
    (May 17, 1913.)
    A. B. MOSS & BRO., Respondents, v. A. H. RAMEY, Appellant.
    [136 Pac. 608.]
    Riparian Ownership — Tithe to Islands — Law op the Case.
    1. Under the holding of the supreme court of the United States, an island in Snake river of dry land which is surrounded by well-defined channels of the stream and which island existed at the time the state was admitted into the Union, and which was not included in: the public land survey and comprised an area larger than a legal subdivision authorized under the United States land surveys, did not pass from the government to the state on the admission of the state, and did not pass to the upland or riparian proprietor "by a patent to the abutting lots or subdivisions meandering the channel of the stream.
    2. The general rule of res adjudicata or law of the case as recognized and announced by this court in Hall v. Blackman, 9 Ida. 555, 75 Pac. 608, does not apply in a case where a federal question is involved that may be reviewed on writ of error to the supreme court of the United States, and where subsequent to the decision by the state court the United States supreme court has held to a different rule and reversed the ruling of the state court prior to the hearing on a second appeal in another case involving the same question of law.
    3. The rule of law heretofore adopted by the supreme court of this state is reaffirmed to the effect that a riparian owner on a meandered stream or body of water, whether navigable or non-navigable, takes title to the center or thread of the stream.
    APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.
    
      Suit to quiet title. Judgment for plaintiffs. Defendant appealed.
    
      Reversed.
    
    R. B. Seatterday and Karl Paine, for Appellant.
    Whether Snake river is navigable or non-navigable, plaintiffs cannot prevail, for in any event the west line of the respondent’s premises does not, under the United States patents thereto, extend west of the east channel of Snake river. (Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988, 40 L. ed. 68; Bates v. Illinois Central B. B. Co., 1 Black, 204, 17 L. ed. 158; Whitney v. Detroit Lumber Co., 78 Wis. 240, 47 N. W. 425; Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. ed. 174; Glenn v. Jeffrey, 75 Iowa, 20, 39 N. W. 160; Bissell v. Fletcher, 19 Neb. 725, 28 N. W. 303; Fulton v. Frandolig, 63 Tex. 330; Lammers v. Nissen, 4 Neb. 245.)
    Plaintiffs must recover, if at .all, upon the strength of their own title, not upon the weakness of the defendant’s. (10 Am. & Eng. Ency. Law, 2d ed., 481; Fussell v. Hughes, 113 U. S. 566, 5 Sup. Ct. 639, 28 L. ed. 998; Glenn v. Jeffrey, 75 Iowa, 20, 39 N. W. 160; Northern Pac. B. Co. v. McCormick, 94-Fed. 937, 36 C. C. A. 560; Silver Creek Cement Corp. v. Union Lime etc. Co., 138 Ind. 297, 35 N. E. 125, 37 N. E. 721; Huntington v. Jewett, 25 Iowa, 249, 95 Am. Dec. 788; Parker v. Cassingham, 130 Mo. 348, 32 S. W. 487; Burnham v. Hitt, 143 Mo. 414, 45 S. W. 368; Sanger v. Merritt, 120 N. T. 109, 24 N. E. 386; Wolfe v. Dowell, 13 Smedes & M. (Miss.) 103, 51 Am. Dec. 147; Slmison v. Goodrich Transp. Co., 99 Wis. 20, 74 N. W. 574, 40 L. R. A. 825; Oregon By. N. Co. v. Hertz-berg, 2§ Or. 216, 37 Pac. 1019 • Mather v. Walsh, 107 Mo. 121, 17 S. W. 755.)
    Before Ramey is required to defend his claim to the island, Moss & Brother must establish their right thereto, and in so doing they must necessarily present an issue which involves a federal question. (Nashville, C. & St. L. B. Co. v. Taylor, 86 Fed. 175; Simkins, Federal Suit in Equity, 2d ed., p. 134.)
    
      Richards & Haga and McKeen F. Morrow, for Respondents.
    The findings of the trial court that the patents from the government conveyed to the patentees the legal title to the land in dispute will not be reviewed upon this appeal, for such findings are in exact accordance with the decision of this court on the former appeal in this case (14 Ida. 598, 95 Pac. 513). {Kimpton v. Jubilee Min. Co., 22 Mont. 108, 55 Pac. 918.)
    Where a question necessary for the determination of a case has been presented to and decided by an appellate court, such decision becomes the law of the case in all subsequent proceedings in the same action, and is a final adjudication, from the consequences of which the court cannot depart nor the parties relieve themselves. (26 Am. & Eng. Ency. Law, 184; 3 Cyc. 395-397; 2 Spelling, New Trial and App. Prae., sec. 691; 2 Hayne, New Trial and App., pp. 1657-1662; Westerfeld v. New York Life Ins. Co., 157 Cal. 339, 107 Pae. 699; Hall v. Blackman, 9 Ida. 555, 75 Pae. 608.)
    The state supreme court is only authorized to review the judgment of the trial court for errors committed there, and the United States supreme court can do no more, and, if the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive so far as the right of review by the United States supreme court is concerned. (Ex parte Spies, 123 U. S. 131, 8 Sup. Ct. 21, 31 L. ed. 80; Chappell v. Bradshaw, 128 U. S. 132, 9 Sup. Ct. 40, 32 L. ed. 369; Cincinnati, New Orleans & Texas Pac. By. Co. v. Slade, 216 U. S. 78, 20 Sup. Ct. 230, 54 L. ed. 390; Baldiuin v. Kansas, 129 U. S. 52, 9 Sup. Ct. 193, 32 L. ed. 640; Jacobi v. Alabama, 187 U. S. 133, 23 Sup. Ct. 48, 47 L. ed. 106; Erie B. B. v. Purdy, 185 U. S. 148, 22 Sup. Ct. 605, 46 L. ed. 847; Layton v. Missouri, 187 U. S. 356, 23 Sup. Ct. 137, 47 L. ed. 214.)
    No federal question was presented to the trial court on the second trial in this case, because appellant admitted by his amended answer that title passed to the predecessors of respondents under their patents, (2 Ency. L. & P. 173; 
      Knowles v. New Sweden Irr. Dist., 16 Ida. 217, 101 Pac. 81; AiJcens v. Frank, 21 Mont. 192, 53 Pac. 538.)
    This court will not pass upon and determine questions which the record does not show were passed upon and determined by the trial court. (Marysville M. Co. v. Some Fire Ins. Co., 21 Ida. 377, 121 Pae. 1026.)
   AILSHIE, C. J.

This ease is here on appeal for the second time. (See A. B. Moss & Bro. v. A. H. Barney, 14 Ida. 598, 95 Pac. 513.) On the former appeal the judgment was reversed and the cause was remanded, for the purpose of having the trial court pass upon the question of adverse possession as presented by the pleadings. The’ trial court heard the case and found against the defendant and in favor of the plaintiffs, and the defendant has prosecuted this appeal.

On the former appeal this court held that the lands in dispute between the meander line and the thread of the stream in the main channel of Snake river passed by patent from the United States, issued for the lots and legal subdivisions abutting upon the meander lines, and that the holder of the title to the upland took title to all the land between the meander line and the center or the main channel of the stream. The trial court had found upon the first trial that the land in dispute comprised “a large island and islands,” aggregating about 120 acres, and that between this island and the upland owned by the plaintiffs there is a “large channel of Snake river with well-defined banks and channel varying in width from 100 to 300 feet and in depth from six to ten feet through which the water of Snake river regularly flows during a large portion of the year, varying from three to six months, and some years the entire season.” This court held that, notwithstanding the fact that there was a high-water channel between the main body of upland and this tract of land, that still this was a part of the mainland, and that it passed by patent to the upland owner of the abutting lots and subdivisions, and that the title thereto had passed from the government to the upland patentees and that the so-called island was no longer a part of the public domain. When the case went back for retrial, the pleadings were so amended as to reduce the issue merely to one of adverse possession, and the trial court found that issue against the defendant and in favor of the plaintiffs.

Since the last trial of this case the supreme court of the United States in Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490, has held that an island in Snake river, which was not included in the public land survey and which existed at the time Idaho was admitted into the Union, neither passed to the state by the admission of the state nor passed by patent to the uplands abutting on the nearest channel of the stream, and that an island which “was fast dry land” at the time of the admission of the state into the Union and at the time of the issuance of patent to the abutting upland does not pass by patent to the upland patentee. That holding is in conflict with the holding of this court in Lattig v. Scott, 17 Ida. 506, 107 Pac. 47, and is in some measure contrary to the views entertained and expressed by the court in Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240, on the authority of which the case of Moss & Bro. v. Ramey was decided. To that extent this court must and does modify its holdings as announced in the above cases.

The question is at once presented as to whether the rule of res adjudicata or law of the ease as heretofore recognized by this court in Hall v. Blackman, 9 Ida. 555, 75 Pac. 608, and Hunter v. Porter, 10 Ida. 86, 77 Pac. 434, should be, or can properly be, invoked in the case before us. We are of the opinion that the doctrine of law of the case cannot properly be invoked in a ease like this.. Where this court is not the court of final resort in the determination of the question presented and a writ of error may be taken to the supreme court of the United States and such a writ is prosecuted and that court expresses a different view as to the law applicable to a given state of facts from that entertained by this court, it is our duty on a subsequent appeal in another case involving the same federal question to reconsider the question pre•viously determined -and render our judgment in conformity with what we understand to be the rule announced by the court of last resort on such question. This principle seems to be recognized by the authorities. (See United States v. Denver & R. G. R. R. Co., 191 U. S. 84, 24 Sup. Ct. 33, 48 L. ed. 106; Zeckendorf v. Steinfeld, 225 U. S. 445, 32 Sup. Ct. 728, 56 L. ed. 1156; Messinger v. Anderson, 225 U. S. 436, 32 Sup. Ct. 739, 56 L. ed. 1152; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. ed. 73; 3 Cyc. 395; 2 Spelling, New Trial and Appellate Practice, sec. 691.)

Notwithstanding our previous decision in this case, we are of the opinion that the question as to whether or not this tract of land is an island or detached public domain, or, as stated by the supreme court in Scott v. Lattig, supra, is “fast dry land,” should be determined upon all the evidence the parties desire to submit and in the light of the decision of the supreme court in Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490.

For the foregoing reasons, we have concluded to reverse the judgment in this case and remand the cause to the trial court for a new trial on all the issues presented in the original complaint or that the parties may see fit to present by amended pleadings.

In remanding this case, we think it proper to suggest to the parties and to the trial court that it is not the purpose of this court to in any way recede from the rule heretofore announced to the effect that a riparian owner in this state on a meandered stream or body of water, whether navigable or non-navigable, takes title to the center or thread of the stream. (Johnson v. Hurst, 10 Ida. 308, 77 Pae. 784; Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240; Lattig v. Scott, 17 Ida. 506, 107 Pac. 47; Ulbright v. Baslington, 20 Ida. 539, 119 Pac. 292, 294.) On the other hand, it is the equally well-fixed purpose of the court to follow the views expressed by the supreme court of the United States in Scott v. Lattig, in reference to such islands or tracts of land as may fall within the purview of that decision wherein it may appear that title has not passed from the government to any patentee.

Judgment reversed and cause remanded for a new trial'. Costs awarded in favor of appellant.

Stewart, J., concurs.

SULLIVAN, J.,

Concurring in Part. — I concur in the conclusion reached to the effect that the general rule of res adjudicata or law of the case does not apply in this case. I also concur in the conclusion to reverse the judgment and remand the cause for a new trial on all of the issues presented in the original complaint, or that the parties may see fit to present ■by any amendment to the pleadings; but dissent as to the rule heretofore announced by this court to the effect that a riparian owner in this state takes title to the thread of the stream. My views upon that question are expressed in my dissenting opinions in the cases of Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240, Lattig v. Scott, 17 Ida. 506, 107 Pac. 47. It has been held by the supreme court of the United States in Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490, and other cases, that upon the admission of a state into the Union, the ownership of the bed of navigable streams passed to the state, and if the thread of such navigable stream was the boundary of the state, the ownership passed to the state to the thread of the stream, subject to certain limitations mentioned in said decision. In the case of Scott v. Lattig, supra, referring to this matter, the court said: “That the subsequent disposal by the former [the United States] of the fractional subdivisions on the east bank, carried with it no right to the bed of the river, save as the law of Idaho may have attached such a right to private riparian ownership.”

It is there held that the disposal by the United States of the fractional subdivisions on the east bank of said river carried with it no right to the bed of the river.

We have no statute law whatever granting a private riparian owner the bed of the stream. In my view of the matter, the supreme court of this state has not the right or authority to donate any land that belongs to the state to a riparian owner, or to anyone else. Under the rule laid down in all of the decisions of the United States supreme court on this question, the bed of Snake river, at least to the border line of the state, passed to the state and not .to the riparian owner, and this court has no authority to donate the title thereof to any person.

(November 26, 1913.)

ON REHEARING.

SULLIVAN, J.

A rehearing was granted in this case and a reargument was had at this term of our court. In our former opinion (see ante, p. 6), the court stated as follows:

“For the foregoing reasons, we have concluded to reverse the judgment in this case and remand the cause to the trial court for a new trial on all of the issues presented in the original complaint or that the parties may see fit to present by amended pleadings.”

That decision was rendered in view of the decision of the supreme court of the United States in Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490. This court had held that the riparian owner was the owner of an unsurveyed island in Snake river. The supreme court of the United States held that an island being in existence in Snake river when Idaho became a state did not pass to the state upon admission to statehood but remained the property of the United States subject to disposal by it.

On a former appeal of the case at bar (see Moss v. Barney, 14 Ida. 599, 95 Pac. 513), this court reversed the trial court and held that the riparian owners were the owners of the land in question, because of being the riparian owners of the land bordering on said stream opposite thereto, and a new trial was granted in order that the trial court might determine whether the plaintiffs’ title had been divested by reason of the adverse possession of the defendant. The judgment was reversed and a new trial ordered, with leave to both parties to amend their pleadings. The defendant amended his pleadings to conform to the order of the court, setting up title by adverse possession. The cause was tried by the court and the court made findings of fact and conclusions of law in favor of plaintiffs, based on the ground that they were the owners of the land in dispute by reason of being the riparian owners of land bordering on Snake river opposite thereto, and that their title had not been divested by reason of the adverse possession of said island by the defendant. The trial court found that by reason of the plaintiffs being owner of the lots of land bordering on Snake river, their title extended westerly to the thread of the channel of said river and that the land in controversy was between the thread of the stream and said lots bordering thereon. There is here presented a federal question and the supreme court of the United States held in a similar case (Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490) that the riparian owner did not acquire title to this island by reason of being a riparian owner of land opposite thereto. The plaintiffs base their title to said island upon the fact that they are riparian owners opposite said island, and if this case is remanded to the trial court for a new trial, that court, under the decision of the Scott-Lattig case, must hold against the plaintiffs in this action. Their right to have the title quieted in them depends upon whether the island passed with the mainland under or by virtue of the United States patent issued to their predecessors in interest. That is clearly a federal question and is decided decisively against them under the rule laid down in the Scott-Lattig case. The plaintiffs brought this action to quiet their title, and their right to recover depends upon the strength of their own title and not upon the weakness of the defendant’s title. Before the defendant is required to defend his claim to the island, the plaintiffs must establish their right thereto, and in so doing must establish their title on the ground that their predecessor in interest acquired title to said land by reason of the patent issued to him by the government for the lots bordering on Snake river opposite said island. Under the decision of the Scott-Lattig case, the plaintiffs cannot establish their title to said land. That being true, they could not have their title quieted in this action, for the reason that under the facts and the law they have no title, and the writer of this opinion has no doubt but that under the pleadings and decision in this case a federal question is involved and that the final decision of this court may be reviewed by the supreme court of the United States upon a writ of error from that court. It would, therefore, be a useless act to remand the case for a new trial, as directed by this court in the opinion on the original hearing of this case.

"We are not unmindful of the contention made by respondents that the decision of this court on the previous appeal is the law of the case and that we are bound to adhere to the conclusion reached at that time. That rule prevails in this state, as was stated in the previous opinion, but the facts of this case are peculiar, and we believe it our duty to dispose of each case on its own facts and circumstances so as to meet the requirements of the law as nearly as possible. If this land in controversy is still a part of the public domain, as is undoubtedly the case under the decision of the supreme court of the United States in the Scott-Battig case, it is clearly our duty to take notice of that fact as it appears in the case and decide accordingly, even though we have previously decided to the contrary. This case turns solely on a federal question, and we are bound to follow the decisions of the federal supreme court as we understand them. This latter case runs counter to what this court had understood the previous decisions of that court to hold, and it is our intention to follow it as far as we think it goes. For these reasons we do not think that the rule of res adjudicata, or law of the case, applies in this case as it would apply if no federal questions were involved.

The cause is therefore remanded to the trial court, with directions to enter a judgment dismissing the action. Costs are awarded to appellant.

Ailshie, C. J., and Stewart, J., concur.

(November 29, 1913.)  