Dissenting. — I am unable to concur in the conclusion reached by my associates. My views on some of the questions involved are quite fully set forth in my dissenting opinion in the ease of Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499. In the case at bar there is involved an island that is not the bed of the stream, containing about 138 acres of dry land that does not overflow and has been surveyed by the land department of the United States government. I think the correct doctrine is announced by the supreme court of the United States in Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. ed. 331. It is there held that the grants by Congress of portions of the public lands to settlers thereon, though bordering on or bounded by navigable waters, convey of their own force no title or right below high-water mark to the purchaser. Under the decisions of the supreme court of the United States, the title to a bed of a navigable stream remains in the United States until the territory in which the same is located is admitted as a state into the Union and then it goes to the state; but islands in navigable rivers are not thus transferred to. the state, but remain a part of the public domain of the United States and subject to survey and sale under the laws of Congress and the rules and regulations of the land department of the government.
In Kirwin v. Murphy, 189 U. S. 35, 23 Sup. Ct. 599, 47 L. ed. 698, the court, speaking through Chief Justice Fuller, said:
*534“The administration of the pnblie lands is vested in the land department, and its power in that regard cannot be divested by the fraudulent action of a subordinate officer, outside of his authority, and in violation of the statute. (Citing authorities.) The courts can neither correct nor make surveys. The power to do so is reposed in the political department of the government, and the land department, charged with the duty of surveying the public domain, must primarily determine what are public lands subject to survey and disposal under the public land laws. ’ ’
In the case at bar, that department has decided that said island was public land by ordering it surveyed.
In Niles v. Cedar Paint Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. ed. 171, where it was contended that there was wonderful magic in a meander line and entitled the purchaser to a fraction bordered by a meander line to all of the land between it and the thread of the stream, the court, speaking through Justice Brewer, said:
“There is no such magic in a meandered line. All that can be said of it is that it is an irregular line which bounds a body of land, and beyond that boundary there may be found forest or prairie, land or water, government or Indian reservation.”
In the case at bar, respondents claim title under patents from the government which describe certain fractional lots bordered by a meander line, which patents designate the acreage purchased from the government by the different paten-tees, and my associates hold that by reason of the purchase of said fractional lots, the purchasers are entitled to all of the land between the meander line and the thread of the stream in each respective grant, including said island containing more than 138 acres of land that does not overflow. I cannot consent to that conclusion.
In Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988, 40 L. ed. 68, a case very much like the one under consideration, Mr. Justice Brewer said:
“Although it was unsurveyed, it does not follow that a patent for the surveyed tract adjoining carries with it the *535land which, perhaps, ought to have been, but which was not in fact, surveyed. The patent conveys only the land which is surveyed, and when it is clear from the plat and the surveys that the tract surveyed terminated at a particular body of water, the patent carries no land beyond it.”
This island was public land of the United States, and the land department of the government was authorized to proceed whenever it may think best to do so, and survey it as a part of the public lands, which it has done.
In the case of Gowdy v. Gilbert, 19 Land Dee. 17, the Secretary of the Interior had before him the same question as is involved in this case, and it was held to the effect that a final decision of the department directing the survey of a tract of public land precludes the subsequent consideration of a claim thereto based on a riparian ownership. And in the consideration of the application of Kuhlman, 27 Land Dec. 68, for the survey of an island, it was held that an application for the survey of an island in a meandered and non-navigable river may be allowed where it is apparent that the said island was improperly omitted from the official survey. In that case the island embraced about 100 acres and the Secretary of the Interior held, as has been held in other cases, that such a large acreage was in itself evidence that the island had been improperly omitted from the original survey.
In the case of Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784, this court had under consideration the title to a small island and the court said:
‘ ‘ The government has never complained of any fraud having been practiced or any mistake having been made. It has never ordered a resurvey nor an additional survey and' has never been heard to complain of the claims of the plaintiff. ’ ’
In the case at bar, the government has ordered and made a survey of the island in dispute.
In Whitaker v. McBride, 197 U. S. 510, 25 Sup. Ct. 530, 49 L. ed. 857, the court had under consideration a question very much like the one at bar, and said:
“Our conclusion, therefore, is that by the law of Nebraska, as interpreted by its highest court, the riparian proprietors *536are the owners of the bed of a stream to the center of the channel; that the government, as original proprietor, has the right to survey and sell any lands, including islands in a river or other body of water; that if it omits to survey an island in a stream, and refuses, when its attention is called to the matter, to make any survey thereof, no citizen can overrule the action of the department, assume that the island ought to have been surveyed, and proceed to occupy it for the purpose of homestead or pre-emption entry. In such a case the rights of the riparian proprietors are to be preferred to the claims of the settler.”
There the supreme court of the United States directly holds that the government, as original proprietor, has the right to survey and sell any land including islands in the rivers or other bodies of water, and if it omits to survey an island in a stream and refuses to do so when its attention is called to the matter, then the rights of the riparian proprietor are to be preferred to the claims of the settler. But in the case at bar, when the government’s attention was called to the fact that this large island had not been surveyed, the department at once directed its survey, as it had1 a right to do. Neither the state nor the riparian owners took title to the beds of the stream nor to the islands, at least prior to the admission of Idaho as a state, and then not to the islands. (See Granger v. Swart, 1 Woolw. 88, Fed. Cas. No. 5685.)
In 1 Farnham on Waters, page 50, the author states the rule to be as follows:
“Islands formed in the stream before the admission of the state into the Union are subject to disposal by the federal government the same as other public lands. If they are formed after the admission of the state, the question whether they belong to the riparian owner, or are the property of the state, is governed by local law.” The record clearly shows that this island was in existence at the time Idaho was admitted into the Union of states and long before and was occupied as early as 1881.
The judgment ought to be reversed.
Petition for rehearing denied.