Mr. Justice Hailey
delivered the opinion of the court.
Plaintiff contends that there are four important questions arising upon the record to be determined upon this appeal: (1) The right of settlers upon swamp and overflowed lands before the issuance of patent therefor, under the acts of Congress and the statutes of the state. (2) The proper construction of the act of the state legislature of October 26, 1870, providing for “the selection and sale of the swamp and overflowed lands belonging to the State of Oregon,” as authorizing the disposal of lands that were, on March 12, 1860, when the grant was made to Oregon, swamp and overflowed, but had prior to the passage of said act for their disposal become dry and fit for agricultural purposes from natural causes, and without capacity to receive any benefit from artificial reclamation. (3) The sufficiency of the applications to purchase of W. A. Owen and his associates, dated November 26, 1870, and of the amended application of E. F. and Martin McConnaughy of October 23, 1882, to withstand the operation of the act of October 18, 1878, in the way of forfeiture and repeal. (4) The sufficiency of the State’s interest to enable it to maintain the suit. The ease was ably and exhaustively argued at the hearing and is extensively treated in the briefs. We think, however, the question raised by the demurrer as to the interest of the State in the subject-matter of this suit is decisive of the case.
1. The question as to whether or not the lands involved are or were swamp lands is not before the court, as we view the complaint, hence the first three questions mentioned by the plaintiff are not to be considered, as they could arise only where the lands involved are swamp lands. The settlers upon the lands in controversy did not settle upon such lands as swamp or overflowed lands, but, as alleged in the complaint, at the date of settlement, “said lands were then and there [385]*385vacant unsurveyed public lands of tbe United States, not mineral nor swamp, nor selected as swamp or overflowed land, nor otherwise reserved,” and were settled upon “with intent then and there to acquire title to the same under the provisions of the homestead laws of the United States” in certain cases, and in others under the pre-emption and timber culture laws of the United States. In no place is it alleged that the lands were state lands or swamp lands, or that the claimant settlers held any right thereto under the state laws or under the swamp land laws. On the contrary, it is alleged that when the lands were surveyed by the United States in 1887, and afterwards, on January 15, 1889, thrown open for settlement at the United States land office at Lakeview, they were filed upon by the claimant settlers as homestead, pre-emption and timber culture claims, and all fees paid therefor required by the United States. The settlers settled and filed upon these lands under the United States laws, recognizing no right of the State therein, and claiming that they never were swamp lands; hence it cannot be claimed that such settlers ever acquired any rights therein that would he affected by the state or national swamp land laws. Before they could invoke rights under the state swamp land laws, they would have to show that they had filed upon swamp lands; but this is expressly denied by the allegation that the lands were not “swamp lands or otherwise reserved.” We therefore fail to see wherein the rights of the settlers upon swamp or overflowed lands before issuance of patent, or the construction of the state swamp land act, or the sufficiency of the applications of W. A. Owen and his associates and the other parties mentioned, could affect the result in this case, or should be further considered herein, so long as the lands involved are not alleged to have been swamp or overflowed lands.
2. The real purpose of this suit is to cancel a patent from the United States to the State for certain lands patented to the State as swamp and overflowed land, and to cancel certain other patents from the State to the defendant and its grantors [386]*386for the same lands and prevent the defendant from asserting its title derived from the United States through the State to such land against certain settlers occupying portions of such lands as claimants under the pre-emption, homestead and timber culture laws of the United States,.and to protect such settlers in their possession of such lands and confirm their rights thereto as against the plaintiff and defendant. In other words, the State, as plaintiff, is seeking to establish in the lands in controversy certain rights claimed therein by certain settlers as private individuals under the United States pre-emption, homestead and timber culture laws, and not under the State, in which lands the State has not now and never had any interest, unless, as plaintiff contends, it has title thereto as being a part of the permanent bed of a lake, which contention will be considered hereafter in this opinion. Unless the plaintiff has some interest in the land in controversy, it has no right to maintain this suit: State ex rel. v. Shively, 10 Or. 267; People v. Stratton, 25 Cal. 242; United States v. Minor, 114 U. S. 244 (5 Sup. Ct. 836, 29 L. Ed. 110); United States v. San Jacinto Tin Co., 125 U. S. 273 (8 Sup. Ct. 850, 31 L. Ed. 747); Lynch v. United States, 13 Okl. 142 (73 Pac. 1095).
As stated by Mr. Justice Lord in State ex rel. v. Shively, 10 Or. 267, “it will hardly be asserted, if the subject-matter of the allegation concerns the rights of private parties only and exclusively, and the State has no direct interest in the prosecution or result of the suit, that State interference in such controversies ought not to be countenanced or tolerated, either directly or upon the relation of private parties. When a remedy is provided, either at law or in equity, complete and adequate, by which matters in dispute between private parties may be adjusted and settled, that remedy must be pursued by them. The state cannot lend the power of its name, or invidiously assume and champion the cause of one private citizen against another, for the purpose of settling rights or titles in controversy between them, when each and all citizens are equally entitled to its protection.” In that case the state, on the relation of certain parties [387]*387claiming to be the owners of the equitable title of a certain block of land in which the state had no interest, brought suit to have the defendant, Shively, who held the legal title to said land, declared a trustee thereof for the benefit of the relators, and have him transfer the legal title to them, and, in deciding it, it was held that “no right of the state is affected, either directly or indirectly, nor is any matter of public concern involved, by which, under particular circumstances, a right of action or suit exists in the state, or the state is authorized or induced to act as a party, or upon the relation of some private person for the enforcement or protection of such public interest. The matter, exhibited by the facts is wholly and entirely a controversy between private individuals, for which a complete and adequate remedy exists in equity, in a suit between them.” This doctrine is also recognized in the other cases cited above.
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Mr. Justice Hailey
delivered the opinion of the court.
Plaintiff contends that there are four important questions arising upon the record to be determined upon this appeal: (1) The right of settlers upon swamp and overflowed lands before the issuance of patent therefor, under the acts of Congress and the statutes of the state. (2) The proper construction of the act of the state legislature of October 26, 1870, providing for “the selection and sale of the swamp and overflowed lands belonging to the State of Oregon,” as authorizing the disposal of lands that were, on March 12, 1860, when the grant was made to Oregon, swamp and overflowed, but had prior to the passage of said act for their disposal become dry and fit for agricultural purposes from natural causes, and without capacity to receive any benefit from artificial reclamation. (3) The sufficiency of the applications to purchase of W. A. Owen and his associates, dated November 26, 1870, and of the amended application of E. F. and Martin McConnaughy of October 23, 1882, to withstand the operation of the act of October 18, 1878, in the way of forfeiture and repeal. (4) The sufficiency of the State’s interest to enable it to maintain the suit. The ease was ably and exhaustively argued at the hearing and is extensively treated in the briefs. We think, however, the question raised by the demurrer as to the interest of the State in the subject-matter of this suit is decisive of the case.
1. The question as to whether or not the lands involved are or were swamp lands is not before the court, as we view the complaint, hence the first three questions mentioned by the plaintiff are not to be considered, as they could arise only where the lands involved are swamp lands. The settlers upon the lands in controversy did not settle upon such lands as swamp or overflowed lands, but, as alleged in the complaint, at the date of settlement, “said lands were then and there [385]*385vacant unsurveyed public lands of tbe United States, not mineral nor swamp, nor selected as swamp or overflowed land, nor otherwise reserved,” and were settled upon “with intent then and there to acquire title to the same under the provisions of the homestead laws of the United States” in certain cases, and in others under the pre-emption and timber culture laws of the United States. In no place is it alleged that the lands were state lands or swamp lands, or that the claimant settlers held any right thereto under the state laws or under the swamp land laws. On the contrary, it is alleged that when the lands were surveyed by the United States in 1887, and afterwards, on January 15, 1889, thrown open for settlement at the United States land office at Lakeview, they were filed upon by the claimant settlers as homestead, pre-emption and timber culture claims, and all fees paid therefor required by the United States. The settlers settled and filed upon these lands under the United States laws, recognizing no right of the State therein, and claiming that they never were swamp lands; hence it cannot be claimed that such settlers ever acquired any rights therein that would he affected by the state or national swamp land laws. Before they could invoke rights under the state swamp land laws, they would have to show that they had filed upon swamp lands; but this is expressly denied by the allegation that the lands were not “swamp lands or otherwise reserved.” We therefore fail to see wherein the rights of the settlers upon swamp or overflowed lands before issuance of patent, or the construction of the state swamp land act, or the sufficiency of the applications of W. A. Owen and his associates and the other parties mentioned, could affect the result in this case, or should be further considered herein, so long as the lands involved are not alleged to have been swamp or overflowed lands.
2. The real purpose of this suit is to cancel a patent from the United States to the State for certain lands patented to the State as swamp and overflowed land, and to cancel certain other patents from the State to the defendant and its grantors [386]*386for the same lands and prevent the defendant from asserting its title derived from the United States through the State to such land against certain settlers occupying portions of such lands as claimants under the pre-emption, homestead and timber culture laws of the United States,.and to protect such settlers in their possession of such lands and confirm their rights thereto as against the plaintiff and defendant. In other words, the State, as plaintiff, is seeking to establish in the lands in controversy certain rights claimed therein by certain settlers as private individuals under the United States pre-emption, homestead and timber culture laws, and not under the State, in which lands the State has not now and never had any interest, unless, as plaintiff contends, it has title thereto as being a part of the permanent bed of a lake, which contention will be considered hereafter in this opinion. Unless the plaintiff has some interest in the land in controversy, it has no right to maintain this suit: State ex rel. v. Shively, 10 Or. 267; People v. Stratton, 25 Cal. 242; United States v. Minor, 114 U. S. 244 (5 Sup. Ct. 836, 29 L. Ed. 110); United States v. San Jacinto Tin Co., 125 U. S. 273 (8 Sup. Ct. 850, 31 L. Ed. 747); Lynch v. United States, 13 Okl. 142 (73 Pac. 1095).
As stated by Mr. Justice Lord in State ex rel. v. Shively, 10 Or. 267, “it will hardly be asserted, if the subject-matter of the allegation concerns the rights of private parties only and exclusively, and the State has no direct interest in the prosecution or result of the suit, that State interference in such controversies ought not to be countenanced or tolerated, either directly or upon the relation of private parties. When a remedy is provided, either at law or in equity, complete and adequate, by which matters in dispute between private parties may be adjusted and settled, that remedy must be pursued by them. The state cannot lend the power of its name, or invidiously assume and champion the cause of one private citizen against another, for the purpose of settling rights or titles in controversy between them, when each and all citizens are equally entitled to its protection.” In that case the state, on the relation of certain parties [387]*387claiming to be the owners of the equitable title of a certain block of land in which the state had no interest, brought suit to have the defendant, Shively, who held the legal title to said land, declared a trustee thereof for the benefit of the relators, and have him transfer the legal title to them, and, in deciding it, it was held that “no right of the state is affected, either directly or indirectly, nor is any matter of public concern involved, by which, under particular circumstances, a right of action or suit exists in the state, or the state is authorized or induced to act as a party, or upon the relation of some private person for the enforcement or protection of such public interest. The matter, exhibited by the facts is wholly and entirely a controversy between private individuals, for which a complete and adequate remedy exists in equity, in a suit between them.” This doctrine is also recognized in the other cases cited above. The question, then, in this case, is whether or not the complaint alleges any interest in the lands in controversy in the plaintiff, and the case is, so far as the effort to establish the rights of the claimant settlers to the land is concerned, entirely within the principle of the case of State ex rel. v. Shively, 10 Or. 267.
3. Plaintiff, however, contends that the case has a two-fold aspect, and, if the prayer to confirm the interests of the claimant settlers should be denied, the prayer for the cancellation of the patents from plaintiff to defendant and its grantors should be granted, and establish the title to the lands in controversy in the plaintiff under its right thereto as a part of the permanent bed of the lake; but this contention also depends upon the plaintiff having some interest in the lands in controversy, and is” within the principle declared in the cases cited.
4. The lands' in controversy in this suit, as shown by the complaint and the -statements of the plaintiff’s counsel in their brief, are the lands settled upon by the various claimant settlers under the pre-emption, homestead and timber culture laws ,of the United States, and it is only these lands, if any, that are referred to as having been embraced in the permanent bed of Lake Warner, and hence by reason thereof belonged to the state, [388]*388and it is these lands only that are sought to be affected by.any decree to be entered herein. It is alleged, however, that these lands at the time of the settlement thereon by the various settlers were “vacant unsurveyed public lands of the United States, not mineral nor swamp, nor selected as swamp or overflowed land, nor otherwise reserved.” The claimants must, therefore, have acquired their settlement rights thereto as such vacant lands, and afterwards filed thereon under the United States laws, when the lands had been surveyed and thrown open for settlement by the United States. Conceding, but not deciding, that Lake Warner, by reason of the meander thereof, as claimed by plaintiff, is presumed to have been a navigable lake when the lands in controversy formed a part of its permanent bed, and that title to such lands vested in the state, there is no allegation that any other lands included in the patents sought to be canceled were embraced in the bed of such lake, and consequently such other lands are not involved herein, and the title thereto did not belong to the state, for they were not a part of the bed of the lake, and no benefit could come to the plaintiff from having the patents canceled for such other lands. Neither could any benefit accrue to the plaintiff from cancellation of the United States patent and its own patents to the defendant and its grantors, and decreeing a conveyance from it and defendant to- the claimant settlers of the lands in controversy. The only benefit it could derive from this suit, if any, would be the cancellation of its patents to the defendant and its grantors, and decreeing the title to the lands in controversy to be in the plaintiff as a part of the permanent bed of Lake Warner.
5. The presumption invoked by the plaintiff that Lake Warner was a navigable lake, and therefore title to the lands in controversy embraced in its bed vested in the plaintiff, is based entirely upon the allegations of the plaintiff regarding the character of the lands in controversy at the time W. A. Owen and his associates and the McConnaughys made applications to purchase such lands under the swamp land act and prior thereto. [389]*389These allegations are that the applicants, at the time they made their applications, did so,
“having full notice, and well knowing and believing, that none of the lands thereafter settled upon or claimed under the preemption, homestead or timber culture laws of the United States, hereinafter described, by the persons hereinafter named, was then, or on the 12th day of March, 1860, swamp or overflowed land, but was then, and on said 12th day of March, 1860, embraced within and part of the permanent bed of Lake Warner and covered by the waters thereof.”
These allegations only go to the fact of the notice, knowledge and belief of the applicants as to the character of the lands and not to the fact of the character of the lands at that time. They do not charge the fact that such lands were then a part of the bed of the lake, but only that these applicants made their applications having full notice, and well knowing and believing, that they were a part of the bed of the lake. Denial of such notice, knowledge or belief on the part of the applicants would be a denial of the allegations contained in this complaint, but not a denial of the condition of the lands at that time. But, giving to these allegations all that is contended for them by the plaintiff, they are clearly negatived by the further, later and repeated allegations that at the time of the settlement upon the lands in controversy, they were vacant unsurveyed public lands, and not swamp lands, nor otherwise reserved, and were thereafter surveyed and filed upon as public lands of the United States, clearly showing that the plaintiff has no interest therein.
Construing the complaint in its entirety, we think it fails to allege any interest in the plaintiff in the lands in'controversy. The plaintiff, therefore, having no interest in the lands in controversy, it could not, either upon the relation of the Attorney-General or otherwise, lend the power of its name to adjust a controversy between private parties, and this is clearly the object of this suit, as is shown by the latter part of paragraph 47 of the complaint, wherein it is alleged:
“And because but few, if any, of said matters can be availed of as defenses at law, each and every of said persons will be [390]*390much, embarrassed and endangered in attempting-to make any defense at law in any of said actions, and is entitled to have said several matters and things investigated and determined in a court of equity, where all said matters of defence can be fully considered and adjudged, and complete justice administered, and have said actions at law in the meantime enjoined and restrained.”
Decided 21 November, 1906.
This allegation on the part of plaintiff expressly recognizes the right of the settlers to have their matters adjusted in a court of equity, and such being the case, as is clearly shown by the authorities heretofore cited, and the state having no interest in the lands in controversy, the decree of the lower court should be affirmed; and it is so ordered. Aeeirmed.
On Motion to Remand.
Mr. Justice Hailey delivered the opinion of the court.
6. The demurrer to the amended complaint having been sustained on appeal, and the decree of the lower court dismissing this case affirmed, plaintiff filed a motion to have the case Temanded, with leave to apply to the court below to amend its complaint, so as to show its interest in certain of the lands mentioned therein and its right to equitable relief in the cancellation of deeds therefor to the defendant. In support of this motion plaintiff cites Powell v. Dayton, S. & G. R. R. Co., 14 Or. 22 (12 Pac. 83), in which the overruling of a demurrer to a complaint was sustained, and this court refused to grant leave to answer over, but remanded the cause for further proceedings, and announced as a rule of practice in such eases “that when this court does not make a final disposition of a cause, but remands, the same to the court below, it will be open for that court to determine in the first instance whether the defendant shall be permitted to answer or not.” This rule, however, is not applicable to the case at bar where the appellant seeks to have the cause remanded, with leave to apply to amend, and by so doing substitute a cause of suit in its own favor only for the original cause of suit, which was for the benefit of others not connected with plaintiff’s interest. Fowle v. House, [391]*39130 Or. 305 (47 Pac. 787), is also cited, in which a decree sustaining a demurrer to a complaint was affirmed, and the cause remanded “for such further proceedings as may be deemed proper, not inconsistent with the opinion herein,” and a motion was denied to recall the mandate and amend the decree, so as to allow the plaintiff to amend his complaint. The court in that case held that it is for the lower court to determine in the first instance whether a plaintiff shall be allowed to amend his complaint, and that this court should not interfere with the exercise of its discretion by directing what course it should pursue in the matter. It is suggested in the motion that every objection to the sufficiency of the complaint can be obviated by the amendment, and the delay and expense of bringing a new suit thereby avoided. This, however, is not a matter which this court can consider, and should have been acted on by the plaintiff in the lower court, as the interest of the plaintiff in the lands in controversy was .one of the questions raised by the demurrer. Plaintiff, however, refused to plead further, and stood upon its amended complaint, and it is now too late to complain of its own action in that respect.
The motion to remand, with leave to apply to amend, will therefore be denied. Appirmed: Motion Denied.