A. B. Moss & Bro. v. Ramey

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 [5] 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 [6] •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 [7] 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.