137 P. 766 | Or. | 1914
Moore delivered the opinion of the court.
It will be kept in mind that the decree passed by the federal court did not purport to be anything more than temporary, and was to be in force only until March 31,1912, the end of the then current fishing year. The rule is well-nigh universal that the doctrine of res judicata applies only to final determinations, and not to interlocutory decrees: 24 Am. & Eng. Ency. Law (2 ed.), 793; 2 Black, Judg. (2 ed.), § 509; 23 Cyc. 1126; 1 Van Fleet, Former Adjn., § 27. The decree invoked as an estoppel, to be available for that purpose, must be in force at the time of the alleged res judicata: Bigelow, Estop. (6 ed.), 65. This author, in a note supporting the legal principle thus asserted, observes: “Periodically securing grants of licenses, resting in the discretion of magistrates, creates no estoppel, and same objection may be made of recurring hearings, and be sustained at one time and denied at another, without regard to the state of the record in the given case.”
As opposed to this postulate, defendants’ counsel call attention to the following cases, a summary of which decisions may be found in a part of the syllabus of the first, to wit: “A right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies, and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit
remains unmodified”: Southern Pacific R. R. v. United States, 168 U. S. 1 (42 L. Ed. 355, 18 Sup. Ct. Rep. 18); Baldwin v. Maryland, 179 U. S. 220 (45 L. Ed.
An examination of these decisions will show that the two actions referred to in each case embraced parts of the same subject matter, and the question determined by the prior adjudication was identical with another part of the same subject matter included in the new action. Though the interference complained of herein is averred to have been committed at the same place as in the former suit, and the parties hereto are identical except as to alleged privy in estate of one, the right determined by the federal court was predicated upon licenses issued to the defendants pursuant to the laws of the State of Washington; while in the case at bar the licenses involved were granted to the defendants by authority of the State of Oregon. Since the decree given by the federal court was not in force when this suit was begun, and as the right involved in the prior suit was not identical with that embraced therein, the former adjudication is' not a bar to the maintenance of this suit.
Before considering the remaining question, it is deemed proper to state more in detail the facts believed to be material to a correct understanding of the cause. The water in front of sites 1, 2, and 3 of Sand Island, for some distance from the shore, is quite shallow, and, the bed of the stream at that place being free from snags, the shoal affords an excellent place for taking salmon with seines. Those operated by the plaintiff are about 1,800 feet long, 12 feet deep at the shore end, and 50 at the other. Beginning at the deep end of a seine, one of them is coiled on the stern of a
H. S. McGowan, as a witness for the defendants, testified that it was his intention to use set nets when other appliances were not being operated, saying, in effect, that their seines could not be used when the set nets were in position. It will thus be seen that, if the defendants are permitted to use set nets, and to operate seines in conformity with the licenses first issued to them by the master fish warden of Oregon, an exercise of such permission will necessarily deprive the plaintiff of all opportunity to take salmon by any means in the shallow water in front of the sites mentioned. When this suit was commenced, and thereafter, the plaintiff had legal possession of the tidelands fronting upon that part-of Sand Island that is particularly valuable for seining purposes.
“This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right pf which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation.”
In that case the right of access was recognized as pertaining to the upland owner: Weber v. Harbor
The buoys placed in the river to indicate the location of the lines intended to be occupied by the set nets, and the large rocks by means of which such floats were anchored, and the buoys fastened to the cable, if allowed to remain in the stream, would necessarily have prevented the plaintiff from hauling its seines to the shore. Notwithstanding such obstructions, it is contended by the defendants’ counsel that the state,being the owner of the bed of the river, had, as an exercise of its police power, authority to grant an exclusive right of fishing in front of the sites described; that, their clients having obtained the prior licenses to catch salmon in the manner described, their privilege in this respect is superior to all others; that the spaces of 550 to 900 feet within the lines selected for the set nets afforded the plaintiff reasonable access from the tidelands to navigable water; and that the cable which lay on the bed of the stream did not constitute any obstruction to such right of passage. Based on these assertions, it is insisted that an error was committed in granting the relief prayed for in the complaint, and that an affirmance of the decree would be tantamount to giving plaintiff the exclusive right of fishing in front of Sand Island.
It is believed that the obstructions placed by the defendants in the Columbia River were not authorized by statute, and that they tended to create an exclusive right of fishing, the continuance of which was properly enjoined. Nor is it thought that plaintiff, by reason of its sole right to draw a seine upon its own ground, will be granted an exclusive right to catch salmon at the place indicated, for the testimony shows that fishermen operating gill nets made drifts in front of and behind such seines when they, were being operated.
The defendants had intended to remove any salmon that they might catch in a seine to a boat moored to the cable. Their right to tow a seine over the same ground is admitted; but they must remove the salmon thus caught upon a steamer or other craft adapted to that purpose.
Believing that the decree is a correct adjudication of the rights of the parties, it is affirmed.
Affirmed : Rehearing Denied.