When this case was in Department the opinion hereto attached was prepared by Commissioner Smith. Upon full consideration of the case, we are satisfied with that opinion and the conclusion then reached; and for the reasons given therein the judgment and order must be reversed. It may be observed, further, that this case differs materially from the ordinary case where a stream runs through a valley between rather low banks which usually, but not always, contain its waters, and where the land adjacent to the banks differs in character from the bed of the stream, and is composed of arable and fertile land. In such a case the land which is sometimes overflowed by the waters from the stream does not have the characteristics of a river-bed, and presents a condition very dissimilar to that of the land between what are called the "high banks" in the case at bar. The latter is similar in *Page 285 its general character to the part of the river-bed lying within what are called the "low banks."
The judgment and order denying a new trial are reversed.
Temple, J., Harrison, J., and Garoutte, J., concurred.