Monroe v. Withycombe

CourtSupreme Court of Oregon
Writing for the CourtHARRIS, J. (after stating the facts as above).
Citation84 Or. 328,165 P. 227
PartiesMONROE ET AL. v. WITHYCOMBE ET AL.
Decision Date22 May 1917

165 P. 227

84 Or. 328

MONROE ET AL.
v.
WITHYCOMBE ET AL.

Supreme Court of Oregon

May 22, 1917


In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by C. G. Monroe and others against James Withycombe and others, constituting the State Board of Fish and Game Commissioners, R. E. Clanton, Master Fish Warden, and R. S. Farrell. From a decree for plaintiffs, defendants appeal. Complaint and suit dismissed as to the warden and members of the board, but decree affirmed as to defendant Farrell.

C. G. Monroe and ten other natural persons, together with the Sanborn Cutting Company, a corporation, in May, 1915, commenced this suit for themselves and all others similarly situated, or who might desire to join in the suit, for the purpose of preventing R. S. Farrell from constructing pound net fish traps on the north shore of Welch's Island, in the Columbia river, a navigable stream. The defendants are James Withycombe, I. N. Fleischner, Marion Jack, C. F. Stone, and F. M. Warren, who constitute the state board of fish and game commissioners, R. E. Clanton, who holds the position of master fish warden, and R. S. Farrell, who holds three licenses, issued to him on April 1, 1915, by the master fish warden, purporting to authorize the holder to construct and maintain that number of pound net fish traps at designated places on the north shore of Welch's Island. The Sanborn Cutting Company is a corporation organized and existing under the laws of Oregon with its principal place of business in Astoria, Or., and is engaged in the business of catching, packing, and preserving salmon. Each of the remaining plaintiffs is a citizen and resident of Oregon and is engaged in catching salmon. The corporation holds two licenses, issued on May 1, 1915, authorizing it to operate two seines in the waters of the Columbia river for the purpose of catching salmon; and each of the remaining plaintiffs was licensed on May 1, 1915, to catch salmon in the waters of the Columbia river with a gill net.

Large quantities of salmon are found in the Columbia river and are of great commercial value. The salmon industry has grown to great proportions, and for many years has been one of the principal industries of this commonwealth. Thousands of the citizens of Oregon earn their livelihood by catching salmon, and annually the business aggregates hundreds of thousands of dollars. Salmon are generally taken by gill nets and seines. A gill net is made of twine so tied as to form meshes for the purpose of gilling the fish, and is hung between two lines, one being known as the float, because it floats on the surface, and the other as the lead, because weighted down and kept beneath the surface of the water so as to suspend the net vertically. Seines are likewise made of twine, one edge of the seine being provided with floats and the other with sinkers so that it will hang vertically in the water, and when its ends are brought together or drawn ashore the seine incloses the fish caught within it. Gill nets and seines are floating fishing appliances; but a pound net fish trap is a permanent and fixed structure. A pound net fish trap, as it is usually constructed in the Columbia river, has three parts: The heart, pot, and lead. The heart is constructed by selecting some point in the river, ranging from 200 to 800 feet from the shore line, according to the conditions found, and driving piling in the bed of the river so as to form the letter V with the point of the V upstream. The point of the V is not closed, but it is left open, and at this opening piling are driven so as to form a hollow square, and this square makes the pot. Commencing at the lower end of the inner arm of the V, piling are driven at convenient distances apart on a straight line to the shore. Webbing sufficiently wide to reach from the bed of the river to a point 2 or 3 feet above extreme high water is strung along and attached to the piling in the lead and heart of the trap. Webbing is also used in the pot, but, instead of being affixed to the piling, it is so arranged that it can be lifted. Any salmon that migrate upstream and encounter the trap naturally attempt to pass the barrier, and in making the attempt generally find their way into the heart and then into the pot of the trap, where the fish are lifted from the water.

Welch's Island is within the boundaries of Oregon. Pursuing its westward course to the sea, the main channel of the river runs along the north side of Welch's Island. This channel extending along the north side of the island is not only a part of the main ship's channel, but, according to the complaint, it has also been the natural gill net and seining ground for the fishermen of the Columbia river, and is "the most valuable drifting ground for gill nets and the most valuable ground for operating seines in the Columbia river." It further appears from the complaint that from time out of mind fishermen have taken salmon out of this channel and the waters along the north side of the island by means of gill nets and seines, and that during the fishing season fishermen habitually, daily and hourly, navigate their gill nets and seines in these waters, which, prior to the issuance of the licenses to Farrell, were universally recognized as a common ground of fishing for all fishermen operating gill nets and seines. Continuing, the complaint avers that:

"The citizens of the state of Oregon licensed to operate gill nets and seines are entitled of right, and are entitled under and by virtue of the laws and statutes of the state of Oregon, to the free and unobstructed use of said channel and the waters thereof, for the purpose of navigating the same with both gill nets and seines, and have been exercising such right, accordingly as herein alleged, for time immemorial."

One license attempts to authorize Farrell to construct a pound net fish trap at a point on the north shore of the island about 800 feet from the mouth of Multnomah slough, another trap is to be located about 4,200 feet below the first, and the third is to be about 1,000 feet below the second trap. Upon receiving the licenses Farrell commenced to construct traps at the three specified places; and, unless restrained, he proposes to complete the three traps so that they will extend out into the channel for a distance of 500 or 800 feet from the shore line. The plaintiffs say that they have been using and intend to continue to use gill nets and seines in the waters of the river along the north side of the island, but if Farrell is permitted to build the traps plaintiffs will be prevented from using their seines and nets, and it will have the effect of giving the exclusive use of that fishing ground to Farrell. The plaintiffs further allege that the licenses held by Farrell were issued in violation of chapter 128, Laws of 1913, and that, although the plaintiffs petitioned to have the traps confiscated, the master fish warden and board of game and fish commissioners nevertheless refused to do so.

All the defendants filed a joint demurrer; the members of the board of game and fish commissioners and the master fish warden joined in a second demurrer; and a third demurrer was filed by Farrell. The trial court overruled the three demurrers, and, when the defendants declined to plead further, a decree was entered declaring that "the public have the prior right of fishery and prior right to navigate the waters and channel of the Columbia river in front of Welch's Island" for the purpose of operating gill nets and seines, enjoining Farrell from constructing fish traps, and commanding the board of game and fish commissioners to cancel the licenses held by Farrell within 20 days from the date of the decree....

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23 practice notes
  • State v. Savastano, CC C081586CR
    • United States
    • Supreme Court of Oregon
    • September 12, 2013
    ...fish in one area of a navigable stream, because the right to fish in those waters is held in common by all citizens. Monroe v. Withycombe, 84 Or. 328, 341, 165 P. 227 (1917) ; Eagle Cliff Fishing Co. v. 309 P.3d 1093 McGowan, 70 Or. 1, 15, 137 P. 766 (1914), appeal dismissed, 248 U.S. 589, ......
  • State v. Clark, No. TC
    • United States
    • Supreme Court of Oregon
    • June 23, 1981
    ...of sailors' boarding houses, White v. Holman, 44 Or. 180, 74 P. 933 [291 Or. 237] (1904), or fishing rights, e. g., Monroe v. Withycombe, 84 Or. 328, 165 P. 227 (1917). Because the clause would ordinarily be invoked by persons who wanted a privilege or immunity for themselves rather than to......
  • Puget Sound Gillnetters Ass'n v. U.S. Dist. Court for Western Dist. of Wash., Nos. 77-3129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 24, 1978
    ...(1950); Columbia River Fishermen's Protective Union v. City of St. Helens,160 Or. 654, 661, 87 P.2d 195, 198 (1939); Monroe v. Withycombe, 84 Or. 328, 334-35, 165 P. 227, 229 (1917); Washington Kelpers Association v. State,81 Wash.2d 410, 414-415, 502 P.2d 1170, 1172-73 (1972), cert. denied......
  • Anthony v. Veatch
    • United States
    • Supreme Court of Oregon
    • June 30, 1950
    ...in navigable waters within its borders, has been asserted by this court, and is sustained by the weight of authority. Monroe v. Withycombe, 84 Or. 328, 334, 165 P. 227; State v. Hume, 52 Or. 1, 5, 6, 95 P. 808; 22 Am.Jur., Fish and Fisheries, section 34. Such right is, of course, subject to......
  • Request a trial to view additional results
23 cases
  • State v. Savastano, CC C081586CR
    • United States
    • Supreme Court of Oregon
    • September 12, 2013
    ...fish in one area of a navigable stream, because the right to fish in those waters is held in common by all citizens. Monroe v. Withycombe, 84 Or. 328, 341, 165 P. 227 (1917) ; Eagle Cliff Fishing Co. v. 309 P.3d 1093 McGowan, 70 Or. 1, 15, 137 P. 766 (1914), appeal dismissed, 248 U.S. 589, ......
  • State v. Clark, No. TC
    • United States
    • Supreme Court of Oregon
    • June 23, 1981
    ...of sailors' boarding houses, White v. Holman, 44 Or. 180, 74 P. 933 [291 Or. 237] (1904), or fishing rights, e. g., Monroe v. Withycombe, 84 Or. 328, 165 P. 227 (1917). Because the clause would ordinarily be invoked by persons who wanted a privilege or immunity for themselves rather than to......
  • Anthony v. Veatch
    • United States
    • Supreme Court of Oregon
    • June 30, 1950
    ...in navigable waters within its borders, has been asserted by this court, and is sustained by the weight of authority. Monroe v. Withycombe, 84 Or. 328, 334, 165 P. 227; State v. Hume, 52 Or. 1, 5, 6, 95 P. 808; 22 Am.Jur., Fish and Fisheries, section 34. Such right is, of course, subject to......
  • Puget Sound Gillnetters Ass'n v. U.S. Dist. Court for Western Dist. of Wash., Nos. 77-3129
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 24, 1978
    ...(1950); Columbia River Fishermen's Protective Union v. City of St. Helens,160 Or. 654, 661, 87 P.2d 195, 198 (1939); Monroe v. Withycombe, 84 Or. 328, 334-35, 165 P. 227, 229 (1917); Washington Kelpers Association v. State,81 Wash.2d 410, 414-415, 502 P.2d 1170, 1172-73 (1972), cert. denied......
  • Request a trial to view additional results

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