Bowles v. Kinney, 172.

• Decision Date: 01 August 1923
• Docket Number: 172.
• Citation: 292 F. 419
• Court: U.S. District Court — Western District of Washington
• Parties: BOWLES et al. v. KINNEY, Supervisor of Game & Game Fish for the State of Washington, et al.

292 F. 419

BOWLES et al. v. KINNEY, Supervisor of Game & Game Fish for the State of Washington, et al.

No. 172.

United States District Court, W.D. Washington, Northern Division.

August 1, 1923

The complainants allege: That they are citizens of the state of Oregon and that they are owners of land in the state of Washington through which the Washougal river flows. That the said river, flowing through each parcel of land set out, is not navigable, and is a rough mountain stream, the channel of which is filled with rocks and boulders, the waters in many places being less than one foot in depth across the channel and that it cannot be used for commerce. That canoes or boats of any kind cannot navigate said river where it flows upon and over plaintiffs' land. That said river is a natural habitat of trout and game fish, and the waters of said stream contain large numbers of said fish. That the plaintiffs use the stream throughout its course through said lands as a common fishing preserve for each of the plaintiffs. That the lands are of nominal value for agricultural or any other purpose than fishing in said stream, but that the fishing privilege is worth in excess of $10,000, and that 'the matter in controversy exceeds, exclusive of costs, the sum and value of $3,000. ' It is alleged: That the defendants Huffard, chairman of the game commission of Skamania county and Alex McNagan and John Wachter are citizens of Skamania county, and with Huffard constitute the Skamania county game commission. That Gilmore is a citizen of the state of Washington and game warden of Skamania county. That the defendants Pio are each a citizen of the state of Washington and resident of Clark county. That numerous persons have frequently come into and upon the premises of the plaintiffs without right or authority, over the protest of the plaintiffs, and have taken fish from the said Washougal river on the premises of the plaintiffs in defiance of the rights and wishes of the plaintiffs. That because of the area and character of the land of the plaintiffs it is impossible to patrol all of the said premises for the purpose of catching and identifying parties entering upon the same, and preserve the evidence of each of such trespasses. 'The damage done by each separate trespass of each person who goes to and upon said premises and takes fish from said Washougal river is small, and the expense of attempting to recover the amount thereof is so great that such measure would afford no relief to plaintiffs; also to attempt to prosecute actions at law against such persons who trespass upon said lands and fishes in said water of the said Washougal river would require a multiplicity of suits.'

April 1922, plaintiffs, to prevent trespasses on said lands and taking fish from said river upon lands of the plaintiffs appealed to the defendants game commission of Skamania county to assist in preserving said fish in said Washougal river, and protect the plaintiffs' rights in said stream on said lands, but that members of said game commission, 'conspiring with the said defendant J. W. Kinney, as state supervisor of game and game fish of the state of Washington, and with numerous persons desiring to trespass upon plaintiffs' said land and take fish from the said Washougal river upon said land, encouraged and urged said persons, whose names to the plaintiffs are unknown, to take fish from the said waters of the said Washougal river, and as a result of said concerted action of said supervisor of game and game fish, and said members of the Skamania county game commission, many persons did take fish from the waters of said river, and did overawe, threaten bodily injury to, and intimidate the watchmen whom plaintiffs maintained to warn persons from said premises, and did frighten said watchmen from the premises. That in pursuance of such conspiracy the defendants Skamania game commission caused to be published in a newspaper of general circulation at Washougal, Wash., the following notice:

'To Whom It may Concern: Certain parties owning land along the Washougal river in Skamania county have men in their employ to patrol the river, and keep people from fishing along their holding for several miles, and are exceeding their authority in regard to said stream. Through Mr. J. W. Kinney, State Supervisor of Game and Game Fish, I am instructed to notify all sportsmen their interests will be protected in regard to fishing on the Washougal river or any other stream that is navigable. * * * '

That plaintiffs addressed a letter to the department of game and fisheries of the state of Washington with relation to the rights of said plaintiffs, and in response thereto J. W Kinney, state supervisor of game and game fish, pretending to act in accordance with the law of Washington of 1915 (section 5925, Rem. Comp. Stat.), threatened to close the Washougal river where the same flows through and over the lands of the plaintiffs, if the plaintiffs would not give to the public the right of fishing thereon, and threatened to deny the plaintiffs the enjoyment of said lands. That the defendant Gilmore, pretending to act as game warden for Skamania county, wrongfully and willfully tore down and destroyed the printed notices which plaintiffs had posted on the said premises, warning the public not to trespass thereon, and threatened to tear down all notices plaintiffs might post in the future, and threatened to arrest said watchmen, and threatened to put them in jail if they warned any persons not to fish...