164 F. Supp. 102 | D.V.I. | 1958
This litigation concerns fishing rights in a bay
On the morning of April 3, 1958 the defendant Gustave Quetel and his fishing crew of three men left their homes in French Town in or near Charlotte Amalie and proceeded in their boat to West Cay Bay, arriving there at approximately 4:00 A.M. Immediately upon arrival they began preparing their seines for fishing and by 4:45 A.M. their preparations were complete.
About one hour later two boats owned by the plaintiffs, Louis E. Greaux and Augustine Jean Quetel, entered West Cay Bay. There were four other fishermen in the two boats. The two boats were drawn up on the beach, close to that of the defendant Gustave Quetel. There is evidence that some members of the plaintiffs’ crew went on the beach above the high water mark. Upon their arrival at the beach the plaintiffs’ crew began preparing their seines for fishing. During the course of or upon the completion of this preparation one of the plaintiffs, Louis Greaux, had Theodore Danet ask the defendant Gustave Quetel what “round”
The plaintiffs, in the light of the defendant Gustave Quetel’s reply, apparently reached the conclusion and expressed it that if they were not allowed to fish in West Cay Bay that morning nobody would fish there. They put their boats alongside the defendant Gustave Quetel’s boat so as to preclude him and his crew from seining. While the boats were in the positions designated, three
The fish comprising the schools were identified as Carangidae, “carang”, and though none of them was netted and the witnesses could describe only vaguely the sizes of the fish arid the sizes of the schools, the defend
The defendant Hypolite Hatchette was not present at West Cay on April 3, 1958, the day of the happening of the events complained of.
The plaintiffs seek, pursuant to Title V, Vol. I, V.I. Code, section 1261 et seq., a declaration of their right to fish in waters adjacent to West Cay and in particular in West Cay Bay, and a permanent injunction against interference by the defendants with their fishing.
The defendant Gustave Quetel has counterclaimed seeking damages in the amount of $150, the alleged value of the fish that got away.
The defendant Hypolite Hatchette seeks to enjoin the plaintiffs from trespassing on his land while fishing at West Cay.
The Court viewed the site and also had the advantage of a United States Coast and Geodetic Survey Map which, though of a small scale nonetheless is highly accurate.
While it is the general rule that all members of the public have a common and general right to fish in public waters and no private person can claim an exclusive right to fish in any portion of such waters, Grimes Packing Co. v. Hynes, 67 F. Supp. 43 (D.C. Alaska, 1946), aff’d 165 F.2d 323 (9 Cir. 1947), imposed upon this general right of piscary is the established Virgin Islands custom that the first fisherman who arrives at a fishing site is entitled to priority in the selection of a fishing area. Where, as in the case at bar, the seining area is so small that only one fishing crew can seine successfully in the area, the first crew on the site is entitled to seine to the exclusion of any other seining fisherman who arrives at the site at a later time. Accordingly the first fishing crew arriving at West Cay Bay is entitled to seine first in that bay and any other fisherman or fishing crew is compelled, as a matter of law, to await the termination of the prior seining before taking a round in the bay. In short: first in time, first in right. Cf. Fisher v. Everett, 66 F. Supp. 540 (D.C. Alaska, 1945); Lind v. Markley, 105 F. Supp. 50 (D.C. Alaska, 1952); Lewis v. Libby, McNeill & Libby, 113 F. Supp. 272 (D.C. Alaska, 1953). In the case at bar the defendant Gustave Quetel was first on the scene and therefore he and his crew had the right to take the round and the plaintiffs did not have that right.
It should be pointed out in this connection that while the defendant Hypolite Hatchette concededly is a valid lessee of West Cay and therefore the tenant of all
The “petition” (complaint) in the case at bar alleges that the defendant Hypolite Hatchette on several occasions prior to April 3, 1958, declared to the plaintiffs that he had the exclusive right to fishing activities on and within the shores, beaches and off-shore areas of West Cay, and that he had threatened the plaintiffs with physical damage to their persons and property if they attempted to fish in such areas, and that he continues to claim the right to restrict fishing in the waters adjacent to West Cay to his licensees or permittees. We find no sufficient evidence in the record to support these allegations. In the light of all the circumstances, and in the absence of adequate proof as to the defendant Hypolite Hatchette’s alleged declarations or assertions, the present motion to dismiss the complaint as to the defendant Hypolite Hatchette must be granted. We cannot find that he made such declarations or assertions. At best on this issue the court can only return the Scotch verdict of “not proven”. It follows that the defendant Hypolite Hatchette should not be included in the
While the plaintiffs and all other persons have the right to fish in West Cay Bay and the other waters adjacent to West Cay they may not trespass upon the land of the defendant Hypolite Hatchette above the high water mark. There is evidence in the record, and the court finds as a fact, that some of the plaintiffs or members of their crew trespassed on the defendant Hypolite Hatchette’s land above the high water mark. In view of the fact that the plaintiffs and other fishermen will continue to fish in the waters adjacent to West Cay, there is a threat of continued trespasses and a resultant multiplicity of suits. The court concludes therefore that the defendant Hypolite Hatchette’s legal remedies are inadequate. Accordingly he will be awarded an injunction against any future trespasses by the plaintiffs or members of their crew. United States v. Colvard, 89 F.2d 312 (C.C.A. 4, 1937); Whelpley v. Grosvold, 249 Fed. 812 (C.C.A. 9, 1918); Pittsburgh, S. & W. R. Co. v. Fiske, 123 Fed. 760 (C.C.A. 3, 1903). The trespass, however, resulted in no substantial damage to the defendant Hypolite Hatchette. Accordingly he will be awarded nominal damages in the amount of six cents.
As to the defendant Gustave Quetel’s counterclaim for damages, while the record demonstrates that he had the right to take the first round and was justified in his conclusion that the plaintiffs would interfere with his doing so, nonetheless he cast the first stone to drive the fish away. Had he permitted the plaintiffs to seine he would have been entitled to claim by way of damages the value of the fish which they had caught. Perhaps such a degree of for
The dispute between the parties has engendered some heat and might lead to serious physical consequences. We have declared the rights of the parties but to the end that peace may descend upon the fishing waters of the Virgin Islands and in particular upon those adjacent to West Cay, it will be appropriate to mutually enjoin the parties, the defendant Hypolite Hatchette excluded, from interfering with one another’s fishing, having in mind always the declared maxim: first in time, first in right. An injunction to such effect will issue concurrently with the filing of this opinion.
The imposition of costs in this case has caused the court concern. The defendant Hypolite Hatchette aside, it is difficult to tell who has won and who has been cast in the litigation. The plaintiffs have achieved a declaration that they are entitled to fish in the waters adjacent to West Cay and in particular to West Cay Bay subject to the maxim: first in time, first in right. So, in effect has the defendant Gustave Quetel. It is clear, however, in the light of the declarations of rights contained in this opinion, that the plaintiffs erred in preventing the defendant Gustave Quetel from seining in West Cay Bay on the morning of April 3, 1958 for he was first upon the scene. The plaintiffs and their crew also cast stones and aided in driving away the arriving schools of carang. We have refused the defendant Gustave Quetel damages upon his counterclaim for the reasons stated. It is clear, however, that the defendant Hypolite Hatchette is entitled to his costs, both on the principal action and on his counterclaim, and that these costs should be taxed to the plaintiffs Louis T. Greaux and
Findings of fact and conclusions of law are made in this opinion in compliance with the provisions of Rule 52(a), Fed. R. Civ. Proc., 28 U.S.C.
There are a number of bays at West Cay. For the purposes of this opinion we designate the bay which is the subject of this litigation as “West Cay Bay.” It is that bay which faces Savana Passage, approximately opposite the north point of Kalkun Cay, the north side of which lies adjacent to the narrowest portion of West Cay.
In fishing by seine, the seine is drawn around the school of fish. This is called taking a “round”.
It is possible that the “three” schools were in fact one school which, being driven away, returned twice to the bay.
Plaintiffs’ Exhibit 1, admitted by stipulation of the parties.
Fred Richardson was called as an expert on seining by the defendant Hypolite Hatchette. We think he was qualified as an expert and therefore accept his testimony as expert testimony. Larkin v. May Department Stores, 250 F.2d 948 (3 Cir. 1958).
In so finding, the Court is not unmindful of the sandy and rocky portions of West Cay Bay. The northern portion is sandy; the southern part, rocky. There is evidence that fishing by seine and by other methods is aided greatly by the techniques of skin-diving but even employing these advances in the science of fishing, the Court is still of the opinion that only one round at a time can be taken practicably in West Cay Bay.