Heckman v. Swett
40 P. 420
Cal.
1895
Check Treatment
Harrison, J.

In addition to the facts presented upon ‍​​​​​​‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌‌​​​‌‌​‌​​​​‌‍the former appeal in this case (99 Cal. 303), the court has now found that the change in the channel of Eel river left no portion of the lands included in surveys 36 and 42 on the north ‍​​​​​​‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌‌​​​‌‌​‌​​​​‌‍side of the river; and that at low tide the bed of the old channel is dry in places between the island and the plaintiff’s land. It was *280held upon the former appeal that the land of the defendants is bounded by the high-water mark on the south side of the river, and that the southerly line of the plaintiff’s land is the high-wаter mark on the north side of the river; that, as the low-water mark is on the south ‍​​​​​​‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌‌​​​‌‌​‌​​​​‌‍side of thе island, and the old channel of the river between the island and the plaintiff’s land is above low-water mark, the plaintiff is within the provisions of section 2 of the act of 1859 (Stats. 1859, p. 298), which gives to the owner of lands fronting on the river “ the exclusive right and privilege оf casting, hauling, and landing seines and nets on their own water-front,” and provides that for thе purposes of that act “ all bars and the bed of said river lying between the lines of the official survey and extreme low-water mark shall be deemed and held to bе the water-front of the landowner whose lines ‍​​​​​​‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌‌​​​‌‌​‌​​​​‌‍border on said river, or run nearest thеreto.” The court below, therefore, could render no other judgment than that thе plaintiff was entitled to the exclusive right of casting nets and seines for salmon on thе south side of the island in front of his lands, and enjoining the defendants from interfering therewith, or mаking claim thereto.

Counsel in the briefs filed herein have discussed at considerablе length the question of the title to the lands in the bed of Eel river, and also the powеr of the state to alienate these lands; but as these questions are not involvеd in the case, it is unnecessary to express any opinion thereon. The cаse presents for determination simply the question of the respective rights of the parties under the aforesaid statute ‍​​​​​​‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌‌‌​‌​‌‌​​​‌‌​‌​​​​‌‍of 1859 to exercise a right of casting sеines and nets for salmon in the waters of Eel river, fronting upon the lands of the plaintiff. The state, by virtue of its sovereignty, has authority to regulate fisheries within its borders, and may prescribe the places, as well as the times, in which fish may be taken, and may make exclusive grants of fisheries in designated waters, so far as the same do not impair рri*281vate rights already vested. (Gould on Waters, sec. 189; Commonwealth v. Vincent, 108 Mass. 447; Wooley v. Campbell, 37 N. J. L. 163; People v. Doxtater, 75 Hun, 472.) By the aforesaid act of 1859 this power was exercised in reference tо the mode and times of catching salmon in Eel river, and the exercise of the right wаs limited to the owner of lands fronting upon the river. By the same act the owner was givеn a right of action against any other person who should cast or haul a net or seine in the waters of the river fronting on his land. So long as this law remains in force the right thus сonferred is appurtenant to the land, and its invasion by another is the subject of judicial cognizance. “If the plaintiff has a right to the use and enjoyment of the prоperty, that is sufficient to have his right protected against invasion by another.” (Moore v. Clear Lake Water Works, 68 Cal. 150.)

Thesе provisions of the act of 1859, which form the basis of the plaintiff's right of action, are not repealed by sections 634 to 636 of the Penal Code. These sections are intended merely to regulate the times and mode of catching salmon. Within the times and mode thus prescribed the owners of the lands fronting on Eel river may still exercisе the right of catching salmon which was conferred upon them by the act of 1859.

The judgmеnt gives to the plaintiff the exclusive right of casting nets in Eel river, irrespective of the purposes for which they are cast, and enjoins the defendants from casting аny nets in the waters fronting upon the plaintiff's land. The title of the act of 1859 is “ to regulate salmon fisheries on Eel river,” and the act itself purports to confer a right of action in favor of the owner of lands fronting thereon, only against those who shall “ cast, haul, or draw any seine or net on Eel river for the purpose of catching salmon.” The judgment is broader than is justified by the statute, and should be modified by limiting it in this respect.

The court below is directed to make a modification of *282its judgmеnt in accordance with this opinion, and as so modified the judgment will stand affirmed. The costs of the appeal are to be borne by the appellant.

Garoutte, J., and Van Fleet, J., concurred.