Gorman & Co. v. Andrews

• Decision Date: 22 July 1910
• Citation: 59 Wash. 394,109 P. 1033
• Court: Washington Supreme Court
• Parties: GORMAN & CO. v. ANDREWS et al.

109 P. 1033

59 Wash. 394

GORMAN & CO. v. ANDREWS et al.

Supreme Court of Washington

July 22, 1910

Department 1. Appeal from Superior Court, San Juan County; Geo. A Joiner, Judge.

Suit by Gorman & Co. against W. M. Andrews and another. From a decree for defendants, complainant appealed. Reversed, with directions to enter decree for complainant.

Kerr &amp McCord and Dorr & Hadley, for appellant.

A. W Buddress, for respondents.

CHADWICK J.

Plaintiff is the successor in interest of the Washington Packing Company, the original locator of a trap site for fishing in San Juan county. The Washington Packing Company fished the ground for the years 1906 and 1907, but although its license was renewed on April 1, 1908, it made no improvements, nor did it fish the ground during that year. On December 26 1908, the Washington Company sold its possessory rights and assigned its license to plaintiff, which caused a resurvey of the premises to be made and refiled a location map made from the actual survey. On April 1, 1909, plaintiff's annual pound-net fishing license was renewed by the fish commissioner of the state. Some time in December, 1908, defendant W. M. Andrews located the ground formerly occupied by the Washington Packing Company as a fish-trap site, taking out a license therefor, which, by its terms and under the statute, would expire on the 31st day of March, 1909. This license was renewed April 1, 1909. In so far as surveys and filing maps are concerned, we believe that the defendant Andrews sufficiently complied with the law, although his acts in that regard are challenged by plaintiff. It will thus be seen that there are two locations and two licenses out for the same ground. On March 28th, defendant Sims, the lessee of defendant Andrews, commenced the construction of a fish trap on the disputed ground, and before the 1st day of May, 1909, had constructed a pound-net fish trap at considerable expense. During the month of June, 1909, plaintiff constructed a pound net or fish trap on the disputed ground, and occupied the same during the balance of the fishing season. This action was begun by plaintiff to enjoin defendants from continuing their operations in the way of fishing or constructing or maintaining any fishing appliances or traps upon the disputed ground, and for general relief. The court found that the Washington Packing Company had abandoned the ground, and its rights therein by reason of nonuser during the 'fishing season' of the year 1908, and that it had no transferable interest, and that the appliances of plaintiff constituted an unlawful obstruction of defendants' rights in the disputed grounds; and enjoined plaintiff from 'in any manner maintaining or operating a fish trap on said fishing location.' From this decree plaintiff has appealed.

The court found 'that during all the times herein mentioned the said fishing location has been valuable for only spring summer, and fall fishing of salmon, being from about the 1st day of May to the 1st day of November of each year, and that the fishing season for said location would end on or about the 1st day of November of each year.' It is the contention of the respondent and was the view of the trial judge, that the license issuing under the law on April 1st in each year did not carry any right in the fishing location over the actual fishing season, or the two marked runs of salmon called by the court summer and fall fishing; that the season thus ending on November 1st each year, appellant had no rights in the ground because of the failure of its assignor to erect its appliances during the summer and fall of 1908. On the other hand, appellant contends that the Puget Sound fishing season and license year are synonymous, and that an involuntary abandonment could not be worked within the term of the license. The two questions upon which the rights of the parties must...