Walker v. Stone, 17 Wash. 578

Walker v. Stone

17 Wash. 578 | Wash. | 1897

The opinion of tie court was delivered by

Reavis, J.

Respondent commenced an action in'the superior court of Pacific county to enjoin appellants from constructing a pound net for fishing within 900 feet laterally of respondent’s set net and set net location. On the 27th of January, 1896, respondent was granted a license by the fish commissioner, under the act to regulate and license the catching of salmon,' approved February 10, 1893 (Laws 1893, p. 15), to construct and operate stationary appliances and a set net to be operated in Baker’s Bay. Respondent afterwards constructed at considerable cost and expense a set net and gave the proper notice thereof. *580Appellants, on February 7, 1896, began driving piles in tbe bed of tbe river for tbe purpose of constructing a pound net for catching salmon, and in sucb a manner and position that tbe distance of tbe lateral passage way between the same and respondent’s set net did not exceed 100 feet. On February 14, 1896, tbe appellant Lindsey E. Stone obtained a license from tbe fisb commissioner to use stationary appliances and construct a pound net in Baker’s Bay. Tbe appellants denied that they encroached or were encroaching upon tbe lateral way given to respondent by tbe statute. They also set up that respondent was not a citizen of tbe state at tbe time be obtained tbe license, and also maintain that tbe license does not grant an exclusive privilege to fisb over tbe extent of water designated by tbe statute.

Tbe legislature passed an act in 1891 to regulate salmon and sturgeon fishing (Laws 1891, p. 171), in which it was declared to be unlawful for any person to fisb for, or take for sale or profit, any salmon, sturgeon or other food fisb in any of tbe rivers or waters of this state, or over which it has concurrent jurisdiction, unless sucb person be a citizen of tbe United States, or has declared bis intention to become sucb one year prior thereto, and has been for six months an actual resident of tbe state. Any person with tbe above described qualifications might go before tbe county clerk in any county and furnish satisfactory evidence of bis citizenship or other qualifications to tbe clerk, and thereupon tbe clerk should issue to him a certificate, and thereafter sucb certificate is prima facie evidence of bis citizenship and. residence as required by law. Tbe time for fishing bad also been regulated. In 1893 tbe legislature further provided in tbe act heretofore mentioned, to regulate and license tbe catching of salmon, what persons might own and operate a pound net, trap, set net and other *581fixed appliances, and provided that no license should he issued to any one who was not a resident and citizen of the state. The act also regulates the measure of the meshes and provides that the fish commissioner shall collect for each license for a pound net or other fixed appliance the sum of $10 annually; for each set net the sum of $2. It also provides that there shall he'an end passage way of at least 30 feet and a lateral passage way of at least 900 feet between all pound nets, set nets and other fixed appliances constructed in places within the waters of the Columbia River and its tributaries. Also provides that any person violating these provisions shall be deemed guilty of a misdemeanor and on conviction be fined.

The superior court heard considerable testimony introduced at the trial, and found that defendants were constructing their pound net within the 900 feet inhibited by the statute, and also found that the respondent had duly obtained his license and commenced the erection of his net before appellants procured the license. Without following the discussion of the question of state citizenship, as presented in the arguments before the court, we have concluded that the acts of March 6, 1891, and February 10, 1893, are upon the same subject, and that the term “ citizen and resident ” is used in the same sense in both acts. And we think the term “ citizen ” is rather loosely used in the act of 1893. This has frequently been done. Morse, Citizenship, p. 124.

And we do not think it necessary here to define citizenship in this state.

The legislature had the power to license fishing and to give exclusive control for a reasonable distance of the water after the construction of a net or other fixed appliance for fishing, and for the limited period of one year. Such license does not come within the inhibition of grant*582ing an exclusive privilege to tlie waters by tbe state. Sucb license is a franchise of which the violation is an injury and properly cognizable in equity. The fact that it is deemed a misdemeanor does not militate against its protection in equity. The respondent, having a license and constructing his net, was entitled to an injunction against any infraction upon the rights under his franchise.

. We perceive no error in the judgment of the superior court, and it is affirmed.

Scott, C. J., and Dunbar and Anders, JJ., concur.