Opinion of the Court-Ailshie, C. J.

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 Pac. 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

Opinion of the Court-Sullivan, J., Concurring.

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 mat

Opinion of the Court-Sullivan, J., on Rehearing.

ter, 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.

ON REHEARING.

(November 26, 1913.)

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. Ramey, 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

Opinion of the Court-Sullivan, J., on Rehearing.

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

Opinion of the Court-Sullivan, J., on Rehearing.

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-Lattig 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.