Morris v. Graham

• Decision Date: 22 January 1897
• Parties: MORRIS v. GRAHAM ET AL.
• Court: Washington Supreme Court

47 P. 752

16 Wash. 343

MORRIS v. GRAHAM ET AL.

Supreme Court of Washington

January 22, 1897

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Daniel Morris against Fred Graham, Henry Graham, and A. T Graham, to enjoin the placing of an obstruction in a navigable stream. Decree for plaintiff, and defendants appeal. Affirmed.

A. M Moore, for appellants.

M. P Hurd, for respondent.

GORDON J.

Respondent on behalf of himself and others similarly situated, instituted this action in the superior court of Skagit county to enjoin and restrain the appellants from erecting a fish trap or pound net in the channel of the North Fork of the Skagit river, where the same empties into the waters of Puget Sound. Issue of fact was formed, and the cause proceeded to trial. Upon findings and conclusions entered, the lower court rendered a decree perpetually enjoining and restraining the appellants from making or constructing said trap. The appeal is from said decree.

It is urged in the brief of appellants' counsel that the respondent has no such interest in the subject-matter of litigation as enables him to maintain the action; that the stream in question is a navigable stream, and the acts threatened by appellants would constitute a public nuisance if unlawful at all; and that such nuisance cannot be abated through a private person, but that the suit should have been instituted on the relation of the attorney general. It appears, from the findings (which are amply supported by competent evidence), that to construct said fish trap or pound net it would be necessary to drive into the bed of the channel piles or stakes, at intervals of about 10 feet, to which the appliances of the trap might be attached; that the pound proposed to be erected would be in dimensions about 40 feet square; that the channel in which appellants proposed to erect said trap is the only channel leading from said stream into the waters of Puget Sound; that it has for years been open to the common use of the public, and of the respondent and his fellow fishermen, plying their vocations with drift nets or gill nets, for the purpose of catching salmon. It further appears that said fishermen had kept the channel and ground in said vicinity clear and free of logs and sticks, to enable them to carry on their business; that the fishing grounds extend into the waters of the sound for a distance of about three-fourths of a mile, and the principal run of salmon is through the channel in which appellants desire to construct their trap; that the width of the channel at extreme low-water mark is only about 45 feet; that the trap, if constructed, would render it impossible to drift nets through the channel on either side of the trap; and that the plaintiff, and the other fishermen in whose behalf the suit is brought, would be deprived of the common right of fishing in the waters in that vicinity. In this connection it should be stated that there was no demu...