Opinion of the Court-Budge, J.

$200; that since entering upon said island, respondent has cut a large number of valuable trees into cordwood and hauled the same away, and that by reason thereof large portions of said island are liable to be washed away, to the irreparable loss and injury of the appellant.

Upon filing the verified complaint together with affidavit of C. G. Mathewson, an injunction was issued in this cause and served upon the respondent, restraining him from further committing the acts complained of in the appellant's complaint. Respondent, in his answer, denies that the appellant or his grantors or predecessors in interest, have been or were the owners for a long time hitherto, or at all, of the island as described in the appellant's complaint, or any portion thereof, and alleges that he entered into possession of said island rightfully and is lawfully seised and possessed of the same. The respondent admits that upon entering into possession of the island in controversy he cut timber and trees and hauled the same away, but denies that the appellant has been damaged in the sum of $200 or in any other sum.

In respondent's cross-complaint he alleges that he is the owner, in the possession and entitled to the possession, subject only to the paramount title of the United States, of the following described real estate, situate in the county of Lemhi, to wit: All that certain island consisting of about 100 acres of land lying and being in the Salmon river, just west and opposite appellant's lot 14, in section 6, and lot 1 in section 7, township 21 north, range 22 east, Boise meridian.

After the appellant had introduced his testimony, the respondent moved for a nonsuit, "On the grounds of insufficiency of evidence," which motion was granted and judg ment of nonsuit entered.

There are two assignments of error:

First, that the court erred in granting the motion for nonsuit.

Second, that the court erred in striking out the evidence of Chat Mathewson and in sustaining respondent's objection to certain evidence.

Opinion of the Court-Budge, J.

The lands lying on the east side of the Salmon river opposite the island involved in this litigation were surveyed in 1881, while the lands lying on the west side of the river opposite the island were surveyed in 1890 or 1891. From the record it would seem that the surveyor who made the survey of the east bank of the river mentioned no islands, while the surveyor who surveyed the lands on the west side of the river noticed two islands and indicated the same upon the map filed with his field-notes.

The evidence offered on the part of the appellant establishes the fact that he is the owner of a considerable tract of land bordering along the eastern bank of the Salmon river and abutting the same, including lots 1 and 14, and is in the possession of all of the lands covered by his patents and deeds except possibly a small portion that may have been eroded away from the main land by the action of the river. The respondent in this case has located upon the island west and across the east branch of the Salmon river from said lots 1 and 14.

The real question involved in this litigation is the west boundary line of appellant's land. If this west boundary line extends to the thread of the stream of the west channel of the Salmon river, appellant would then be entitled to the possession of all of the upper portion of the island in controversy. This island is not contained either in acreage or description, in the patents or mesne conveyances to appellant's predecessors in interest, and if it should be determined that the appellant is entitled to the island, it must be upon the theory that his west boundary line extends across the east channel of the Salmon river. In Packer v. Bird, 71 Cal. 134, 11 Pac. 873, it was held that a patent from the United States for land bounded on a river which is actually navigable, extends no farther than the edge of the stream, and does not include an island separated from the upland by a slough forming part of such river, although the slough is not ordinarily navigable, or not navigable at all. In Steinbuchel v. Lane, 59 Kan. 7, 51 Pac. 886, it is held that a patent for lands bordering on a stream, both banks of which were

Opinion of the Court-Budge, J.

meandered by the government, without any reference to a large island therein composed of primitive soil, includes no part of the island opposite such land as an appurtenance thereof, whether the stream be navigable or not, where it separates at the head of the island into two distinct channels, constituting a well-defined stream on either side, and it is not necessary to include any part of the island to make up the quantity of land included in the patent; but at most, the boundary of the land granted extends only to the middle of the thread of the channel between it and the island. In Shoemaker v. Hatch, 13 Nev. 261, it was held that an unsurveyed island of considerable size in a river is no part of the land surveyed on the side opposite one channel, where the two branches of the river are both well-defined channels and there is no disparity in size, although in low water the one channel carries. all the running water, and at other times more than the other channel, because it is shorter and has more fall.

We think that the evidence establishes the existence of this island for a considerable length of time prior to the survey being made of the lands on the east or west banks of the river, and before Idaho's admission to the Union. There was no evidence offered by the appellant in the trial court, that even tended to establish the fact that the island in controversy was at any time attached to or a part of lots 1 and 14. On the contrary, the proof offered by appellant, clearly established the fact that the east channel of the Salmon river was where it now is and where it had been for many years prior to the time appellant became the owner and went into possession of lots 1 and 14; that the banks of the east channel of the river are clearly defined; that this island is "Fast Land," not subject to overflow; that a portion of the same had been fenced and used, by the predecessor of appellant, and others, for the pasturage of cattle and that for a period of years, cordwood was cut on and sold from said island. While it might be true that for a time the east channel of the Salmon river between the lands of the appellant and the island was not the main channel of the river, it was proven by appellant that by reason of the peculiar characteristics of

Opinion of the Court-Budge, J.

the stream, the main body of water during different years ran through the east channel of the river, along which the lands of the appellant abut, eroding and cutting away a small portion of lots 1 and 14. This erosion of appellant's lands by the changing of the main body of the stream from the west to the east channel was, as appears from the record, almost imperceptible.

From all of the evidence offered by appellant, it would seem to be clearly established that an open waterway between the island and the lands of the appellant was found to exist by the first occupant of these lands, and that strenuous efforts were made to divert the main flow of the stream through the west channel of the river by the construction at the upper end of the island and at the intake of the east channel of the river of riprap earth and rock for the express purpose of preventing the water from flowing through the east channel, which undertakings were unsuccessful and all obstructions were subsequently washed out, and the waters, as formerly, flowed down through the east channel.

The evidence further shows that the island opposite lots 1 and 14 contains an area of between forty and fifty acres; that the deed from Elder to McCain and from McCain to appellant contained only 13 acres and 127 rods more or less; that the starting point in the deed is positively located, to wit: Commencing at the witness stake on the right bank of the Salmon river, and on section lines between sections 6 and 7, in township No. 21 north, range No. 22 east, Boise meridian, etc. It therefore, clearly appears that when the appellant purchased this land abutting upon the east side of the river, that there was no intention upon the part of his predecessors to convey to him any portion of the island.

Under the decisions of the supreme court of the United States, the appellant by reason of becoming the purchaser of the lands abutting upon the river would not be entitled, by paying therefor, to additional land on the island. (Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490, 44 L. R. A., N. S., 107; Horne v. Smith, 159 U. S. 40, 15 Sup.

Opinion of the Court-Budge, J.

Ct. 988, 40 L. ed. 68; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. ed. 174.)

If he were entitled to the island or any portion of it, it would be upon the theory that a riparian owner upon a navigable stream takes to the thread of the main stream. That was the doctrine announced by a majority of this court in the cases of Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240, A. B. Moss & Bro. v. Ramey, 14 Ida. 598, 95 Pac. 513, and Lattig v. Scott, 17 Ida. 506, 107 Pac. 47. This latter case was appealed to the supreme court of the United States, which reversed the former decisions of this court, holding, among other things, that the error in omitting an island in a navigable stream from the field-notes and plat of the government did not divest the United States of title or interpose any obstacles to a subsequent survey of the island; that the disposal by the United States, after the admission of Idaho to statehood, of fractional subdivisions or islands in the navigable streams, carried with it no right to the bed of said rivers, save as the law of Idaho may have attached such a right to private riparian ownership on a navigable stream, and that islands in existence when Idaho became a state, did not pass to the state upon admission to statehood or come within the disposing influence of its laws, but remained the property of the United States, subject to disposal by it.

This decision was followed by this court in the case of A. B. Moss & Bro. v. Ramey, upon rehearing, 25 Ida. 1, 136 Pac. 608, the court holding in effect, that an island 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 was not included in the public land of the survey, but 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 of a subdivision meandering the channel of the stream.

Idaho, Vol. 26-48