188 P. 165 | Or. | 1920
Lead Opinion
This principle is tersely enunciated by Mr. Justice Eakin in Jones v. Jones, 59 Or. 308 (117 Pac. 414). We considered a similar question in Sweeney v. Jackson County, 93 Or. 96 (178 Pac. 365, 370), where buttressed by a quotation from the opinion in the case of Sealy v. California Lumber Co., 19 Or. 94,
We therefore conclude that the Circuit Court of Multnomah County had jurisdiction of the cause, in so far as the validity and efficacy of the licenses issued to the respective parties are concerned, upon which the main controversy hinges.
In order to make the question in dispute clear, we state the facts in regard to the issuance of licenses at and near the point in controversy, commencing in 1914, when Seufert Brothers Company made application to the master fish warden for and was granted a license, numbered “0-1,” dated April 1, 1914, to operate a scow fish-wheel situated 28.53 chains north and 12 chains west of quarter-section comer between sections 1 and 36, Townships 1 and 2 North, Range 13 East, W. M., in the Columbia River.
On March 23, 1914, Sam Williams made application for a license “to operate a fish-wheel in the Columbia River about two miles above The Dalles on the Oregon side at a place where I have had a wheel for three or four years. ’ ’ The following notation is on the application: “Lots 1 & 2 Sec. 1, Tp. 1 N., R. 13, E. W. M.” The license was issued and dated April 1, Í914. '
May 1, 1914, Williams applied- to have the location of the scow fish-wheel changed to read situated “on a point in the E. half of the S. W. % of Sec. 36, Tp. 2 N., R. 13, E., W. M., on the shore line of lands owned by the State of Oregon in front of Lot 3 of said Section.” The location was indorsed on the
May 1, 1915, Senfert Brothers Company made application for a license at the • same point described in its application and license in 1914, and license “0-31” was issued to it, and dated May 28, 1915.
June 8, 1915, Williams applied to the master fish warden for a license to operate a scow fish-wheel at—
“That certain point situated 28.53 chains north and 12 chains west of the quarter-section corner between section 1 in township 1 and section 36 in township 2, both townships north of range 13 east of the Willamette Meridian, in the county of Wasco, State of Oregon, at the point where I have heretofore secured and fished under state license.”
The application was rejected for the reason that license numbered “0-31” had been issued to Seufert Brothers Company on May 28, 1915, for the identical place applied for. Mr. Williams was informed by letter from the master fish warden as follows:
“At the meeting of the board of Fish and Carne Commissioners at the Governor's office in Salem on May 26th, after going into the matter, it was decided that, inasmuch as license had been granted to the Seufert Brothers Company upon application submitted in 1914 describing a certain identical point, that they had no option other than to order the renewal of said license, as application had been submitted conforming with the laws regulating such matters.
“They also decided, and so instructed me, to renew the license of Sam Williams upon the renewal of application as submitted in 1914, provided that a renewal of the1 1914 license is desired. Therefore, should you still desire a license for a scow fish-wheel, it will be necessary for you to make an application describing the location required as was set*174 forth in the application submitted for a scow fish-wheel in 1914.”
January 3, 1916, Seufert Brothers Company applied for a license for a scow fish-wheel at the same point as described in their applications and licenses for the years 1914 and 1915, and the license was issued and dated April 1, 1916.
On April 5, 1916, Sam Williams applied for a license for a scow fish-wheel, describing the location “at my accustomed place described more particularly on margin hereof:
(On margin) “Description of location: That certain , portion of the rocks which at low water constitute the South bank of the Columbia river opposite Lot numbered three in Section 36, Township 2 North of Range 13, East of the Willamette Meridian being in particular a certain point situated 28.53 chains North and 12 chains West of the quarter section corner between section 1 in Township one and Section 36 in Township two, both Townships North of Range 13 East of said Willamette Meridian in Wasco county, state of Oregon.”
On May 5, 1916, a license was issued to him to operate a scow fish-wheel at the point described in the application, which is in effect identical with the location for the scow fish-wheel of Seufert Brothers Company described in their license of April 1, 1916.
The gist of the controversy in this suit is in regard to the conflicting licenses issued to Seufert Brothers Company and plaintiff Williams in 1916, the other licenses having expired when this suit was brought.
The importance of the - fishing industry in this state has demanded- and had the benefit of the judgment of the lawmakers of the state at several different times. Prior to 1914, it seems no definite point was named in the license for a scow fish-wheel. In
“The failure to renew the license, or make application therefor, for any fish-trap, pound-net, fish-wheel, or location for other fixed appliance, in any of the waters of this State on the first day of April of any year, shall constitute abandonment of the location.”
Section 3, as amended, Laws of Oregon 1919, p. 648, directs that should the holder of a license neglect to construct the appliance called for during two consecutive years covered by his license, said location shall be deemed abandoned. Section 8, subd. (a), provides thus:
. “Licenses herein required shall be issued to any qualified person or corporation by the Master Fish Warden, upon application therefor, and the payment of the license fees herein required; .a separate license shall be required for each trap, pound-net, set-net, fish-wheel or other fixed appliance, and for each seine and gill-net and dip-net, and for each person trolling for salmon in the waters of the Columbia River, and for each person other than employees engaged in the canning, packing or curing of food or shell fish, and for each person other than employees purchasing or selling food or shell fish, either as principal, agent or broker.”
Section 8, subd. (c), of the act requires all applications for licenses to specify in detail the location of any fixed fishing appliance or seine. Section 1, Chapter 128, General Laws of Oregon 1913, p. 225, provides as follows:
“It shall be unlawful for the Master Fish Warden or the Board of Fish Commissioners to grant a license to any person, firm, partnership or corporation, to build or set up fish-traps or any other fixed*176 fishing appliance, or drive piles therefor, in any locality in or on the Columbia Eiver and its tributaries _ in this State, when in their judgment the same interferes with a prior right of fishing.”
It appears from the section of the act first quoted, that in the legislative mind it was deemed best for all the citizens of the state, and in furtherance of the interests of the fishing industry, that in order for a person holding a license to fish with a fixed appliance at a certain point in the Columbia Eiver, to protect such right, he must apply for a renewal of the license on or before the first day of April of any year. This arrangement also would tend to prevent a failure to utilize the particular location. Prior to the enactment of Chapter 188 in 1915, “prior rights of fishing” do not appear to have been clearly defined or limited.
It appears that in 1914 there was a conflict of claim between plaintiff, Williams, and. the defendant company in regard to a license to fish at the point in question. Prior to that time it seems that plaintiff had fished at different locations in the river and a part of the time at the point involved. In 1915, Seufert Brothers Company applied for a license at the point in controversy, before April 1st, and the license was regularly issued to it. Afterward, on June 8, 1915, Williams applied to the master fish warden for a license to operate a scow fish-wheel at the same point, and apparently copied a portion of the description of the point from the application of Seufert Brothers Company, and we think the application was properly rejected.
In 1916, Seufert Brothers Company applied for a license for a scow fish-wheel at the point described, within the time specified by the statute and the license was issued April 1st. The application of Williams for the same kind of a license at the same point was not made until after April 1, 1916. On May 5, 1916, a license was issued to him to operate a scow fish-wheel at the point described.
We are unable to see how this license to Williams could be issued without conflicting with the license of Seufert Brothers Company, and interfering with its prior right of fishing granted by its license of
The license issued to plaintiff, Williams, May 5, 1916, was of no force or validity as against the license regularly issued to the defendant company April 1, 1916.
It might happen that a license would be issued to a person by mistake or under such conditions that another person might be entitled to a license to fish at the same place. We do not see how the second license could be issued and be effective without a hearing and adjustment in case of such conflict, and the cancellation of the prior license.
In our view the statute to which we have referred is determinative of the main question in this case. It is therefore unnecessary to consider the matter of title to the land adjacent to the river at the point of controversy. That question, should it arise, can be adjudicated in Wasco County.
The decree of the lower court, as to each of the defendants, will be reversed and the suit dismissed. Neither party will recover costs in either court.
Reversed. Suit Dismissed.
Rehearing
On Petition for Rehearing.
(189 Pac. 636.)
Mr. James G. Wilson, Mr. George B. Gidhrie and Mr. E. F. Bernard, for the petition. ’
Mr. H. S. Wilson, Mr. A. 8. Bennett, Mr. J. O. ' Bailey, Assistant Attorney General, and Mr, George M. Brown, Attorney General, contra.
Department 2.
Counsel for plaintiff have filed a petition for rehearing in this case, and, while we do not see our way clear to change our former opinion (reported in 188 Pac. 165) in regard to applications for fishing licenses, ive wish to add to our memorandum that after the controversy arose between plaintiff and Seufert Brothers Company in 1914, in regard to fishing at the point in question and the same conflict existed in 1915, the board of fish and game commissioners gave Williams notice and proceeded to The Dalles, Oregon, for the purpose of investigating the respective rights and examining the location of the fish-wheel. They appointed a time for a hearing of the parties. It would not be expected that a record would be made as completely as would be in a court proceeding; but from the letters of the master fish warden and rulings of the fish and game commission we think it is clear that after such investigation and hearing, in the judgment of the fish and game commission, the rights of Seufert Brothers Company to fish at the point designated were superior to those of plaintiff. This
The circumstances as detailed in our former opinion, and as shown by the record, were such that it was peculiarly a question for the fish and game commission to exercise its judgment and to determine. They apparently found upon viewing the premises, adjacent to the place where applications were made to fish with a scow fish-wheel, that the company was in peaceful possession of ’the shore or bank, claiming to be the owner thereof; and that the scow fish-wheel could not well be operated without using the shore. The commissioners believed that plaintiff Williams did not have a prior right of fishing at the point in question, but offered to grant - a license to him identical with the one issued to him in 1914. They evidently decided that Williams by moving his scow fish-wheel and fishing at different places could not obtain a priority at all of such places.
The testimony in the case does not warrant a court in setting aside the decision of the fish and game commission. As stated by Mr. Justice Johns in Holmes v. Olcott, ante, p. 33 (189 Pac. 202), in which an opinion was rendered April 13, 1920:
“It was the evident purpose and intent of the legislature to invest the commission with a discretionary power for the protection and propagation of game within the state. * * ”
To reverse the rulings of the fish and game commission .where the facts and circumstances of the case warrant the action taken by that tribunal, would be to practically deprive it of any authority in the administration of the laws relating to the fishing industry.
Affirmed. Suit Dismissed. Rehearing Denied.
