Williams v. Seufert Bros. Co.
| Decision Date | 02 March 1920 |
| Citation | 188 P. 165,96 Or. 163 |
| Parties | WILLIAMS v. SEUFERT BROS. CO. ET AL. [a1] |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.
Suit by Sam Williams against the Seufert Bros. Company and others. From the decree rendered defendants appeal. Reversed, and suit dismissed.
In August, 1916, plaintiff, Williams, instituted this suit in Multnomah county to enjoin the defendant Seufert Bros Company from the operation of fishing tackle and the occupancy of the location of a scow fish wheel at a certain point in the Columbia river; for restraining and advisory orders directed to the master fish warden respecting duplicate licenses; and orders to the state board of fish and game commissioners to compel recognition of Williams' priority right. Defendants appeal from a decree rendered in favor of plaintiff.
It is alleged in the complaint:
It is further alleged, in substance:
That during the fishing season for many years past plaintiff has been accustomed to fish for salmon and other food fish on the south bank of the Columbia river for food for his family and commercial purposes, and "particularly has plaintiff fished on or about a certain point more particularly described as a point situated 28.53 chains north and 12 chains west of the quarter section corner between section 1 and section 36 in townships 1 and 2, respectively, both north of range 13 east of Willamette meridian in Wasco county Or."
That during the different years from 1910 until 1914 licenses were regularly issued to the plaintiff and to plaintiff and his partner to fish at the point mentioned; that the defendant Seufert Bros. Company in May, 1913, opposed the operation of plaintiff's scow fish wheel at the point described, and alleges that the defendant company through its agents unloosened the lashings and cables holding the scow fish wheel in position.
That on the 1st of April, 1914, there was issued to the plaintiff by the master fish warden certain license "O-26" authorizing plaintiff to operate his scow fish wheel at the point described, and that the defendant company again unloosened plaintiff's scow; that in August, 1914 defendant company unlawfully occupied the point in question with a scow fish wheel bearing license No. "O-1," and made fast the same at the point described, said point being the identical point belonging to plaintiff for fishing purposes under his license and prior rights, and operated said scow fish wheel to the exclusion of plaintiff. In March 1915, plaintiff applied to the master fish warden for a license for the season 1915-1916, but that defendant company objected to and prevented the issuance of such license until the season was too far advanced for profitable fishing. Plaintiff applied for and was issued a license by the master fish warden dated May 5, 1916, numbered "O-31," purporting to authorize plaintiff to operate a scow fish wheel at the point described, and alleges on information and belief that defendant, Seufert Bros. Company, had been granted a license by the master fish warden covering the identical point in question for the season of 1916-1917. Defendant Seufert Bros. Company claims the exclusive right of fishing at the said point in question to the exclusion of the plaintiff, and without reference to plaintiff's prior rights earned during the past years. That said point does not permit of the operation of two scow fish wheels without interference. That the claimed rights of the defendant company were acquired subsequently, and are inferior to the superior rights of plaintiff. That the defendant company operated no scow fish wheel prior to the year 1913, nor claimed any right to fishing at the point in question. That defendant company on August 14, 1916, moved a scow fish wheel to the point, at which time plaintiff was in the act of proceeding to said point with his scow fish wheel under his license, and thereby excluded plaintiff from said point. It is further alleged by plaintiff:
"That during the month of April, 1915, without any color of right, defendant Seufert Bros. Company erected along the river bank at said point a stone and concrete wall about 42 feet in length and 3 feet in thickness and of a varying height of from 1 to 5 feet; that said wall was designed to prevent, and does prevent, the proper operation of plaintiff's scow fish wheel, and was designed to be and is an obstruction to the fishing rights of plaintiff at the point hereinbefore described."
That the plaintiff had submitted the matter to the master fish warden and the board of fish and game commissioners, but that after investigation the board had failed to protect plaintiff's prior rights of fishing, but had instructed the master fish warden to issue duplicate licenses to defendant and to plaintiff. Plaintiff also asks an accounting by the defendant company of all profits derived from its taking fish from the point in question since the 14th of August, 1916.
Upon the service of the summons the defendant Seufert Bros. Company appeared especially for the purpose of objecting to the jurisdiction of the court, upon the grounds that the suit had been brought in the wrong court; that the defendant company is not a resident of Multnomah county, and is the only real defendant in the cause; that the suit is in relation to title and interest in real property, to wit the point in question, and moved for a dismissal of the suit and the quashing of the summons; and filed an affidavit showing the following facts: Its principal place of business was in Wasco county. It claims to be the owner of said point, and entitled to the possession of the same by reason of being the owner of the land abutting upon the river and the meander line of the river at that point. That the point in question is above the ordinary line of high water on the river, and belongs to the abutting land. The plaintiff claims that the point does not belong to the defendant company,15 but to the state of Oregon; that the defendant company constructed the wall described in the complaint for the purpose of using the same in connection with the shore, and claims the right to do so; that the other defendants in this case are not proper parties defendant, and are not interested in the controversy in any way; and that they were joined in this proceeding for the sole purpose of giving the court an appearance of jurisdiction. Thereafter the court overruled the motion of the defendant company.
Afterwards defendant Seufert Bros. Company, not admitting the jurisdiction of the court, but insisting upon its objection that the court had no jurisdiction, filed an answer by way of abatement, and asking for the dismissal of this proceeding for want of jurisdiction and on account of the venue being improperly laid, and formally alleging, in substance, the facts stated in the affidavit above mentioned, and pleaded for a dismissal of the cause. For further and separate answer the defendant company, not waiving its opposition to the jurisdiction of the court, denied many of the allegations of the complaint, and for an affirmative answer alleged that it was the owner of a large tract of land lying along the Columbia River immediately back of the point in question, and calling for boundaries running to the river; that the point in dispute is a part of a small portion of high land lying between the meander line, as surveyed by the government, and the actual shore of the river; and that the defendant, as the grantee of the government for said abutting land, also became the owner of said small portion of land lying between the meander line and the river, including the point in question.
Defendant further averred that at divers times in 1913 and 1914 the plaintiff went upon the lands of defendant, and fastened thereon and on the bank and bluff of the river far above the line of ordinary high water certain ropes and cables, thereby trespassing upon the lands owned by and in the possession of the defendant and inclosed by its fences, together with natural fences, and attempted to assert a permanent claim to the right and occupation of the land; that about the year 1914, this defendant procured a license to fish at the particular point in question, and constructed a concrete wall thereon for the purpose of enabling him to safely attach a scow fish wheel; that the company ever since has been the...
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Williams v. Seufert Bros. Co.
...Multnomah County; George N. Davis, Judge. On petition for rehearing. Petition denied and former opinion affirmed. For former opinion, see 188 P. 165. H. S. Wilson, of Portland (A. S. Bennett, of Salem, on the brief), for appellant Seufert Bros. J. O. Bailey, Asst. Atty. Gen. (George M. Brow......