Columbia River Packers' Ass'n v. McGowan

• Decision Date: 16 November 1914
• Docket Number: 2396.
• Citation: 219 F. 365
• Parties: COLUMBIA RIVER PACKERS' ASS'N v. McGOWAN et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

219 F. 365

COLUMBIA RIVER PACKERS' ASS'N v. McGOWAN et al. ^[1]

No. 2396.

United States Court of Appeals, Ninth Circuit.

November 16, 1914

In an amended complaint filed by the plaintiff on August 11, 1908 it is alleged that the United States is the owner in fee of a tract of land situated in the county of Pacific, in the state of Washington, being an island in the Columbia river, near the mouth thereof, generally known and described as 'Sand Island,' together with all the tide lands, water rights privileges, and easements surrounding and adjacent thereto and bordering thereon; that by proclamation of the President of the United States, issued on the 29th day of August, 1863 Sand Island was reserved from sale for military purposes, and the same has ever since been held and reserved by the United States; that on May 1, 1908, the Secretary of War of the United States leased to the plaintiff for a good and valuable consideration the portions of Sand Island designated on the maps of the government survey as 'sites Nos. 2 and 3,' for the term of three years, together with the tide lands, water rights, fishing rights, and riparian rights adjacent thereto, the portion of the island so leased being all the frontage, tide lands, riparian rights, water rights and privileges south, and the high lands north, of the low-water mark of the Columbia river on the south side of the river; that upon the execution and delivery of the lease from the United States the plaintiff immediately entered into the possession of the fishing sites; that Sand Island, including sites Nos. 2 and 3, consists of a sandy beach from the line of low water to the line of high water; that above the high water it is composed entirely of sand; that practically no vegetation grows thereon, and it is not susceptible to cultivation or agricultural uses; that the bed of the Columbia river below the low-water line is quite level, with a hard, sandy bottom, with a gradual slope for a short distance into deep water; that the main channel of the Columbia river washes the shore of the island, where the waters are navigated by all the ocean-going vessels, and all the vessels that carry the commerce of Washington and Oregon navigate such waters; that the fishing sites leased to the plaintiff are of great value for the right of fishery thereon, and the right to operate seines from the shore into the waters thereof, and to haul and land seines in front thereof, for the purpose of catching salmon during the salmon-fishing season of each year on the Columbia river, the fishing sites having been leased by the United States to the plaintiff for the sole purpose of use as a fishery; that on the 30th day of June, 1908, the plaintiff applied to the fish commissioner of the state of Washington, pursuant to the laws of that state, for licenses to operate three seines upon sites Nos. 2 and 3 on Sand Island; that thereupon the fish commissioner issued to the plaintiff three licenses, whereby the plaintiff became entitled to operate three seines in the waters of the Columbia river within the state of Washington for the period of one year thereafter; that on July 2, 1908, while the lease from the United States to the plaintiff was in full force and effect, as well as the licenses issued by the fish commissioner of the state of Washington to the plaintiff, the plaintiff entered upon the leased premises, together with its three seines and seining outfit, for the purpose of catching salmon; that in order to operate seines in front of sites 2 and 3 it is necessary that the waters and channel of the river be free and unobstructed, for the reason that it is necessary to lay each seine out into the waters of the river for a distance of 200 or 300 fathoms (the length of each seine), and to permit the seine to drift with the tide and current, and then to haul the seine in onto the shore; that the plaintiff was proceeding to operate its seines under its licenses, when the defendants, without the consent of the plaintiff, placed in the channel of the navigable waters of the Columbia river, directly in front of sites 2 and 3, certain obstructions to the navigation of the waters of the river, consisting of large stones, to which were attached wire cables and chains, and large timbers for a float or buoy; that the obstructions were seven in number, and were placed in the waters of the river about 50 to 100 feet from the shore and about 200 or 300 feet apart; that the stones and anchors and weights were large and of great weight, and were so placed that the plaintiff could not operate its seines in the waters of the river, and could not land its seines on the shores of the island; that the obstructions excluded the public generally from operating either gill nets, drift nets, or seines in the waters of the Columbia river, and prevented the free ingress and egress to and from said premises from and to the navigable waters of the river.

It is further alleged in the amended complaint that the plaintiff removed all of the obstructions, and was proceeding to operate its seines in the waters in front of its premises and on the shores thereof, when the defendants, on the 4th day of July, 1908, against the plaintiff's consent placed six other obstructions in front of the premises in practically the same position as those which had been removed by the plaintiff, the last-mentioned obstructions being of the identical nature of those which had been removed by the plaintiff; that these latter obstructions were placed in such position as to absolutely prevent the plaintiff from operating its seines and landing the same on the shores of Sand Island; that the obstructions were in the navigable waters of the Columbia river, and were so placed as to prevent free ingress to and egress from the premises of the plaintiff; that the plaintiff had expended for the purchase of seines and appliances necessary to conduct seining operations on its fishing sites about $15,000, and had employed a large number of men, and engaged a large number of horses, necessitating an expenditure of $200 per day; that in addition the plaintiff was required to pay as rental for the fishing sites the sum of $5,175 per annum; that the salmon in the Columbia river are of great value, and ascend the river only at certain intervals during each year; that at the time of the filing of the bill they were in the waters of the Columbia river in great numbers.

It is further alleged that the obstructions were placed in the waters of the Columbia river without any authority from the officers of the government of the United States, and in violation of the laws of the United States and of the state of Washington; that the obstructions were not for the purpose of trade or commerce, or for any particular use, but were placed in the waters of the river for the purpose of harassing and annoying the plaintiff and preventing it from operating its seines; that they were not placed in the river in good faith, and each was an obstruction to the navigation of the river.

It was alleged that the trespass of the defendants was continuous, and that the defendants would, unless restrained by the court, continue daily to place obstructions to the operation of plaintiff's seines in the waters of the river in front of the plaintiff's premises, and prevent plaintiff from having ingress to and egress from its premises. It was further alleged that, if the defendants were permitted to maintain the obstructions, plaintiff would not be able to use its fishing grounds or employ its seines, and would by reason thereof be irreparably damaged.

The plaintiff prayed for a preliminary injunction, enjoining and restraining the defendants, and each of them, and their agents and employes, from placing in any of the waters of the Columbia river, in front of or adjacent to sites Nos. 2 and 3 on Sand Island, or from maintaining in front of those premises in the waters of the river, any obstruction whatever, and particularly the obstructions maintained at the time of the filing of the bill, and from any interference with the free and uninterrupted ingress to and egress from such premises; that all obstructions placed in such waters in front of the premises of the plaintiff be abated and the defendants be required to remove the same; that upon their failure to remove the same the plaintiff be entitled to do so at the cost of the defendants.

On July 7, 1908, a temporary injunction and restraining order was issued by the court below, pursuant to the prayer of the bill, enjoining and restraining the defendants, and each of them, and their servants and employes, from in any manner interfering with the free ingress to and egress from the fishing sites of the plaintiff on Sand Island, and from placing or maintaining any obstruction, anchor, killock, timber, log, or appliance whatever that would interfere with the use of a seine floating upon the navigable waters of the Columbia river in front of or adjacent to sites Nos. 2 and 3 on Sand Island, in the county of Pacific, in the state of Washington.

Answers and cross-bills were filed by the defendants on August 28 1908. The answers put in issue the material allegations of the bill. It was admitted, however, that Sand Island, together with the fishing sites appurtenant thereto, were in Pacific county, state of Washington, and within the jurisdiction of the court below. It appeared from the answers that on the 2d day of July, 1908, the defendants were engaged in the operation of set nets in the waters of the Columbia river on the south side of Sand Island, the set nets being operated for the purpose of catching salmon under licenses issued by the fish commissioner of the state of Washington; that each of the set nets was situated in front of Sand Island...