Gowan v. Columbia River Packers Ass

• Decision Date: 17 December 1917
• Docket Number: No. 78,78
• Parties: McGOWAN et al. v. COLUMBIA RIVER PACKERS' ASS'N et al
• Court: U.S. Supreme Court

245 U.S. 352

38 S.Ct. 129

62 L.Ed. 342

McGOWAN et al.

v COLUMBIA RIVER PACKERS' ASS'N et al.

No. 78.

Argued Nov. 22, 23, 1917.

Decided Dec. 17, 1917.

[Syllabus from page 352 intentionally omitted] Messrs. Bert W. Henry and Franklin T. Griffith, both of Portland, Or., for appellants.

[Argument of council on 353-355 intentionally omitted.]

Mr. G. C. Fulton, of Astoria, Or., for appellees.

[Argument of council on 355-356 intentionally omitted.]

Mr. Justice HOLMES delivered the opinion of the Court.

This is a suit brought by the appellee, the Columbia River Packers' Association, as lessee from the United States of fishing sites and riparian rights on Sand Island in the Columbia River, to compel the appellants to remove certain obstructions placed by them upon the bottom of the channel of the river in front of the plaintiff's premises, and to refrain from longer maintaining them there. Upon a bond being given a restraining order was issued on July 7, 1908; answers and a cross-bill were filed in the following August, and a demurrer to the cross-bill was overruled on October 21 of the same year. The suit had been brought in the Western District of Washington upon the belief that Sand Island was in Washington and subject to the jurisdiction that that State exercised in fact. But on November 16, 1908, it was decided by this Court that the boundary between Oregon and Washington was the ship channel north of Sand Island, and that Sand Island belonged to the former State. Washington v Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. 118; Id., 214 U. S. 205, 29 Sup. Ct. 631, 53 L. Ed. 969. Thereupon, in June, 1909, the plaintiff filed a petition that the suit be dismissed without prejudice for want of jurisdiction, since it turned out that the land concerned was not within the district for which the Court sat.

The District Court dismissed the petition and retained jurisdiction of the cause on the ground that by the Act of Congress of March 2, 1853, c. 90, § 21, 10 Stat. 172, 179, organizing the Territory of Washington, and by the Act of February 14, 1859, c. 33, § 2, 11 Stat. 383, admitting Oregon into the Union, concurrent jurisdiction on this part of the river was reserved to Washington, when it subsequently became a State. The plaintiff then filed a supplemental bill in which again it prayed that the suit might be dismissed without prejudice if the court had no jurisdiction; the case proceeded to the taking of evidence and final hearing, the temporary injunction was dissolved, an injunction was issued against the plaintiff's interfering with the defendants' appliances, and a final decree for damages caused by the temporary injunction was entered in favor of the defendants. The plaintiff appealed to the Circuit Court of Appeals, and that court, being of opinion that the bill should have been dismissed on the plaintiff's petition, reversed the decree and ordered the bill to be dismissed. 219 Fed. 365, 134 C. C. A. 461.

The nuisance complained of consisted of set nets, each anchored by a stone weighing about three hundred pounds to which was attached a short cable which was clamped to a wire rope about twenty-five feet long, to which in its turn was attached a buoy of large timbers. The nets were placed between the line of extreme low tide and the channel of the river; they were alleged to interfere with the exercise of the plaintiffs' rights, and an abatement of the obstruction was prayed...