29 Wash. 224 | Wash. | 1902
The opinion of the court was delivered by
This' is a contest over a fishing site. In his complaint, the: appellant, who was plaintiff below, after alleging the due incorporation of the respondent Anaeortes- Packing Company under and by virtue of the laws- of the state of Washington, further alleged that he was the owner o-f a certain pound net fishing license issued to him by the fish commissioner of the state of Washington, and by reason thereof was authorized to locate a pound neb in any of the waters of Puget Sound, wherein pound nets were not especially prohibited by law; that on the 6th day of April, 1901, while such license was in full force, he located a fishing site in the waters of Puget Sound, at or near the southwest point of San Juan Island, known as “Salmon Banks,” by driving piles and posting his license number thereon in the manner required by statute; that thereafter he caused the site to be surveyed, and a plat thereof made and filed with the fish commissioner; that on or about the 15th day of April, 1901, the respondents wrongfully, willfully, and mali
The answer of the respondent Winch was, in effect, a disclaimer of interest The respondent Anacortes Packing Company answered, denying the material allegations of the complaint; admitting, however, its. due incorporation; that the appellant had driven piles on the site as alleged, and posted a number thereon; and that it on or about the 15th of April, 1901, entered on the site in question, and p-roceeded to drive piles preparatory to constructing a trap' for the fishing season of 1901, — averring that such entry was of right. Further answering by way of a cross complaint it alleged that the fishing site in question was first located by its predecessor in interest, as early.as the beginning of the fishing season of 1896, and that such site had been continuously occupied and fished by its predecessor in interest and itself during the fishing seasons from that time down to the present time, under successive fisMng licenses issued by the fish commissioner of the state of Washington; that on the 26th of April, 1900, it procured from the fish commissioner a pound net license, numbered 856, and shortly after that date relocated the site in question, by driving piles and posting its license number thereon as required by law; that thereafter, and before the fishing season of 1900 opened, it constructed a pound net trap on the site, and fished the same during the entire fishing season of 1900; that it had since the close of the fishing season of 1900
For reply, the appellant denied generally the allegations of the cross complaint, save the due incorporation of the respondent, and set up three affirmative defenses. In the first of these it is alleged that a large majority of the shares of the capital stock of the respondent, practically all, were owned and held by the respondent R. V. Winch and one George E. Bower, and that neither Winch nor Bower were or ever had been citizens of the United States; that nominally the principal place of business of the respondent was at Anacortes, in this state, but that its real and active place of business, except for a few months in each year, was at Vancouver, British Columbia; and that the respondent had, contrary to law, during the fishing season of 1900, owned, operated, and taken fish from some twelve different fishing sites under licenses obtained from the fish commissioner, “taken out in the names of different parties for the use and benefit of said Anacortes
“For a second, further, separate, and distinct defense, to the answer and cross-complaint of the defendant the Anacortes Packing Company, plaintiff alleges: First, That if defendant, the Anacortes Packing Company, made any location, or constructed any trap1, under’ license number 856 between the 26th day of April, 1900, and the institution of this suit, the defendant has forfeited all right to- said location under' said license number 856 prior to the institution of this suit, for the reason that said defendant failed to construct a trap' and toi fish said location for and during the fishing season of 1900, as provided by law.
“For a third, separate, and distinct defense to the answer and cross-complaint of the defendant the Anacortes Packing Company, plaintiff alleges: First, That if defendant the Anacortes Packing Company took fish from any fish trap or fishing location in the waters of Puget Sound Fishing District during the fishing season of 1900, or if said the Anacortes Packing Company fished said location during the fishing season of 1900', under license numbered 856, it did so in violation of the laws of the statei of Washington, and specially in violation of the Acts of 1899, section 6, published in thei Session Laws of the state of Washington at page 198 ei se,q., and which said Act was approved on the 13th day of March, 1899; and whatever rights the defendant the Anacortes Packing Company claims to have acquired to the location described in the answer and cross-complaint of said defendant were, if acquired at all, so acquired while defendant was engaged in the violation of said above named section of said act of March 13, 3899.”
Demurrers were interposed and sustained to these affirmative defenses, and the cause tried upon tire remaining issues, resulting in a judgment, for the respondent, enjoining the appellant from entering upon or in anywise interfering with the fishing site in dispute.
There is no; merit in the contention that the respondent corporation has its real and active place of business elsewhere than in this state for certain seasons of the year. Such conduct neither makes it a non-resident, nor does it violate the provision of the statute requiring it to- state in its articles of incorporation the city, town, or locality in which its principal place of business is to- be located. But if it did either or both, such act or acts would not justify the seizure of its property by a stranger.
The sustaining of the demurrer to- that branch of this defense averring that the respondent corporation was the owner of more than three fishing licenses was justified on the ground that the question there sought to be raised was in issue by the allegations of the cross complaint and the denials -thereto’. This being so, no affirmative plea on the part of the appellant was necessary, to enable him to introduce evidence upon the point. But more than this, the plea was insufficient to raise an issue. As the respondent could lawfully operate three fishing sites, a general allegation that it operated more than three is not sufficiently specific to authorize the introduction of evidence showing that any particular one was being unlawfully operated. Tacts should be alleged showing that the particular location was unlawful.
The question sought to- be raised in the second defense pleaded was also included in the general issue. As the
No issue could be raised upon the allegations contained in the third defense which could avail the appellant. If the corporation omitted to do the things required by the sixth section of the act of 1899, the state might call the corporation to account, hnt until it does so, and declares the rights acquired, by other provisions of the statute forfeited, no- private individual can profit thereby.
The appellant further contends, that the trial court permitted the respondent to introduce incompetent evidence, and he. argues the point as if error in this respect was, alone, sufficient to entitle him to reversal of the judgment entered by the trial court. If this he his position, he is mistaken. Oases of this character are .tided in this court de novo-. In so trying them, the court will disregard incompetent evidence, and try the cause upon that part of the evidence it deems to he competent; and it is only when the competent evidence fails to support the findings of fact made by the trial court that it will reverse the judgment founded thereon. In recognition of this principle, we have said that it was better for thei trial court, in cases where the evidence offered was. of doubtful competency, to' admit the evidence-, as this- court could then make a final disposition of the case^ whereas, if competent evidence he excluded, it would necessitate remanding the case for a further hearing. The real question, therefore, is, does the competent evidence sustain thei findings of the
The judgment is affirmed.
White, Hadley, Anders, Mount and Dunbar, JJ., concur.
Reavis, O. J., concurs in the result