Gerhard v. Worrell

• Decision Date: 10 January 1899
• Citation: 20 Wash. 492,55 P. 625
• Court: Washington Supreme Court
• Parties: GERHARD v. WORRELL et al.

55 P. 625

20 Wash. 492

GERHARD v. WORRELL et al.

Supreme Court of Washington

January 10, 1899

Appeal from superior court, Whatcom county; H. E. Hadley, Judge.

Action by George Gerhard against Harry Worrell and others for injunction. There was a decree for plaintiff, and defendants appeal. Affirmed.

Kerr & McCord, for appellants.

Fairchild & Bruce and Dorr & Hadley, for respondent.

GORDON J.

Defendants have appealed from a decree of the superior court of Whatcom county enjoining them from interfering with plaintiff in the use of a fishing location in the waters of Puget Sound. The correctness of the findings of fact is not seriously questioned, a portion only of a single finding being urged as unsupported by the evidence. That portion we consider quite immaterial to a proper disposition of the case, and, inasmuch as the error in the finding is not discussed in the brief, we would be justified in refusing to consider it, even if it were regarded material. However, we think the evidence sustains the finding. The decree must be affirmed for numerous reasons.

It appears from the record that the plaintiff bases his right upon a location made on the 31st day of December, 1897, under pound-net license No. 1,663, issued to him by the fish commissioner of the state. The location was made by driving piles, and placing the license number thereon, as required by law. The defendants claim under the set-net license issued to defendant Worrell in June, 1897, under which, it is claimed Worrell made a location of the premises in question in the month of November, 1897. Thereafter Worrell assigned his license and location to appellant Steele, who had theretofore, viz. in March, 1897, received from the fish commissioner pound-net fishing license No. 347. On April 3 1898, Steele removed the set-net numbers from the location and substituted for the set-net numbers his pound-net license No. 347. This latter license, as a matter of fact, had expired prior to such substitution, although Steele appears not to have been aware of that fact at the time of making the change. Subsequently, to wit, on April 18, 1898, Steele procured a new pound-net license, No. 533, in renewal of license No. 347, and thereupon renewed his location of the premises by driving more piles, and placing the number of license No. 533 thereon. So that appellants' claim is based upon set-net license from November, 1897, to April 3, 1898, pound-net license No. 347 from April 3, 1898, to April 18, 1898, and pound-net license No. 533 from April 18, 1898, down to the time of the trial. We think that under the provisions of the statute (section 7 p. 218, Laws 1897) a location can be reserved or protected for but two devices or appliances, viz. 'traps or pound nets,' and that the reservation of a location under a set-net license is not authorized by the statute. That much of section 7 as applies to the present case is as follows 'Any person or corporation, after having obtained a license as provided for in this act, shall indicate locations for traps or pound nets made under such license, by driving at least three substantial piles thereon. * * *' The same section fixes the license fee to be paid for each pound net (except on the Columbia river or on Willapa harbor) at $25, and each set net at $1. The case of Walker v. Stone, 17 Wash. 578, 50 P. 488, arose under the statute of 1893. That case related to rights upon the Columbia river. The act of 1893, which governed that case, distinctly named the set net as a fixed appliance. But section 7, supra, of the present act, which is the only authority at present to be found in the law authorizing the reservation of a fishing location in the waters of Puget Sound, limits the right to 'locations for traps or pound nets.' It seems clear, therefore, that the appellants could not, under a set-net license, appropriate a location for the operation of such net. In the absence of any statute upon the subject, no exclusive right to any portion of the fishing district could be appropriated by any one, the right being common to all; and the statute which authorizes reservations to be made does not extend the right to the holder of a set-net license. This view is further strengthened by a still further reference to the respective acts of 1893 and 1897 upon the subject. Section 5 of the act of 1897 is a re-...