Opinion of the Court-Sullivan, C. J. water, to a municipal corporation. (Farnum v. Johnson, 62 Wis. 620, 22 N. W. 751; Coffin v. Portland, 27 Fed. 412.) "Among the muniments of title in fee of municipal corporations, are legislative grants in charter or other acts, and a municipal corporation may acquire title by prescription or adverse possession." (28 Cyc. 607.) The right granted by a municipality to use its streets is called a franchise, but it is a franchise in the secondary rather than the primary sense of the word. Indeed, it seems that it is more in the nature of a license. The city cannot surrender its governmental or police powers. (Elliott on Roads and Streets, 3d ed., sec. 1050.) We therefore contend that the vacation or abandonment of a street to the use of the railway company was a license only. SULLIVAN, C. J.-This appeal involves two actions brought by the appellant, the Northern Pacific Railway Company (which will, for convenience, hereafter be called the railway company), one against D. C. Hirzel and wife, and the other against Casper Neukam. The action against Hirzel is to quiet title against Hirzel and wife to land between the banks of Snake river and the center of the main stream, including an unsurveyed island occupied by respondent Hirzel at the confluence of the Clearwater and Snake rivers at the city of Lewiston, and may for convenience be referred to as the Snake river The suit against Neukam is to quiet title to land between the bank of Clearwater river and the center of the stream at the foot and west of Fifth street and north of Block 6 and from A street north of said block in said city of Lewiston, and may be referred to as the Clearwater case. case. John B. Morris, as mayor-trustee of the city of Lewiston, filed a complaint in intervention in each case, whereby he claimed for the city, as mayor-trustee, the land claimed by the plaintiff and prayed that title be quieted in him as trustee for the city. Hirzel filed his answer and Neukam defaulted, and thereafter made a motion to open the default, which was de Opinion of the Court-Sullivan, C. J. nied, and his answer, filed after default was entered, was stricken from the files and he did not thereafter answer. Upon the issues made, judgment and decree in each case was entered in favor of the mayor-trustee and the title to the land involved quieted in him. The plaintiff, the railway company, appealed from the judgment entered in both of said cases. Neither of the defendants, Hirzel or Neukam, appealed, and the controversy in this court is now between the railway company and the mayor-trustee alone. It appears that the railway company claims the title of the state as well as title under the patents from the United States and by vacation of streets from the city; the mayor-trustee in both cases claims title by virtue of a town-site patent, by adverse possession, by deed, by relinquishments, by grant from the state and perhaps through some other sources. Numerous errors are assigned, a number of which involve the sufficiency of the evidence to support the findings of the court, and some involve questions of law wherein it is claimed the court erred in the trial of the case, and a reversal of the judgment is demanded. In order that the issues involved in the two cases under consideration may be more readily understood, a brief history of the city of Lewiston and of the title to the land involved will here be given. The land upon which the city is situated is at the junction of the Clearwater and Snake rivers, Snake river being on the westerly side of the city and the Clearwater on the northerly side thereof. There was some settlement made there as early as 1861. When first settled, it was a part of the territory of Washington and the city of Lewiston was incorporated as a city by a legislative act of that territory early in 1863. Laws Wash. 1863, p. 431.) In that act the western boundary of the city was fixed as the middle channel of the Snake river and the northern boundary was the middle channel of Clearwater river. Idaho was organized as a territory on March 3d, 1863, and in 1907, by legislative act, the Lewiston (See Opinion of the Court-Sullivan, C. J. city boundary was extended across and beyond the Clearwater river. (Sess. L. 1907, p. 349.) When said city was first settled it was a part of the Nez Perce Indian Reservation. It appears that the Indians executed an agreement in writing with one Robert Newell on the 9th day of June, 1861, which agreement was signed by the Chiefs of the Nez Perce tribe, granting to Newell a tract of land bordering on the easterly bank of Snake river within the present limits of the city of Lewiston, consisting of 5.05 acres. The treaty between the government and the Indians extinguishing their title to the land on which the city is located was concluded' on June 9, 1863, and was ratified April 17, 1867, and thereafter the survey of the Newell tract was made on September 28th and 29th, 1868. Said tract is described by metes and bounds, being 250 yards on the easterly side, 100 yards at the northerly end and 90.75 yards on the southerly end, the westerly line bordering on Snake river. It is the contention of the intervenors in the Hirzel case that the westerly side line of said Newell grant limits the ownership of the lands within the exterior boundary lines of said grant and that the ownership does not extend to the thread of said river. The land included in said grant is owned by the appellant railway company. Patent from the government was not issued to Newell until nearly twelve years after the Indians had executed said instrument in writing to Newell and nearly ten years after said treaty was entered into. The survey of the Newell grant was made prior to the survey by the government of the other lands involved in this case, and at the time the Newell grant was surveyed the government had not run the meander line of Snake river. It appears that the government ran said meander line September 26, 1870, and that on September 3, 1873, the government made a survey of the legal subdivisions now included in said city, and on June 1, 1874, such government survey was approved. In August, 1874, E. B. True made a survey and plat of the Lewiston town site, and on April 10, 1875, patent for the Lewiston town site was issued by the government to the mayor Idaho, Vol. 29-29 Opinion of the Court-Sullivan, C. J. trustee of said town. The defendant Hirzel was a squatter on a sandbar in Snake river immediately west of the Newell tract and of Block 2 of said city as surveyed by said True. The land claimed by Hirzel at ordinary high water is an island; in very high water it is entirely submerged, and in very low water it is a peninsula. The government has refused to make a survey of this peninsula or island. The land bordering on the Clearwater, squatted on by defendant Neukam, is entirely submerged during high water, except perhaps that portion on which buildings are situated, and they are in what was platted by True as A street of said city. However, since judgment and decree was entered against Hirzel and Neukam and they have not appealed, their rights are not involved in this controversy between the appellant and the mayor-trustee. We herewith insert a copy of a portion of the official plat of True's survey of said town site showing the land in contro Opinion of the Court-Sullivan, C. J. The following is a plat of the government survey of a part of Sec. 36, Tp. 36 N., R. 6 W., B. M. MAP OF PART OF FRACTIONAL TOWNSHIP 36 NORTH OF RANGE 6 WEST, BOISE MERIDIAN. SCALE: 1" 40 CHAINS. A part of the town site of Lewiston is located on said sec. 36. Surveyor True surveyed and platted only a part of the land patented to the mayor-trustee, and the patent includes 561.31 acres for which the mayor-trustee paid $701.5114, that being at the rate of $1.25 per acre. The said Newell grant of 5.05 acres is in Lot 2 of said section, as shown by the government survey. Said lot contains 43.90 acres including said Newell grant. Deducting the 5.05 acres included in the Newell grant from the 43.90 acres contained in said lot, leaves 38.85 acres in said lot, for which the said mayor-trustee paid at the rate of $1.25 per acre. It will be observed from the government plat that said Snake river borders on the westerly side of said Lot 2, and the Clearwater river borders it on the north. While there is some contention as to whether the Newell grant bor |