38 Wash. 212 | Wash. | 1905
The appellant owns and operates, and for a number of years has owned and operated, two pound net fish traps, located in the waters of the Columbia river,
After the respondent began fishing his trap, the appellant instituted this action, alleging that the trap was within the lateral passageway of his traps, and asked that the respondent be enjoined from fishing it, and that the same be removed as an unlawful interference with his fishing rights. The respondent answered, admitting that, at the time of the commencement of the appellant’s action, a
It is first assigned that the court erred in striking the affirmative matter from the reply, but we think the court was clearly right in so doing. Under the statute, it is true, a plaintiff may set out in his reply new matter not inconsistent with the complaint, constituting a defense to new matter in the answer, but the reply here does not fall within the rule. The gravamen of the complaint was that the respondent had constructed his trap within the lateral passageway of the appellant’s traps. To' an answer thereto admitting that a part of the trap was originally within the lateral passageway of one of the appellant’s traps, but that it had been changed so as to remove it therefrom, it is not a reply, consistent with the complaint, to allege that the trap as changed constitutes a public nuisance
The remaining assignment is that the court erred in determining what constituted the lateral passageway of the appellant’s traps. The statute regulating fish traps and other fishing appliances (Laws 1899, p. 191, § 4) provides, among other things, that no lead of any pound net trap, used or operated in the Columbia river or its tributaries, shall exceed in length eight hundred feet, and that there shall be between all such traps an end passageway of at least thirty feet, and a lateral passageway of at least nine hundred feet. The end passageway in the waters of Puget Sound is fixed at six hundred feet. The statute, in the same section, also provides that,
“. . . for the purpose of determining end passageway a line shall be drawn parallel to the general direction of the shore line for one-half mile on either side of a
The trial court held that under the statute, the lateral passageway of a pound net trap in the Columbia river must be measured on each side of the trap and at right angles thereto, and that the end passageway was to be found by measuring from, the end of the trap along the line of its general course the distance, prescribed by statute. In effect the court held that the statute provided for a space in the form of a parallelogram extending nine hundred! feet on each side, and thirty feet on each end, of the trap, within which it is unlawful to construct another trap. This mode of measurement, it will be seen, fails to give effect to the statutory method of determining end passageways, and it is on this that the appellant bases his claim of error now under consideration. He argues that the end passageway necessarily determines the direction of the lateral passageway, and if the end passageway be established in this instance according to the statutory method, and the lateral passageway determined according to the course of the end passageway, it will be found that nearly, if not quite, all of the respondent’s trap is within the lateral passageway of either one or the other of his traps.
But we think the appellant is wrong in assuming that the end passageway determines the course of the lateral passageway. The latter, as we understand it, is determined in the same way under all circumstances. It is measured at right angles to the course of the trap-, and extends on each side of the trap either nine hundred feet or twenty-four hundred feet, owing to the place where it is located, and in all cases has a width equal to the width of a trap.
What we have said has been on the assumption that the rule for measuring end passageways applies to traps in the Columbia river, but we do not wish to be understood as so holding. It seems to us that there is much reason for holding it inapplicable, but, as it is unnecessary to decide the question, we prefer to leave it open for further investigation.
There being no error in the record prejudicial tO' the appellant, the judgment appealed from is affirmed.