Argument for Respondent.

Idaho Northern R. Co. v. Post Falls Lumber & Mfg. Co., 20 Ida. 695, 119 Pac. 1098, 38 L. R. A., N. S., 114; Mashburn v. St. Joe Improvement Co., 19 Ida. 30, 113 Pac. 92, 35 L. R. A., N. S., 824; Gaston v. Mace, 33 W. Va. 14, 25 Am. St. 848, 10 S. E. 60, 5 L. R. A. 392; Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621; Harold v. Jones, 86 Ala. 274, 5 So. 438, 3 L. R. A. 406; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573; Brown v. Kentfield, 50 Cal. 129; Lancey v. Clifford, 54 Me. 487, 92 Am. Dec. 561.) If any inconvenience or damage falls upon the appellant thereby, the appellant cannot complain, and it is damnum absque injuria. (Small v. Harrington, supra; Idaho Northern R. Co. v. Post Falls Lumber & Mfg. Co., supra; Attorney General v. Evart Booming Co., 34 Mich. 462; Gaston v. Mace, supra.)

It is necessary to float logs clear into the mouth of the river in order to reasonably enjoy the use of the Coeur d'Alene river.

"There must be facilities for regaining possession of the property after it has once been turned into the stream. For this purpose custom has recognized the right to make use of booms and sorting works." (1 Farnham on Waters and Water Rights, p. 426, par. 94; Powell v. Springston Lumber Co., supra.)

Where there is a substantial conflict in the evidence, the findings of the lower court are taken as conclusive. (Robbins

v. Porter, 12 Ida. 738, 88 Pac. 86; Robertson v. Moore, 10 Ida. 115, 77 Pac. 218; Deeds v. Stephens, 10 Ida. 332, 79 Pac. 77; Abbott v. Reedy, 9 Ida. 577, 75 Pac. 764; Stuart v. Hauser, 9 Ida. 53, 72 Pac. 719; Pine v. Callahan, 8 Ida. 684, 71 Pac. 473; Sabin v. Burke, 4 Ida. 28, 37 Pac. 352; Miller v. Blunck, 24 Ida. 234, 133 Pac. 383.)

"Temporary sheer or guide booms, though obstructions to navigation, may be used, as incident to the reasonable use of a river for running and securing logs, for the purpose of directing the logs or lumber into proper places in which to detain them for use; but the stream may not be permanently obstructed and converted into permanent places of deposit for logs by the construction of piers and booms." (Gerrish

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v. Brown, 51 Me. 256, 81 Am. Dec. 569; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573.)

"Every person has an undoubted right to use a public high. way, whether upon the land or water, for all legitimate purpose of travel and transportation; and if, in doing so, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrongdoer, his acts are not illegal, and he creates no nuisance for which an action can be maintained.” (Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573.)

TRUITT, J.-This action was brought in the lower court by the appellant, a corporation, the owner of certain booms and sorting works near the mouth of the Coeur d'Alene river, to enjoin the respondent, a corporation, and also the owner of other certain booms and sorting works at the mouth of said river below appellant's works, and in Lake Coeur d'Alene, adjacent to its said sorting works, from maintaining and operating said booms and sorting works.

The first question presented to this court is raised by appellant's objection to a rehearing of the case, and upon his motion that a remittitur reversing the judgment of the lower court herein be sent down and transmitted to the clerk of said court. The grounds and reason for such objection and motion are specifically stated therein. For the purpose of considering this motion and appellant's objection to a rehearing at this time, it is only necessary to state that this cause was heard on appeal on December 5, 1913, by this court, Chief Justice Ailshie and Justices Sullivan and Stewart then composing the court and sitting at the hearing of said case; and that thereafter, on January 17, 1914, the judgment of the court below was reversed, Justice Stewart handing down the opinion, which was concurred in by Chief Justice Ailshie, but Justice Sullivan did not concur in the decision and filed a dissenting opinion thereto. The respondent made application for a rehearing, and after due consideration of said application a rehearing was granted, and on March 23, 1914, the case was reheard and reargued before this court, which

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at that time was composed of Chief Justice Ailshie, Justices Stewart and Sullivan. After this rehearing and before a decision and determination was had in the case, Justice Stewart was stricken with a serious illness and was removed from the state for medical treatment, and on the 25th day of September, 1914, he died without having participated in the decision or consideration of the case after such rehearing. After the first rehearing and sudden illness of Justice Stewart, which incapacitated him from further consideration of the case, it seems that no agreement or decision of the case was reached by Chief Justice Ailshie and Justice Sullivan, and that on June 30, 1914, they concurred in and made an order directing that the cause be resubmitted for further argument at the next Coeur d'Alene term of this court, this being the only order that was made or entered in the record.

Counsel for appellant concedes that this court can in the exercise of its sound discretion grant one rehearing for good and sufficient reasons shown, but they contend that, in the first place, the petition or application for a rehearing was in this case insufficient and that, from a strictly legal standpoint, respondent was not entitled to a rehearing upon any ground or reason stated in such application, and that after having been granted a rehearing and this court having failed to agree upon a determination of the case after such rehearing, it does not have jurisdiction to order another hearing.

As to the point in support of appellant's motion which in effect is that respondent was not entitled to the first rehearing upon any ground or reasons stated in the application, it is without merit, for this court in its sound discretion granted the rehearing, and that question is therefore settled and cannot be considered at this time. In regard to the other contention in support of said motion, which is in substance that because this court failed to decide the case after the first rehearing it lost jurisdiction to act further in the matter, and having lost power to change the former adjudication that must in effect leave or affirm this adjudication as the decision of the case, we cannot reach the conclusion contended for by appellant. It is true that the granting of a rehearing does

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not ipso facto reverse the former decision, but we think that from the very moment a rehearing is ordered in any given case the original decision is thereby suspended. By that order the court throws doubt upon the correctness or justness of its decision. It in effect says by such order that it is not fully satisfied to let that decision stand as the final determination of the case. Then, if the court is not satisfied with the decision, the only way to be satisfied with it is to rehear and re-examine it. Until this is done, the decision is tainted with doubt and cannot be taken as the ultimate conclusion of the court. The order of rehearing does not either affirm or reverse the former opinion, but simply suspends it for further consideration. It would be just as permissible to say that the order of rehearing reverses the opinion as to say that it affirms it. If, after the examination of a petition for rehearing, the court decides that it is without merit, a rehearing is denied, and the court then adheres to its former decision that becomes the final determination of the case. But if after consideration of the petition and a further examination of the record, the court has some doubt as to the correctness of the determination it has reached, a rehearing is ordered, its former decision is by this order suspended until the rehearing is had, and then the case is disposed of as may seem just and proper without regard to the former decision. If, upon a rehearing, this decision still merits the approval of the court, it is affirmed; if not, it may be modified, or in effect entirely reversed. Of course, if the decision is approved after this rehearing, it would be a useless task to formulate another opinion in the case where the court was convinced that its former opinion correctly expressed its views as to the proper determination of the case.

In Argenti v. City of San Francisco, 16 Cal. 277, we think Chief Justice Field correctly states the rule in regard to rehearings as follows: "A rehearing was granted in that case, and no one is better aware than the learned counsel for the defendant, that when a rehearing is granted, the opinion previously delivered falls, unless reaffirmed after the reargument. Until such reaffirmance, the opinion never acquires

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the force of an adjudication, and is entitled to no more consideration than the briefs of counsel. The opinion subsequent to the reargument constitutes the exposition of the law ap. plicable to the facts of the case, and the only one to which the attention of the court can be directed."

Hauser v. Hobart, 22 Ida. 749, 127 Pac. 1002, 43 L. R. A., N. S., 410, is a case referred to in the brief of appellant on this motion. In that case a rehearing had been granted, and after such rehearing this court said: "After a most careful reconsideration of the case, we are convinced that there is no reason for changing our former opinion." This clearly indicates that the case had been reconsidered and re-examined, and if the court had not been convinced of the correctness of its former opinion it would have reached a different determination of the case.

In the case at bar, while Justice Stewart was out of the state, on June 30, 1914, Chief Justice Ailshie and Justice. Sullivan having failed to agree upon a decision in the case after the first rehearing, ordered that it be again resubmitted for further argument at the next regular Coeur d'Alene term. Now, it seems to us that under sec. 3820, Rev. Codes, it was the plain duty of the court, under this condition of the case to order this rehearing. That section says: "The concurrence of two justices is necessary to pronounce a judgment; if two do not concur, the case must be reheard." It seems from the record that after this rehearing and the sudden illness of Justice Stewart, there were only two justices who could decide this case, and when they failed to agree upon a decision, under that statute they were required to make the order of rehearing, which they did.

We think this rehearing was properly ordered and that the case must be now disposed of upon its merits. The objection to the rehearing of the case is therefore overruled, and the motion herein denied.

This brings us to a consideration of the case upon its merits. The action was brought by appellant, the Cameron Lumber Co., a corporation, the owner of certain booms and sorting works near the mouth of the Coeur d'Alene river, to enjoin the