Radich v. Fredrickson

• Decision Date: 19 April 1932
• Citation: 10 P.2d 352,139 Or. 378
• Parties: RADICH et al. v. FREDRICKSON et al.
• Court: Oregon Supreme Court

10 P.2d 352

139 Or. 378

RADICH et al. v. FREDRICKSON et al.

Supreme Court of Oregon

April 19, 1932

Department 1.

Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.

Suit by Marke Radich and others against Mrs. E. P. Fredrickson and others. Decree for plaintiffs, and defendants appeal.

Affirmed.

The plaintiffs, thirty-three in number, all of whom are gill net fishermen plying their vocations in the waters of the lower Columbia river, pray for an injunction restraining the defendant E. P. Fredrickson from maintaining a pound net fish trap at the location occupied by that device, and to restrain the other defendants, who comprise the board of fish commissioners of the state of Oregon, from issuing further licenses for the maintenance of the trap at that location. The trial resulted in a decree in favor of the plaintiffs. The defendants appealed.

A. C Fulton, of Astoria (G. C. & A. C. Fulton and Edward C. Judd all of Astoria, on the brief), for respondents.

Frank C. Hesse, of Astoria (Hesse & Franciscovich, of Astoria, on the brief), for appellants.

ROSSMAN, J.

Before stating the issues awaiting decision, it seems desirable to describe the location in dispute. As the waters of the Columbia river reach Tenas Illihee Island they divide themselves into two parts and thus form two channels. The waters which flow to the right as they pass on their way to sea constitute the main channel of the Columbia river, With that channel we are not concerned. Those which flow to the left take their course in what is known as the Clifton channel. It is this channel with which we are, in part concerned. About a mile below Clifton in the Clifton channel is the commencement point or towhead of what is known as Cottonwood drift. A drift is an expanse of water over which gill net fishermen drift their nets. For a description of a gill net, see Monroe v. Withycombe, 84 Or. 328, 331 165 P. 227. Salmon swim against the current and gill themselves in the meshes of the gill nets which drift downstream with the ebbing tide. The nets used by the plaintiffs are approximately 1,200 feet long and are placed in the water at right angles to the shore line at the towhead. The plaintiffs' witnesses testified that Cottonwood drift extended from the towhead downstream two and one-half miles. Since the defendant Fredrickson contends that the drift extended only one mile below the towhead, and that it was impossible to drift a 1,200-foot net below that point we shall now describe the waterways below the towhead.

To the left of Clifton channel at the towhead is the mainland. To the right is Tenas Illihee Island. When the nets have drifted approximately one mile below the towhead, a point is reached where Clifton channel divides itself into two courses. Quinn's Island is the body of land which splits the channel. The fork which extends to the right is a continuation of Cottonwood drift, according to the plaintiffs' witnesses. With the left fork we are not concerned. It may help one to obtain a mental picture of the surroundings to suggest that the two forks and the main channel out of which they have emerged assume the form of the letter Y, with Quinn's Island filling the area between the two forks. Beyond the right fork, which is approximately 6,000 feet in length, is a wide, deep expanse of water which eventually leads into the main channel of the Columbia river. The waters in the stem of the Y over which the nets drift are amply wide and deep to accommodate them, but when the nets reach the above-mentioned division point a different condition is encountered. The right fork which pursues a course almost due north is bounded on the east by a continuation of Tenas Illihee Island, on the left by Quinn's Island, and is approximately 1,400 feet wide. Only the water in the easterly 550 feet of this fork is sufficiently deep at low tide to accommodate gill nets. All of the remainder of this channel is no deeper than 5 feet at low tide. Beyond this right fork is the expanse of water above mentioned which is of ample depth to suit the needs of gill net fishermen, and in it, according to the plaintiffs' witnesses, the nets drift for a distance of 1,000 feet more when the end of Cottonwood drift is reached. A few feet beyond this point is the towhead of Castura drift. The defendant Fredrickson constructed the fish trap (for a description of such a device, see Monroe v. Withycombe, 84 Or. 328, 331, 165 P. 227) in the portion of the channel where the deep water is only 550 feet wide. It extended from the shore of Tenas Illihee Island out into the channel for a distance of 300 feet. The water in its vicinity is about 30 feet deep at low tide.

The defendant Fredrickson contends: (1) That Cottonwood drift extends no further than the point where Clifton channel is divided into two forks by Quinn's Island; (2) that, since the nets used by the plaintiffs are at least 1,200 feet long, it is impossible to employ them advantageously in the right fork which contains deep water for a width of only 550 feet; (3) that since the plaintiffs, in order to use Cottonwood drift with safety for their nets, remove from it snags and other debris, this circumstance proves that it is unsuited to the needs of gill net fishermen if left in its natural condition; (4) that since (a) the gill net fishermen who employ Cottonwood drift apportion among themselves the cost of keeping the channel clear of snags, (b) have adopted a practice of starting from the towhead in numerical order determined by allotment, and (c) prevent those who do not submit to the foregoing from using Cottonwood drift (according to the defendants' contention), they are guilty of inequitable conduct which denies them recourse to a chancellor; and (5) that the plaintiffs as gill net fishermen are entitled to no rights superior to those of the defendant which will warrant the relief which the plaintiffs seek.

The decision of the first of the above issues requires a study of the evidence. We have examined all of it with care. The plaintiffs presented ten commercial fishermen, each of whom testified that he possessed a practical knowledge of and had had several years' experience with gill net fishing. One of these swore that for 44 years he had drifted gill nets along Cottonwood drift. Another testified that he had done so for 21 years. Each of them, as well as several of the others, used nets 1,200 feet long and 12 feet deep. All of the plaintiffs' witnesses described the course of Cottonwood drift as starting at the towhead about one mile below Clifton, proceeding down Clifton channel and through the right fork of that channel as it takes its course between Quinn's and Tenas Illihee Islands to the Castura towhead. The defendants offered the testimony of seven witnesses, each of whom had observed gill net fishermen drifting their nets along Cottonwood drift, and each of whom testified that the fishermen removed their nets from the water as they approached the point where the channel is divided into two forks by Quinn's Island. A circumstance which we believe strongly corroborates the plaintiffs' witnesses is the fact that those who use Cottonwood drift have adopted the aforementioned practice of removing from the bed of the...