39 Wash. 617 | Wash. | 1905
Action by respondent, James Fowler, to recover damages from appellants, Martin Harrison and Ben Harrison, for the wilful and malicious destruction of certain fish nets, fish traps, and a dolphin, located in the Ohehalis
Appellants, in their answer, after denying said alleged acts of trespass, affirmatively alleged, that they were owners of, and operating, said steamer Fleetwood, upon the Chehalis river and Grays Harbor; that said river, a stream in which the tide ebbs and flows, is navigable for steam, sailing, and other craft, for a long distance above the location of the nets, traps, and dolphin mentioned in respondent’s complaint; that said fish nets and other appliancés were an unlawful obstruction in the channel of said stream; that they were so carelessly and negligently maintained by respondent as to interfere with navigation, and that, if they were injured or destroyed, as in the complaint alleged, such injury and destruction were not caused by any fault, wrongdoing, or negligence of appellants.
The reply admitted that said stream was navigable, but denied all other allegations of the answer. Upon a trial of these issues, the jury returned a verdict for respondent, for the full amount claimed, and judgment being entered on said verdict, this appeal has been taken.
The assignments of error urged by appellants are: (1) error in the admission of evidence; (2) error in entering judgment for respondent, because of insufficient evidence, and the recovery being excessive.
Appellants’ principal objection to* evidence, offered.by respondent and admitted by the court, complains of a certain written authority, with plat attached, issued to' said respondent, James Fowler, by the Honorable Secretary of
“And Whereas, Mr. James Fowler, of Aberdeen, Washington, has applied to the Secretary of War for permission to maintain fish traps in the Chehalis River, Washington, as shown on the attached "drawing: Now, Therefore^ This is to certifiy that the Secretary of War, upon the recommendation of the Chief of Engineers, hereby gives unto said J ames Fowler permission to maintain fish traps in the Chehalis River, at said place, as shown on said drawing, on the following conditions: (1) That the grantee herein shall maintain suitable lights on said fish traps at night; (2) that said fish traps shall be immediately removed by said grantee, at his own expense, whenever so directed by the Secretary of War.”
The drawing attached to this written authority Avas a plat of that portion of the river immediately above, below, and at the points where respondent’s fish traps and other appliances were located. Said drawing showed the course, width, and depths of the channel, the location of certain fish traps and piles, and also a dolphin, together with other facts, and apparently was the drawing upon which respondent’s application had been based. Appellants contend that the language of said instrument, as above quoted, shows no authority for maintaining a dolphin, but mentions fish traps only; also, that the United States government could not give authority to fish with traps, but that such authority must come from the state of Washington; appellants’ argument, as we understand it, being that, as this instrument was not sufficient in law to authorize respondent to maintain fish traps, and as it purported on its face to do nothing else, it Avas therefore not competent evidence for any purpose in this case.
We think there is no merit in this contention. Without discussing the scope of authority, if any, granted by said instrument, it at least shows respondent was making an honest effort to comply with the laws of the United States,
The verdict of the jury upon which the final judgment was entered in favor of respondent, was clearly warranted by the evidence. In fact we fail to see how any other verdict could have been reached. The proof was overwhelming and conclusive to the effect that appellants, time after time, on numerous occasions, deliberately, wantonly, and purposely ran their steamer into and destroyed said fish nets, fish traps, and said dolphin. This being true, respondent would be entitled to recover the damages sustained by him, even though it were conceded that he had not, in all respects, complied with the law in obtaining authority from the Secretary of War, or licenses from the state of Washington. Numerous steamboat men were introduced, as witnesses, and testified that they had navigated this stream for many years, some with larger, and some with smaller, vessels than the Fleetwood, and that none of them ever had any trouble with respondent’s fishing appliances. The evidence also clearly shows that the channel of the stream was not so obstructed by respondent as to impede its navigation, and also establishes the malicious, wilful, and wanton conduct of appellants. Were it to be conceded that respondent was not lawfully occupying the stream, and that his fishing appliances were somewhat of an obstruction, appellants would not be thereby excused for maliciously and wilfully destroying the same, nor could they do such acts and escape liability to respondent for damages resulting to him therefrom. Ap
Tbe judgment is affirmed.