with the grant of admiralty jurisdiction to the United States;
and if it did, this court is not bound to follow it, because the question as
to its validity arises under the constitution of the United States, and not
the state, and is therefore a federal one. Id.
13. LIEN OF MATERIAL-MAN AND MORTGAGEE.-When the local law gives a
lien for supplies furnished to a vessel in her home port, and provides that
such lien shall be preferred to that of a mortgagee, a court of admiralty
will enforce it accordingly; and such lien will be so enforced by a court of
admiralty when the local law is silent on the subject, upon the grounds:
1. That a lien of a maritime contract, whether it arises under the local
law or the maritime law, is practically a maritime lien and entitled to
rank accordingly, and to be preferred to that of a mortgage. 2. That a
mortgagor in possession is the agent of the mortgagee in obtaining sup-
plies for the vessel, and the lien given therefor binds the interest of the
latter as well as that of the former. Id.
14. REGISTRATION OF MORTGAGE.-Section 4192 of the Revised Statutes, pro-
viding for the registration of mortgages of vessels, does not change the
nature or operation of the lien of such mortgage, but only provides that
without such registration it shall not be valid; and, therefore, a state law
preferring the lien of a domestic material-man to that of a mortgage is
not in conflict with such section. Id.
15. PILOTAGE ON THE COLUMBIA AND WALLAMET RIVERS.-By the laws of
Oregon, the waters of the Columbia and Wallamet rivers are a pilot
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