There was a compliance with the statute relating to the notice of appeal; therefore the motion to dismiss the appeal is denied.

Estate, 36 Or. 8, 58 Pac. 521; Hollis v. Caugh-, sought by the appeal would be favorable to man, 22 Ala. 478. Knight's claim was exam- the interest of such legatee. ined and allowed December 11, 1891, by Mills as administrator, who was authorized to employ an attorney when necessary, and under the statute had power to bind the estate to pay for his services such a sum as they were reasonably worth. If it [the claim] has been allowed in the manner prescribed by law, he is a creditor of the estate."

A notice of appeal should enable the court, from a fair construction thereof, by a resort to the transcript, to determine that the appeal is taken from the judgment or decree in a particular case. Keady v. U. Rys. Co., 57 Or. 327, 100 Pac. 658, 108 Pac. 197. By an examination of the transcript in the present case it is found that the decree of July 21, 1923, was a decree settling the final account of the executor. The notice of appeal is sufficient in this respect to show that the appeal is taken from a part of a final decree, although the notice of appeal does not mention that the decree was rendered in the settlement of the final account.

[2] It is also contended that the notice of appeal, not having been served upon Harold T. Prince, was defective. Section 550, subd. 1, provides in part that, if the appeal is not taken at the time the order, judgment, or decree is rendered, then the party desiring to appeal may cause a notice to be served on such adverse party or parties, as have appeared in the action or suit.

Harold T. Prince appeared in the proceeding in the probate court and was a party to the decree. The question here is, Was he an adverse party within the meaning of section 550, Or. L.? Under this section an "adverse party" entitled to notice of appeal is every party who has appeared in the action or suit, and whose interest in the judgment or decree appealed from is in conflict with a modification or reversal sought by the appeal. Every party interested in sustaining the judgment or decree is an adverse party. In re Waters Chewaucan River, 89 Or. 659, 171 Pac. 402, 175 Pac. 421; Smith v. Burns, 71 Or. 133, 135 Pac. 200, 142 Pac. 352, L. R. A. 1915A, 1130, Ann. Cas. 1916A, 666.

Harold T. Prince was a legatee under the will of Thomas Prince, deceased, and by his guardian filed objection in the probate court, and resisted the claim of respondent. A reversal or modification of the decree could not in any way injuriously affect his interest. He is not interested in sustaining the decree from which the appeal is taken. He is not an adverse party within the meaning of section 550, Or. L. It was not necessary to serve the notice of appeal upon him in order to confer jurisdiction upon this court. Young's Estate, 59 Or. 348, 116 Pac. 95, 1060, Ann. Cas. 1913, 1310. In so far as the record discloses, a change in the decree as

SALA v. CRANE et al. (No. 3693.) (Supreme Court of Idaho. Dec. 7, 1923.) 1. Boundaries 3(3)-Monumented corners held to prevail against hypothetical dividing line shown on plat.

Where public lands conveyed by patent are described by legal subdivisions and lot numbers, "according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor General," and there is a discrepancy in such plat between the lines subdividing the section and the government corners as they exist upon the ground and are shown on the plat and described in the accompanying field notes, the monumented corners will prevail as against a hypothetical dividing line protracted by the draftsman upon the plat in the Surveyor General's office. 2. Appeal and error 1097(1)-Law of case

as to court of intermediate jurisdiction.

The doctrine of the law of the case, as declared in a former appeal, will generally be followed, but this is not an inflexible rule, and where this court is a court of intermediate jurisdiction, its decision will be controlled by what it understands the holding of the court of

ultimate conclusion to be under a like state of facts.

WILLIAM A. LEE, J. This case involves a boundary line between the lands of appellant and respondent in section 6, township 47 north, range 3 west, B. M.

The United States patented to respondent, with other lands, lots 5 and 6, and to appellant, with other lands, lot 4 in said section. The boundary line in dispute is the east and west line between lots 4 and 5, which subdivisions comprise the west half of the northwest quarter of section 6, lot 5, being the southwest quarter of the northwest quarter of section 6.

The section was officially surveyed in 1901. The survey began at the township corner between townships 47 and 48 north and ranges 3 and 4 west, being also the northwest corner

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(221 P.)

of 6 and the northeast corner of 1 in the said | determining the true boundary between lots respective townships. A stone was set to 4 and 5. mark this township corner, and the survey ran thence south on a line between said townships; the west line of 6 being coterminous with the east line of 1. The official field notes of this survey show that 40 chains south of this township and section corner the surveyor

"Where a patent conveys land according to the official plat of the survey returned by the Surveyor General, the plat becomes an integral part of the description of the land."

The cause being reversed, a new trial was ordered, and further testimony taken. The trial court made its findings in accordance with the foregoing facts, and as a conclusion

“A pine, 18 ins. diam., bears N. 36° W., of law therefrom held that: 187 links dist., marked 4 S 1 B T."

tion, the contents whereof have been returned by the Surveyor General, shall be held and considered as containing the exact quantity expressed in such return; and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part, respectively, of the returned contents of the section of which they may make part."

The Land Department has construed this section, and in its revised rules of June 1, 1909, approved by the Secretary of the Interior, we find the following:

"(2) That the original township, section and quarter section corners established by the goverument surveyor must stand as the true corners which they were intended to represent, whether the corners be in the place shown by

the field notes or not.

"(3) That the quarter quarter corners not established by the government surveyor shall be placed on the straight lines joining the section and quarter section corners, and midway between them, except on the last half mile of the section lines closing on the north and west boundaries of the township or on other lines between fractional sections.

"(4) That all subdivisional lines of a section running between corners established in the original survey of a township must be straight lines running from the proper corner in one section line to its opposite corresponding corner in the opposite section line. (See sections 75 to 82.)"

boundaries referred to as identifying the land.". Higuera's Heirs v. United States, 5 Wall. 827, 18 L. Ed. 469.

"In ascertaining the lines of land, the tracks of the surveyor, so far as discoverable on the ground with reasonable certainty, should be followed; and marked trees, designating a corner or a line on the ground, should control both courses and distances." Ayers v. Watson, 137 U. S. 584, 11 Sup. Ct. 201, 34 L. Ed. 803.

90 Neb. 307, 133 N. W. 412; Halley v. HarriTo the same effect see, also, State v. Ball, man, 106 Neb. 377, 183 N. W. 665; Galbraith

v. Parker, 17 Ariz. 369, 153 Pac. 283.

In Keyser v. Sutherland, 59 Mich. 455, 26 N. W. 865, the court said:

"The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines. When the township and sec

tion lines are run, and the corners marked according to law, the quarter section lines are ascertained on the plat by protracting lines across the section north and south and east and west from the opposite quarter section posts, set in the exterior lines of the section by the government surveyor, and smaller subdivisions are protracted, so as to make onehalf and one-fourth of a quarter section."

The cases principally relied upon in support of respondent's contention are Gazzam v. Lessee of Phillips, 20 How. (61 U. S.) 372, 15 L. Ed. 958, and Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566. Gazzam v. Phillips expressly disapproves the holding in Lessee of Brown v. Clements, 3 How. 650, 11 L. Ed. 767. The parties in both cases

"All lands are supposed to be actually surveyed, and the intention of the grant is to convey the land according to the actual survey; consequently, distances must be lengthen-rest their claims upon the patents issued to ed or shortened, and courses varied, so as to James Ethridge and William D. Stone, reconform to the natural objects called for." spectively. A review of all the facts and McIver's Lessee v. Walker, 4 Wheat. 444, 4 questions of law considered in these cases L. Ed. 611. cannot be made within the proper limits of a judicial opinion. The Gazzam-Phillips Case, when considered in connection with the holding in Brown v. Clements, which it overrules, appears to lend support to respondent's contention, although in a number of essentials we think that both Gazzam v. Phillips and Cragin v. Powell present a question materially different from the case at bar. The Gaz zam Case was one in which the patent expressly stated the acreage conveyed and the precise compensation to be paid to the government for such acreage. The description in the Ethridge patent was "for the southwest quarter of section 22 taining ninety two acres and sixty-seven hundredths of an acre, according to the official plat of the survey," etc. The description in the Stone patent was "for the south subdivision of fractional section 22 taining one hundred ten acres and fifty-one hundredths of an acre, according to the offlcial plat of the survey," etc.

"Provision was made by the act of February 11, 1805 [now U. S. Comp. Stats. § 4804], that townships should be 'subdivided into sections, by running straight lines from the mile corners, marked as therein required, to the opposite corresponding corners, and by marking on each of the said lines intermediate corners, as nearly as possible equidistant from the corners of the sections on the same.' Corners thus marked in the surveys, are to be regarded as the proper corners of sections, and the provision is that the corners of half and quarter sections, not actually run and marked on the surveys, shall be placed, as nearly as possible, equidistant from the two corners standing on the same line. Lines intended as boundaries, but which were not actually run and marked, must be ascertained by running straight lines from the established corners to the opposite corresponding corners." St. Paul & P. Ry. Co. v. Schurmeier, 7 Wall. 272, 19 L. Ed. 74.

*

"But ordinarily surveys are so loosely made, and so liable to be inaccurate, especially when made in rough or uneven land or forests, that the courses and distances given in the instrument are regarded as more or less uncertain, and always give place, in questions of doubt or discrepancy, to known monuments and

con

con

In the case at bar, the exterior lines of section 6, as run by the survey, are 80 chains in length, except that the northeast and southwest quarter quarters are fractional be

(221 P.)

cause of adjoining lakes. The section lines worthy, 45 Neb. 676, 63 N. W. 955, 34 L. R. A. are each parallel to their opposite lines, and 321; M., K. & T. Ry. Co. v. Merrill, 65 Kan. the northwest quarter of this section, in 436, 70 Pac. 358, 59 L. R. A. 711, 93 Am. St. which the land in controversy is situated, Rep. 287; 2 R. C. L. § 188, p. 226, "Appeal when its area is computed from the monu- and Error." mented corners, contains the government allotment of 160 acres, each of the exterior lines being 40 chains in length. A number of the subdivisions in the south half of the section, as shown by the plat, contain an excess acreage, and it appears from the plat that the only reason the two section corners, that is, the northeast and southwest, were not monumented on the ground and now shown to be in place, a mile from each opposite section corner, is because of the bodies of water mentioned.

In Chapman & Dewey Lbr. Co. v. St. Francis Levee District, 232 U. S. 186, at page 196, 34 Sup. Ct. 297, 58 L. Ed. 564, it is held that any part of the description in the plat must be read in the light of the others, for it is a familiar rule that where lands are patented according to such a plat, the notes, lines, landmarks, and other particulars appearing thereon become as much a part of the patent and are as much to be considered in determining what it is intended to include as if they were set forth in the patent-citing Cragin v. Powell, supra, and Jeffris v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872.

[1] We therefore conclude, and so hold, that the monumented corners shown on the plat should prevail as against this dividing line protracted by the draftsman to a point 2.02 chains north of the quarter corner, both being shown by, and being a part of the official plat.

[2] Respondent earnestly contends that the decision in Sala v. Crane, supra, is the law of this case, and must control this decision. The doctrine of the law of the case has generally been followed by this court. However, where this court is not a court of final conclusion in the determination of the question presented, and error may be taken to the federal Supreme Court, the rule of the law of the case contended for is not applicable. A. B. Moss & Bro. v. Ramey, 25 Idaho, 1, 136 Pac. 608. All courts of intermediate jurisdiction are controlled and bound by the decisions of courts of ultimate resort. State v. Moore, 36 Idaho, 565, 212 Pac. 349. It is settled that Congress has plenary power to dispose of public lands, and that the federal Supreme Court is the court of final resort with regard to questions of the character here presented. United States v. Gratiot, 14 Pet. '526, 10 L. Ed. 573; California v. Deseret Water, Oil & Irr. Co., 243 U. S. 415, 37 Sup. Ct. 394, 61 L. Ed. 821; Ruddy v. Rossi, 248 U. S. 104, 39 Sup. Ct. 46, 63 L. Ed. 148, 8 A. L. R. 843. The rule of the law of the case is not an inflexible rule. City of Hastings v. Fox

And also, where the facts on the second appeal are materially different from the facts in the case previously passed upon, the rule may not always be applicable. The county surveyor, Phinney, who was the only witness who testified at the first trial, stated that the east quarter corner of said section 1 is a stone, while the west quarter corner of said section 6 was not established on the ground, and that he established it 2.02 chains north of the east quarter corner of section 1, because of instructions from the Surveyor General. Upon the second trial, the one from which this appeal is taken, the same witness testified in effect that the west quarter corner of section 6, as monumented on the ground, is identical with the east quarter corner of section 1, and the two engineers Eddelblute and Edwards, who were not witnesses at the first trial, testified positively upon the second hearing that the quarter corner on the west line of section 6 was monumented on the ground and at the place shown by the official plat, and the trial court so found.

It is true that upon a rehearing in the former appeal, the opinion appears to assume that the west quarter corner of section 6 was monumented on the ground, but the testimony at that trial does not show this to have been the fact, while upon the second hearing it is conclusively shown by all the engineers who were called upon to testify. There being this apparent conflict in the official plat itself, and there being no controversy about the location of this quarter corner of section 6 as it was monumented in the field and has ever since been plainly visible, under the foregoing rules and the federal statute above referred to, and the construction and application given to it by the Land Department in its regulations above referred to, which appear to be in harmony with the decisions of the federal Supreme Court, particularly as stated in the excerpt from St. P. & P. Ry. Co. v. Schurmeier, supra, we feel compelled to hold that the proper interpretation of the descriptive clause contained in the deed requires the true quarter corner on the west line of section 6 to be as monumented on the ground, and the quarter quarter corner between lots 4 and 5 to be equidistant between the quarter corner and the northwest corner of the section.

The cause is reversed and remanded, with instructions to enter a judgment and decree according to the views herein expressed. Appellant to recover the costs of this appeal.

BUDGE, C. J., and McCARTHY and WM. E. LEE, JJ., concur.

BANK OF ROBERTS v. OLAVESON et al. tion, against Chris Olaveson and others, (No. 3939.)

Under the provisions of C. S. § 6646, any person may be made a party defendant to an action who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. 2. Chattel mortgages 275-Who necessary and proper parties to foreclose stated. In an action to foreclose a chattel mort-close a chattel mortgage. The facts, as they gage, it is always proper, and, in most instances, necessary to make parties all who have or claim an interest in the property, as a buyer from the mortgagor.

Appeal from District Court, Jefferson the crops to be grown upon the premises in County; James G. Gwinn, Judge.

1919 to secure the payment of the rent for

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