72 P. 161 | Cal. | 1903
Each of the parties to this action is a corporation, and at the time of the occurrences out of which the litigation here involved arose both of the parties were engaged in catching salmon along the shore of Alaska, at and near the mouth of Karluk River, in and near and about Tanglefoot Bay, Karluk Beach, and Tanglefoot Beach, and each had plants in the vicinity at which the fish were canned. The action is for damages for alleged wrongful acts, by which defendant, during the fishing season of 1897, unlawfully and forcibly excluded plaintiff from fishing in the ocean in the localities above mentioned. The jury returned a verdict for plaintiff in the sum of $14,000, for which amount judgment was rendered. Defendant appeals from the judgment and from an order denying its motion for a new trial.
The questions involved are, as stated in appellant's brief, *635 "wholly those of law, consisting of alleged erroneous rulings on the admission or rejection of evidence, and the giving and refusing to give certain instructions." Under our views of the case, there are only three subjects which call for especial notice: 1. Defendant's claim by prescription to an exclusive right of fishing in the waters of the ocean in question; 2. The matter of actual damages; and, 3. The matter of punitive damages.
Defendant contended that it and its predecessors had for a number of years — more than five years — prior to 1897, continuously and exclusively fished in the waters described in the pleadings, and thereby had acquired by prescription, the right to the sole use of those waters for the purpose of fishing, as against any one except the government. This contention is presented, by some offered and rejected evidence, to the point that it had exclusively thus used the waters under a claim of right, and by instructions given and rejected on that subject. There were several such instructions, but the question was fairly and clearly presented and disposed of by the giving of instructions numbered 1, 2, 4, and 5 asked by plaintiff, and by the refusal to give instruction numbered 51 asked by defendant. The said given instructions are as follows: "1. I instruct you that the right to fish in the waters of the sea and of the navigable arms of the sea, where the tide ebbs and flows, adjacent to the shores of Alaska and of the islands belonging thereto, including Kodiak Island, is a right public and common to every person; and I instruct you that this right extends to all such waters irrespective of the question of the ownership of the adjoining shore. 2. If you find that the waters adjoining Karluk and Tanglefoot beaches on Kodiak Islands are waters of the sea, or of a navigable arm of the sea, where the tide ebbs and flows, then I instruct you that the plaintiff had the right, common to all persons, to fish in those waters, and the defendant had no right of fishing therein superior to that of plaintiff. 4. I instruct you that the United States government has reserved the tide-lands for the common purposes of navigation, commerce, and fishery; and no one can acquire, by possession, occupation, or use, any exclusive rights in these lands superior to the public and general right, common to all, of commerce, navigation, and fishery. By the words `tide-lands,' I mean that portion of the shore, or beach, covered *636 and uncovered by the ebb and flow of an ordinary tide. 5. I instruct you that the mere use of tide-lands for fishing purposes by a single person, no matter how long the use may have continued as an exclusive use, is only the exercise of a public right, and can confer no exclusive right by any principle of prescription or otherwise; but the lands still remain open to the public, as before." And the said instruction asked by defendant and refused is as follows: "51. If you believe that for more than five years prior to the year 1897, and during said year, the Alaska Packers' Association, and its grantors, had been in the open, exclusive, and notorious possession of the fishing-grounds adjacent to Karluk Spit and Tanglefoot Beach, and if you believe that the said Packers' Association, and its grantors, for more than said period of time, constantly used and occupied the said fishing-grounds with their seines, and that such holding and use was adverse to the plaintiff and to the world, then I charge you that the Alaska Packers' Association acquired what is known as a `prescriptive right' of fishery in and to said fishing-grounds, which said right, for the purpose of so fishing, was valid against all persons other than the United States, and, so far as the Whaling Company is concerned, the Packers' Association were entitled to the exclusive use of said fishing-grounds for the purpose of conducting its fishing operations."
The giving of the instructions 1, 2, 4, and 5 was clearly right, and the instruction asked, numbered 51, was properly refused. The right of fishery in the waters of the ocean, whether in the open sea or where the waters ebb and flow over tide-lands, is a public right which may be exercised by any citizen. (Shively
v. Bowlby,
2. Upon the subject of actual damages there was no error in admitting evidence or instructing the jury. Plaintiff claimed that it had been forcibly excluded by defendant from salmon-fishing in the said waters during the fishing season of 1897. The court had instructed the jury on that point as follows: "I instruct you that sufficient reason would exist for plaintiff to desist from further attempt to fish if the acts and declarations of defendant's agent were such as would satisfy a reasonable man that further attempts to fish would be useless, because they would be met and frustrated by force"; and there was evidence to warrant the jury in finding the fact referred to in the instruction. The general nature of the evidence as to actual damages to which defendant objected and which plaintiff was allowed to introduce was this: Evidence tending to show how many fish plaintiff could, with reasonable probability, have taken from the fishing-grounds in question if it had not been excluded therefrom by the unlawful acts of defendant, — the value of such fish, and the profits which would reasonably have accrued to the plaintiff from the fish when canned. Plaintiff was also, in this connection, allowed to introduce evidence tending to show how many fish defendant actually did take in these fisheries during the said season. The court also instructed the jury as follows: "I instruct you that if you find that defendant or its employees or servants were, under the law as given you, guilty of acts constituting an unlawful interference with plaintiff's pursuit of a lawful business in a lawful way, then you must assess as damages the amount which will compensate plaintiff for all the detriment proximately caused thereby. I instruct you that if you find that plaintiff suffered damage by reason of the alleged wrongful acts of the defendant, or of its servants and employees, then in assessing the amount of damages caused to plaintiff by the alleged wrongful acts, you may consider the loss, if any, to plaintiff of probable profits in its business." The position of defendant is, that the evidence *638 pointed to damages too much in the nature of mere speculative profits to be admissible at all.
We do not think that in these rulings of the court as to evidence, or in giving the said instructions, there was any error. The profits sought to be proved were not so remote, uncertain, prospective, or conjectural as to be entirely beyond the range of legitimate damages. Of course, evidence of such damages should be closely scrutinized by a jury, and claims merely fanciful and beyond reasonably proximate certainty should be by them excluded; but the jury in this case were suitably instructed and warned on that subject, and it is to be presumed that they did their duty in the premises. With respect to this kind of damage, of course, there cannot be the absolute certainty possible in many plainer cases; but a wrong-doer cannot entirely escape the consequences of his unlawful acts merely on account of the difficulty of proving damages; he can do so only where there is no possibility of a reasonably proximate estimation of such damages, which is not the fact in the case at bar. The waters in question here constituted a special salmon fishery, — where those fishes were to be found in great abundance, — and the proposition that damages evidently suffered by plaintiff from the wrongful act of the defendant by which plaintiff was excluded from exercising the clearly valuable right of fishing in those waters are entirely beyond legal proof, cannot be maintained. We think that on this point the case at bar is within the rule announced in Shoemaker v. Acker,
3. As to the matter of punitive damages, we think that there was error in excluding certain evidence offered by defendant for the purpose of showing the intent and motive with which defendant did the acts complained of, and that they were not done maliciously. Defendant sought to show by the testimony of its agents, and its officers who constituted its governing body, that they had a bona fide belief in the asserted title of defendant to the fisheries in question, and that the acts complained of were done simply for the purpose of protecting that right, and not for any malicious purpose of injuring plaintiff or its property. Such belief and motive would, of course, be no defense against the actual damage caused by their unlawful acts, but punitive damages are given as punishment beyond what a plaintiff has actually suffered; *639
and a jury in determining whether or not a defendant should be thus punished at all, and, if so, how much, should know with what intent and motive the unlawful act was done, — whether under an honest claim of right and in a bona fide attempt to protect what he believed, although erroneously, to be his property, or merely a mischievous and malicious intent to injure another by acts which he knew to be without any justification whatever. This is a well-established principle, and has repeatedly been declared by this court. It is fully stated in the case of Lamb v. Harbaugh,
The foregoing views cover the main features of the case, and we do not see that anything further need be said for the benefit of the court below in the event of another trial there. It, perhaps, may be well to say that the mere fact, if it be a fact, that plaintiff at one time committed a trespass on defendant's land above high-water mark, would not in itself preclude any recovery of punitive damages.
The judgment and order appealed from are reversed.
Lorigan, J., and Van Dyke, J., concurred.
Hearing in Bank denied.