83 P. 391 | Or. | 1907
Lead Opinion
The respondents seek by motion to have stricken from the transcript and files of this court in the above cause the testimony, exhibits and documentary evidence accompanying such transcript, assigning as grounds therefor: (1) That such testimony, documentary evidence and exhibits were not identified by the trial judge rendering the decree, as the law requires; (2) that such testimony, etc., are not certified as required by rule.l of this court; and (3) that there appears to be incorporated with such testimony the evidence of witnesses, including documents and exhibits, which was never given or admitted at the trial of the cause. The respondents also seek by a further motion, filed at the1 same time, to have stricken from the transcript a stipulation, entered into' between' counsel .for the parties, touching certain evidence it was desired’to have admitted.m .the,cause. ........ ...... ;■
The order will be entered in accordance with this opinion. Motion Allowed in Part.
Opinion on the Merits
Decided December 17, 1907.
On the Merits.
[92 Pac. 1065.]
Opinion by
.Plaintiff, -who is a citizen of. this state), seeks' to establish by this suit a private and exclusive right to take
“There is in all such cases,” says Mr. Justice Lord, in that case “where land is thus situated and contiguous to the sea, as the court say in Trustees, etc., Town East Hampton v. Kirk, 84 N. Y. 218 (38 Am. Rep. 505), the possibility of gain or loss to which all riparian owners are subject. They would be entitled to whatever should be gained from the sea by alluvion or dereliction, and their title was liable to be lost by the advance of high-water mark, so as to bring the strip reserved within the ebb and flow of the tide.”
So that upon the recession of the water of Rogue River, plaintiff, by reason of his ownership of what was previously tide land thereon, became the owner in the same right of the accretions, and he gained no additional right by securing from the state a deed to the accretions as tide lands.
“When the soil over which the water runs and the water itself belong to the same person, the owner cannot be correctly said to have a right of fishery, because the land and its profits are so completely identified as his inheritance that they cannot be separated. Therefore (continues Mr. Farnham) the fishery is included in land and water, and since, in the absence of express reservation, land included water, a grant of land will include both water and fishery. So completely is the fishery identified with the soil, that, if the river changes its course so as to flow upon the land of a stranger, a right of fishery in the river is lost. There is an exception to the rule that the fishery follows the soil in case the soil lies under water in which the public has a right of fishing. In such cases, in order to pass the exclusive right of*245 fishing, it must be mentioned in the grant, and a mere grant of the soil, • without more, will give no right to exclude the public from the enjoyment of its common right; and this exception includes the taking of shell fish from the soil below high-water mark. While the fishery is primarily a part of the soil and will pass with it, both water and fishery may be separated from the soil so as to become a fishery in gross, and the subject of independent conveyance, the same as other classes of property. This rule is as ancient as the Year Books, where it is held that one may have a several fishery in another’s land. The water includes the fishery, so that a grant of a parcel of water will include the right of fishery in it. North Carolina has not adhered to the rule that a fishery may be separated from the soil, and has held that there can be no several fishery in a navigable stream, as such a right is an incident of the ownership of the soil, a locus which cannot be granted in that state. But the doctrine was not extended to land owned by private individuals, for grants by' them of the fishery rights were recognized.”
The question of what constituted a navigable stream was determined by this court very early in the history of the state in the case of Weise v. Smith, 3 Or. 445 (8 Am. Rep. 621), where it is said:
“It may be considered the settled law of the United States that so much of the doctrine of the common law of England as made the ebb and flow of the tide a test of navigability is not now applicable in the United States. On the contrary, the maxim of Lord Mansfield, ‘out of the fact arises' the right,’ is applied by the courts of this country” — citing Morgan v. King, 35 N. Y. 454 (91 Am. Dec. 58); Jones v. Pettibone, 2 Wis. 308.
It is apparent, then, that plaintiff’s title to the uplands adjacent to that part of Rogue River above tide water, runs only to ordinary high-water mark, and cannot be made the basis of an exclusive right to fish in its waters.
“ Tf I have land adjoining the sea, so that the sea ebb and flow upon my land, while it flow every one may fish in the sea which has flowed upon my land, for then it is parcel of the sea, and in that sea every one may fish of common right.’ ”
“Nothing in this act shall be construed to prevent the legislature of this state, or the corporate authorities of any city or town thereof, from regulating the building of wharves or other improvements in any bay, harbor or inlet of this state or construed as a grant of the exclusive right to any person or persons, to use the natural oyster beds of this state, but the grantee of any tide lands under this act shall hold the same subject to the easement of the public as provided by the existing laws of this state, to enter thereupon and remove, under the*248 provisions and restrictions of the laws now in force or which may hereafter be enacted, oysters and other shell fish therefrom.”
Having reserved in the act the right to regulate the building of wharves, and also the right of the public to enter upon the tide lands sold and conveyed under the authority conferred by said act by negativing an exclusive right in a grantee, and not having reserved any other or further rights, there can be no doubt, it is said by plaintiff, by way of argument, that it was the intention of the legislature to convey the exclusive right of catching floating fish as appurtenant to the lands granted, applying the maxim expressio unius est exclusio alterius to the language of the statute. Some weight might be given to this suggestion, if without such reservation in the statute the exclusive right.to use the natural oyster beds would have passed to the grantee. But such is not the law. The language reserves that which the law itself without the statute would have reserved, or rather the law declares that such exclusive right as against the public right shall not be deemed to be included unless it is expressly mentioned. In those states, where it has been conceded that such grant may be made by the state, it has been universally held that, the claim being in derogation of a public right, such grants are strictly construed against the grantee, and an intention to part with any portion of such public right will not be presumed unless clear and special words are used to denote it: Shively v. Bowlby, 152 U. S. (45 Davis) 1 (14 Sup. Ct. 548: 38 L. Ed. 331); Pacific Steam Whaling Co. v. Alaska Packers’ Assoc. 138 Cal. 632 (72 Pac. 161); 2 Farnham, Waters, § 1379; 19 Cyc. 994. “A grant of an exclusive right of fishery in a public water is in derogation of common right, and must be expressly méntionéd to vest in' the' grantee. '. No süch right 'will, pass ,by ‘implication”: 2 . Farnham, Waters, §.1379.., Np. language being found in plaintiff’s deeds from the state which by un
M. Riley, of the firm of Riley & Stewart, and a witness for plaintiff, from whom he deraigns his title, swears that “We did not object to any one fishing in the river, if they did not trespass on our tide lands where we were fishing, where we had fixed our hauling grounds.” He mentions Captain Coughill, who he says came to Rogue River and fished some; that he brought a schooner and anchored it in the river, and salted his fish down in the schooner and took them to San Francisco; that white men and Indians caught all the fish they wanted for their own use; nobody objected; that they did not interfere with any one, except those who trespassed upon their tide lands. The testimony of T. A. Stewart is to the same effect, and there is evidence that others at different times have fished in the stream with nets, and in fact it is conceded by counsel for plaintiff that farmers in that vicinity annually take fish from Rogue River for their own use, and that the common right of fishing with hook and line in Rogue River now exists. The claim of exclusive right to fish with seines and nets in the river, now made by plaintiff, seems to have been originated by him, and not by any of his predecessors. Since plaintiff became interested in the business of fishing and canning fish at that place, he has at times objected to others fishing there, and warned them away, and several actions have been brought and successfully maintained by him and his predecessors against persons who have attempted to take fish with seines; but all of these instances involved a trespass by hauling seines upon the shore or tide land owned by plaintiff, but never involved the right to take fish in the stream with drift nets or set nets without such trespass upon the shore.
The use and enjoyment which will give title by prescription to an easement or other incorporeal right is substantially the same in quality and characteristics as
“But starting with the presumption that the right of fishing in the navigable part of the river is common to all, then the plaintiff is met with the difficulty that every time he and his grantors fished in these waters they simply exercised a right common to all, and in subordination to the legal title of the state (Code, § 368) ; that every time, any one else fished therein he did so of like common right. If the plaintiff exclude any fisherman from these waters, that might be notice to .such fisherman, but it would not be notice to the state. The state should not be presumed to have lost its title unless the circumstances charged it with notice of the necessity of protecting it. * * The plaintiff’s evidence of his exclusive user of these waters for fishing was to the effect that he and his grantors, and those whom he or they permitted, were in the main the only persons who fished there; that occasionally others would attempt to fish there, but did not in fact do any fishing when plaintiff’s or his grantor’s nets were out. Once his grantor sued a person because he fished there. What became of the suit does not appear. The plaintiff once forbade one Lynch from depositing dredged material there, and he desisted. Fifty years ago plaintiff’s grantor ordered a fishing party away, and they left. This and other evidence tended to show that plaintiff and his grantors for*257 fifty years claimed the exclusive right of fishing in these waters, and that in the main his neighbors respected the claim. We do not think these facts affect the state. Every act shown asserting the right of exclusive fishing was as ‘unstable as the water,’ and left no mark to warn the state of the plaintiff’s claim” — citing Knickerbocker Ice Co. v. Shultz, 41 Hun, 458; Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382 (22 N. E. §64).
The latter case holds that the right to navigate the public waters and to fish therein are public rights, belonging to the people at large. In that respect every individual has the same right; that the riparian proprietor cannot interfere with such user by the public, and that should he attempt to so appropriate to his own use the lands under water in front of his premises, and to that end should build thereon, it would constitute a purpresture, which the state could remove.
“Sec. 2. The owner or owners of tide lands and riparian owners above tide water on each of said rivers (including Rogue River) as appurtenances thereto shall have the exclusive right and privilege of fishing for salmon fish with seines and nets and hauling and landing’ seines and nets on said lands, and no person or persons shall anchor said nets or put or place any obstruction or obstructions whatever in the water fronting said tide lands in any place or places where said tide lands are used for hauling or landing seines”: Laws 1899, p. 72.
This statute apparently grants to the owners of tide lands the exclusive right and privilege of fishing for salmon fish with seines and nets on such lands while covered by the tide, as well as of drawing seines thereon. The first right attempted to be granted by this statute is a part of the jus publicum held by the state in trust for the people, and is an addition to the jus privatum, which passed from the state to the grantee by the tide land deed; and the second right attempted to be granted is no more than a confirmation of that which the grantee had without the statute. It is not clear from the evidence whether the defendants drifted with their nets over the tide lands of plaintiff while covered with the tide, but from the tenor of the stipulation between the parties, heretofore noticed, it'may be inferred that they
"No law shall be passed granting to any citizen privileges or immunities which upon the same terms shall not equally belong to all citizens.”
Construing this section of the constitution in the case of White v. Holman, 44 Or. 180 (74 Pac. 933), it was held by this court to inhibit the granting of a monopoly in a lawful and uninjurious business, which may be conducted as of common right. The business of fishing is unquestionably lawful and uninjurious, and its exercise in navigable waters is not only a matter of common and public right (Schultes’ Aquatic Rights, 16-55: 24 Law Library, 4, 25), but is the right of citizenship and property combined: MeCready v. Virginia, 94 U. S. (4 Otto) 391 (24 L. Ed. 248). Hence the grant to one of an exclusive right to fish would not only create a monopoly in one citizen by taking from others a right of citizenship; but would destroy by the same act a right of property vested in each.
In the case of Slingerland v. International Contracting Co. 43 App. Div. 215 (60 N. Y. Supp. 12), London, J., says:
“The plaintiff’s claim is not to the land, but to what may come because of the land — an incorporeal hereditament — which Blackstone classified as a franchise: 2 Blackstone, Commentaries, 39. It manifestly is a franchise if it is a private exclusive monopoly of a public right. I!; is an easement if it is the servitude which the servient tenement — the river — must yield to the dominant tene*260 ment — the upland. Under our state constitution, it is doubtful whether any franchise can be granted except to promote the public welfare: Article III, § 18. To grant to one person the exclusive right of fishing in any part of the Hudson River would be to deprive without due process of law every other person of his privilege of fishing there. The nature of the title of the state to the river does not admit of its subjection to a perpetual unconditional easement in favor of the upland.”
The section of the constitution of New York therein referred to reads as follows:
“The legislature shall not pass a private or local bill in any of the following cases * * granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever * * ”: Rev. St. N. Y. 1882 (7 ed.), p. 89, Art. III, § 18.
Affirming this case on appeal, Justice Gray expressly approves of the opinion of London, J., in the case of Slingerland v. International Contracting Co. 43 App. Div. 215 (60 N. Y. Supp. 12), and adds:
“The state could not grant an exclusive right, and if there was no authority in law for such a grant, it will not be implied as the basis of a right by prescription: Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382 (22 N. E. 564). He could gain no exclusive title by continuous or adverse user, for.the river was common to all. The title of the state was in trust for the people, and all rights exercised in the waters of the river were enjoyed in common. Fishing in navigable rivers or in arms of the sea is presumptively common to the public (Hooker v. Cummings, 20 Johns. 101: 11 Am. Dec. 249), and the presumption militates necessarily against any title having been acquired exclusive as to the state and the public”: 169 N. Y. 60 (61 N. E. 995: 56 L. R. A. 494).
At an earlier period of the judicial history of that state its court of last resort discussed to some extent, in the case of Matter of Application of Union Ferry Co. 98 N. Y. 139, the character of the privileges or franchises at which the constitutional prohibition in question was aimed; citing familiar instances of grants of ex-
We are of the opinion, therefore, that the grant to a citizen of an exclusive right to fish in a navigable stream, where, prima facie, all have a common right to fish, is the creation of a monopoly, which comes within the prohibition of Section 20, Article I of the Constitution of Oregon, which is substantially the same in that respect as that of New York. For this reason, whatever deductions or inferences most favorable to plaintiff may be made from the evidence in this case, his claim of an exclusive right to the fishery in Rogue River must be held to have no legal basis.
The decree of the lower court should be affirmed.
Affirmed.
Rehearing
Decided August 4, 1908.
On Rehearing.
[96 Pac. 865.]
This case has been carefully re-exam-: ined, and we are satisfied with the conclusion heretofore reached.
Petition for rehearing will therefore be overruled.
Affirmed: Rehearing Denied.