In Error to the Circuit Court of the United States for the District of Idaho.

Action by the Hope Dumber Manufacturing Company against the Donovan-Hopka-Ninneman Company, Limited, and' others. Judgment for plaintiff, and defendants bring error.

The defendant in error, a corporation of the state of Montana, was the plaintiff in the court below. The individual plaintiffs in error were citizens of the state of Idaho, of which state the Donovan-Hopka-Ninneman Company, Limited, was a corporation and also a citizen. The complaint in the action contained two counts, both of which set forth the jurisdictional facts and that the plaintiff had complied with the laws of the state of Idaho authorizing it to own and hold property and to carry on and conduct business in that state, and the first count of which also alleged: That the plaintiff ever since January 2, 1908, has been the owner and entitled to the possession and exclusive use and enjoyment “of the following described real estate situated in the county of Bonner, state of Idaho, and particularly described as follows, to wit: All the riparian and water rights and privileges in front of and appurtenant to lots five (5) and six (6), in section one (1), township fifty-six (56) north of range one (1) east of the Boise meridian, and all those portions of said lots five (5) and six (6), aforesaid, lying below the average of high-water mark on said lots, the said lots five and six forming a portion of the east shore of Lake Pend d’Oreille, in the said county of Bonner, state of Idaho, which said Lake Pend d’Oreille is now, and at all times has been a fresh-water navigable lake. That the said riparian rights and privileges so owned by this plaintiff include the right and privilege to exclusively use and enjoy the lands bordering on said lake below the higb-water mark of said lake, and extending out into the said lake so far as the same may without interfering with or obstructing the free navigation of said lake by the public, and include the right to use the waters of said lake in front of said land for all purposes, and in such manner as a riparian proprietor has the right to use the same. That the said high-water mark to which the rights of this plaintiff in front of said premises extended during said times, and now extend, is the average of the high-water line during the five years prior and next preceding the 25th day of September, 1901.”

It is next alleged in the first count of the complaint that on or about the 3d day of February, 1909, while the plaintiff was so the owner, and in, and entitled to the exclusive possession and enjoyment of the properties, rights, and privileges above described, the defendants to the action “entered upon the said waters and lands lying beneath the said lake and below said high-water mark, in front of said lots 5 and 6, and wrongfully and unlawfully ejected and ousted plaintiff therefrom,” and proceeded to erect a mill, booms, piers, tramways, and other things thereon, and have ever since wrongfully withheld •the possession of the premises from the plaintiff, to its damage in the sum of $10,000.

The prayer of the first count is for the recovery of the possession of the premises and rights described, and for the amount of damages alleged and costs.

In the second count the plaintiff made substantially the same allegations in respect to its ownership of the property rights and privileges described in the first count, and further alleged that on or about February 3, 1909, the defendants wrongfully and against the will of the plaintiff “entered upon the said waters of Pend d’Oreille Lake lying in front of the said lots 5 and 0 above described, and being the waters upon which plaintiff owned and possessed the rights above named, and upon the lands lying below Hie high-water mark, and the waters in front of said land, and proceeded to use the same, and to drive piling inio the said waters and land beneath the same, and to construct log booms thereon, and that ever since said last-named date the said defendants have continued to unlawfully enter and trespass upon the said lands and waters, and upon plaintiff's rights therein, in the manner aforesaid,” to the plaintiff’s damage in the sum of $10,000, for which the plaintiff prayed judgment with its costs.

After the overruling of the defendants’ demurrer to the complaint, they tiled an answer thereto, by which they put in issue the plaintiff’s alleged ownership of the property and rights in question, and their ejectment of the plaintiff therefrom, or any wrongful or unlawful entry, although they admit in their answer that they did enter upon and use the property in question. By their answer they also set up as affirmative defenses that the deed under which the plaintiff claims title was and is void, and that the plaintiff had no easement or other right in or to any part of the said lots 5 and 6. The answer furl her alleged that the defendants’ predecessors in interest purchased on the 14Ui day of April, 1902, from one F. 1!. Carter, the then owner of lots 5 and 0 referred to in the complaint, that portion thereof described as follows, to wit; “Thirty-three acres situated on the southwest side of the Northern Pacific ltailroad Company's right of way and bounded on the southwest by Lake Pend d’Oreille. being all ihe lake shore and lake front of said lots bordering upon or being in said Lake Pend d'Oreille.”

The answer next alleged that the defendants’ predecessors in interest, with the knowledge, consent, and acquiescence of the plaintiff and its predecessors in interest, erected a sawmill of large value upon a portion of the said lots so purchased by them and a boom in front of the defendants’ said property, which boom it was necessary to fasten to the shore, and which boom is being maintained and operated by the defendants with the consent of the "War Department of the United States; that'1 lie plaintiff and its predecessors in interest had full knowledge of the construction and maintenance of both mill and boom and made no objection thereto, but, on the contrary, acquiesced therein.

The plaintiff put in issne the affirmative allegations of the answer, and the cause came on for trial before the court with a jury. During the examination of the witness Donovan, the defendant was permitted by the court to amend its answer by sotting up as a further defense to the .action the following:

“That at all the times and dates mentioned in the complaint and answer herein the state of Idaho was the owner of all the water and water rights in the state of Idaho, save and except as and when said water and water rights or portions thereof were or are appropriated and actually used for a beneficial purpose.

“That at all the times and dates mentioned in the complaint and answer herein defendant corporation and its predecessors in interest were, and said corporation now is, the owner of all that portion of lots {5 and 6 mentioned and described in the pleadings herein, bordering on Lake Pend d’Oreille and between the average or ordinary high-water mark and the right of way of, the Northern Pacific Railroad Company (which right of way is a considerable distance from the shore of said lake) and the defendant corporation now is the owner, and the predecessors of defendant corporation have at all times been the owners, of all of said lots below said average or ordinary high-water mark, including the bed of said lake and all of said lots under water at any time, and the defendant corporation and its predecessors in interest are the only persons having any rights to the use of the soil of said lots or of the bed of the lake, or any part or portion of said lots extending into said lake, for the purpose of having or maintaining a log or other boom, piling, sawmill, or any other matter or thing.

“That the predecessors in interest of defendant corporation made use of the water of said lake in front of and over a portion 'of said lots for booming and floating logs in the year 1903. That defendant corporation, in the latter part of the year 1907, commenced the construction of a sawmill on a portion of said lot 6, and completed said sawmill in the early part of the year 1908, and floated large quantities of logs on and in the water of said lake and in front of and over portions of said lots, and ran and operated said mill from the date of its completion until it burned, during the night of August 8, 1908. That during the years 1908, 1909, and 1910, and the latter part of the year 1907, defendant corporation maintained log booms in the water covering portions of said lots. That in the year 1908 defendant corporation put piling in said water and near the ordinary low-water mark of and on said lots 5 and 6, and around said'mill. That as soon as defendant corporation was financially able to so do. it constructed a new mill on the site of the first mill, and put piling in said lake, and on said lots some distance from the shore, for boom purposes, and to facilitate the operation of said mill. That.no other person or corporation has ever used the water or appropriated the water of said lake within the area between the outer piling and the shore of or on said lots 5 and 0, for the purpose, or any purpose, to which defendant corporation has used said water. That the water or area last above mentioned is not in excess of that reasonably necessary for the operation of said mill, or the uses to which defendant corporation has put said water.

“That defendant corporation intended to and has appropriated the water, water rights, and right to use the water of said lake on or in front of portions of said lots 5 and 6 out to and beyond said outer piling, and has put said water and water area to a beneficial and valuable use.

“That in the construction of said mills and the booms, pilings, and improvements, and appropriating and putting said water to a beneficial use, defendant corporation has expended about $20,000.”

Upon the conclusion of the evidence in the case the trial court instructed the jury to return a verdict for the plaintiff upon both causes of action sot out in the complaint, but submitted to it the question as to the amount of damages sustained by the iflaintiff. The jury returned a verdict for the plaintiff as directed and fixed the amount of damages at the nominal sum of $1, in accordance with which verdict judgment was entered.