A.B. Moss & Bro. v. Ramey
| Citation | 136 P. 608,25 Idaho 1 |
| Court | United States State Supreme Court of Idaho |
| Decision Date | 17 May 1913 |
| Parties | A. B. MOSS & BRO., Respondents, v. A. H. RAMEY, Appellant |
RIPARIAN OWNERSHIP-TITLE TO ISLANDS-LAW OF THE CASE.
1. Under the holding of the supreme court of the United States an island in Snake river of dry land 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 which was not included in the public land survey and 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 or subdivisions meandering the channel of the stream.
2. The general rule of res adjudicata or law of the case as recognized and announced by this court in Hall v. Blackman, 9 Idaho 555, 75 P. 608, does not apply in a case where a federal question is involved that may be reviewed on writ of error to the supreme court of the United States, and where subsequent to the decision by the state court the United States supreme court has held to a different rule and reversed the ruling of the state court prior to the hearing on a second appeal in another case involving the same question of law.
3. The rule of law heretofore adopted by the supreme court of this state is reaffirmed to the effect that a riparian owner on a meandered stream or body of water, whether navigable or non-navigable, takes title to the center or thread of the stream.
APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.
Suit to quiet title. Judgment for plaintiffs. Defendant appealed. Reversed.
Reversed and remanded. Costs awarded in favor of appellant.
R. B Scatterday and Karl Paine, for Appellant.
Whether Snake river is navigable or non-navigable, plaintiffs cannot prevail, for in any event the west line of the respondent's premises does not, under the United States patents thereto, extend west of the east channel of Snake river. (Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988 40 L.Ed. 68; Bates v. Illinois Central R. R. Co., 1 Black, 204, 17 L.Ed. 158; Whitney v. Detroit Lumber Co., 78 Wis. 240, 47 N.W. 425; Johnson v. Hurst, 10 Idaho 308, 77 P. 784; Niles v. Cedar Point Club, 175 U.S. 300, 20 S.Ct. 124, 44 L.Ed. 174; Glenn v. Jeffrey, 75 Iowa 20, 39 N.W. 160; Bissell v. Fletcher, 19 Neb. 725, 28 N.W. 303; Fulton v. Frandolig, 63 Tex. 330; Lammers v. Nissen, 4 Neb. 245.)
Plaintiffs must recover, if at all, upon the strength of their own title, not upon the weakness of the defendant's. .)
Before Ramey is required to defend his claim to the island, Moss & Brother must establish their right thereto, and in so doing they must necessarily present an issue which involves a federal question. (Nashville, C. & St. L. R. Co. v. Taylor, 86 F. 175; Simkins, Federal Suit in Equity, 2d ed., p. 134.)
Richards & Haga and McKeen F. Morrow, for Respondents.
The findings of the trial court that the patents from the government conveyed to the patentees the legal title to the land in dispute will not be reviewed upon this appeal, for such findings are in exact accordance with the decision of this court on the former appeal in this case (14 Idaho 598, 95 P. 513). (Kimpton v. Jubilee Min. Co., 22 Mont. 108, 55 P. 918.)
Where a question necessary for the determination of a case has been presented to and decided by an appellate court, such decision becomes the law of the case in all subsequent proceedings in the same action, and is a final adjudication, from the consequences of which the court cannot depart nor the parties relieve themselves.
The state supreme court is only authorized to review the judgment of the trial court for errors committed there, and the United States supreme court can do no more, and, if the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive so far as the right of review by the United States supreme court is concerned. (Ex parte Spies, 123 U.S. 131, 8 S.Ct. 21, 31 L.Ed. 80; Chappell v. Bradshaw, 128 U.S. 132, 9 S.Ct. 40, 32 L.Ed. 369; Cincinnati, New Orleans & Texas P. Ry. Co. v. Slade, 216 U.S. 78, 20 S.Ct. 230, 54 L.Ed. 390; Baldwin v. Kansas, 129 U.S. 52, 9 S.Ct. 193, 32 L.Ed. 640; Jacobi v. Alabama, 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106; Erie R. R. v. Purdy, 185 U.S. 148, 22 S.Ct. 605, 46 L.Ed. 847; Layton v. Missouri, 187 U.S. 356, 23 S.Ct. 137, 47 L.Ed. 214.)
No federal question was presented to the trial court on the second trial in this case, because appellant admitted by his amended answer that title passed to the predecessors of respondents under their patents. (2 Ency. L. & P. 173; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81; Aikens v. Frank, 21 Mont. 192, 53 P. 538.)
This court will not pass upon and determine questions which the record does not show were passed upon and determined by the trial court. (Marysville M. Co. v. Home Fire Ins. Co., 21 Idaho 377, 121 P. 1026.)
This case is here on appeal for the second time. (See A. B. Moss & Bro. v. A. H. Ramey, 14 Idaho 598, 95 P. 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 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 S.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 Idaho 506, 107 P. 47, and is in some measure contrary to the views entertained and expressed by the court in Johnson v. Johnson, 14 Idaho 561, 95 P. 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 case as heretofore recognized by this court in Hall v. Blackman, 9 Idaho 555, 75 P. 608, and Hunter v. Porter, 10 Idaho 86, 77 P. 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 case like this. Where this court is not the court of final resort in the determination of the question...
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