Strandholm v. Barbey

• Decision Date: 24 October 1933
• Citation: 26 P.2d 46,145 Or. 427
• Parties: STRANDHOLM v. BARBEY et al. [*]
• Court: Oregon Supreme Court

26 P.2d 46

145 Or. 427

STRANDHOLM v. BARBEY et al. ^[*]

Supreme Court of Oregon

October 24, 1933

Department 1.

Appeal from Circuit Court, Clatsop County; W. A. Ekwall, Judge.

Suit by John Strandholm against H. J. Barbey and others. From the decree, defendants appeal.

Remanded with directions.

This is an appeal from a decree entered by the circuit court in favor of the plaintiff, who is a gill net fisherman in the waters of the lower Columbia river, in a suit instituted by him to enjoin the defendant H. J. Barbey, a salmon packer, from maintaining a dock recently constructed by him, projecting 900 feet south from the south shore line of Sand Island, and three fish traps adjacent to the wharf, and to restrain the other three defendants, who constitute the fish commission of this state, from granting to Barbey licenses for the further maintenance of the fish traps.

A. E CLark of Portland (Clark & Clark, of Portland, G. C. & A. C Fulton, of Astoria, R. R. Bullivant, of Portland, and I. H Van Winkle, Atty. Gen., on the brief), for appellants.

William P. Lord, of Portland, and A. W. Norblad, of Astoria (Lord & Moulton, of Portland, on the brief), for respondent.

ROSSMAN Justice.

Our disposition of the assignments of error will be better understood if we precede our decision with a brief résumé of the testimony. Sand Island, which is located near the mouth of the Columbia river, is a low, narrow, uninhabited body of sandy soil about three miles long east and west. Adjoining it on the north are the waters of Bakers Bay; to the south is the main channel of the Columbia river. For a further description of the island, its past use and its ownership, we employ the following taken from Columbia River Packers' Ass'n v. United States (C. C. A.) 29 F. (2d) 91: "Sand Island is within the limits of the state of Oregon, and the adjacent tide and shore lands, up to high-water mark, originally belonged to that state. Washington v. Oregon, 211 U.S. 127, 29 S.Ct. 47, 53 L.Ed. 118; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. April 21, 1863, by order of the President, the island was set apart or reserved for military purposes, and October 24, 1864 (Sp. Laws Or. 1864, p. 72) the state of Oregon passed an act granting to the United States 'all the right and interest of the state of Oregon in and to the land in front of Ft. Stevens and Point Adams, situate in this state, and subject to overflow between high and low tides; also to Sand Island, situate at the mouth of Columbia river in this state; the said island being subject to overflow between high and low tide.' The island has never been used by the United States for military purposes, but June 19, 1880, officers of the United States Army, acting under the orders of the Commanding General of the Department of Columbia, leased the island for general fishing purposes for one year and the lease was renewed for four years thereafter. The leasing was then discontinued, apparently for want of authority on the part of the army officers or the War Department to execute such leases. Later, by the Act of July 28, 1892 (27 Stat. 321; 40 USCA § 303), the Secretary of War was authorized, when in his discretion it will be for the public good, to lease for a period not exceeding five years, and revocable at any time, such property of the United States under his control as may not for the time be required for public use, and for the leasing of which there is no authority under existing law; such leases to be reported annually to Congress. Pursuant to the authority thus conferred, the Secretary of War has leased the island and the adjacent tide and shore lands for fishing purposes since 1903."

The plaintiff, a resident of Astoria, is a licensed fisherman in the Lower Columbia river, who catches salmon by means of a gill net. For a description of such a net and the manner in which it is operated, as well as of seine nets and fish traps, to which we shall later refer, see Monroe v. Withycombe, 84 Or. 328, 165 P. 227. The defendants H. J. Barbey and Columbia River Packers' Association are salmon cannery operators, and are also engaged in the catching of salmon with seine nets

Most of the south shore of Sand Island is well adapted to the operation of seine nets, and, for convenience, has been divided into five subdivisions or sites. All of these sites are of approximately equal length. A better understanding of the facts will be obtained by reference to the sketch which follows:

(Image Omitted)

March 27, 1930, the Secretary of War, as party of the first part, and the defendants Barbey and the Columbia River Packers' Association, as parties of the second part, executed an instrument, the material portions of which are the following: "The Secretary of War, by virtue of the authority conferred on him by the Act of Congress approved July 28, 1892 (27 Stat. 321), entitled 'An Act authorizing the Secretary of War to lease public property in certain cases,' and in consideration of the rental of Thirty-Seven Thousand One Hundred and Seventy-Five ($37,175.00) Dollars per annum, payable in four equal installments in advance of the first day of May, August, November and February of each and every year during the continuance of this lease, hereby leases to the parties of the second part (hereinafter designated as the lessees), for seining purposes only, for a period of five (5) years commencing May 1, 1930, but subject to revocation at will by the Secretary of War, the land on the south side of the Sand Island Military Reservation, Oregon, estuary of the Columbia River, described as follows: All of that certain premises on the south shore of Sand Island, together with rights, easements and appurtenances thereunto belonging, known as Sites Nos. 1, 2, 3, 4, and 5 *** subject to the following provisions and conditions. ***" Here follow nine paragraphs, the first of which requires "the lessees" to pay "the rental" in advance and to pay any sums expended by the United States after the termination or revocation "of this lease in putting the premises or property hereby authorized to be used and occupied in as good condition" as they were at the time of the execution "of this lease." The second condition is as follows: "The use and occupation of the demised premises shall be subject to such rules and regulations as the Commanding Officer, Fort Stevens, Oregon, may from time to time prescribe." The third condition permits "the lessees" to erect "such temporary structures for the housing of their employees, animals, etc., as are absolutely necessary in connection with the seining operations; provided that the number, location, and dimensions of such structures shall be subject to the approval of the said Commanding Officer, and all work incident to their construction shall be performed under this supervision. In addition to such approval the lessees shall, prior to the construction of any structures below the high-water line, obtain a permit from the War Department in accordance with section 10 of the Act of March 3, 1899 (30 Stat. 1151)." The remaining conditions prohibit "the lessees" from making excavations upon the demised premises, confine the lessees in their use of the island to the limits of the demised premises, prohibit the lessees from bringing any intoxicating beverages to the island, require them to furnish a bond conditioned upon their faithful performance of the conditions "of this lease," subject to the privileges granted by the instrument to the rights of two Indian tribes, acknowledged in two treaties mentioned in the instrument, and define the rights of the parties upon the expiration or revocation of "this lease."

Early in the spring of 1930 the defendant Barbey opened negotiations with the War Department of the federal government for permission to construct a wharf extending 1,100 feet southerly from the high-water mark of the south shore of Sand Island. April 2, 1930, he filed with the master fish warden of this state three applications for licenses to construct three fish traps (see section 40-503, Oregon Code 1930) in the waters adjacent to the south shore of Sand Island, and at approximately the same time applied to the United States engineer of the War Department for approval of the proposed construction of the three fish traps. We shall not define the location of the four proposed structures in the language of the applications, but confine ourselves to the statement that the sites of all four proposed structures were within seining site 5. The applications provoked immediate objections from gill net fishermen, cannerymen, and navigators of small craft. The Columbia River Fishermen's Protective Union, an association of gill net fishermen of which plaintiff is a member, enacted a resolution which recited: "Such proposed dock and such proposed trap and such proposed three pound nets above described, on account of extending out into the waters of the Columbia River generally used for gill net fishing, will greatly interfere with the operation of gill net fishermen in a location of the Columbia River which has been used by such gill net fishermen for at least seventy continuous years in the past, and will greatly interfere with the navigation and operation of gill net fish boats *** and will greatly impair, if not destroy, one of the most valuable gill net fishing grounds on the lower part of the Columbia River ***."

Before this resolution was delivered to the officials before whom the applications were pending, various cannerymen and navigators of small craft attached their signatures to it.

May 24 1930, the United States engineer issued to Barbey a permit to construct and maintain a pile and timber wharf extending 900 feet south from the high-water line of Sand Island at a...