Gile v. Baseel

• Decision Date: 10 April 1905
• Citation: 80 P. 437,38 Wash. 212
• Parties: GILE v. BASEEL.
• Court: Washington Supreme Court

80 P. 437

38 Wash. 212

GILE v. BASEEL.

Supreme Court of Washington

April 10, 1905

Appeal from Superior Court, Pacific County; A. E. Rice, Judge.

Action by Albion L. Gile against S. J. Baseel. From a judgment in favor of plaintiff for less than the relief demanded, he appeals. Affirmed.

Welsh Bros., John H. Smith, and A. M. Smith, for appellant.

C. C Dalton and W. B. Stratton, for respondent.

FULLERTON J.

The appellant owns and operates, and for a number of years has owned and operated, two pound-net fish traps located in the waters of the Columbia river at a place therein known as 'Baker's Bay,' under licenses issued to him from time to time by the fish commissioner of the state of Washington; the licenses for the year 1903 being numbered 685 and 687, respectively. The traps, measured on a straight line between their nearest points, are between 1,750 feet and 1,800 feet apart, and, while they have the same general course, they do not face each other, as the one highest up the river is further towards the middle of the stream from the nearest shore line than is the other. In 1903 the respondent procured from the fish commissioner license No. 222, and located a fishing site and drove a pound-net trap between the appellant's traps on a course nearly parallel with the courses of such traps, and began fishing the same. The relative position of the three traps is roughly shown on the following diagram:

(Image Omitted)

After the respondent began fishing his trap, the appellant instituted this action, alleging that the trap was within the lateral passageway of its trap, and asked that the respondent be enjoined from fishing the trap, and that the same be removed as an unlawful interference with his fishing rights. The respondent answered, admitting that at the time of the commencement of the appellant's action a part of his trap was within the lateral passageway of one of appellant's traps, but that since that time he had remodeled his trap so that then no part of it was within such lateral passageway. The appellant, for reply, put in issue the allegation that the respondent's trap as remodeled was without the lateral passageway of his own traps, and pleaded affirmatively that the respondent's trap as remodeled was within the lateral passageway of a trap owned and operated by one Loomis, and was thus a public nuisance and especially injurious to him, because it stopped and caught fish which his traps would otherwise catch. On motion of respondent the affirmative matter of the reply was stricken. The case was thereupon tried on the issues remaining; the court finding that some 85 feet of the shore end of the respondent's trap was within the lateral passageway of the appellant's lower trap, and entered a decree enjoining the respondent from fishing that portion of the trap, but permitted him to maintain and operate the remainder. This appeal is from that part of the judgment adverse to the appellant's interests.

It is first assigned that the court erred in striking the affirmative matter from the reply, but we think the court was clearly right in so doing. Under the statute, it is true, a plaintiff may set out in his reply new matter not inconsistent with the complaint constituting a defense to new matter in the answer, but the reply here does not fall within the rule. The gravamen of the complaint was that the respondent had constructed his trap within the lateral passageway of the appellant's traps. To an answer thereto admitting that a part of the trap was originally within the lateral passage of one of the appellant's traps, but that it had been changed so as to remove it therefrom, it is not a reply, consistent with the complaint, to allege that the trap as changed constitutes a public nuisance specially injurious to the appellant. If the reply be true, the change gave rise to a new cause of action in favor of the appellant against the respondent; a cause of action based on a different state of facts and different principles of law from that stated in the complaint. In other words, the reply not only attempted to enlarge the scope of the original complaint, but to change the nature of the action, and this we have held is not...