Opinion of the Court-Morgan, J.

It is true there are some discrepancies between the testimony given by the prosecutrix at the trial and that given by her at the preliminary examination, but these may be accounted for, to a considerable extent at least, upon the theory that she misunderstood certain questions propounded to her at the preliminary examination.

This court in the recent case of State v. Driskill, ante, p. 738, 145 Pac. 1095, commenting upon the effect of contradictory statements made by a prosecuting witness in a case of this kind, said: "As to the impeachment of the prosecutrix and to what extent the jury would give credence to her testimony, that was for the jury to determine, and we do not think if the jury believed the prosecutrix had made contradictory statements, they must of necessity reject all of her evidence as untrue.'

The evidence in this case, considered in its entirety, is amply sufficient to justify the jury in reaching the conclusion expressed in its verdict.

Had the trial court, as charged in the second assignment of error, over the objection of the defendant, permitted the state to show that the appellant had been tried and found guilty by a tribunal of his church, such action upon the part of the court would have been reversible error. A careful examination, however, discloses that the said second assignment of error is not borne out by the record.

Mention of this church trial is first found in the testimony of the witness Alfred Hansen and occurs in the cross-examination of the said witness by the attorney for the appellant. The witness was asked if a complaint had been filed against the defendant with the church authorities and, having answered in the affirmative, he was asked whether he made à certain statement on the occasion of the church trial as to his motives in commencing the church proceedings and this case. Upon redirect examination counsel for the state asked the witness as to the result of the church trial, whereupon counsel for the appellant said, "Object to that, if the court pleaseOh, well go ahead."

Points Decided.

Thereafter, upon recross-examination of the witness Hansen, counsel for appellant went into the question of the proceedings in the church hearing and the result thereof at considerable length.

Upon direct examination of the appellant this church trial was referred to, and upon his cross-examination it was inquired into by counsel for the respondent without objection upon the part of the appellant or his counsel, and upon his redirect examination it was further inquired into.

Where a party to an action does not object to a question propounded to a witness, or having objected, expressly gives consent that the question may be answered, error cannot be predicated upon the action of the court in admitting the testimony nor upon the refusal of the court to strike out the answer, if it is responsive to the question, and the answer of the witness, Hansen, was responsive.

The judgment appealed from is affirmed.

Sullivan, C. J., and Budge, J., concur.

(February 6, 1915.)

WILLIAM F. CALLAHAN, Appellant, v. STERLING G. PRICE, Respondent.

[146 Pac. 732.]

PATENT FROM UNITED STATES-LAND BORDERING NAVIGABLE STREAMSTITLE EXTENDING TO NATURAL HIGH-WATER LINE ONLY-OWNERSHIP IN AND TO BED OF LAKES AND NAVIGABLE RIVERS-ISLANDS NOT PASSING TO STATE-USE OF NAVIGABLE STREAMS FOR BENEFIT OF PUBLIC AS HIGHWAYS-JUDGMENT OF NONSUIT, AFFIRMED.

1. A patent from the United States for land bordering on a navigable lake or stream extends no farther than the natural highwater line.

2. When lands border on a stream, the banks of which are both well-defined and where the stream separates at the head of an island into distinct channels constituting a well-defined stream on either side, the boundary line of the land granted extends only to the natural high-water mark.

Argument for Appellant.

3. Where there is no evidence offered at the trial, as in this case, which establishes or tends to establish the fact that the island in controversy was at any time attached to or a part of lots bounded by a stream, it was not error for the court to grant a nonsuit.

4. The United States, since the admission of Idaho to statehood, has the power to dispose of subdivisions or fractional subdivisions of public lands consisting of islands that existed in the territory of Idaho prior to its admission as a state.

5. Islands in existence when Idaho was admitted to the Union did not pass to the state or come within the disposing influences of its laws, but remained the property of the United States subject to disposal by it.

6. It is the settled law of this state that no title to islands, lakes or the beds of streams passes to the patentees of the United States by the sale of border lots; that the state holds the title to the beds of navigable lakes and streams below the natural highwater mark, for the use and benefit of the whole people, subject to the rights vested by the constitution in the United States.

7. The Salmon river is a navigable stream, and is therefore a public highway belonging to the state.

8. Since statehood the state holds the title to the beds of all navigable lakes and streams, subject to the rights of the general government to regulate commerce, and the right by the public to the use of the same as public highways over which every citizen has a natural right to carry commerce, whether by ships, boats, the floating of logs or lumber, having due consideration and reasonable care for the rights of individuals as well as the public in the common use of such public highways.

9. The cases of Johnson v. Hurst, 10 Ida. 308, 77 Pac. 785, Lattig v. Scott, 17 Ida. 506, 107 Pac. 47, Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240, and Ulbright v. Baslington, 20 Ida. 539, 119 Pac. 292, 294, are hereby overruled in so far as they conflict with this opinion.

APPEAL from the District Court of the Sixth Judicial District for the County of Lemhi. Hon. J. M. Stevens, Judge.

Action to quiet title. Judgment of nonsuit for defendant. Affirmed.

A. C. Cherry, for Appellant.

The defendant on motion for nonsuit must admit all the facts which the evidence tends to prove; and in determin

Opinion of the Court-Budge, J.

ing the propriety of a nonsuit at the close of plaintiff's case, the evidence most favorable to the plaintiff must be accepted as true; for the motion of nonsuit admits the truth of plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom. (McDaniel v. Moore, 19 Ida. 43, 112 Pac. 317; Mineau v. Imperial etc. Co., 19 Ida. 458, 114 Pac. 23; Hoff v. Los Angeles Pac. Co., 158 Cal. 596, 112 Pac. 53; Lawyer v. Los Angeles Pac. Co., 161 Cal. 53, 118 Pac. 237.)

The case at bar is not within the purview of the case of Lattig v. Scott, but is governed rather by the cases of Grand Rapids etc. R. R. Co. v. Butler, 159 U. S. 87, 15 Sup. Ct. 991, 40 L. ed. 85, and United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 28 Sup. Ct. 579, 52 L. ed. 881.

There are no differences which would take this case out of the rule laid down in the Scott v. Lattig case and the rule announced in the later case of Moss & Bro. v. Ramey, 25 Ida. 1, 136 Pac. 608.

The Salmon river is a navigable stream under the decisions of this state. (Idaho Northern R. R. Co. v. Post Falls Lbr. Co., 20 Ida. 695, 119 Pac. 1098, 38 L. R. A., N. S., 114.)

For the plaintiff to recover in this case it would be necessary for him to show that at the time of the patent to McCain this island was not in fact an island but constituted a part of the land conveyed to McCain by that patent. This the plaintiff has not attempted to do, for the earliest date that a witness of the plaintiff remembers having seen the island in question was about the year 1887 or 1888, and that is stated only from recollection. (29 Cyc. 349, 353; Fowler v. Wood, 73 Kan. 511, 117 Am. St. 534, 85 Pac. 763, 6 L. R. A., N. S., 162; 40 Cyc. 625.)

BUDGE, J.-This action was brought in the district court of the sixth judicial district, for Lemhi county, to quiet title to the following described lands, situate, and being in Lemhi county, to wit: All the upper portion of that certain island lying and being in the Salmon river just opposite lot 14, of

Opinion of the Court-Budge, J.

section 6, and lot 1 of section 7, township 21 N., range 22 E., Boise meridian.

The appellant claims title to the upper portion of said island by virtue of a patent from the United States to Sylvester McCain and to the lower portion of the island by virtue of a deed from Thomas Elder, probate judge of the county of Lemhi to Sylvester McCain; said Elder being the successor in office to one Ellwood T. Beatty, to whom a patent was issued by the United States conveying the land in question to be held in trust for the several use and benefit of the occupants of the townsite of Salmon City; said patents conveying to the patentees the lands bordering along the Salmon river. The particular deed in controversy in this action is appellant's exhibit "C," a deed executed by Thomas Elder, as probate judge, to Sylvester McCain, appellant's predecessor, conveying the land bordering along the bank of the Salmon river described as follows, to wit:

"Commencing at the Witness stake on the right bank of Salmon River and on the section line between Sections 6 & 7, in Township No. 21, North of Range No. 22, East of Boise Meridian, and running thence along said Section line N. 89 degrees 51 minutes East Seventy nine (79) rods and two (2) links, thence North 24 degrees East, Sixteen (16) rods and fourteen (14) links, thence N. 54 degrees 30 minutes West fifty four (54) rods, and thence S. 43 degrees West sixty two (62) rods to the place of beginning. Area (13) Acres and one hundred and twenty seven (127) Rods, in the same more or less."

This cause was tried to the court with a jury upon the complaint of the appellant and the answer and cross-complaint of the respondent. The complaint set out a description of the island in question and a statement of the facts upon which the appellant relied to establish his title to said island and lots 14 and 1. Appellant further alleged that the respondent, Price, claimed and asserted an estate in and to said island and had entered into possession of the island without right, title or license and wrongfully withholds the possession of the same, to appellant's damage in the sum of